Victor Selers v DMT & Partners Pty Ltd

[2024] FWC 3163

[2024] FWC 3163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Victor Selers
v

DMT & Partners Pty Ltd

(C2024/7322)

DEPUTY PRESIDENT COLMAN MELBOURNE, 15 NOVEMBER 2024

Section 365 – applicant not an employee – objection upheld – application dismissed

1. Victor Selers has made an application under s 365 of the Fair Work Act 2009 (Act). This provision states that if a person has been dismissed and alleges that the dismissal was in contravention of the general protections provisions in Part 3-1 of the Act, the person may apply to the Commission to deal with the matter. The respondent, DMT & Partners Pty Ltd (DMT), objects to the application on the ground that Mr Selers was a contractor, not an employee. Under s 386 of the Act, only an employee can be dismissed. If Mr Selers was not an employee of DMT, he had no standing to make an application under s 365.

1. DMT produced an independent contractor agreement bearing the name of Mr Selers. The contract stated that from 2 September 2024, Mr Selers would provide dental services to DMT at its dental clinic. He would be paid a $275.00 retainer for each session and submit invoices once a week. On 23 September 2024, DMT terminated the contract. DMT submitted that the contractor agreement was evidence of a contracting relationship between the parties.

1. Mr Selers said that he did not sign the contract and suggested that it was not binding. I reject this. I find that the parties agreed to its terms through their conduct. Mr Darazi of DMT said that he sent the contract to Mr Selers and asked for any comments but received none. Mr Selers did not dispute this. Mr Selers then proceeded to work in a manner consistent with the contract. He now claims to be owed money under the contract. I note that there is no evidence of any other contract between the parties.

1. Mr Selers said that the contractor agreement was a sham. When asked why, he said that this was because he was an employee. I find that the contractor agreement was not a sham. The parties conducted themselves in accordance with its terms. Mr Selers gave invoices to DMT and claimed payment as contemplated by the contractor agreement. The contract reflected reality. Mr Selers said that he used DMT’s dental equipment and that this indicated that he was an employee. I disagree. Use of another’s equipment can be one factor that is suggestive of employment, depending on the circumstances, but on its own it is of little significance. It is also very common for contractors to use equipment that is provided by a principal.

1. It is clear that Mr Selers was not an employee of DMT. He was a contractor who provided services to DMT. He was not dismissed. The jurisdictional objection is upheld. Mr Selers’ application under s 365 is dismissed.

DEPUTY PRESIDENT

Hearing details:

2024
Melbourne (by telephone)
15 November

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