Stuart v Toni
[2021] FCCA 1520
•5 July 2021
Federal Circuit Court of Australia
Stuart v Toni [2021] FCCA 1520
File number(s): BRG 231 of 2019 Judgment of: JUDGE JARRETT Date of judgment: 5 July 2021 Catchwords: EMPLOYMENT LAW – Employment relationship – ascertaining existence and nature of relationship – particular relationships – independent contractor.
INDUSTRIAL LAW – Commonwealth – workplace relationships – employment status – employee or independent contractor.
INDUSTRIAL LAW – Commonwealth – workplace rights and responsibilities – general protections – sham arrangements.
Legislation: Clerks Private Sector Award 2010
Fair Work Act 2009 (Cth), ss. 11, 335, 340, 342(1), 351, 351(1), 351(2), 352, 357, 357(1), 361(1), 368, 536(1), 550(1)
Cases cited: ACE Insurance Ltd v Trifunovski& Ors (2011) 200 FCR 532
ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146
Allan v Condamine Catchment Natural Resource Management Corporation Ltd & Ors (2015) 302 FLR 121
Andrade v Goodyear and Dunlop Tyres (Aust) Pty Ltd [2018] FCCA 634
Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526
Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385
Commissioner of Pay-roll Tax v Mary Kay Cosmetics Pty Ltd [1982] VR 871
Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd (2014) 232 FCR 560
Dafallah v Fair Work Commission [2014] FCA 328
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Humberstone v Northern Timber Mills (1949) 79 CLR 389
Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114
Knight v Visionstream Australia Pty Ltd [2017] FCA 1513
Mann v S and PLS Pty Ltd [2020] FCCA 636
McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006) 158 IR 181
Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597
R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138
Shea v TruEnergy Services Pty Ltd (No 1) (2012) 204 FCR 456
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Sweeney v Boylan Nominees Pty Ltd (2006) 227 ALR 46
Vabu Pty Ltd v Commissioner of Taxation (1996) 33 ATR 537
Number of paragraphs: 161 Date of last submission/s: 25 June 2020 Date of hearing: 25 June 2020 Place: Brisbane Counsel for the Applicant: Mr Rawlings Solicitor for the Applicant: Legal Aid Queensland The First Respondent: Self-represented The Second Respondent: Self-represented The Third Respondent: Self-represented ORDERS
BRG 231 of 2019 BETWEEN: JESSICA STUART
Applicant
AND: JOHN TONI
First Respondent
LUKE FARRELL
Second Respondent
BRITTANY SALYER
Third Respondent
order made by:
JUDGE JARRETT
DATE OF ORDER:
5 July 2021
THE COURT DECLARES THAT:
1.The first respondent contravened 351(1) of the Fair Work Act 2009 (Cth) by taking adverse action against the applicant, namely dismissing her from her employment on or about 10 October, 2018 because of her pregnancy.
2.The first respondent contravened s.357(1) of the Fair Work Act 2009 (Cth) on 28 February, 2018 by representing to the applicant that the contract of employment under which she was employed by the first respondent was a contract for services under which she would perform work as an independent contractor.
3.The first respondent contravened s.357(1) of the Fair Work Act 2009 (Cth) on 28 August, 2018 by representing to the applicant that the contract of employment under which she was employed by the first respondent was a contract for services under which she would perform work as an independent contractor.
4.The first respondent contravened s.536(1) of the Fair Work Act 2009 (Cth) by failing to provide to the applicant any payslips throughout the course of her employment.
5.The second respondent was involved, within the meaning of s.550(1) of the Fair Work Act 2009 (Cth), in the contraventions by the first respondent set out in declarations 1 and 4 hereof.
6.The third respondent was involved, within the meaning of s.550(1) of the Fair Work Act 2009 (Cth), in the contraventions by the first respondent set out in declarations 1, 2, 3 and 4 hereof).
AND THE COURT ORDERS THAT:
7.Pursuant to s 546(1) of the Fair Work Act 2009 (Cth) the first respondent pay compensation to the applicant fixed in the sum of $8,020.
8.The application be adjourned to 9:30am on 23 August, 2021 for:
(a)taking any further submission any party wishes to make as to the making of orders for compensation against the second and third respondents; and
(b)a penalty hearing in respect of the contraventions the subject of declarations 1 – 6 hereof.
REASONS FOR JUDGMENT
JUDGE JARRETT:
In 2018 the applicant entered into two contracts of engagement, to use a neutral term, for the performance by her of work for the first respondent. By these proceedings, the applicant claims that the first respondent:
(a)contravened s.357 of the Fair Work Act 2009 (Cth) by misrepresenting the nature of the contract as a contract for services rather than a contract of employment;
(b)contravened s.351 of the Act by discriminating against the applicant by terminating her employment because of her pregnancy;
(c)contravened s.340 of the Act by terminating her employment for exercising her workplace right to take personal leave to care for her dependent son, or attend medical appointments;
(d)contravened s.352 of the Act by terminating her employment for being absent due to illness or injury; and
(e)contravened s.536(1) of the Act by failing to provide payslips to the applicant throughout her period of employment.
The applicant says the second and third respondents were involved in the alleged contraventions for the purposes of s.550(1) of the Act and are also taken to have committed the contraventions. She seeks compensation and civil penalties for the contraventions.
The respondents deny the applicant’s claims and argue that the applicant was engaged as an independent contractor and for that reason alone her claim must fail. They also argue that, on a factual level, the claim must fail because the conduct about which the applicant now claims did not occur.
The evidence
The applicant gave her evidence-in-chief on affidavit. She was cross-examined by the second respondent. The third respondent asked her a question as well. The first respondent did not cross-examine the applicant.
The first respondent gave limited evidence-in-chief by way of affidavit. He was cross-examined. So too, the third respondent. The second respondent led no evidence-in-chief and was not cross-examined. He preferred to exercise and maintain his claim to penalty privilege.
Background and findings of fact
The applicant is about 25 years of age. In early February, 2018, she was a single mother with a young son of day care age. She had not had a full time job for some time and the employment she then held was returning her insufficient income to sustain herself and her son. She wished to earn more and for that purpose she set about obtaining another source of income.
