Samuel Hall v The Trustee for the Bananablue Unit Trust T/A “bananablue.com.au”
[2021] FWC 5508
•30 SEPTEMBER 2021
| [2021] FWC 5508 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Samuel Hall
v
The Trustee for THE BANANABLUE UNIT TRUST T/A “bananablue.com.au”
(U2021/6013)
COMMISSIONER PLATT | ADELAIDE, 30 SEPTEMBER 2021 |
Application for an unfair dismissal remedy jurisdictional objection – whether the applicant was an employee or contractor – applicant was not an employee and thus not protected from unfair dismissal – application dismissed.
[1] On 9 July 2021, Mr Samuel Hall (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed by The Trustee for THE BANANABLUE UNIT TRUST T/A “bananablue.com.au” (Bananablue or the Respondent).
[2] On 23 July 2021, the Respondent filed a Form F3 Employer Response and raised a jurisdictional objection that the Applicant was not an employee of the Respondent and thus was not protected from unfair dismissal.
[3] On 2 August 2021, the matter was allocated to me and on 4 August 2021, a Conference was held, and directions were issued for the filing of material in relation to the jurisdictional issue only.
[4] Upon review of the materials filed, on 26 August 2021, I convened a case management conference to discuss the material that had been filed by both parties, and to invite further materials which addressed the issues that I am required to consider when assessing the application.
[5] Mr Hall requested that I summons two persons whom he stated would provide relevant evidence on the jurisdictional issue. I issued summons for Mr Michael Lynch and Mr Richard Cocks.
Representation
[6] The Respondent sought to be represented before the Commission by a lawyer. The Applicant was unrepresented.
[7] Section 596(1) of the Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
[8] On the question of representation, the Respondent submitted that the matter was sufficiently complex and that it would be more efficient if the Respondent was represented.
[9] The Applicant did not object and encouraged the representation of the Respondent.
[10] I determined to exercise my discretion to grant permission for the Respondent to be represented and to conduct the Hearing by way of determinative conference, partly in order to ameliorate the impact of the Applicant being unrepresented.
[11] A determinative conference was held, in person, on 1 September 2021. The Applicant represented himself, and the Respondent was represented by Ms Kirsty Stewart (of counsel).
[12] With respect to the issuance of the witness summons, Mr Lynch attended the Hearing and Mr Cocks did not, having corresponded with my Chambers asking to be excused. After hearing the evidence of Mr Lynch and Mr Hall, I determined that it was unlikely that Mr Cocks would add any further information that would be relevant to the jurisdictional objection and I determined to release Mr Cocks from his obligation to attend.
When is a person protected from unfair dismissal?
[13] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[14] The relevant jurisdictional issue to be determined in this matter is whether the Applicant was an employee of the Respondent.
Evidence
[15] Mr Hall submitted the following material:
• Form F2 and annexures.
• Outline of Submissions with annexures (which I have received as a statement). 1
• Statutory Declaration of Ms Lilian Ling dated 18 August 2021. 2
• Statutory Declaration of Ms Lilian Ling dated 31 August 2021. 3
• Submissions in Reply with annexures. 4
[16] The material filed by the Applicant contained a significant amount of material that was not relevant to the jurisdictional issue, and/or hearsay and opinion evidence. At the outset of the Hearing, I advised the parties that in light of the Applicant not being represented, I would receive all of the material submitted but ignore the irrelevant material and place appropriate weight on matters of hearsay and opinion evidence.
[17] The Respondent submitted the following material:
• Witness Statement of Ms Rajini Vasan dated 18 August 2021. 5
• Second Witness Statement of Ms Rajini Vasan dated 25 August 2021. 6
• Third Witness Statement of Ms Rajini Vasan dated 30 August 2021. 7
• Fourth Witness Statement of Ms Rajini Vasan dated 1 September 2021. 8
• Outline of Submissions. 9
• Submissions in Reply. 10
[18] Mr Hall requested that Mr Lynch be summonsed to give evidence. No statement was submitted. Mr Lynch provided the following evidence:
• Mr Lynch provided delivery services to Bananablue as a contractor. He provides invoices as a sole trader with an ABN.
