Simon Njenga v C & R Holding

[2020] FWC 6097

[2020] FWC 6097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Njenga
v
C & R Holding
(U2020/6322)

COMMISSIONER WILLIAMS PERTH, 13 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Mr Simon Njenga (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is C & R Holding.

[2] In this matter, the Respondent objects to the application on the grounds the Applicant was an independent contractor not an employee.

[3] At the hearing on 28 August 2020, both parties were self-represented with witnesses Mr Keith Tipping, Mr Shaun Clapp, Ms Kristel Maltese and Mr Andrea Maltese in attendance.

Jurisdiction - Consideration

[4] A person protected from unfair dismissal and able to make an unfair dismissal remedy application under the Act must be an employee.

[5] If there is no contract of employment, a person cannot be considered an employee. A contract does not have to be in writing. It may, for example, be completely oral, completely written or a combination of the two. There are several types of workers who do not have a contract of employment with an employer, and are therefore not considered to be employees, for example, independent contractors.

[6] In some cases, even though a person has agreed to be an independent contractor, that person may actually be an employee because the relationship is an employment relationship.

[7] An express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole, that is, the parties cannot deem the relationship between themselves to be something it is not.

[8] Courts must look to the ‘real substance of the relationship in question’. 1

[9] To help determine whether a person is an employee or an independent contractor, there are a series of factors, referred to as ‘indicia’, which generally help decide what a person is.

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

[11] Having considered the evidence of the witnesses, I find the following.

•  The Respondent exercised, or had the right to exercise, control over the manner in which work is performed, the location and the hours of work etc.

•  The Applicant worked solely for the employer.

•  The Respondent provided and maintained significant tools or equipment.

•  The Respondent determined what work can be delegated or sub-contracted out and to whom.

•  The Respondent had the right to suspend or dismiss the Applicant.

•  The Respondent paid the Applicant a periodic wage.

•  The work, as a bricklayer’s labourer, does not involve a profession, trade or distinct calling on the part of the Applicant.

[12] These facts support the conclusion the Applicant was an employee of the Respondent.

[13] I also find that the Applicant had an ABN and was responsible for his own tax affairs.

[14] This fact supports the conclusion the Applicant was an independent contractor.

[15] Finally, I also find that the Applicant did not receive paid holidays or sick leave nor was he paid for periods the Applicant did not work because there was not work available.

[16] These facts are both neutral and may be indicative of the Applicant being a casual employee or alternatively an independent contractor.

[17] Considering all these indicia together, I find that the Applicant was an employee of the Respondent.

[18] Consequently, the Respondent’s jurisdictional objection is dismissed.

Merit – Consideration

[19] I will now consider the merit of the application.

[20] The Respondent asserts and it is not contested that the Respondent is a small business. 2 The Respondent’s workforce comprised only the Applicant and one other person.

[21] Having considered the evidence of the witnesses I find the following.

[22] The Applicant commenced employment with the Respondent in March 2018.

[23] The Applicant was employed as a bricklayers’ labourer on building construction work.

[24] The Applicant was employed regularly on a full-time basis but was not employed in periods when the Respondent had no work.

[25] The Applicant’s evidence regarding his dismissal was that on Saturday, 2 May 2020 he was working on a job in Mount Lawley. Mr Maltese, the employer, asked Mr Njenga if he could work the following day, Sunday. The Applicant says he declined to do so because of family commitments.

[26] At 4:30 pm on the Saturday, Mr Maltese requested Mr Njenga finish up moving concrete blocks that were on the property verge to the backyard of the property to assist with work to be done the following day. 3

[27] Mr Njenga says he did not refuse to move the blocks. 4

[28] He says that all hell then broke loose, Mr Maltese fired him and told him to go home and never come back to work again.

[29] Mr Njenga says that on the Saturday he was exhausted from the work of the week.

[30] He says the Respondent overlooked all of that and expected him to work the next day, the Sunday, and then report for work the following week without a rest.

[31] The evidence of Mr Maltese was that the Applicant had received numerous verbal warnings during his employment, regarding his performance, poor attitude, damage to work equipment and a number of conflicts he had with other persons on site.

[32] The evidence which I accept is that these were contemporaneously recorded by Mr Maltese in his daily work diary. 5

[33] Mr Maltese says the Applicant was advised on a number of occasions that if his performance and behaviour did not improve, he was at risk of dismissal.

[34] Mr Maltese explained that he kept the Applicant on because he did at least turn up regularly every day.

[35] He says unfortunately the Applicant’s poor performance, damage to equipment 6 and conflicts with tradespeople on site, built up to a point where it was no longer acceptable. He says the Applicant would not take feedback on board and would become defensive and angry and he created conflict and tension on the site with other trades and bricklayers.

[36] On the day of his dismissal on 2 May 2020, Mr Maltese says the Applicant was complaining what time it was as he had asked him to move some concrete blocks. He says the Applicant refused to move the concrete blocks and became aggravated with him as had happened many times before.

[37] Mr Maltese said he then told the Applicant he was sick of his attitude and told him not to come back to site.

[38] Mr Maltese denies at any time on the day of dismissal that the Applicant said he was exhausted from his work during the week. I accept his evidence on this point.

[39] The evidence of Mr Clapp, who was a bricklayer employed by the Respondent, was that he started working with the Respondent in March 2020. 7

[40] He says that from the first day, he had complaints about the quality of the mud the Applicant was preparing. Mud needs to be of top-quality from the labourer otherwise it stops brickwork production.

[41] Mr Clapp says he confronted the Applicant about the quality of his mud and showed him where he was going too low in the sand pile to where there were rocks. Mr Clapp says the Applicant was rude and abrupt and disregarded what he, as a bricklayer, had had to say about his mud.