On about 13 February, 2018 the applicant found an advertisement on the website “Seek”. It advertised what was described as a sales position with a business called Gold Coast Business Management.
It is not in dispute that the first respondent, John Irian Toni, operates the business called Gold Coast Business Management as a sole trader. The first respondent is an Indonesian citizen and English is not his first language. He says that the business has “no employees and engages the services of less than ten contractors at any one time”. His evidence was that he was not involved in the applicant’s engagement, appointment, the provision of services by her or the termination of her engagement with his business. The first respondent gave evidence about the second respondent, Luke Farrell. Mr Farrell was described by the first respondent as his boyfriend and domestic partner. He was not part of the business as such but acted as the first respondent’s agent in matters concerning the business. To the first respondent’s knowledge, the second respondent gave direction to the third respondent from time to time.
In cross-examination the first respondent confirmed that the third respondent was the manager of the business and her role was to assist the first respondent to run the business. Although he described the second respondent as his delegate in the operation of the business, in cross-examination he said that the second respondent only helped him out from time to time. He did, however, have authority to decide whether a worker’s services could be dispensed with. He confirmed that the third respondent also had delegated authority to engage workers and to terminate the provision of their services.
The nature of the first respondent’s business is not discussed in detail in the evidence. However, it appears that he operates a number of “on-line directories”. I assume that to mean that they are a listing
sof various businesses that pay a fee to be listed in the directory and that when an on-line search is conducted for a particular business service, the listing in the first respondent’s directory might appear in the search results. To help a business decide if a listing in the directory is a worthwhile investment, businesses are offered free listing for a short period of time, after which they are invited to sign up to the full-fee service.The third respondent gave evidence that she was a contractor employed by the first respondent as the office manager for the first respondent’s business. She was essentially in charge in the absence of the first respondent. On the evidence, the first respondent very rarely visited the office from which he conducted the business. She said in cross-examination that there were up to 7 staff engaged by the first respondent during the period in which the applicant was engaged. She described the office arrangements for those working for the first respondent. She described it as a “call Centre with a lot of pods” with a separate office at the end. Each worker had an allocated desk although they were free to choose their own desk. Each worker was provided with a computer and telephone. The computers were all connected to the Internet.
The third respondent described that each morning at 9:00am there was a meeting held between all of the workers in the office (she insisted on calling them contractors for emphasis). The meeting included the applicant when she was at work. She gave evidence that it was her expectation that all “contractors” would be in the office at 9:00am each day.
The applicant applied for the position advertised on “Seek” and about a week to a week and a half later, the second respondent offered her an interview. The applicant’s interview occurred on 27 February, 2018 and was conducted by Kylea Harvey, who everyone agrees was the “operations manager” for the business at the relevant time. At the interview, the applicant was asked by Ms Harvey if she had an Australian Business Number. The applicant told her that she did. She had obtained one in 2015 for the purposes of a special effects make-up course she had then undertaken. The idea was that she might start up her own special effects make-up business but that never eventuated. In cross-examination, it was put to the applicant by the second respondent that she had previously been a sole trader and was aware of “what the obligations were in relation to supplying services under an ABN to businesses prior to working with Gold Coast Business Management”. What those obligations were and what the extent of the applicant’s understanding was, was not explored in the cross-examination. The applicant said in cross-examination that she had never worked using her ABN. I accept her evidence about that.
Ms Harvey said to the applicant that all of the sales positions were filled but another position was available for which the applicant appeared suited. Ms Harvey told her that the role was “lead generation” – a new position within the business. Ms Harvey explained that the applicant would be required to call businesses from the White Pages and Yellow Pages and offer an “information pack” about a “free advertisement listing”. The strategy was that the first respondent’s salespeople would then target those businesses taking up the free offer with a view to signing them up to a longer, paid advertising commitment with one of the internet directories operated by the first respondent.
Ms Harvey told the applicant that the hours for the job were 9:00am to 3:30pm, 5 days a week. The applicant was told that she needed to pay her own tax, but that the first respondent would pay her superannuation. These matters were reiterated to the applicant by Ms Harvey and the third respondent from time to time. Meetings of the workers in the office took place at about 9:00am each morning and the applicant was expected to attend.
It was put to the applicant by the second respondent in cross-examination that she would set her own working hours and if she was not able to come to work, she would have to call the business and advise them that she was not able to attend. The applicant did not agree with the first proposition. However, she agreed that she would call the second respondent to confirm that she would not be to attend if illness or her caring responsibilities towards her son prevented her from coming to work. Otherwise, she said that she was required to start work at 9:00am each day and be in the first respondent’s business office.
The third respondent’s evidence was that under both the first and second contracts (the second is discussed in more detail below) the applicant was never required to work set hours. She said that due to the nature of the business and the requirement to call people during business hours, it was recommended that contractors work between the hours of 9:00am to 3:30pm. However, in cross-examination and after attempting to avoid the question through an evasive answer, the third respondent accepted that it was her expectation that “contractors” would be in the office by 9:00am each day and this included the applicant.
The applicant decided to take the offer made on behalf of the first respondent. It paid more than her then employment. She accepted the position, resigned from her then current employment and commenced with the first respondent the following day, 28 February, 2018.
The applicant’s evidence is that soon after she started, she signed a contract setting out the terms of her engagement. The contract was signed by Ms Harvey for the first respondent and the third respondent witnessed the applicant’s and Ms Harvey’s signatures. Annexed to the third respondent’s affidavit is a copy of the contract between the first respondent and the applicant. Relevantly, the contract provides the following:
(a)the applicant, described in the agreement as “the Contractor”, would provide “independent administrative services” to the first respondent as required by the first respondent from time to time;
(b)by clause 2.1, the applicant was to continue to provide her services until the “contractors engagement and/or this Agreement is terminated in accordance with clause 13 of this Agreement”;
(c)by clause 2.2, the applicant was obliged to provide “such other services as are assigned to the Contractor by the Business in writing” from time to time;
(d)in return for the services provided by the Contractor the Business will pay to the Contractor a fee for the performance of the Services at the rate of $23 per hour. By clause 3.1, “the Fee may be varied by the Business and notified to the Contractor from time to time;
(e)by clause 3.3, the applicant agreed that she would solely bear the payment of her benefits including annual leave, sick leave, superannuation, long service leave and all other benefits to which she might be entitled under any award, industrial instrument, statute or law including the payment of all taxes and duties in respect of those benefits;
(f)by clause 3.5, the applicant was required to hold and maintain a current Australian Business Number and provide that number, as well as her tax file number, to the business; and
(g)By clause 5, the applicant was required to provide her services to the business at her own cost and was not entitled to be reimbursed for any out-of-pocket expenses that she might incur in connection with the provision of the services.
