Talia Dyball v Argent Nominees Pty Ltd

[2022] FWC 1992

[2022] FWC 1992

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.365—General protections

Talia Dyball
v

Argent Nominees Pty Ltd

(C2022/2356)

COMMISSIONER PLATT ADELAIDE, 3 AUGUST 2022

Application to deal with contraventions involving dismissal – jurisdictional objection – whether the Applicant was dismissed – whether the Applicant was an employee or an independent contractor – Applicant an independent contractor – Applicant not dismissed – jurisdictional objection upheld – application dismissed.

1. On 12 April 2022, Ms Talia Dyball (the Applicant) lodged a general protections application under s.365 of the Fair Work Act 2009 (the Act) alleging that on 2 April 2022, she was dismissed in contravention of the general protections provisions of the Act by Argent Nominees Pty Ltd (the Respondent).

1. On 26 May 2022, the Respondent filed a Form F8A Employer Response and raised a jurisdictional objection that Ms Dyball was not an employee of the Respondent, and therefore had not been dismissed. The Respondent declined to participate in a conciliation conference on the basis of its jurisdictional objection.

1. As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objection before the matter can proceed.

1. On 29 June 2022, a Directions Conference was conducted by telephone. The Applicant’s named representative notified the Commission ten minutes prior to the commencement of the conference that it was no longer representing the Applicant in the matter. The matter was adjourned to allow the Applicant to seek legal advice. On 4 July 2022, Directions were issued for the filing of material in respect of the jurisdictional objection, and a Hearing was scheduled for 2 August 2022.  

1. A Hearing was conducted, by teleconference, on 2 August 2022. The Applicant represented herself, whilst the Respondent was represented by Ms Kristine Condell, HR Manager Operations.

1. At the conclusion of the Hearing, I dismissed the general protections application on the basis that the Applicant was at no stage an employee of the Respondent and could therefore not be dismissed as required by s.365(a) of the Act. The reasons for this decision follow.

Evidence

1. Both the Applicant and the Respondent filed their materials in compliance with the Directions. A Digital Court Book was compiled from these materials and distributed to the parties prior to the Hearing. I received the entirety of the Digital Court Book into evidence, giving appropriate weight to any evidence that was tainted by hearsay, opinion or irrelevance.

1. It is noted that the Applicant filed a large quantity of material that went to the merits of her general protections application rather than to the jurisdictional question of whether she was an employee capable of being dismissed.

1. At the commencement of the Hearing, I made an order (with the consent of the parties) pursuant to s.594 of the Act, prohibiting the publication of any evidence or material that identified or tends to identify the person whom Ms Dyball provided aged care support to (‘Mr G’). One of the persons nominated in the material was the aged care client’s daughter (Ms G), who I have also de-identified in these reasons.

1. The relevant facts which go to the jurisdictional question are generally not in dispute, and they are summarised below:

·  On 7 March 2022, the Applicant was contacted by Ms G on a website that pairs ‘care seekers’ with ‘care providers’. Ms G was seeking a carer to work weekend night shifts providing aged care support to her father. Ms G explained to the Applicant that her provider was the Respondent.

·  Later on 7 March 2022, Ms G emailed the Applicant a ‘Service Provider Agreement’ (the Agreement).

·  The Agreement outlined the terms for an engagement for services between ‘the Service Provider’ and the ‘Principal’. The ‘Principal’ in the Agreement was Argent Nominees Pty Ltd T/A Let’s Get Care, and the Agreement was signed by the Applicant on behalf of “Yellow Woodland Community” (ABN 47801862684) as the ‘Service Provider’.

·  Prior to entering into the Agreement, the Applicant had a discussion with Ms G about travel expenses. Ms G explained that her package with the Respondent did not allow for travel expenses to be added to the Applicant’s invoices.

·  The Applicant worked a number of shifts providing care to Mr G from 12 March 2022 to 2 April 2022.