• Mr Lynch first became engaged with Bananablue after responding to an online advertisement for delivery drivers.
• Mr Lynch generally worked between 10.30am and 4.00pm.
• Mr Lynch was issued with a T-shirt branded with a company logo but did not always wear it.
• Mr Lynch attended a meeting where a question was asked about when signs for the delivery drivers’ vehicles would be provided.
[19] Ms Ling’s first statement was very brief and in the first paragraph she adopted “all statements and testimony by Samuel Hall”, despite no testimony having been given at the time the statement was made. This issue was raised with Mr Hall at the case management conference on the 26 August 2021, where I requested that Ms Ling provide a second statement which detailed her knowledge in respect of the facts that underpinned the jurisdictional issue. The balance of Ms Ling’s first statement contended that she performed all work and shifts with Mr Hall and was a witness for all interactions with Commercial Retail Group (CRG) management including phone calls and emails.
[20] The second statement submitted by Ms Ling was considerably more detailed.
[21] Ms Ling identified that Mr Hall made application to CRG/Bananablue via Seek Job Australia for the position of delivery driver, and that he was told by Ms Helen Davis (Previous Manager – Online Shopping at Bananablue) that he would need to acquire a van that was approved. On 24 March 2020, Ms Ling and Mr Hall test drove a van and sent the details of the proposed van to Ms Davis for approval. Ms Davis advised that if the contract was signed and the terms agreed they could start work the next day. Mr Hall commenced working the following day. Ms Ling’s statement detailed verbatim a number of conversations that were had between 25 March and 8 June 2021. The Respondent cross-examined Ms Ling about her recollection of those conversations and the material she relied upon to prepare her statement. Ms Ling could not recall the conversations to the same detail as contained in her statement. After the Hearing had concluded, Mr Hall corresponded with my Chambers on a number of issues and complained of this cross-examination. Putting aside the appropriateness of Mr Hall’s correspondence (and recognising he is unrepresented), the cross-examination of Ms Ling was in my view both measured and relevant. When I compare and contrast the manner in which Ms Ling gave her evidence with the drafting of both of her statements, it appears to me that the statements were not drafted by Ms Ling, and it raises concerns about the accuracy of the Ms Ling’s contention that she held the knowledge of the matters contained in her statement (as opposed to Mr Hall). Despite my reservations about the preparation of the statement, I have determined to accept this evidence as evidence from Mr Hall and/or Ms Ling in so far as it is relevant to the jurisdictional issue.
[22] Having reviewed and considered the evidence before me, in respect of most facts the evidence is largely uncontroversial. The disputation arises as to the application of the law to those facts. Mr Hall contends that he was an employee, whilst Bananablue contends that Mr Hall was engaged as a contractor.
Findings of Fact
[23] Having considered the evidence, I make the findings as outlined below.
[24] Bananablue provides online shopping and delivery services for Foodland Supermarkets in South Australia, Western Australian and Queensland. In South Australia, the Frewville, Pasadena, and Munno Parra Foodland Supermarkets are serviced.
[25] Customers place orders through a Bananablue website with a cut-off time of midnight for delivery on the following day. At about 6.00am, Bananablue determines its requirements for delivery services for the next day and drivers are currently advised as to their deliveries for the day at around 6.30-7.00am. Drivers have the ability to determine when they are available to perform work. Drivers are provided with a “Box Run Sheet” which shows the orders allocated, a “Targeted Delivery Sheet” which provides the most logical delivery route, a “Special Instructions Sheet” (which contains instructions specific to a customer) and a temperature check form (for fresh and frozen foods).
[26] Drivers are required to wear high visibility clothing when loading. Uniform and van signage is not required despite the formal written requirement which were not enforced.
