Simon (Sang Moon) Han v Axia Office Pty. Limited

[2024] FWC 2189

[2024] FWC 2189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Simon (Sang Moon) Han
v

Axia Office Pty. Limited

(U2024/7753)

DEPUTY PRESIDENT ROBERTS SYDNEY, 16 AUGUST 2024

Application for an unfair dismissal remedy

1. On 5 July 2024 Mr. Simon (Sang Moon) Han (Applicant) filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Act). The respondent to the application was Axia Office Pty Ltd (Respondent). The Applicant alleged that he had been employed by the Respondent until his employment was terminated by them, unfairly, on 5 January 2024.

1. The Respondent raised two objections to the application. First, they said that the Applicant was not employed by them at any time but rather worked for another entity, Dodd Group Pty Ltd (Dodd Group), in a relationship of principal and independent contractor. The Respondent said that Dodd Group provided sales representative services to the Respondent’s printing and copying business pursuant to a contractual arrangement between those two companies. Those services were said to be provided by Dodd Group to the Respondent through persons including the Applicant. Accordingly, the Respondent said that as the Applicant was never employed by them, he had not been dismissed by them and no remedy for unfair dismissal was available against the Respondent. The second objection was that the application had been filed outside the 21-day limitation period prescribed by s.394(2)(a) of the Act and that there were no exceptional circumstances justifying an extension of that time period under s.394(2)(b).

1. On the face of the materials filed in support of the application it was apparent that the Applicant invoiced Dodd Group for the work that he performed and that he was paid by Dodd Group for that work over the period of what he described as his employment. This was not disputed by the Applicant at the hearing.

1. The Applicant also provided documentation to show that he had, in June 2024, sought legal advice about his interaction with both the Respondent and Dodd Group when it was alleged by those entities, through their lawyers, that the Applicant had breached both an obligation of confidence owed to the Respondent and a contractual term of a contract between himself and the Dodd Group, after his relationship with those companies had ended. The Applicant indicated that the present application was prompted by that advice and he was now acting on the basis of the advice he had received. The Applicant was self-represented at the hearing.

1. The Respondent was given permission to be legally represented without objection from the Applicant. That legal representative had also acted for the Dodd Group in the correspondence with the Applicant in June 2024 referred to above.

1. The Respondent’s lawyers had anticipated in their written submissions that an application might be made by the Applicant to amend the application to substitute Dodd Group for the Respondent. In circumstances where it was accepted that the Applicant was being paid for his work by the Dodd Group, the Applicant was asked at the hearing whether he wanted to amend his application under s.586 of the Act to make the Dodd Group the Respondent to the application. The Applicant declined to make that application. He maintained that he was employed at all times by the Respondent and reported to, and took directions from, the Respondent’s representative. The matter proceeded on that basis.

Was the Applicant an employee of the Respondent?

1. The Act protects certain employees from unfair dismissal. Section 382 provides, relevantly, that a person is protected from unfair dismissal at a time if, at that time the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period. The terms ‘employee’ and ‘employer’ are defined for the purpose of Part 3-2.[1] With an exception that is not presently relevant, a ‘national system employee’ is defined as an individual so far as he or she is employed, or usually employed, by a national system employer. Plainly, for a person to be protected from unfair dismissal under the Act, the person must have completed a certain period of employment, that is, a period as an employee, with an employer, in those respective capacities.[2] In the absence of a relationship of employer and employee, the provisions of Part 3-2 of the Act are not engaged.

1. The Applicant submitted that he was employed by the Respondent at all material times. He accepted that there was no written contract between himself and the Respondent but said he worked full time for the Respondent at their Sydney offices. He said they provided him with a desk, a computer, a company ‘log on’, a company email and a business card that identified him as “Account Manager at Axia Office”. He said that his work was controlled by Mr. Keen who is the director of the Respondent. He said Mr. Keen told him what he was supposed to do and what was required of him. He said he was required to report to Mr. Keen at a weekly meeting every Monday. He said his employment ended abruptly when the Respondent blocked access to his work portal.

1. The Respondent disputed that there was an employment relationship between themselves and the Applicant. Mr. Keen, the owner and managing director of the company gave evidence that there was no employment or contractual relationship between the Applicant and the Respondent. He said that since July 2010 the Dodd Group had been engaged by the Respondent on a contractual basis to market and sell the Respondent’s printing equipment and bundled managed print services. He said the Applicant was engaged by the Dodd Group but neither he nor the Respondent had any involvement in the engagement of the Applicant by the Dodd Group. He said the business card supplied by the Applicant was not provided to him by the Respondent and was different to the business cards of the Respondent, the latter of which he provided samples of. Mr. Keen said that weekly sales meetings were held with subcontractor sales personnel and the Applicant attended those meetings on occasions. He said the Respondent permitted subcontractor sales personnel to use desks in their office facilities if they wished to, but the Applicant had not done so since at least February 2023. Mr. Keen’s evidence was given by way of statutory declaration. He was not required by the Applicant for cross-examination and did not appear in person.