·  The Applicant would invoice the Respondent for the work completed. The Applicant provided the Respondent with three invoices throughout her engagement. The Agreement stipulated that the Service Provider would have their invoice paid within 21 days of the date that it was received by the Principal. On 15 March 2022, the Applicant asked Ms G whether she could be paid weekly, as she may not be able to afford to travel for her scheduled shifts without weekly payments. Ms G directed the Applicant to enquire with the Respondent about payment.

·  On 18 March 2022, the Applicant sent an email to the Respondent requesting to be paid weekly to ensure that she could cover her travel expenses.

·   From 21 March 2022 until the end of her engagement, the Applicant had disputes with the Respondent about the timeliness of the payment of her invoices. On multiple occasions, the Applicant turned down shifts from Ms G on account of the fact that she had not received payment from the Respondent, and therefore could not cover the travel expenses required to attend her shift.

·  On Friday 1 April 2022, the Applicant informed Ms G that she would not be able to attend her scheduled shifts on 2 and 3 April 2022 because she had not received payment from the Respondent for her latest invoice. On Saturday 2 April 2022, Ms G sent the Applicant the following text message:

“Hi Talia, Danny, Grandpa and I feel the job is not working for you as we are unable to meet your demands, and regrettably we have decided to let you go. We want you to know that your care for Grandpa when you were actually at work here at home with Grandpa, was exemplary and we are very grateful for the time you spent with us. We wish you luck in your future endeavours. Kind Regards, [Ms G].”

Law

1. Section 365 of the Act provides:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a)   a person has been dismissed; and

(b)   the person, or an industrial associated that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

1. Section 386 of the Act provides the meaning of dismissed:

“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.”

1. An employment relationship is a necessary component for there to be a dismissal. For a person to be dismissed, it is necessary that they had previously been an employee. There have been two recent decisions[2][3] of the High Court of Australia which have provided guidance as to the approach that should be taken under law in determining whether a person is an employee (capable of being dismissed) or an independent contractor.

1. The findings from Jamsek and Personnel Contracting have been relevantly summarised by Hampton C in the decision of Nawaz v Rasier Pacific Pty Ltd T/A Uber B.V.[4] as below:

“• The characterisation of the relationship is to be determined by reference only to the parties’ legal rights and obligations.

·  Where a comprehensive written contract is in place, this will be the primary source of the parties’ legal rights and obligations, and these will be decisive of the characterisation of the relationship. This will apply unless the contract is a sham, or has been varied after it was made, or post agreement conduct or context demonstrates that a term is legally ineffective.

·  The conduct and expectations of the parties after entering into the contract are not generally relevant to the assessment.

·  The manner in which the relationship is worked in practice may be relevant for certain limited purposes, such as to find contractual terms where they cannot otherwise be ascertained or to determine the nature of any variation to agreed terms.

·   It is permissible to have regard to objective events, circumstances and things external to the contract known to the parties at the time of contracting which assist in identifying the purpose or object of the contract.

·   The relative bargaining power of the parties is not relevant. That is, the fact that the arrangement was brought about by the superior bargaining power of the company has no bearing on the meaning and effect of the contract.

·  The “multifactorial” test remains appropriate; however, it is to be applied by reference to the parties’ legal right and obligations not to the post contract conduct. In that respect, the terms of contract between the parties are not merely “factors” but are determinative. The manner in which the contractual terms address the mode of remuneration, provision of equipment, obligation to work, hours of work, delegation of work, holidays and the right to control may show that it is not an employment contract.

·  Whilst all relevant factors require consideration, two factors in particular assist in assessing the ultimate question of whether an applicant was an employee:

·     Control: The greater the degree (rights) of control exercisable by the principal/employer over the work performed, the greater the likelihood that an employment relationship existed.