[27] Bananablue collates the orders and arranges them into delivery runs taking into account the preferred delivery timeslots, locations, number of boxes per delivery and size of the Drivers’ vehicles. Drivers are provided with a delivery report which suggests the best way to complete the deliveries, but this is not binding on the Drivers. Bananablue provides the lists of orders to each store where the orders are picked and packed by Foodland staff. Drivers are required to submit an invoice for delivery services performed each week.
[28] Bananablue is an associated entity of CRG.
[29] Mr Hall responded to an advertisement on Seek Job Australia 11 which was published on 18 March 2020, and placed by CRG Retail Management Service Pty Ltd. The employment status was described as “Contract/Temp” and sought delivery drivers for supermarket orders from “Adelaide’s Finest Supermarkets” (Foodland Frewville & Pasadena). The advertisement advised that the Drivers must have a commercial van, a current police clearance and an ABN. Payment was per delivery and availability was Monday to Saturday 10.00am to 7.00pm.
[30] The document titled ‘Driver Details’, 12 submitted by Mr Hall, identifies as a party to the arrangement “Halling Family Legacy Pty Ltd, PO Box 1589, Littlehampton SA 5250, ABN 86 638 130 739” and provides an email address, banking details and an account in the name of “Halling Family Legacy Pty Ltd”. There was also a reference to “Bananablue.com.au” at PO Box 525, Fullarton 5063.
[31] I find that the parties to the agreement were the Respondent and Halling Family Legacy Pty Ltd, which was registered in South Australia on 18 December 2019. The directors of this company are Mr Samuel Hall and Ms Lilian Ling. 13
[32] Mr Hall gave evidence that Halling Family Legacy Pty Ltd was an investment vehicle and was created prior to the decision to engage with Bananablue.
[33] On 23 March 2020, Mr Hall emailed Ms Davis a link to a 2003 Toyota HiAce van which he proposed to purchase. 14 Later that day, Ms Davis asked how Mr Hall went with the purchase. It appears that the approval process by Bananablue was to ensure that the vehicle was fit for purpose. No mechanical inspection was conducted. Mr Hall purchased the van and was responsible for the provision of repairs, maintenance and fuel.
[34] On 24 March 2020, a ‘disclaimer’ 15 with respect to damage caused by the use of sack trucks to deliver goods into customer’s homes was signed by Mr Samuel Hall who was described as a ‘contract driver for bananablue’.
[35] Mr Hall was provided with a document titled ‘New Driver Information’. 16 The document provided the following instructions to Drivers:
• Drivers are to telephone at 9.00am each day or on designated days to be advised of the runs for the day.
• Drivers are to advise ‘the office’ what time they left the store.
• The Team Leader at the store would provide the paperwork to the Driver. The Box Count should be checked against this paperwork. Delivery instructions should be read carefully.
• Drivers are to deliver the orders in the order that has been set out on the paperwork.
• Drivers are to stick within the targeted time, and in the event of a variance of more than 20 minutes, advise Bananablue so that the customer can be advised.
• The customer is to sign to state the order received, or alternatively the Driver is to sign in their absence.
• Drivers are to collect empty boxes from customers if there is room in the truck.
• Drivers are to return paperwork to the Team Leader next time they are in the store.
• Details of ‘drop rates’ were provided.
• Drivers are required to carry a mobile phone in case Bananablue need to contact them.
• Drivers are to ensure tax invoices are emailed to Bananablue by 9.00am each Monday morning.
• Drivers are to be courteous, polite and respectful to customers and store staff.
• The van must be kept clean and tidy inside and out.
• The van magnets (signs) must be displayed when delivering orders (this requirement was not enforced).
• Drivers must be in uniform, and neat and tidy when delivering orders (this requirement was also not enforced).
• Drivers are not to smoke in the van.
