Travis Parker v Allied Express

[2015] FWC 757

[2015] FWC 757

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Travis Parker
v
Allied Express
(U2014/12252)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 17 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] On 4 September 2014 Mr Travis Parker filed an application for relief for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] The matter was conciliated and no agreement was reached.

[3] I heard the matter on 30 January 2015.

[4] I have had regard to all the evidence and submissions.

Jurisdiction

[5] The employer submits that Mr.Parker is an independent contractor, not an employee, and that I am therefore required to dismiss the matter. Mr.Parker disagrees. Apart from this it is agreed that Mr.Parker is a person protected from unfair dismissal and other jurisdictional requirements, and I so find.

[6] Mr.Parker is employed under a contract based on or consistent with determinations made under Chapter 6 of the Industrial Relations Act 1996 (NSW), which establishes a scheme whereby the NSW Industrial Relations Commission is able to regulate the conditions of employment of certain sectors of the state’s transport industry. Two relevant determinations are Exhibits A1 and A2. The employment is in Victoria, so the determinations do not apply. Nevertheless they are relevant as background, as it appears that the employer employs delivery drivers in NSW under contracts similar to that under which Mr.Parker is employed 1.

[7] A series of cases, including Humberstone v. Northern Timber Mills 2, Wright v.Attorney-General for Tasmania3, Carters and Motor Waggon Drivers’ case4, and Ready Mixed Concrete (South East) v. Minister of Pensions and National Insurance5, establish that lorry drivers transporting goods for a principal, particularly if they are the owners of the vehicle, are usually not employees but are independent contractors, even if they work for one company and are subject to directions of that company6. A Full Bench of the Commission recently said in Voros v. Dick7in relation to the issue of owner driver taxi drivers as independent contractors that:

‘Contrary to the submissions of counsel for the intervener, we do not consider it is open for us to treat the earlier decisions as not providing authoritative guidance for us here but rather as merely individual cases decided on their own particular facts. That line of authority has established a legal paradigm in respect of taxi owner-driver relationships in which the relationship between Mr.Dick and Mr.Voros, on the facts, squarely fits. In any case, even unaided by authority, we would consider that it is clear in this case that there was no employment relationship.’

[8] In this case, having regard to the decisions of the High Court in Hollis v. Vabu 8, and Stevens v. Brodribb Sawmilling9, as summarised in Abdalla v. Viewdaze Pty Ltd10, the following factors are relevant to my decision in this case:

Control

[9] The employer concedes some degree of control by it, but submits that given the terms of the determinations (and the decisions above) the contract is one that is consistent with a contractor relationship 11. The employee disagrees12.

Work for others

[10] The employee claims that he is not permitted to work for others 13, while the employer submits that clause 13 quite properly imposes duties with respect to confidentiality and the like14. I do not accept that there is a verbal contract that Mr.Parker could not work for others, as he claimed15. I had the opportunity to observe the witnesses giving evidence and generally prefer the employer evidence to that of Mr.Parker, and am generally unwilling to accept his evidence unless it is corroborated by others. A termination of employment, and proceedings of this nature, often place considerable stress on an applicant.

Applicant place of work

[11] It is agreed that the applicant works from home, or from his vehicle or both 16.

Tools and Equipment

[12] The applicant provides the vehicle, hand trolley, street directory, equipment to restrain loads (ropes, straps), mobile telephone, stationary (sic) and safety equipment. The respondent provides some items such as a radio and PDA for which Mr.Parker was charged a fee, and provides other items 17. The equipment arrangement suggests that this is a contractor relationship: Hollis v. Vabu at 58.

Delegation or Subcontracting

[13] The contract provides (clause 3.7) that this can be done, but only with the express permission of the employer, as with the NSW determinations 18.

Right to suspend or dismiss

[14] The contract allowed termination in certain circumstances, similar to the determinations 19.

Presents to the world at large

[15] Mr.Parker wore a uniform, and the vehicle had stickers and other indicators of the principal 20.

Deductions from remuneration, paid holidays or sick pay etc.

[16] The employer withholds 20 per cent PAYG income tax, consistent with an Australian Tax Office facts sheet for independent contractors. Mr.Parker has an ABN and was paid pursuant to recipient created tax invoices (RCTIs). These are not characteristics of an employment relationship 21.

[17] Mr.Parker was paid on a piece rate basis for jobs performed, consistent with a relationship of independent contractor.

[18] Mr.Parker never received annual leave or sick leave 22. There was some dispute about whether or not Mr.Parker had raised this issue with the employer and asked for such leave. On balance I do not accept Mr.Parker’s version of events23, which seems unlikely and was the subject of cross examination. In any event, the arrangement was consistent with a contractor relationship.

A profession or trade

[19] The nature of the calling, namely owner driver transporting goods, is consistent with an independent contractor relationship 24.