·     Own business/employer’s business: The resolution of the question whether a person engaged to work for another as an employee or an independent contractor depends upon the extent to which, upon an analysis of the parties’ rights and obligations under the terms of their contract, it can be shown that the person acts in the business of, and under the control and direction of, the other. In this way, one may discern a more cogent and coherent basis for the time-honoured distinction between a contract of service and a contract for services than merely forming an impressionistic and subjective judgment or engaging in the mechanistic counting of ticks on a multifactorial checklist’

While the “own business/employer’s business” dichotomy may not be perfect or universal (because not all contractors are entrepreneurs), it usefully focuses attention upon those aspects of the contractual relationship which bear more directly upon whether the worker’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise.

It is not necessary or suitable to ask whether the worker is working in their own business. This is not a binary choice between employment or own business. The better question is whether, by the terms of the contract, the worker is contracted to work in the business or enterprise of the purported employer.

·  The notion of the generation of goodwill by the worker is not necessarily relevant or decisive.

·  When assessing the significance of a relevant fact in the characterisation process, the court (Commission) should consider the extent to which the fact bears directly or obliquely on whether the worker is contracted to work in the employer’s business rather than part of an independent enterprise. The more directly it bears on that issue, the more significant it is.

·  The label applied by the parties to the contract is not decisive and does not act as a “tie-breaker” where the multifactorial test is ambiguous. The proper characterisation of the relationship is a matter for the courts, not the parties.

·  Non-exclusive work may be consistent with casual employment and not just contracting. The fact that the worker was free under the contract to accept or reject any offer of work, and not precluded from working for others, are not necessarily contraindications of employment, since this is also commonplace for casual employees.

·  Terminability at short notice and the absence of a guarantee of work of any direction are not decisive given that they may also be indicative of casual employment.”

(references omitted)

Submissions

1. The Applicant provided written submissions. In those submissions, she accepted that the arrangement entered into at the start of the engagement was that of a principal/independent contractor. The Applicant then contends that the manner in which the parties interacted (including Ms G’s conduct) was characteristic of employment relationship, which was brought to an end by Ms G.

1. The Respondent contends that the relationship was, from the outset and throughout, a principal/independent contractor relationship and accordingly the Applicant had not been dismissed.

Consideration

1. It is clear from the evidence of the Applicant that at the time of engagement the parties intended to create a principal/independent contractor relationship. The Applicant already had an ABN and had provided services as an independent contractor to other parties previously. The arrangement to provide services to Mr G was freely entered into and does not appear to be a sham.

1. The details of the relationship were agreed in writing in the form of a ‘Service Provider Agreement’ on 18 March 2022.  The Agreement has a commencement date of 12 March 2022.  The Agreement is written and comprehensive, and at Clause 20.2 is intended to represent the entire agreement. The Agreement does not appear to have been varied after its commencement.  Clause 6.1 appears to indicate that the parties to the Agreement intended that the relationship would not be an employment relationship but an independent contractor relationship.  

1. The post-agreement conduct of the parties (in so far as it is relevant) does not appear inconsistent with the agreement. Ms G gave instructions as to the care needs of Mr G, the Applicant provided the care and invoiced the Respondent who in turn (presumedly) invoiced the care recipient. The Applicant had the capacity (which was exercised) to accept or reject the shifts offered.

1. The dispute between the Applicant and the Respondent over the timing of the contractual payments and/or compensation for travel costs did not change the characterisation of the arrangement between them.

1. The fact that the Applicant received $25.00 per hour, which was far less than the minimum pay rate under the relevant Modern Award had she been employed, is also not a relevant consideration.

1. The circumstances in this matter do not support the characterisation of the relationship between the Applicant and the Respondent as one of employee/employer.

1. I am unable to accept the Applicant’s position that she was employed by the Respondent (or Ms G), and accordingly the Applicant cannot have been dismissed.

1. As a result of this finding, I am required to dismiss the Applicant’s general protections application.

COMMISSIONER

Appearances:

T Dyball, the Applicant.
K Condell for the Respondent.

Hearing details:

2022.
Adelaide (by teleconference):
August 2.

[1] [2020] FCAFC 152.

[2] ZG Operations & Ors v Jamsek & Ors [2022] HCA 2 (Jamsek).

[3] Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting).

[4] [2022] FWC 1189 at [51].

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