[36] Mr Hall stated that at the commencement of the relationship with Bananablue, he intended for the relationship to be a contractor relationship.
[37] In a communication sent to ‘New Drivers’ from Ms Davis, 17 it was noted that Drivers were required to email an invoice for the previous week’s deliveries by 9.00am each Monday.
[38] Mr Hall and Ms Ling commenced the provision of delivery services on 25 March 2020.
[39] On 27 March 2020, Mr Hall emailed Ms Davis 18 and expressed a preference to deliver goods from the Frewville Store, as well as his proposed timing of runs. Mr Hall advised that he and Lillian were “quite enjoying this”.
[40] On 29 March 2020, Mr Hall submitted his first tax invoice via the Halling Family Legacy Pty Ltd.
[41] There was a dispute between Mr Hall and Bananablue over the inclusion of GST in his company’s invoices. The dispute was ultimately resolved in Mr Hall’s favour and adjustments were made by Bananablue. This dispute is not determinative in this matter.
[42] On 3 April 2020, Mr Hall asked Ms Davis when he would receive both a magnet (sign) for his van and a uniform, as the customers did not know who was going into their homes and were complaining. Ms Davis advised they would be provided once each party was comfortable with the delivery arrangement.
[43] In April 2020, Mr Hall and Ms Ling had discussions with Bananablue about the timing of delivery runs and asked if the time between the two runs could be reduced. Mr Hall was advised that the scheduling was done by an external scheduler and could not be changed. At the Hearing, I was advised that customers were given delivery windows and if these could not be met, Drivers were to advise Bananablue so the customer could be informed of the change.
[44] In late April 2020, Mr Hall asked Bananablue about how he could be compensated for the time taken to stack and restack pallets in the packing area.
[45] In May 2020, an unnamed shift supervisor at Foodland Pasadena asked Mr Hall where the sign for his van was.
[46] In June 2020, Mr Hall had a discussion with Bananablue about compensation for particular long distance and night runs (rural drops).
[47] In late July 2020, Mr Hall was tasked to drop goods off to a difficult customer. Mr Hall was unable to deliver the goods and then received a telephone call notifying him that the customer had complained about the goods not being delivered. Ms Davis told Mr Hall to deliver the goods to that customer.
[48] In August 2020, Mr Hall had a discussion with Bananablue about the collection of empty boxes.
[49] In August 2020, Mr Hall and Ms Ling had reduced their runs to one per day. They then sought to increase it to two runs per day, and after some debate it was agreed to lock in two runs per day on Monday and Tuesdays.
[50] On 20 September 2020, Mr Hall advised Bananablue that as a result of the inability to contact the “after hours contact”, he was withdrawing their availability to perform weekend shifts. The issue was subsequently resolved, and Mr Hall and Ms Ling reinstated their weekend availability.
[51] In mid-January 2021, Mr Hall asked Bananablue why he had not been provided with a uniform.
[52] In January 2021, Ms Rajini Vasan commenced employment with CRG in the role of Bananablue Group Manager – Online Shopping.
[53] On 11 February 2021, Ms Vasan invited the Drivers to a group Drivers meeting.
[54] On 19 February 2021, Bananablue asked Mr Hall for his shirt size for a uniform order.
[55] In May 2021, Ms Vasan was advised that Mr Hall and Ms Ling had limited availability to work on Monday and Tuesday and needed to finish their deliveries by 3.00pm to attend other work.
[56] On 18 June 2021, Bananablue terminated its arrangement with the Halling Family Legacy Pty Ltd.
[57] Through his statement, Mr Hall advised that as a delivery driver, he was not particularly skilled or a tradesperson.
[58] Mr Hall contended that in some cases the amounts received under the Bananablue contract are less that would have applied under an employment arrangement.
[59] I was provided with 59 tax invoices issued by the Halling Family Legacy Pty Ltd between 29 March 2020 and 20 June 2021 to Bananablue. 19 The invoices related to delivery services for the Frewville and Pasadena stores. The invoices detail a number of drops and then calculates the amount payable based on those drops. The invoices were not based on the amount of time taken to perform the services.