Clause 6 of the agreement was in the following terms:
6.1 The Contractor is engaged by the Business as an independent contractor and nothing in this agreement constitutes the Contractor as an agent, employee, director or partner of the Business or the Business.
6.2 Subject to the terms of this Agreement, the parties acknowledge the Contractor is solely responsible for controlling the manner in which the Contractor provides the Services.
6.3 The Contractor shall not have the authority (express or implied) to make any representation to incur any obligation on behalf of the Business except with the prior written approval of the Business.
Clause 8 of the agreement dealt with the “Contractors obligations”. It was in the following terms:
8 THE CONTRACTOR’S OBLIGATIONS
8.1 The Contractor shall: -
(a) complete the tasks and provide the Services specified by the Business from time to time within the time frames and to a standard specified by the Business in accordance with this Agreement.
(b) supply all equipment and other materials necessary to complete the tasks and provide the Services specified by the Business from time to time at the Contractor’s own cost and expense.
(c) provide the Services in a conscientious and expeditious fashion in an appropriate and skilful manner and with reasonable care and skill.
(d) follow the standards and practices of the Business contained in the Policy Document.
(e) attend training and other educational courses (including motivational courses) offered by the Business as directed by the Business from time to time.
(f) attend meetings held by the Business as directed by the Business from time to time.
(g) immediately notify the Business in writing of any change in circumstance of the Contractor which would affect the ability of the Contractor to provide the Services.
(h) not smoke in, on or near the premises from which the Business conducts the Business.
Clause 9 obliged the applicant to have at her own cost and expense, professional indemnity insurance to cover the performance of her obligations under the agreement. The business, however, was to maintain public liability insurance and it could elect to insure the applicant under that public liability insurance policy to cover legal liability to third parties.
Termination of the agreement is dealt with in clause 12. Either party to the agreement could terminate it upon 14 days written notice one to the other. If the applicant terminated the agreement without giving the requisite notice to the first respondent, the applicant agreed to forfeit any outstanding service fees owing under the agreement to her. Notwithstanding the term permitting termination of the agreement upon notice, the first respondent could terminate the agreement at any time without providing notice:
… by verbally notifying the contractor that this Agreement is terminated. Termination will take effect on and from the time which the notice is communicated to the Contract by the Business”.
Clause 12.3 also made provision for termination for “serious or material breach of this Agreement”.
Item 7 of the agreement provided that the fee payable to the applicant by the first respondent was “$23 per hour, with Office Hire included in this rate/hour by the Business”.
At the conclusion of the agreement was a page headed “independent contractor checklist”. I have reproduced that checklist at the conclusion of these reasons is Annexure A.
The third respondent confirmed that notwithstanding references to a Policy document in the agreements between the applicant and the first respondent, there was in fact no policy document in existence.
The applicant swears that she was not given a copy of the contract when she signed it or at any other time despite repeated requests for a copy to be given to her. However, the terms of the contract contain a rather detailed acknowledgment by her that she had received a copy of the agreement when it was executed. The applicant was cross-examined about this by the second respondent and it was suggested that she “would have” been given a copy of the agreement. She denied that she had. When asked why she would have signed the acknowledgment (which was in fact a clause in the agreement itself), she said she was given little time to read the agreement and she was told to sign it.
The third respondent gave evidence that she regularly engaged other “contractors to perform various roles within the business”. Her evidence was that at all times when engaging a new contractor it was normal practice for the contractor to be given a copy of the contract upon them signing the contract. However, the third respondent gave no evidence that she in fact gave a copy of the relevant contract to the applicant.
Consistently with not having a copy of the contract in her possession, some days after signing it, the applicant asked for a copy of the contract so she could provide it to Centrelink. Her evidence was that she was not permitted to have a hard copy but was permitted to take photographs of some of the pages that confirmed that she was employed and the amount of her wage. The applicant has put into evidence copies of the images of her contract that she was permitted to take. The first appears to be an items schedule from an agreement that refers to other clauses in the agreement. The second is the execution page of the agreement containing the signatures of Ms Harvey, the applicant and the third respondent. The third is a document headed “Privacy Disclosure Statement & Consent cont…” In those images, the applicant is described as a contractor. It records her ABN and that she was not registered for GST.
I accept the applicant’s evidence on this issue unreservedly. I am satisfied that a copy of the contract was not given to the applicant when she signed it. I accept that despite asking Ms Harvey and the second and third respondents for a copy of her contract from time to time, it was never given to her. There would be no purpose in the applicant being untruthful about this issue and she has given a coherent and compelling explanation as to why she only has a few pages in her possession. The respondents led no evidence from any witness who could say that they provided a copy of the agreement to her. Moreover, the applicant was unable to put a copy of the contract into evidence in these proceedings. The copies of the contracts (the first and the subsequent agreement) were put into evidence by the respondents.
The second respondent put to the applicant in cross-examination that the agreement signed by her provided, in effect, that she would be required to supply her services under an “independent contractor’s agreement, not as an employee”. The applicant accepted that proposition.
The applicant’s evidence was that she understood that the second respondent was the person in charge of the day to day running of the first respondent’s business and a person with authority to speak for the first respondent. The applicant observed that the second respondent only came to the office a few times, but he called the office every day. She observed that the third respondent was often on the telephone talking with the second respondent. Her evidence was that any requests the applicant made (such as leave requests and so on) had to be approved by the second respondent. The third respondent’s evidence on this last point was slightly different to that given by the applicant. She confirmed in her evidence that she would ask the person seeking leave to fill out a form which the third respondent would place in her diary to remind her that “the contractor” would not be at the office on those dates. However, an example of the piece of paper, described by the applicant as a leave request, was not put in evidence by the third respondent. She denied that absences needed to be authorised by the second respondent.