Goodwill saleable assets

[20] Clause 12 of the contract prohibits the sale of the vehicle with work, similar to the NSW determination 25.

Business expenses

[21] Mr.Parker was responsible for all capital and running costs of his vehicle, and largely for insurance and administrative overheads 26, ie. the employer only paid for insurance for freight27 at most on the applicant’s version of events.

Conclusion

[22] The contract specifically provided (clause 8.1) that the relationship was one of independent contractor not employment, which is relevant in cases of ambiguity (Abdalla at 34).

[23] Overall it is a relationship of a nature that is well accepted in NSW and elsewhere as being one of independent contractor, on the basis of well established authorities. These are not decisions on particular facts but establish a legal paradigm in respect of owner driver delivery relationships in which the relationship between Mr.Parker and Allied Express, on the facts, squarely fits. In any case, unaided by these authorities, and having regard to all the facts of the case, in my view the relationship is not an employment relationship. Mr.Parker was an independent contractor, not an employee. I am therefore required to dismiss his application as he has not been dismissed (ss.385, 386 of the Act).

Decision on Unfair Dismissal

[24] In the alternative, and if I were to depart from comity with precedent, I would be required to consider s.387.

Section 387(a) - Valid Reason

[25] In the alternative, the employer submits that Mr.Parker failed to scan consignments correctly 28. Mr.Parker provided an explanation of the scanning outcomes to the effect that the scanner was broken, and that in any event he did scan29. I prefer the evidence of Mr.Richardson. I am unable to place weight on Mr.Parker’s evidence. I also note that Mr.Parker had attended some form of meeting in which he was warned that drivers ‘must scan all cartons pre consignment’ and other matters. He was aware of his duties to scan30. This failure to scan consignments is a valid reason for termination of employment: Selvachandran v. Petron Plastics Pty Ltd31.

Section 387(b) - Notification of the reason

[26] Mr Parker was notified verbally of the valid reason for his termination. I note that the employer considered that Mr.Parker was an independent contractor and therefore that s.387 was not followed or considered relevant.

Section 387(c) - Opportunity to respond to any reason

[27] Mr.Parker had on the employer’s version of events some opportunity to respond, but of a very limited nature.

Section 387(d) - Support person

[28] There was no unreasonable refusal to allow a support person to be present.

Section 387(e) - Warnings about unsatisfactory performance

[29] The employer tendered written copies of a warning dated 28 July 2014. Mr.Parker denied receiving it. For reasons already discussed I do not accept the evidence of Mr.Parker. This warning is a business record within the Evidence Act 32.

Section 387(f),(g) - Size of business, human resources specialists

[30] Appropriate standards of conduct should be expected of the employer having regard to the size of business. The employer does not rely on the absence of human resource specialists 33.

Section 387(h) - Any other matters

[31] I have taken into account all the material put to me.

Conclusion

[32] In all the circumstances Mr.Parker was accorded a ‘fair go all round’. His dismissal was not harsh, unjust or unreasonable.

Overall Conclusion

[33] I dismiss the matter. An order is contained in PR560627.

DEPUTY PRESIDENT

Appearances:

Mr T Parker, the applicant

Mr J Murphy, barrister, for the respondent

Hearing details:

2015

Melbourne

30 January

 1   PN604-614

 2 (1949) 79 CLR 389

 3 (1956) 94 CLR 409

 4 (1962) 61 AR 483

 5 (1968) 1 All ER 433

 6   See the commentary in CCH Labour Law Reporter, paragraph 10-510

 7   [2013] FWCFB 9339 at 25. Nevertheless see [2013] FWC 6715 for a review of past decisions.

 8 (2001) 207 CLR 21

 9 (1986) 160 CLR 16

 10 (2003) 122 IR 215

 11   Exhibit A3, paragraphs 9-13

 12   Exhibit P1

 13   Exhibit P1

 14   Exhibit A3, paragraphs 14-16

 15   PN91

 16   Exhibit A3, paragraph 17

 17   Exhibit A3, paragraphs 18-19

 18   Exhibit A3, paragraphs 14-16

 19   Exhibit A3, paragraphs 23-24

 20   Exhibit P1, Exhibit A3, paragraphs 25-28

 21   Exhibit A3, paragraphs 29-31

 22   Exhibit A3, paragraphs 29-34

 23   PN128-135; PN284-286

 24   Exhibit A3, paragraphs 35-36

 25   Exhibit A3, paragraphs 37-38

 26   Exhibit A3, paragraph 39

 27   PN144

 28   Exhibit A6, paragraphs 12-13; Witness statement of John Richardson 17 December 2014

 29   PN521-537

 30   Toolbox pre-start talks, 29 July 2014, signed by Mr.Parker

 31 (1995) 62 IR 371

 32   S.69. See ASIC [2008] NSWSC 1099 at 39 and 41, Blomfield [2009] NSWSC 978

 33   PN671

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