Waring v Hage Retail Group Pty Ltd - [2022] FWC 540

[2022] FWC 540

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Mr Nicholas James Waring
v

Hage Retail Pty Ltd

(U2021/10835)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 23 MARCH 2022

Application for an unfair dismissal remedy – jurisdiction – employee or contractor – pastry chef with networks into wholesale trade – agreement to enter into joint venture – interim provision of labour and other services – whether as employee or contractor – High Court decisions in Jamsek and Personnel Contracting – found not to be an employee – no jurisdiction – application dismissed

On 26 November 2021 Nicholas Waring (Mr Waring or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy concerning an alleged dismissal on 15 November 2021.

The respondent is named as Hage Retail Pty Ltd (Hage Retail or the respondent). Its owner and principal, Mr Ben Hage, says that the correct description of his company is Hage Retail Group Pty Ltd (emphasis added).

The application is opposed by Hage Retail which raises a jurisdictional objection. It says that Mr Waring is not protected from unfair dismissal because he was not an employee at the date of alleged dismissal and thus not dismissed within the meaning of the FW Act.

Mr Waring’s application was conciliated on 1 February 2022 but did not resolve.

I issued directions on 16 February 2022.

Materials were filed by Mr Waring and Hage Retail.

I heard the jurisdictional objection by video conference on 8 March 2022.

The parties were self-represented.

Evidence

Both Mr Waring and Mr Hage gave evidence.

The evidence presents substantial challenges for fact-finding. Facts are in dispute. Issues of credit arise. Of particular importance are the following disputed facts:

whether the entirety of the working arrangement between Mr Waring and Hage Retail was reflected in a single written agreement of 24 January 2020 or whether a subsequent verbal agreement was entered into, and if so whether it provided for work to be performed as an employee; and

the authenticity of a letter dated 10 July 2020.

I make findings on these matters in the body of this decision.

As a general observation, I found the evidence of Mr Hage more plausible than Mr Waring. Mr Waring appeared somewhat casual and self-serving in aspects of his evidence. Mr Hage appeared considered and made some concessions that were against his case. Whilst preferring Mr Hage’s evidence, this does not mean that I necessarily make findings sought by Mr Hage. The documentary record, at least with respect to documents I find reliable, also inform fact-finding, not just issues of credit.

Facts

Hage Retail is a manufacturer of baked goods including operating the Goolwa Bakery (and other bakeries) in South Australia. Mr Hage is the owner and managing director.

Mr Waring is a Queensland-based pastry chef with knowledge of the wholesale market for baked pastry products.

In January 2020 Mr Hage contacted a business broker…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 540
Decision Date

CaseChat Overview and Summary

Nicholas Waring applied to the Fair Work Commission for an unfair dismissal remedy, claiming he was dismissed by Hage Retail on 15 November 2021. Hage Retail opposed the application on the basis that Mr Waring was not an employee and thus not protected from unfair dismissal. The Deputy President found that Mr Waring was not an employee at the date of dismissal and dismissed the application for want of jurisdiction. The Deputy President found that Mr Waring and Hage Retail entered into an agreement on 24 January 2020 under which a joint venture was to be established, which would then employ Mr Waring. The joint venture did not eventuate because a major café client was not secured. Over an eighteen month period, Mr Waring worked to give effect to the agreement, but was not working as an employee. He was primarily an entrepreneur working on his own business venture and not under the control of Hage Retail. He was working as a contractor.

Orders