I accept the applicant’s evidence about these observations. I am satisfied and I find that whilst the second respondent only came to the office a few times during the applicant’s engagement, he called the office every day. The third respondent would talk to the second respondent regularly about the business and its day-to-day operation and I am satisfied that any requests the applicant made (such as leave requests and so on) had to be approved by the second respondent.
It is uncontroversial that the third respondent was the supervisor of the first respondent’s business and a person with authority to speak for the first respondent. The applicant reported to the third respondent most of the time. She told the applicant what to do each day. When Ms Harvey ceased to work for the first respondent at some stage, the third respondent took over the operations manager role as well.
Initially the applicant was paid a flat rate of $23.00 per hour, but this increased to $25.00 per hour for one week in September, 2018. The applicant worked some public holidays and the pay rate was the same. She had her own desk in the office, as did the others working in the office. All of the equipment she needed to complete her work was supplied by the first respondent.
The applicant made arrangements to pay her own tax, but she did not make any arrangements for her superannuation, because she had been told that the first respondent would take care of that. I accept the applicant’s evidence about that.
When she started work the applicant was engaged in “lead generating”. According to her evidence it was her job to cold call potential customers and attempt to have them sign up for a two month period of “free advertising” in one of the online marketing directories operated by the first respondent. The third respondent would tell her which category of businesses to call each day and she would go through the White Pages and call all the businesses in that category and offer them an information pack about a free advertising listing. At the end of the day, the third respondent would email the information packs to the people who wished to receive them, or the applicant would post out the information packs.
The third respondent described the applicant’s role as one in which she was required to contact businesses in certain industries to enquire whether they would be interested in free advertising for a two month trial period. Her evidence was that the applicant would generate these leads through avenues such as using various websites and search engines to find businesses interested in free advertising. She
sayssaid that the applicant’s role was entirely “self-directed, in the sense that the applicant was required to find and generate her own leads”. However, in cross-examination the third respondent confirmed that the applicant’s work was not entirely self-directed. She confirmed that the applicant was told about various categories of businesses that she needed to approach. She was not free to approach any business at all with a view to generating her own leads.In cross-examination the third respondent said that at the end of each day, the applicant would report to her the details of the businesses that were signed up to the free trials (referred to in the evidence as “leads”). The applicant was provided with training as to how to approach potential leads. The third respondent provided her with some training and gave her some ideas on how to get the information needed for the leads. The third respondent confirmed that at the commencement, the applicant was provided a script to help her with her potential leads. The amount of leads generated by the applicant was monitored by the third respondent.
The third respondent accepted that when the applicant contacted potential leads, she represented that she was from the on-line directories operated by the first respondent. When she was later acting in a debt collector role, the third respondent knew that the applicant was representing that she was from the on-line directory that was owed money.
The applicant lived in Coomera when she commenced her work for the first respondent. The office from which she was to provide her services was in Bundall. For the first three months, she took public transport to get to work and had to catch three buses and one train each way. In order to try to arrive on time, she would leave home between 7:30am and 7:45am. After the first three months, she drove a vehicle to work.
The applicant was often late for work. Delays in public transport, taking her son to day care or having to make arrangements for someone to look after him when he was unwell meant that she was often late. It is uncontroversial that she received a written warning from Ms Harvey for being late, although the terms of the warning are not in evidence. The third respondent gave evidence that she was aware that Ms Harvey had given the applicant a warning about being late to work.
Once the applicant had received this written warning she made every effort to try to be on time. She started taking Ubers and cabs to work to ensure she would get there on time and she had to organise one of her family members to take her son to day care. The third respondent gave evidence that she became aware during the course of the applicant’s engagement that she had a son who attended day care.
In around May, 2018 the applicant discovered that she was about six weeks pregnant. A few days later, she told everyone at one of the daily 9:00am meetings that she was pregnant. The third respondent gave evidence that she knew that the applicant had become pregnant.
The applicant’s need to care for her son and her pregnancy meant that she needed time off work. Sometimes she was unable to attend because her son was ill and the applicant needed to care for him. Sometimes she was ill because she had caught something from her son. Sometimes she was ill because of her pregnancy and sometimes she needed time away from work to attend to medical matters that ordinarily arise in the course of a pregnancy.
The third respondent’s evidence was that she was acutely aware that the applicant was absent from the office from time to time. She confirmed that the applicant would tell her why she was absent from the office and that those reasons would include medical appointments connected with her pregnancy or her son, or arose out of her need to look after her son. It was not put to the applicant that she had time off from work for any reasons unconnected with those matters. Despite the third respondent’s evidence that there was never a need for the applicant to get approval for time off work when she was unavailable, I am satisfied and I find that the applicant did require the third respondent’s approval to take time off.
I accept the applicant’s evidence that if she was sick she would notify the third respondent and tell her that she could not attend work. If she had to have time off work, for example if she needed a couple of hours to attend medical appointments arising from her pregnancy, I am satisfied that she was required to put in a leave request form. She obtained the leave request forms from the third respondent. She would complete the form and give it back to the third respondent who would either approve it herself or get it approved by the second respondent. There is no suggestion that the applicant ever took unapproved leave.
In around August, 2018 the applicant was moved into another role. The third respondent confirmed that the applicant was offered a “further contract” to follow-up on “outstanding invoices for the business”. Her evidence was that the contract was intended to be a “fill-in contract commencing on 28th August, 2018 and finishing on 30th September, 2018”. She says that she gave to the applicant a copy of that contract upon signing the contract “as was normal practice and is confirmed by clause 20.9 of the contracts”.
The applicant’s evidence about this contract was to similar effect although she says that she did not know it was limited as to duration. It was by its terms, however. She says that she performed debt collection and administrative duties. The applicant gave evidence that when she was asked to sign the second contract she was told that after the person that she was filling in for returned from their leave, she would return to her role as a lead generator. The third respondent denied that she told the applicant that, but I accept the applicant’s evidence about that, however, because it is consistent with what in fact occurred.
