Stephen Brophy v Debt Fix Pty Ltd - [2024] FWC 1451

[2024] FWC 1451

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Stephen Brophy
v
Debt Fix Pty Ltd

(U2024/1572)

DEPUTY PRESIDENT SLEVIN

SYDNEY, 4 JUNE 2024

Application for an unfair dismissal remedy – objection that Applicant not dismissed – whether Applicant an employee or independent contractor

Mr Stephen Brophy performed cleaning work at the home of the Sole Director of Debt Fix Pty Ltd (Debt Fix) Mr Grant O’Donell from February 2019 until January 2024. He makes application pursuant to s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy.

Debt Fix objects to the application on the basis that Mr Brophy was not dismissed because he was never an employee. It contends that he performed the cleaning work as an independent contractor.

Section 386 of the Act sets out the circumstances in which a person is taken to have been “dismissed” for the purposes of s.394. That section provides, relevantly, as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

As is apparent from the terms of s 386(1), a person can only be dismissed when their employment comes to an end. In the absence of a relationship of employer and employee, a person cannot be dismissed within the meaning of s.386 and an application under s.394 cannot be made. This decision deals with the issue of whether an employer and employee relationship existed between Mr Brophy and the Respondent.

Background

The facts in the matter are straight forward. Evidence was provided in witnesses statements from Mr Brophy and Ms Malzard. Documentary evidence was also provided including Mr Brophy’s invoice books, bank statements, tax records and extracts from the Australian Business Registry. Both witnesses were cross examined.

Mr Brophy was a long term friend of Ms Joanne Malzard and Mr O’Donnell. Ms Malzard and Mr O’Donnell are married. Mr O’Donnell is the sole Director and Company Secretary of Debt Fix. Debt Fix is a financial advice business. Ms Malzard also works in the business.

Mr Brophy provided an account of a conversation a conversation with Ms Malzard in late 2018. He said the conversation was along the following lines:

JM: “I’m so annoyed I have to no start looking for new cleaners cause the ones I
have are lazy and don’t complete the tasks I ask them too and for $80 per hour
that’s frustrating”.

SB “I bet it must be, but say that again”.

JM: “I have to start looking for…”

SB: “No, not that bit.”

JM: “What, the $80 per hour?”

SB: “You pay them $80 per hour to clean and they are no good, babe I’ll clean
your…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stephen Brophy v Debt Fix Pty Ltd

Details

AGLC: Stephen Brophy v Debt Fix Pty Ltd [2024] FWC 1451
Case: [2024] FWC 1451
Decision Date: 4 JUNE 2024

CaseChat Overview and Summary

The applicant, Stephen Brophy, made an application to the Fair Work Commission for an unfair dismissal remedy against Debt Fix Pty Ltd. Brophy claimed that he had been dismissed from his role as a cleaner at the home of the sole director of Debt Fix, Mr. Grant O’Donnell, and his wife Ms. Joanne Malzard. Debt Fix objected to the application on the grounds that Brophy had never been their employee and, therefore, could not have been dismissed. The key legal issue was whether Brophy was an employee or an independent contractor. The court considered the nature of the discussions between Brophy and the Malzards, the payment arrangements, and the overall conduct of the parties in determining the nature of the relationship.

The court found that while Brophy performed cleaning services for the Malzards, the arrangement was that of an independent contractor rather than an employer-employee relationship. This conclusion was based on several factors, including the nature of the initial discussions, which focused on Brophy replacing existing cleaning contractors, the requirement for Brophy to have an Australian Business Number and to invoice for his services, and the flexibility in the hours and manner of work. The court also noted that Brophy provided cleaning services to other clients and that Debt Fix did not deduct or remit taxation payments as if Brophy were an employee. Therefore, Brophy was not dismissed, and his application for an unfair dismissal remedy was dismissed.

Orders