[60] Mr Hall gave evidence that he sought the provision of uniforms and vehicle signage so as to identify himself and Ms Ling when undertaking deliveries. I note that no signage is apparent in the various photographs of Mr Hall’s vehicle submitted.
[61] Mr Hall contended that his contract did not permit delegation or subcontracting and that only nominated persons were allowed by Bananablue to enter into customers’ premises. It appears from the evidence that Ms Ling worked with Mr Hall in collecting and delivering items. There are no express terms concerning delegation or sub-contracting in the written material before me.
[62] Mr Hall contended that Bananablue did not deduct PAYG or accrue leave. This is not in dispute.
[63] Mr Hall contends that goodwill was created for Bananablue but not his company.
[64] Mr Hall contended (and I accept) that a significant portion of revenue earnt was required to meet business expenses.
[65] Ms Ling advised that she received payment from Halling Family Legacy Pty Ltd as a result of her involvement in the provision of the delivery services.
[66] Mr Hall contended that Bananablue had control over all tasks and directions, including delivery rostering, his inability to refuse any job, the requirement to comply with customer service instructions, the requirement to carry a charged mobile phone, and the requirement to collect empty boxes.
[67] As mentioned earlier, Mr Hall corresponded with my Chambers after the conclusion of the Hearing at which I had reserved my Decision. Mr Hall referred me to the material annexed to his Form F2 application. It appears that this material was available to Mr Hall to examine witnesses upon (noting that he was appraised of the rule in Browne v Dunn during the Hearing). I confirm that the material that accompanied the application was before me however much of the information is not related nor relevant to the jurisdictional objection. I have considered the relevant portions of the material in reaching my conclusions.
The Law
[68] The most recent Full Bench authority on this issue is found in Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats 20. In that matter, the Full Bench made their determination on the Applicant’s employment status decision primarily on the basis of three authorities.
[69] Firstly, Stevens v Brodribb Sawmilling Co Pty Ltd 21 establishes the importance of a multi-factorial test to establish the nature of the relationship and that control, whilst significant, is not the sole criterion. Other relevant matters include the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, provision for holidays, the deduction of income tax and the delegation of work by the putative employee.
[70] Secondly, Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario 22 provides a summary of the considerations which may be relevant in the application of the multi-factorial test:
• Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place of work, hours of work and the like.
• Whether the worker performs work for others (or has a genuine and practical entitlement to do so).
• Whether the worker has a separate place of work and/or advertises his or her services to the world at large.
• Whether the worker provides and maintains significant tools or equipment.
• Whether the work can be delegated or subcontracted.
• Whether the putative employer has the right to suspend or dismiss the person engaged.
• Whether the putative employer presents the worker to the world at large as an emanation of the business.
• Whether income tax is deducted from remuneration paid to the worker.
• Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.
• Whether the worker is provided with paid holidays or sick leave.
• Whether the work involves a profession, trade or distinct calling on the part of the person engaged.
• Whether the worker creates goodwill or saleable assets in the course of his or her work.
• Whether the worker spends a significant portion of his remuneration on business expenses.
[71] Finally, in Roy Morgan Research Centre P/L v The Commissioner of State Revenue 23, the Court determined that the exercise of determining whether a person is an employee or a contractor is not a “mechanical one”, but:
“… is a matter of obtaining the overall picture from the accumulation of detail…and involves an assessment and evaluation of evidence for the purpose of identification and isolating factors or indicia which are capable of pointing in one direction or the other, and then weighing or balancing those factors in accordance with established principles, none of which is conclusive, in order to reach a conclusion.”