The applicant says that she was not given a copy of the second contract. For the reasons I have already given, I accept her evidence about this. I reject the third respondent’s evidence about giving the applicant a copy of the second contract. I do not accept that she gave to the applicant a copy of the contract as she suggests.
It is not in dispute that the second contract recorded that the debt collector role paid $2.00 per hour more than the lead generator role. However, I am satisfied that she was only paid the increased hourly rate of $25.00 per hour for one week in September, 2018 before returning to the previously paid hourly rate of $23.00 per hour for the remained of her engagement.
As part of her administrative duties, the applicant was required to;
(a)update all the listings on an online directory;
(b)attend to invoicing and other “paperwork”; and
(c)telephone people to book in interviews for jobs.
I accept the applicant’s evidence that the third respondent always directed her in relation to the administrative tasks she needed to complete each day. Her tasks varied, depending on what work needed to be done each day. To do that work she used the equipment and facilities provided by the first respondent. Despite the terms of the agreements that she had signed, she was not required to provide any of the equipment that was needed for her to undertake her tasks.
The debt collecting work involved the applicant telephoning customers who had not paid for their advertising listing. There was a database that contained the information about who needed to be called, but the third respondent would usually tell the applicant which people to call from the database. She would do so and seek payment from the business’s debtors. She would either make arrangements for the payment to be made or she would offer a payment plan to the debtor.
The applicant’s evidence is that after Ms Harvey’s departure she was the only person in the office with children. She felt there
werewas a problem withtheher taking time off for ultrasounds, other medical appointments or to take care of her son because when she requested that time the third respondent would say words to the effect of, “Well if you have to go, you have to”. The applicant’s evidence was that when the third respondent said these things her tone was rude and she got the impression she disliked that the applicant needed to attend to such matters. The applicant gave evidence that on one occasion when she went to work she had a horrible cough and she felt very drained. She asked the third respondent if she could leave early to try and get a doctor’s appointment. The applicant said that the third respondent told her to book in the latest appointment available so she could continue to work.The applicant does not suggest however, that any of her requests were ever refused.
The applicant gave evidence of other occasions when she said the third respondent was rude and belittling to her or others in the office behaved in such a manner in the presence of the applicant. Those occasions were:
(a)an occasion when she asked for time off to attend an appointment at the hospital and the third respondent said words to the effect of, “You said there wouldn’t be another one for a while”. She was permitted to take the time for the requested purpose;
(b)after she attended this appointment at the hospital, she did not get to work until lunch time and everyone was eating lunch. The applicant says that she sat down quickly to have her lunch and she overheard the third respondent and another colleague say words to the effect of, “Why is she eating, she should be sitting down and working”. The applicant says that she felt very uncomfortable and immediately went back to work even though she did not get paid to work over the lunch break;
(c)the third respondent and other people in the office often made comments about the applicant having time off. She claims that it became a joke in the office about the applicant having time off, with people saying they wished they were able to take as many days off as she had. The applicant says that this made her feel very uncomfortable, “judged and discriminated against”;
(d)the applicant says that she would be teased at least once a week by other workers about being a young mother and “popping out kids on a regular basis”. They would make jokes about her frequently; and
(e)when the office Christmas party and the Melbourne Cup function was being organised, the applicant says that she could not drink (alcohol presumably) and people made comments such as, “Jess can’t drink; she can be our designated driver”.
The applicant says that she felt hurt and humiliated and that being a young mother and pregnant with another child had become a joke amongst her co-workers. She found her co-workers comments very upsetting and caused her to feel down.
The applicant gave evidence that she was scared that her job was at risk. She developed that fear because the third applicant had told her that her job was on the line. Thus, when her son became ill with the flu and the applicant caught it from him, she took about two days off work but went back to work before she was fully recovered.
On another occasion she says that she received a call from her son’s day care because he had a swollen eye and could not open it. The applicant swears that the third respondent said to her words to the effect, “Tell day care you’re at work and only to call if it’s urgent.” The third respondent said that she could not stop the applicant from leaving but that “day care always seems to overreact”.
The applicant says that she was so terrified of losing her job that she would ask her mother or other family members to take time off from their own jobs to care for her son when he was sick, instead of just taking the time off to care for him herself.
It is uncontroversial that the applicant never received any payslips. On the respondents’ case, that was because she was a contractor, not an employee. Instead, each week, she gave the third respondent an invoice for the number of hours that she worked. The third respondent told her to multiply the number of hours she worked by her hourly rate and put that on the invoice. When she handed in her invoices to the second or third respondent, that person would occasionally remind her that she would need to pay her own tax but that the first respondent would pay her superannuation. The third respondent would help correct mistakes in her invoices on occasion. In cross-examination she gave an example of calculating her superannuation wrongly and that being corrected by the third respondent.
The third respondent’s evidence was that whilst all of the workers in the office gave an invoice to the first respondent for work completed in the prior week so that they might be paid, the first respondent in fact printed out the invoices for each of the workers. The third respondent said that the first respondent had a template invoice for “contractors” to use but not all of them used that template.
Although the contracts pursuant to which the applicant ostensibly provided her services to the first respondent provided that she could sub-contract her services, the third respondent confirmed that no other person engaged in the role of a lead generator, or debt collector had ever subcontracted their work although she suggested that “we actually have a – a couple of contractors that subcontract to us”. I am not entirely sure what that means.
The third respondent confirmed that workers engaged for the first respondent were sometimes required to work on public holidays because whilst it might have been a public holiday in Queensland, the rest of Australia or other parts of Australia might not have been enjoying the same public holiday. Accordingly the
actthird respondent said she usually opened the office Monday to Friday whether or not it was a public holiday.As to the role of the second respondent, the third respondent said that the second respondent would give her directions from time to time at which she thought ultimately came from the first respondent. For example he would provide her with directions to hire more salespeople, or to hire the lead generator or to hire a debt collector – “whatever is required”. He had also given directions to the third respondent at times to terminate the engagement of people with the first respondent.
