PR597898 - Decision - 14 Dec 2017

[2017] FWC 6113
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Reno Dal
v
Apex Institute of Education
(U2017/7915)

VICE PRESIDENT HATCHER

SYDNEY,14 DECEMBER 2017

Application for an unfair dismissal remedy.

Introduction

[1] On 24 July 2017 Mr Reno Dal applied for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (FW Act) with respect to his dismissal from employment with the Apex Institute of Education Pty Ltd (Apex). Mr Dal commenced employment with Apex on 31 October 2016. Apex is a provider of vocational and training services to fee-paying domestic and international students and offers courses in a number of areas including English courses,known as English Language Intensive Courses for Overseas Students (ELICOS). Mr Dal was employed as the Academic Manager for ELICOS,and his role involved a combination of student support,managing teaching staff and teaching. On 10 July 2017 Mr Dal was notified of his termination of employment,to take effect from 17 July 2017,by email. The reasons given for the decision to terminate his employment were that a reduction in student numbers within the ELICOS business had caused it to become unviable such that a decision had been made to streamline ELICOS and vocational educational training (VET) operations with a single Academic Director who would manage both. Mr Dal was given one week’s notice of termination.

[2] In its Form F3 –Employer Response to Unfair Dismissal Application,Apex objected to the jurisdiction of the Commission to consider Mr Dal’s application on (among other things) the ground that Mr Dal’s employment fell short of the minimum employment period of one year for a small business employer specified by s 383(b) of the FW Act. This objection was founded on the factual contention that at the time of Mr Dal’s dismissal it only had 8 employees,and thus fell within the definition of “small business employer”in s 23 of the FW Act.

[3] On 1 September 2017,a letter was sent by the Commission to Mr Dal which noted Apex’s jurisdictional objection in this respect and asked him to provide a statement in response regarding the period of his employment and whether,to his knowledge,Apex employed less than 15 employees. On 2 September 2017 Mr Dal sent an email which stated the following:

“Length of Employment:1 November 2016 to 17 June 2017

Number of Employees:At the time of my dismissal (17 June 2017),including myself,I believe there were eleven staff on salary and more than 14 staff (VET trainers) on sham contracts.

I attest to this situation as I have met the VET trainers and understand that while they invoiced as companies,they operated as staff - clocking on and off using fingerprint scans,getting paid by the hour and providing no equipment or materials of their own- in fact all the criteria on the Fair Work website for sham contractors are met by this group.

I also understand they are being paid significantly less than the appropriate Modern Award MA000075 rate (Teachers and tutors/instructors $42.97-$56.25 per hour).

​Below is the staffing to my knowledge at the time of my dismissal:

​Staff Summary

Sydney

Manager- Rama Burugapalli

Assistant- Prakask

Secretary- Bidya

Marketing- Mariana

Director - Jonathan Howe

Academic Manager- Reno Dal

P/T Teacher- Judy Strauss

F/T Teacher- Cecily Greval

P/T Cleaner

Parramatta

Secretary- Aman

Facilities Manager- Amit

11 staff working on wages/salary

​At least 14 VET trainers across both campuses

More than 25 in total,and thus NOT a small business.

Thus the total would be more like 25 staff.

I believe an interrogation of the CEO,Livleen Sodhi,and financial director,CJ Singh,should demonstrate the veracity of my claim.”

[4] Mr Dal’s email made it apparent that there was a factual contest about the number of persons employed by Apex at the time of the dismissal,and therefore it became necessary to conduct a hearing in relation to Apex’s jurisdictional objection as required by s 397 of the FW Act. To that end,a directions teleconference was conducted on 15 September 2017,directions were issued requiring the parties to file an outline of submissions and any evidence upon which they intended to rely,and a hearing concerning whether Apex was a small business employer was listed for 27 October 2017.

Statutory framework

[5] Under s 390(1)(a) of the FW Act,the Commission may only grant a person an unfair dismissal remedy if it is satisfied that,at the time of the dismissal,the person was “protected from unfair dismissal”. Section 382 defines when a person is “protected from unfair dismissal”,and one requisite element of the definition,in s 382(a),is as follows:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period;...

[6] Section 383 defines the expression “minimum employment period”as follows:

383 Meaning of minimum employment period

            The minimum employment period is:

(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal;or

           (b) if the employer is a small business employer--one year ending at that time.

[7] Section 23 of the FW Act defines the expression “small business employer”as follows:

23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b),all employees employed by the employer at that time are to be counted;and

(b) a casual employee is not to be counted unless,at that time,he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time,associated entities are taken to be one entity.

(4) To avoid doubt,in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee,or termination of an employee's employment,the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated;and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.

[8] There is no dispute that Mr Dal had been employed by Apex for less than a year at the time of his dismissal. Apex’s jurisdictional objection must therefore succeed if the Commission is satisfied that Apex had less than 15 employees (including Mr Dal) at the time of the dismissal such as to fall within the s 23 definition of a small business employer.