[72] The following table contained in the Commission’s Unfair Dismissal Benchbook is adapted from the summary of indicia originally provided in Abdalla v Viewdaze Pty Ltd t/a Malta Travel 24 and updated in Jiang Shen Cai trading as French Accent v Do Rozario:25
To be generally considered an employee | To be generally considered an independent contractor |
Employer exercises, or has the right to exercise, control over the manner in which work is performed, the location and the hours of work etc. | Worker controls how work is performed |
Employee works solely for the employer. * | Worker performs work for others or is genuinely entitled to do so. |
Employer advertises the goods or services of its business. | Worker has a separate place of work and or advertises his or her services to the world at large. |
Employer provides and maintains significant tools or equipment. | Workers provides and maintains significant tools or equipment. |
Employer can determine what work can be delegated or sub-contracted out and to whom. | Worker can delegate or sub-contract any work to other persons to complete. |
Employer has the right to suspend or dismiss the worker. | Contract may be terminated for breach. |
Employer provides a uniform or business cards. | Worker wears their own uniform or other clothing of their choice. Worker has own business cards. |
Employer deducts income tax from remuneration paid. | Worker responsible for own tax affairs. |
Employer paid by periodic wage or salary. | Worker produces invoices after the completion of tasks. |
Employer provides paid holiday or sick leave to employees. | Worker does not receive paid holidays or sick leave. |
The work does not involve a profession, trade or distinct calling on the part of the employee. | The work involves a profession, trade or distinct calling on the part of the worker. |
The work of the employee creates goodwill or saleable assets for the employer’s business. | The worker creates goodwill or saleable assets for their own business. |
The employee does not spend a significant portion of their pay on business expenses. | The worker spends a significant portion of their remuneration on business expenses. |
*Generally referring to full-time employment – some employees may choose to work additional jobs.
[73] In this matter, Bananablue issued a number of directions throughout its relationship with Mr Hall in respect of the performance of work. Mr Hall contends that these are examples of control.
[74] It is necessary for me to consider whether the requirements of Drivers contained in the “New Driver information” and given in evidence (for example to deliver goods at certain times, or to collect empty boxes) is inherent in the role of a delivery driver and therefore the weight that should be placed on those requirements in terms of the “control” exercised by Bananablue.
[75] In Queensland Stations Pty Lt v Commissioner of Taxation, 26 Dixon J stated:
“….in considering the facts it is a mistake to treat as decisive a reservation of control over the manner in which the droving is performed and the cattle are handled. For instance, in the present case the circumstance that the drover agrees to obey and carry out all lawful instructions cannot outweigh the countervailing considerations which are found in the employment by him of servants of his own, the provision of horses, equipment, plant, rations, and a remuneration at a rate per head delivered… a reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.”
[76] In Jensen v Cultural Infusion (Int) Pty Ltd, 27 which concerned actors who were hired as “contractors” to work in a theatrical production, it was held that:
“The indicium of a principal or employer’s control over an independent contractor or employee is not an absolute measure. There are degrees of control, and control can manifest in various ways, and may take on different complexions…the weight to be placed on the indicium of control must be attenuated in circumstances where control, in the sense of strict adherence to a prescribed manner of work, is inherent in the nature of the work.”
[77] Further, in Jensen 28 Wheelahan J observed:
“They were performing together in a theatrical production. They could hardly choose their own times at which to commence work. Actors in scripted performances are, as a general rule, required to stick to the script. That will be true whether those actors are independent contractors or employees, on the basis of the overall multi-factorial assessment.”
[78] A reasonable direction from the principal will not outweigh the other indicia if those indicia point to an independent contractor relationship.
[79] In my view the facts determined above, when considered against the indicia for an employment versus a contractor relationship, may be apportioned as in the table below.