The third respondent gave evidence that on 10 October, 2018 she “received a call from the second respondent at approximately 5pm alerting her to the fact that the applicants’ contract had expired”. She said that the contractor that the applicant had been filling in for returned to work and resumed her normal position. “As such the decision was made not to engage the applicant in a further contract as her services were no longer required”. The third respondent confirmed that it was the second respondent that gave to her the direction to terminate the applicant’s services on 10 October, 2018. She swore that the fact that the applicant was pregnant, had family responsibilities or had been unavailable at times for work had no bearing on the applicant not being offered a third contract. The second respondent – the decision maker – did not.
On 10 October, 2018 the applicant received a text message at 5:42pm from the third respondent, asking the applicant to call her urgently. She telephoned the third respondent and the third respondent said words to the effect, “We have to terminate your position effective immediately Don’t come in tomorrow”. The applicant asked why her job was being terminated a couple of times, but the third respondent did not give her any reason. She said it was, “Just the head office” which the applicant understood to mean that it was on the instructions of the second respondent, as
Ishe was not aware there was a “head office”.After the phone call ended, the applicant sent a text message to the third respondent in which she said, “I want an explanation as to why I got fired Brittany”. No response was received from the third respondent.
At 5:56pm the same day the applicant received a text message from a mobile telephone number which she recognised as one of the first respondent’s mobile telephones. It said:
Jess just to confirm with you that your contract with Gold Coast Business Management is terminated from today 10.10.18 & your services are no longer required.
At 5:57pm the same day she received another text message from a different mobile telephone, which she also recognised as one of the first respondent’s mobile telephones. It said:
Jess the reason your contract was terminated is that your services are no longer required Please refrain from sending any more future text messages from now.
On 12 October, 2018 the applicant went to the business premises to try to get a copy of her contract. She wanted to see if she was entitled to 14 days’ notice of the termination of her employment. She arrived sometime around 1:00pm or 2:00pm. The third respondent was heading out to an appointment at the time, so they met each other on the stairs. The third respondent told the applicant she had sent the applicant a copy of her contract by email. She said that she could not print one out because she did not have the authority to do so. She also said they did not have a paper one on file in the office. However, the applicant did not believe her because the applicant had seen her contract when Ms Harvey had let the applicant photograph some of the pages when she had commenced her engagement.
The applicant asked the third respondent again why she had been fired and asked if it was because she was pregnant. I am satisfied that the third respondent said words to the effect:, “Well you weren’t planning to return to work anyway”.
The applicant sent a further text message to the third respondent on the afternoon of 12 October, 2018 in the following terms:
Hi Brittany,
I’m following up on our conversation we had in person, can you please arrange to have my contract sent through as discussed ASAP as I need to provide it for financial reasons. You said you couldn’t provide me with a hard copy as you don’t have them on file which I know is not correct considering other contractors have had there’s printed in the office. I was never provided with a full copy of my contract.
And from our conversation, I’m taking the reason for my dismissal being due to my pregnancy and the fact I would’ve be leaving when my child is due, as you said “you weren’t planning on returning to work after” and there apparently being a number of reasons.. none of which you can provide to me.
I would appreciate my contract being sent through to [redacted] by 3.30pm unaltered please.
The applicant gives evidence that after sending that text message, she received a telephone call from the second respondent. The second respondent had not given any evidence about that conversation and the applicant was not challenged on her version of the conversation. I accept her evidence about it unreservedly. The second respondent told the applicant that it was a conference call with himself and the third respondent. During this call, the second respondent swore at the applicant and called her names. He said that she needed to stop asking why she was fired. The second respondent said that he did not like the applicant as a person and that the reason she was fired was that she had been over paid the week before and she did not tell them and therefore she was a “horrible, untrustworthy” person. He told her that the money they had overpaid the applicant was meant to go to some other worker and now this other worker has had to have their car towed because they could not make the payments. He said words to the effect of, “Wouldn’t that suck if it was you”. He also said that the applicant’s work was crap and “not up to their standards”.
The second respondent told the applicant that he would get the cops involved if she contacted anyone at work or if she “rocked up there again”. The applicant said words to the effect of, “I’ve got my rights. I can take this further.” The second respondent laughed at the applicant. When she tried to speak, the second respondent told the applicant to, “stop back-chatting”. At one point the second respondent said words to effect of, “Don’t be stupid. You’re pregnant. You need the money, stop arguing with me or I’ll withhold your last pay.” Towards the end of the conversation, the applicant stopped trying to discuss the termination with the second respondent and just started agreeing with everything he said because she was worried that he would not pay her if she did not. At the end of the conversation, the second respondent told the applicant he would send the applicant a copy of her contract by post.
The third respondent did not say much during the phone call.
On 16 October, 2018 the second respondent called the applicant and apologised for the phone call on 12 October, 2018. He said that he was stressed. The second respondent asked the applicant to send an invoice for the previous week so she could be paid. He told the applicant the amount to write on the invoice. He told the applicant to deduct the amount of money that he said she had been overpaid the week before. He told the applicant to send a picture of the invoice to the third respondent. She did as he instructed. The second respondent also told the applicant that she had been under paid because she had not been getting paid the proper rate of pay in the debt collection and administration role. He said she was meant to be on a daily rate, rather than an hourly rate. He told the applicant to write an invoice and send a photo of it to him so they could pay the applicant what they owed her. He told the applicant what to write on the invoice, including the numbers to write.
The applicant did not understand what the second respondent was asking her to do. On 17 October, 2018 she sent the third respondent a text message asking for clarification, but she did not respond. She sent a text message to the third respondent because she did not have a way to contact the second respondent directly. The message said:
Hey Brittany,
I was a little busy with my son when Luke called last night, but I’m bit confused about what he was saying about being underpaid? I signed that contract when you needed someone to fill in Jess’ job as $25 per hour and before handing in my tax invoice every week I confirmed with you my hourly rate. You had told me I only was on $25 per hour when doing admin/debt collect work. Just needing some clarification please. Sorry to contact you, I don’t have any way to contact Luke himself.
The applicant did not end up sending the second invoice that the second respondent had requested. However, she was paid $257.00, which she understood was because of the under payment issue.
Consideration
A Preliminary Matter
The second respondent argued that the application against the second and third respondents was incompetent because neither of them were named in the certificate issued by the Fair Work Commission pursuant to s.368 of the Act. Only the first respondent (using the business name Gold Coast Business Management) is named in the certificate.
