Shaib Omar v Halal Help Pty Ltd

[2020] FWC 5934

[2020] FWC 5934

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shaib Omar
v
Halal Help Pty Ltd
(U2020/11823)

COMMISSIONER RIORDAN SYDNEY, 2 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] Mr Shaib Omar (the Applicant) claims that he was unfairly dismissed by Halal Help Pty Ltd (the Respondent) on 23 June 2020.

[2] The Applicant filed his unfair dismissal application (the Application) with the Fair Work Commission (the Commission) on 1 September 2020, outside of the 21-day statutory time limit. Following discussions, this objection was not pressed by the Respondent.

[3] The Respondent raised an additional jurisdictional objection to the Application, namely, that the Applicant was not an employee of the Respondent but a contractor.

[4] The parties agreed for the Commission to determine the jurisdictional objection on the papers.

[5] The Applicant represented himself in the proceedings. The Respondent was represented by its manager, Mr Mohamed Rahman.

Background

[6] The Respondent supplies Halal qualified personnel to various meat processing establishments, to ensure that relevant Halal standards and protocols of a number of different countries have been complied with during the slaughter process.

[7] The Applicant worked at the Thomas Foods International Meat Processing facility at Tamworth in NSW, from 6 June 2012 until 1 July 2020, as a skilled Meatworker – Muslim Slaughterer. The Applicant was the Supervisor of the Halal team.

Submissions

[8] The Applicant provided very little relevant material in relation to his application.

[9] The Respondent submitted that the Applicant was the Director of a company known as Naja Halal Pty Ltd (Naja Halal) which was engaged by the Respondent to fulfil 6 positions at Thomas Foods, namely Halal Supervisor, Halal Checker and Halal Blesser / Slaughterer, on both the day and afternoon shifts.

[10] The Respondent provided the contract that the Respondent entered into with Naja Halal for the provision of Halal Services. Relevantly, the Applicant signed the contract on 16 October 2018.

[11] The Applicant provided 2 contracts which showed that Naja Halal had further sub-contracted this work to other individuals with Naja Halal being the principal to the contracts.

[12] The Respondent provided text messages which showed that the Applicant had the right to hire and fire:

“I have not changed anyone and before we have agreed that I have full authority to go ahead as long the slaughterman (sic) has QV injection nd license no. Iwould (sic) like to request that those people that talk behind tell them that the omar (sic) is the owner of the business....”

[13] The Respondent also provided banking records which showed invoice payments for 6 separate individuals, where the money was transferred in bulk to Naja Halal.

Consideration

[14] I have taken into account all of the written submissions that were submitted by the parties. The fact that a matter does not appear in this decision does not mean that it has not been taken into account.

[15] The Respondent provided a number of relevant documents which showed that the Applicant held an ABN as a contractor as early as 2009. The most recent document is an extract from ASIC for Naja Halal which identifies the Applicant as the only shareholder.

[16] Identifying whether someone is an employee or a contractor can be a very difficult exercise. The Commission has previously developed ‘indicia’ to assist in determining whether someone is an employee or independent contractor.

[17] The following table is adapted from the summary of indicia originally provided in Abdalla v Viewdaze Pty Ltd t/a Malta Travel 1 and updated in Jiang Shen Cai trading as French Accent v Do Rozario2:

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.	Worker 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.
Employee is paid by periodic wage or salary.	Worker provides invoices after the completion of tasks.
Employer provides paid holidays 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.

[18] I note that the contract between the Respondent and Naja Halal states that Naja Halal is responsible for superannuation, public liability insurance, income protection, PAYG Tax, GST and any travel expenses of its employees. I have taken this into account.

[19] I note that Naja Halal also provided services at a meat establishment in Cooma, NSW. I have taken this into account.

[20] I also note that the Applicant was required to provide his own tools and that Naja Halal sub- contracted work to other individual contractors. I have taken this into account.

[21] On 1 July 2020, the Respondent wrote to Naja Halal, attention to the Applicant, terminating the contract between the Respondent and Naja Halal. The primary reason quoted for the termination was an approach by a representative of Naja Halal directly to the Respondent’s customer, Thomas Foods International for Naja Halal to provide its services directly to the Thomas Foods International. I have taken this into account.

Conclusion

[22] I am satisfied and find that the Applicant was not an employee of the Respondent but of Naja Halal.

[23] The Applicant was the sole Director of Naja Halal. The Applicant hired and fired sub-contractors on behalf of Naja Halal. I note that Naja Halal paid these sub-contractors at rates of pay that it determined.

[24] I am satisfied that there is evidence that Naja Halal attempted to ‘cut out’ the Respondent by approaching the Respondent’s customer directly to offer its Halal services.

[25] I find that these actions are not the actions of an employee but of a contractor.

[26] The jurisdictional objection of the Respondent is upheld.

[27] Consequently, the Application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Abdalla v Viewdaze Pty Ltd t/a Malta Travel (2003) 122 IR 215 (AIRCFB, Lawler VP, Hamilton DP, Bacon C, 14 May 2003) at para. 34.

 2   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.