Indicators of an employment relationship | Indicators of a Contractor relationship | Comments |
The “contract” was between a company of which Mr Hall and Ms Ling were directors and had other income sources. | This is a strong indicator. | |
At the time of engagement Mr Hall intended the relationship to be one of principal and contractor. | This is a strong indicator. | |
Mr Hall supplied and maintained his own vehicle. | This is a strong indicator. | |
The company issued tax invoices to Bananablue which were based on tasks performed as opposed to hours worked. | This is a strong indicator. | |
Ms Davis (on behalf of Bananablue) approved the van which was purchased. | This approval appears to relate to the vehicle being fit for purpose. | |
Mr Hall appears to have spent a significant portion of the income received on business expenses. | ||
The “contract” required Drivers to wear uniforms and exhibit signage. | This provision was not enforced, and it was Mr Hall that sought these items so as to identify to customers who was entering upon their premises to deliver goods. | |
Drivers were given directions as contained in the ‘New Driver information’ document and provided with suggested routes and required to advise Bananablue if a time slot would be missed. | This is an inherent requirement of the role of a delivery driver and the weight of the control is accordingly reduced. | |
Mr Hall was able to change his working hours and negotiate as to how many runs were undertaken. | ||
Ms Ling assisted Mr Hall complete the work and was paid by the Halling Family Legacy Pty Ltd. | This is a strong indicator. | |
Mr Hall indicated a desire to source work from other than Bananablue, and was not prevented from doing so by Bananablue | ||
No deductions for taxation were made from amounts paid to Mr Hall’s company. | ||
No goodwill was created for Mr Hall’s company by the performance of the work. | ||
The work performed by Mr Hall did not involve a profession, trade or distinct calling. |
[80] In my view, the bulk of the instructions given to Mr Hall, as the Driver, fall within the type of instruction described in Queensland Stations Pty Lt v Commissioner of Taxation, in that they are inherent in the requirements of the role, and do not constitute a form of “control” which should weigh heavily in favour of a finding of an employment relationship.
[81] The fact that Mr Hall may have struck a poor bargain with Bananablue does not change the characterisation of the arrangement.
Conclusion
[82] Considering the facts in light of the law, I have concluded on balance that Mr Hall’s relationship with the Respondent was as a contractor and not as an employee. I am not persuaded that Mr Hall’s engagement changed during the period between March 2020 and the cessation of the arrangement.
[83] As Mr Hall is not an employee, he is not protected from unfair dismissal pursuant to s.382 of the Act and accordingly his s.394 application must fail. An Order 29 dismissing the application will be issued concurrently with this Decision.
COMMISSIONER
Appearances:
Mr Hall, the Applicant.
Ms Stewart for the Respondent.
Hearing details:
2021.
Adelaide:
September 1.
Printed by authority of the Commonwealth Government Printer
<PR733538>
1 Exhibit A1
2 Exhibit R8
3 Exhibit A2
4 Exhibit A3
5 Exhibit R3
6 Exhibit R5
7 Exhibit R6
8 Exhibit R7
9 Exhibit R1
10 Exhibit R4
11 Page 16 of the Court Book.
12 Page 10 of the Court Book.
13 Pages 55-57 of the Court Book.
14 Page 119 of the Court Book.
15 Page 13 of the Court Book.
16 Pages 14,15 of the Court Book.
17 Page 11 of the Court Book.
18 Page 126 of the Court Book.
19 Pages 58-116 of the Court Book.
20 [2020] FWCFB 1698.
21 [1986] HCA 1, 160 CLR 16.
22 [2011] FWAFB 8307.
23 [1997] VicSC 515, 37 ATR.
24 Abdalla v Viewdaze Pty Ltd t/a Malta Travel PR927971 (AIRCFB, Lawler VP, Hamilton DP, Bacon C, 14 May 2003) at para. 34, [(2003) 122 IR 215].
25 Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFB 8307 (Lawler VP, O’Callaghan SDP, McKenna C, 2 December 2011) at para. 30, [(2011) 215 IR 235].
26 (1945) 70 CLR 549, applied in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario[2011] FWAFB 8307.
27 [2020] FCA 358.
28 Ibid at105.
29 PR734437
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