TURNBULL v BOSS

[2015] FCCA 2340

FEDERAL CIRCUIT COURT OF AUSTRALIA

TURNBULL v BOSS [2015] FCCA 2340

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 – whether misrepresentation of employment in independent contracting arrangement – whether vexatious claim – application dismissed.

Legislation:

Fair Work Act 2009, ss.357, 451, 566

Federal Circuit Court Rules

Applicant: RACHEL TURNBULL

Respondent: MICHAEL BOSS

File Number: SYG 1725 of 2015

Judgment of: Judge Street

Hearing date: 27 August 2015

Date of Last Submission: 27 August 2015

Delivered at: Sydney

Delivered on: 27 August 2015

REPRESENTATION

The applicant appeared in person

The respondent appeared in person

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1725 of 2015

RACHEL TURNBULL

Applicant

And

MICHAEL BOSS

Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under and s.566 of the Fair Work Act 2009 (Cth) in relation to an application filed on 24 June 2015, seeking orders in relation to outstanding fees and alleged penalty under s.451, due to alleged breach of s.357. Both parties appeared before the court. The court was informed of the issues and that payment had been made to the applicant of the amount alleged by the respondent to be more than was due. The court decided hear the matter in the afternoon and the matter was stood down. Both parties were sworn and their evidence taken at the same time.

2. The applicant is a tennis coach who has been coaching tennis for more than 12 years, and is an experience subcontractor.  The applicant complains that she had an engagement with the respondent as a tennis coach, which she alleges she was engaged as an employee.  I do not accept that anything was said to the applicant that conveyed that she was an employee.  It is clear that the applicant is an experienced subcontractor and well knew that she was being trialled in respect of services as a tennis coach in a very small tennis club being run by the respondent. I do not accept the applicant as a credible witness. The applicant asserted inconsistent positions as to being an independent contractor. Further the applicant engaged in conduct during an adjournment in which I accept the respondent’s version of the applicant seeking to intimidate and threaten the respondent by saying she would pursue him and appeal and keep appealing no matter the result.  The applicant also displayed by her evidence a determination to pursue her the respondent despite the clear absence of any communications that could reasonably have been believed to give rise to a contract of employment.  The applicant had without consent recorded a conversation and wished to tender the same. The illegal recording would not be admissible and the court declined to permit the applicant to obtain the same. I accept the evidence of the respondent that there was no employment position that was being advertised and that the only engagement of the applicant that was proffered was a trial period of two weeks as an independent tennis coach. I find nothing was said by either party as to the hourly remuneration during that trial period.

3. Further I find that nothing was said to the applicant to suggest that she was required to provide her services exclusively to the respondent.  Nothing was said by the respondent to suggest that she had been employed as an employee.  I find the applicant well knew that she was an independent subcontractor and that she was not providing her services as an employee. I find the applicant knew she was able to provide her services to others during that trial period and made arrangements to suit herself as to the hours she would perform during that trial period. I find that the applicant was also pursuing her own independent tennis coaching business during that two week trial period. I find that the applicant performed no more than 9 and half hours of tennis coaching for the respondent during that 2 week trial period. I find that the applicant was informed that her services were not further required by the respondent and it was thereafter that the applicant decided to pursue an excessive demand upon the respondent and to assert knowing it to be false that she was an employee.  Sadly, neither the applicant nor the respondent properly addressed the hourly rate that the applicant would be renumerated for in respect of the trial coaching services.

4. It is clear that the respondent had other tennis coaches that were engaged at an hourly rate of $25 per hour and on the evidence I find that to be a reasonable hourly rate. I find that the applicant was informed that the respondent had a trial period of two weeks, during which the respondent was seeking to identify a further subcontractor that could provide tennis coaching services. I accept that nothing was said by either of the parties to make clear the rate at which the applicant as being engaged on an hourly basis and accordingly the applicant was entitled to a reasonable hourly rate. I find that the applicant was not entitled to demand payment of $50 per hour, that there was no agreement to pay that hourly rate and that on the evidence that amount was excessive and exorbitant. The failure to fix an agreed hourly rate was due to the fault of both parties, and does not involve any sham agreement or any contravention of s.357 of the Fair Work Act 2009.

5. For reasons which appear to be due to the applicant’s dissatisfaction with the tennis industry in Australia, the applicant has pursued a claim that she was an employee and appears bent on vexing the respondent.  There is no substance in that claim.  It appears for the same reason that the applicant has been determined to pursue the respondent in respect of a claim based on a retrospectively imposed $50 an hour by the applicant for her services. I accept the respondent’s evidence that at all times he was willing to pay a reasonable hourly rate and believe the applicant’s claim to be exorbitant and excessive. I do not accept that $50 per hour was a reasonable rate for the provision of services as a tennis coach.  I find that a reasonable rate would have been $25 an hour.  In fact, the applicant has been paid by the respondent the rate of $35 per hour for the nine and a half hours that she worked as a tennis coach for the respondent. The applicant’s pursuit the respondent after payment appears to be for the purpose of causing the respondent annoyance and grief.

6. It is the position that that amount was only paid to the applicant recently. However, it is clear from the evidence that the respondent was willing to pay what was a reasonable amount and that the applicant was not willing to accept the respondent’s offers. The respondent was not willing to be put in a position where what was a regarded as a vexatious and oppressive claim was being pursued. I agree with the respondent that the demand by the applicant in this case was oppressive and vexatious, and in the circumstances it was reasonable for the respondent to have delayed in making payment for the services where an excessive demand was being made and the applicant was not willing to accept less. I find that the applicant has been paid more than a reasonable hourly rate for the limited hours that she performed services as an independent contractor tennis coach during a two week trial period. I find that the continued pursuit of these proceedings by the applicant after payment by the respondent is vexatious. But for the fact that the court treated the matter as a final hearing, I note that the court would have dismissed the continued pursuit of the proceedings by the applicant as being vexatious and an abuse of process under Rule 13.10 of the Federal Circuit Court Rules.

7. There is no contravention of s.357 or any other provision of the Fair Work Act 2009 open on the evidence or made out. There is no basis upon which any penalty could be imposed. There is no basis for any relief under the application filed in this court. These are proceedings in which ordinarily under the Fair Work Act 2009 there is no order as to costs.  The application is dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  31 August 2015