[42] The Applicant also got into an argument with another tradesman’s labourer, a plasterer, on a site when they were sharing the same sand pile. Mr Clapp says after the argument the Applicant came up to him and said he wanted to “bash and kill that motherfucker” and he seemed very angry. 8

[43] Mr Clapp told Mr Maltese about this altercation. 9

[44] Mr Clapp says that on numerous occasions he heard Mr Maltese verbally warning the Applicant about the poor quality of his mud and not performing and accomplishing tasks required of a labourer. After these verbal warnings, the Applicant would rudely and abruptly tell Mr Maltese “I’ve fucking been doing this for 20+ years, stop telling me how to do my job”.

[45] On the Saturday, Mr Maltese dismissed the Applicant. Mr Clapp says the Applicant was asked repeatedly to do a specific task before the end of the day which he did not do. He says Mr Maltese and himself were required to work the next day, the Sunday, to complete the task which the Applicant had refused to do, moving the concrete blocks from the verge to the rear of the site.

[46] Mr Clapp says that on Saturday, which was the last day on site, the Applicant was told numerous times to stop swearing, which was another ongoing issue, which he ignored and kept swearing.

[47] On this day, the first mud mix the Applicant prepared needed to be spot-on because they were doing face brickwork, but it came out like soup and the next mud mix came out sandy. These inconsistencies in the Applicant’s mud showed two different colours in the face brickwork which was not acceptable.

[48] Whilst the Applicant did cross examine both Mr Maltese and Mr Clapp, their evidence remained consistent with their witness statements.

[49] The evidence of both Mr Maltese and Mr Clapp, which I accept, is that on the Saturday 2 May 2020, the Applicant was told by Mr Maltese to move some concrete blocks from the verge to the rear of the site but the Applicant refused to do so. In fact, Mr Maltese and Mr Clapp had to do this the following day, Sunday.

The legislation

[50] Section 387 of the Act prescribes a range of matters that the Commission is required to take into account when deciding whether an employee’s dismissal is harsh, unjust or unreasonable.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Valid reason

[51] I am satisfied there was a valid reason for the Applicant’s dismissal which was his refusal on Saturday 2 May 2020 to move the concrete blocks as directed by his employer Mr Maltese. From the employer’s perspective, this was the straw that ‘broke the camel’s back” in terms of the employment relationship.

Whether the person was notified of the reason

[52] I am satisfied that Mr Njenga on Saturday 2 May 2020 understood that it is was his refusal to move the concrete blocks as directed by Mr Maltese that was the reason for his dismissal.

Opportunity to respond

[53] It is apparent the dismissal occurred on site in circumstances where there was no real discussion about the dismissal and so there was no real opportunity for Mr Njenga to respond to the reason he was to be dismissed before the dismissal occurred.

Refusal to allow a support person to be present

[54] There was no refusal to allow the Applicant a support person.

Warnings about unsatisfactory performance

[55] I accept the evidence of Mr Maltese that on a number of prior occasions he had warned the Applicant about his performance and his conduct and told him that he was at risk of dismissal.

The size of the employer’s enterprise

[56] The employer is a very small enterprise which to a large degree negatively impacted the procedure followed in effecting the Applicant’s dismissal.

The absence of a dedicated human resource management specialists or expertise

[57] The employer has no human resource management specialists nor expertise and I have no doubt this negatively impacted on the procedures followed in effecting the dismissal to a large degree.

Other matters

[58] The Applicant had been employed for approximately two years and two months at the time of his dismissal.

Conclusion

[59] The evidence is that the Applicant at times in the past had performed his job poorly and was entirely resistant to any criticism from his employer or other tradesman on the sites where he worked. When problems were raised with him, in response, he commonly became aggressive.

[60] The Applicant’s employer had told him on previous occasions that because of his, at times, poor performance and his bad conduct, he was at risk of dismissal.

[61] With this context, on the final day of his employment the Applicant refused a reasonable direction from his employer to do work which was entirely within his scope as a bricklayer’s labourer, namely transferring concrete blocks from the verge to the rear of the site. The evidence is he refused to follow this direction and became aggravated with his employer.

[62] The Applicant had not heeded the employer’s previous warnings that his job was at risk.

[63] Whilst the procedure followed by the Respondent was not ideal, i.e, not notifying the Applicant of the reason for his possible dismissal before it occurred and not giving him an opportunity to respond before he was dismissed, these shortcomings were a consequence of the employer being a very small enterprise and an enterprise without any human resource management specialist or expertise.

[64] This is not a case in my view where the procedural deficiencies were critical. There is no basis on which to conclude that a gold standard procedure would have changed the outcome in this particular case.

[65] Given the history of difficulties with the Applicant, it is unsurprising the employer decided that he had had enough and dismissed the Applicant when he did on 2 May 2020.

[66] Considering all of the circumstances and all of the factors in section 387 of the Act, I am not satisfied that the dismissal of Mr Njenga was harsh, unjust or unreasonable. Mr Njenga was not unfairly dismissed.

[67] The application will be dismissed and an order to that effect will be issued.

Appearances:

S. Njenga on his own behalf.
A. Maltese for the Respondent.

Hearing details:

2020.
Perth:
29 August.

Printed by authority of the Commonwealth Government Printer

<PR724526>

 1 On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 (13 April 2011) at paragraph 189

 2   See answer to question 1.7 on Respondent’s Form F3

 3   Exhibit A1

 4   Exhibit A2

 5   Exhibit R5, Transcript PN 119 and PN 120

 6   Transcript PN 123

 7   Exhibit R1 - the statement of Mr Clapp

 8   Transcript PN 65

 9   Transcript PN 71