1. Mr. Dodd, a director of the Dodd Group, also gave evidence. He confirmed the contractual arrangement between the Respondent and Dodd Group. He said he was himself a contractor engaged by the Respondent. He said the Applicant was engaged by the Dodd Group from January 2017 to January 2024 as an independent contractor to sell the Respondent’s products and services. He said the Applicant invoiced the Dodd Group, including for GST. He said the Applicant was not paid a regular salary but was paid by Dodd Group on a commission only basis, based on sales figures. Mr. Dodd said those sales varied and by way of example said that the Applicant was paid for 12 sales in the period July to December 2022 and 4 sales in the period July to December 2023. He said the Applicant did not have a sales target. He said the Applicant did not request and was not paid for any leave, did not receive superannuation contributions and had no fixed hours, the hours of work being a matter for the Applicant to determine.

1. Mr. Dodd said that the Applicant had access to an online portal, network and sales platform set up by the Respondent to allow the Applicant to effect sales of the Respondent’s equipment. He also said that he provided the business card to the Applicant to enable him to effect sales for the Respondent. There was some documentary evidence provided relating to commission negotiations between the Applicant and Mr. Dodd by email. Those emails describe Mr. Dodd as “Account Manager” and have the Respondent’s details underneath the signature.

Consideration

1. The approach of the common law to the determination of whether someone is an employee or independent contractor was reconsidered in two High Court decisions in the matters of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[3] and ZG Operations Australia Pty Ltd v Jamsek[4]. The Court made it clear in those cases that the approach to that question must be undertaken by reference to the legal rights and obligations created by the contract between the parties. In the recent decision of the Full Court of the Federal Court of Australia in EFEX Group Pty Ltd v. Bennett[5] the Court considered a situation where, as here, the terms of an alleged employment relationship between the parties had not been reduced to writing. The plurality in that case said:

7. This case did not involve any written contract at all, much less a comprehensive written contract. It was a wholly oral contract, with sparse details of the agreement reached expressed in the lead up to its formation. In the absence of a written contract and no evidence of a particular conversation during which the contract was made, “evidence of the parties’ conduct must necessarily be considered in order to draw inferences as to whether the meeting of minds necessary to create a contract has occurred and what obligations they have thereby undertaken”: Personnel Contracting at [177] per Gordon J (Steward J agreeing), as summarised in Chiodo v Silk Contract Logistics [2023] FCA 1047 at [9].

8. As Kennett J explained in Chiodo at [8]–[9], where there is no written contract, the identification of the parties’ contractual rights “must proceed somewhat differently but the fundamental task is the same: the parties’ contractual rights and obligations are to be ascertained and characterised”; and the focus is on the ascertainment of the legal rights and obligations of the contracting parties, “rather than how they behaved in the performance of their contract”.

9. The terms of an oral contract may be able to be inferred from the circumstances, including in whole or in part from the parties’ conduct or a course of dealing between them, or implied where necessary for business efficacy: Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; 406 ALR 678 at [21]–[22] per Kiefel CJ and Gageler J.[6]

1. On the basis of the evidence before me I am not satisfied that there was a relationship of employer and employee between the Applicant and the Respondent. The Applicant’s evidence was that his work commenced in January 2017 when Mr. Dodd “introduced (him) to work at Axia Office Pty Ltd.” He said he was told by Mr. Dodd that he needed to invoice the Dodd Group monthly for his work. He said he thought he was a contractor because he invoiced to get paid. He said the initial verbal arrangement with Dodd/Axia in January 2017 was that he would get paid $2500 plus commissions by way of monthly invoice. He said Dodd invoiced Axia and paid him after it deducted its commissions. It was not in issue that the Applicant invoiced the Dodd Group and was paid by them. The evidence of the Applicant supports a view that to the extent that there was a ‘meeting of the minds’ and a contractual arrangement in place, that arrangement was between the Applicant and the Dodd Group, not the Applicant and the Respondent.

1. The evidence of Mr. Keen and Mr. Dodd about the nature and terms of the relationship, which was not challenged support that view. This included Mr. Keen’s evidence that neither he nor his company had any involvement in the engagement of the Applicant by the Dodd Group and Mr. Dodd’s evidence about the terms of the Applicant’s engagement by the Dodd Group. The legal obligation was for the Applicant to perform work for the Dodd Group, albeit work that was to the benefit of the Respondent. Although Mr. Dodd’s correspondence regarding the renegotiation of the commission structure came from the Respondent’s email system, I do not think that he was negotiating contractual terms for the Respondent. The Applicant was at all times paid by the Dodd Group. I conclude There was a contractual arrangement between the Respondent and the Dodd Group under which certain services would be provided by the latter to the former, but there was no contract or employment relationship between the Applicant and the Respondent.

1. The application is misconceived. The Applicant is not a person protected from unfair dismissal by the Respondent because there was no relationship of employer and employee between them. Consequently, there is no need to consider whether an extension of time should be granted. It is also unnecessary for me to express a concluded view as to the nature of the relationship between the Applicant and the Dodd Group.

1. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

S. Han for himself
L. Ward for Axia Office Pty. Limited

Hearing details:

2024
Sydney
5 August

[1] Section 380 and ss 12, 13 and 14.

[2] See also s394(1) as to who may apply for a remedy for unfair dismissal and the definition of “dismissed” in s.386.

[3] 275 CLR 165

[4] 275 CLR 254

[5] [2024] FCAFC 35.

[6] Per Katzman and Bromwich JJ.

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