However that is not fatal to the applicant’s application against the second and third respondents: Shea v TruEnergy Services Pty Ltd (No 1) (2012) 204 FCR 456 at [70]-[75], [77] and [91]; Allan v Condamine Catchment Natural Resource Management Corporation Ltd & Ors (2015) 302 FLR 121 at [7] – [8]; Knight v Visionstream Australia Pty Ltd [2017] FCA 1513 at [33]; Andrade v Goodyear and Dunlop Tyres (Aust) Pty Ltd [2018] FCCA 634 at [147]; Mann v S and PLS Pty Ltd [2020] FCCA 636 at [58]. The Court has jurisdiction to hear the claim against each of the first, second and third respondents.
The Contracts
The applicant contends that she was an employee of the first respondent. The respondents contend that she was an independent contractor and that she was engaged under two separate agreements to that effect.
The evidence demonstrates that the applicant was first engaged under a contract that commenced on 28 February, 2018. That contract was not for any specified period of time but I am satisfied that it came to an end on 28 August, 2018 when the applicant and the respondent entered into a second contract for the period 28 August, 2018 to 30 September, 2018. I am satisfied that when she entered into that agreement, she did so on the basis that the third respondent said to her that at the end of that contract and upon the return of the worker whose position she was covering, she would return to her original role as a lead generator.
Contrary to the respondents’ submissions, the applicant’s position as a debt collector did not finish on 10 October, 2018 because her contract had expired and her services were no longer required. The second contract expired on 30 September, 2018. Notwithstanding that, the applicant continued to be engaged by the first respondent. The engagement was not pursuant to either the first or second contracts because both had come to an end. It was, in my view, an engagement at will which could be determined by either party.
Before proceeding further, it is necessary to make some observations about the written contracts. They are in the same terms as each other, save for some differences concerning dates and the rate of remuneration. Those matters aside, there is no substantial difference between the terms of each agreement.
Some of the terms of the agreement are meaningless. For example, clause 7 of the agreement refers to a Policy Document and the “Contractor acknowledges the Policy Document forms part of this Agreement. The Contractor is bound by, and must comply with the terms of the Policy Document.” By clause 7.2, “the Contractor warrants to the Business it has read and understood the terms of the Policy Document prior to entering into this Agreement.” As I have already recorded, in her cross examination the third respondent acknowledged that there was no Policy Document as referred to in the contracts.
I have referred to the terms concerning termination of the agreement above. The entitlement on the part of the Contractor to receive notice of termination is entirely illusory given that the first respondent could terminate the engagement verbally without notice and apparently without reason (clause 12.3(a)).
The contractor’s obligations are stated in clause 8 of the agreement in such general terms that the obligation that is sought to be imposed is in my view, illusory. The obligation set out in clause 8.1(a) to “complete the tasks and provide the Services specified by the [first respondent] from time to time within the timeframes and to a standard specified by the [first respondent] in accordance with this Agreement” in effect provides an obligation on the Contract or to do as the first respondent might direct it to do from time to time. That is to say, the first respondent is in complete control of what it is the Contractor shall do, when it shall be done and how it shall be done.
The obligation imposed on the contractor by clause 8.1(b) to supply all equipment and other materials necessary to complete tasks and provide the Services specified by the first respondent from time to time at the Contractor’s own cost and expense is without content given the way in which the first respondent conducted his business. The uncontroversial evidence is that the first respondent provided the applicant with everything that she needed to undertake the work that she was required to undertake, both in her role as a lead generator and as a debt collector.
The second respondent was at pains to point out in his cross examination of the applicant that she had acknowledged receiving a copy of the contract and that the acknowledgement was contained within the clauses of the agreement itself. As the above examples, however, demonstrate, what was recorded in the clauses of the agreement did not necessarily reflect the reality of the situation and so very little weight can be placed upon the acknowledgements and other matters contained within the terms of the agreement.
Employee or contractor?
The question of whether the applicant was an employee or contractor arises under each of the three arrangements. The parties treated the approach to be taken in respect of each arrangement (the first two contracts and then the period between the expiry of the second contract in the termination of the applicant’s engagement) in the same way.
The cases dealing with the nature of the engagement of the worker at common law are relevant. That is because the Fair Work Act imports into its application the common law understanding of employment: ss.11, 335 of the Act; ACE Insurance Ltd v Trifunovski& Ors (2011) 200 FCR 532, at [24] and [26]; Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at [2] (in respect of which special leave has been granted but not on this point).
If there can be said to be a single test for determining whether a person is an employee or an independent contractor, it is that each case must be considered on its own facts. In the present case, it is necessary to look at the totality of the relationship to determine whether the applicant was effectively employed by the first respondent under a contract of service: Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 33, 39, 41 and 45.
Notwithstanding the very broad nature of the approach to the question in issue, a few matters are, however, clear. First, any attempt by the parties to label their relationship in one way or another is far from determinative: Sweeney v Boylan Nominees Pty Ltd (2006) 227 ALR 46 at 50; and indeed “a clause designed to prevent the relation receiving the legal complexion which it truly wears would be ineffectual”: R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 151.
Second, there can be no categorical list of factors used to determine the nature of the relationship: ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146 per Buchanan J at 162-3. It would be fruitless and apt to mislead to attempt to exhaustively list all the possible indicia for consideration: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 per Wilson and Dawson JJ at 37; Mason J at 24. Relevant matters are often variously stated and added to from time to time: Stevens at 36; Hollis at 46. In ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532 Perram J summarised the position thus (at [29]):
...first, the distinction between an employee and an independent contractor is ‘rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own’ (Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 at 39 [40] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ citing Marshall v Whittaker’s Building Supply Co [1963] HCA 26; (1963) 109 CLR 210 at 217 per Windeyer J); secondly, the answers to that question are to be determined by reference to the ‘totality’ of the relationship (Hollis at 33 [24]); thirdly, a number of indicia have accreted over time in the authorities which are thought to throw light to varying degrees on the outcome without being determinative: the terms of the contract; the intention of the parties; whether tax is deducted; whether sub-contracting is permitted; whether uniforms are worn; whether tools are supplied; whether holidays are permitted; the extent of control of, or the right to control, the putative employee whether actual or de jure; whether wages are paid or instead whether there exists a commission structure; what is disclosed in the tax returns; whether one party ‘represents’ the other; for the benefit of whom does the goodwill in the business inure; how ‘business-like’ is the alleged business of the putative employee – are there systems, manuals and invoices; and so on – the list is neither exhaustive nor short: see Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 24 per Mason J and 36-37 per Wilson and Dawson JJ, for application see Hollis at 42-45 [48]-[57] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ; Sweeney at 172-173 [30]-[33] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ...
Third, post-contract conduct is relevant in ascertaining the true nature of the relationship: ACE Insurance v Trifunovski (2013) 209 FCR 146 at 168-9; cf. Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385; Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597; Vabu Pty Ltd v Commissioner of Taxation (1996) 33 ATR 537 at 539. The manner in which parties represent or portray their relationship to third parties, for example, is a factor that tends towards that particular relationship: ACE Insurance at [148].
Further, in Dafallah v Fair Work Commission [2014] FCA 328 Mortimer J set out the applicable principles and approach to an amount of compensation pursuant to s.545 of the Fair Work Act:
148. The language of s 545 is broad, allowing the Court to provide remedies which meet the circumstances of any given contravention, taking into account the range of patties who may have brought proceedings in relation to the contravention, and the actions which might in any given circumstance be required to remedy the contravention, or to ensure it does not occur again. Awarding compensation for loss is but one example and may not be appropriate, depending on what other action has been taken in respect of any losses. Each case will turn on its facts in that sense.
149. Fixing compensation under s 545 is a statutory task, and the Court must not substitute that task with approaches derived from the general law: Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; [20014] HCA 3 at [44]; Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [94] per French and Jacobson JJ.
150. In my opinion, the following features of s 545(1) and its place in the scheme of the FW Act are relevant.
151. The purpose of identifying obligations in the FW Act as civil remedy provisions, and thus enabling penalties to be imposed for conduct contravening those obligations, is to establish norms of conduct across the activities covered by those provisions - minimum wages, equal remuneration, industrial action, right of entry, the general protections regime, and the requirements of enterprise agreements. Subjecting conduct contravening these provisions to the imposition of civil penalties is intended to serve the aims of deterrence (both specific and general) as part of a legislative aim to reduce or eliminate such conduct.
152. In some circumstances, compensation for loss because of the contravention may relate to loss suffered by more than one employee, or by an employee organisation or an industrial association.
…
155. A contravention of orders made by the FWC relating to unfair dismissal is, by s 405, a civil remedy provision. Otherwise, the provisions relating to unfair dismissal are not, in contrast for example to the general protection provisions, civil remedy provisions.
156. Where the subject matter of the contravention is a breach of an agreement closely connected to the termination of a person’s employment for poor performance, as is the case here, the Court must, in exercising power under s 545(1), be careful not to undermine the operation of the unfair dismissal provisions, and the limits Parliament has placed on them. That is especially so in circumstances where unfair dismissal proceedings have been unsuccessfully pursued, as is the case here. An order for compensation which has such an effect may not, in my opinion, be an “appropriate” order for the purposes of s.545(1).
157. Further, the width of the power conferred by s 545(1) also allows for compensation which may not fully compensate a person for the loss suffered: see Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [94] per French and Jacobson JJ, where their Honours were considering similar statuto1y compensation provisions under s 46PO(4) of the Human Rights and Equal Opportunity Act 1986 (Cth). In my opinion, that approach is available under s 545(1) because, as their Honours pointed out in Gama at [94], an award of compensation is discretionary. Ins 545(1), the governing consideration is what the Court considers “appropriate”, and this in my opinion leaves room for a Court to find in a given case that less than full compensation might be appropriate.
158. While by no means operating as a mandatory approach to a discretion such as that conferred by s 545(1), with respect I adopt the remarks of Lee J in Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia- Westerm Australia,, Branch (1995) 63 IR 1, considering factors relevant to an award of compensation under s 170EE of the then Industrial Relations Act 1988 (Cth.). His Honour said (at 9), that the Court will “have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened ... The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.”
159. One of the principal tasks, if compensation is to be awarded, is to ensure that there is the appropriate causal connection between the contravention and the loss claimed: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526; (2011] FCA 333 at [ 423] per Barker J.
160. The Full Court in Burazin (1996] IRCA 371; 142 ALR at 155 approved this approach. Some of the matters referred to by Lee J are similar to those set out as considerations ins 392(2). Although the power under s 545(1) is separate and independent, in my opinion, since the same stah1tory concept of compensation is involved, it is appropriate to consider factors similar to those set out in s 392(2).
161. In considering causation, in the circumstances of a clearly fraught employment relationship as was the case between Ms Dafallah and Melbourne Health, it is appropriate in my opinion to consider that the employer would have in any event been entitled to exercise any power it had to bring the employment contract lawfully to an end in a way most beneficial to itself. The likelihood of an employer taking such a step will be fact dependent but, in contractual terms, it has been held to be relevant to the assessment of damages: see Bostik (Australia) Pty Ltd v Gorgevski [1992] FCA 209; (1992) 36 FCR 20 at 32. In my opinion, it is a factor which can also be taken into account for the purposes of determining what compensation is appropriate under s 545(1), where compensation is limited to the loss caused by the contravention.
I accept that the applicant’s dismissal was difficult for her, but apart from the contravention of the Act there were no unusual exacerbating circumstances.
Bearing in mind the warning posed by Mortimer J in Dafallah that the Court should be careful not to undermine the operation of the unfair dismissal provisions and the limits Parliament has placed on them, in my view an order for compensation for non-economic loss in the sum of $2,500 is appropriate in this case.
Conclusion
For the reasons set out above, I will make the declarations as I have foreshadowed above and orders for compensation, being $5,520 for economic loss and $2,500 for non-economic loss. There will be judgment against the first respondent for $8,020.
I will hear the parties further as to whether the orders for compensation should be made against the second and third respondents.
The application should otherwise be adjourned for a penalty hearing so as to fix the penalties to be imposed upon the first, second and third respondents for their contraventions of the Fair Work Act.
I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 5 July, 2021. Associate:
Dated: 5 July 2021
ANNEXURE A
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