Evidence and submissions

[9] Apex relied upon a witness statement made by its CEO,Ms Livleen Sodhi,dated 13 October 2017. In her witness statement,Ms Sodhi said that at the time of the dismissal,Apex had only 10 employees,including Mr Dal. The employees apart from Mr Dal consisted of 5 full-time employees,one part-time employee and 3 casual employees. It is necessary to note at this point that Apex did not submit that the casual employees were not to be counted by reason of the exclusion in s 23(2)(b). Annexed to Ms Sodhi’s statement was a payroll summary for the pay period in which Mr Dal’s employment terminated (with the names of individuals redacted) which showed that 10 employees were engaged. Ms Sodhi said that there were no associated entities of Apex that needed to be taken into account.

[10] In her statement,Ms Sodhi also said that Apex engaged independent contracting companies (“contracting companies”) to provide trainers and other workers. She identified that 9 such entities were engaged at the time of Mr Dal’s dismissal as follows:

  Study Help Australia Pty Ltd (ABN 54 600 719 935);

  Anny &Anny Media Pty Ltd (ABN 40 169 160 356);

  Worxlink Pty Ltd (ABN 82 160 218 922);

  Robinson and Ronnie Pty Ltd (as Trustee for the Sijher Family Trust) (ABN 75 865 542 041);

  AAAC Solution Pty Ltd (ABN 49 619 246 249);

  Winfinity Consulting Pty Ltd (ABN 28 617 858 652);

  Australian Institute for Sustainable Development Pty Ltd (ABN 92 169 513 302);

  Chee Holdings Pty Ltd (ABN 38 088 427 221);

  Finance Credit and Investments Pty Ltd (ABN 95 111 330 593).

[11] Ms Sodhi explained that these contracting companies were engaged because the nature of Apex’s business was that student class numbers fluctuated,which in turn caused trainer requirements to fluctuate. The teaching timetable of 10 weeks’study followed by a 3 week break meant that Apex was not able to be sure in advance as to what its student numbers would be in coming semesters. Apex had a student intake 8 times per year,and visa requirements affected whether intending students were able to commence in the semester that they wanted to enrol for.

[12] Ms Sodhi said that the trainers supplied by the contracting companies were engaged for varying hours depending on workloads. Five contracting companies provided trainers to cover 15 to 30 hours training per week,4 contracting companies provided trainers for 15 to 23 hours,and 2 contracting companies for between 7.5 to 15 hours per week. The contracting companies were free to offer their trainers’services to other vocational colleges and businesses,and the contracting companies invoiced Apex according to the qualifications and experience levels of their trainers,the nature of the work and the number of days and hours that they work.

[13] Also annexed to Ms Sodhi’s statement was a de-identified example of a current contract with one of the contracting companies. This contract was described as being between the (de-identified) “On-hire company/contractor”and Apex as the “Host company/business”. The contract included the following provisions of present relevance:

1. INTRODUCTION

. . .

1.2. The Business wants to engage a contractor to provide Trainers/workers to deliver training &student support services.

1.3. The Contractor agrees to provide workers to perform Contract Services in accordance with this Agreement.

2. THE ENGAGEMENT

2.1. The Contractor will provide enough workers who are ready,willing and able to undertake the work required and have the requisite level of qualification,skills,knowledge and competence to perform the Contract Services according to ESIS Act &RTO Standards.

2.2. This Agreement operates from the date mentioned in clause 8.

2.3. This Agreement cannot be delegated or assigned to any other party without the express agreement in writing of the parties.

3. PAYMENT TERMS

3.1. Unless otherwise expressly stated,the Host company will pay the Contractor according to Tax Invoice. Contractor will generate a Tax Invoice every fortnight. Pay rate will be discussed &approved by company for each worker,before commencement of work,according to the workers qualifications,experience level &hours of work.

Contractor will submit:

3.1.1 A valid tax invoice for the supply of the Contract Services.

3.1.2 The Fee includes any applicable Goods and Services Tax (GST).

Company will approve tax invoice based on the worker’s time sheet records and pay within 14 days of receipt of a valid tax invoice.

4. CONTRACTOR (ON-HIRE) OBLIGATIONS AND WARRANTIES:

4.1. Contractor is responsible to provide Trainers/Staff/Labour to the host company to deliver its Vocational Education Services to the International/Domestic students. Contractor will supply workers according to the requirement of Host Company.

4.2. All employees performing the Contract Services must have a legal right to work in Australia.

4.3. The Contractor agrees and warrants that the Fee is sufficient to cover all of the Contractors’costs associated with the employment of labour in connection with the Contract Services.

4.4. The Contractor warrants that all information provided to the company during or in connection with the Contract Services is accurate,current and complete at the time at which it is provided,including but not limited to information about its workplace policies and practices and compliance with its obligations under this Agreement.

4.5. The Contractor must comply with all applicable legal obligations in relation to the employment and/or supply of labour under this Agreement,including under the Fair Work Act 2009 and associated regulations,Work,Health and Safety (WHS) law and migration law. This includes ensuring that all persons engaged to perform the Contract Services have a legal right to work in Australia.

4.6. All workers performing the Contract Services have received:Fair Work Information Statement. Contact name and telephone number for queries about their employment/safety and/or visas. Letter of offer/contract of employment;Copies of any policies applicable to work at locations where the Contract Services to be performed;and Information about how to access further information including the Fair Work Ombudsman’s website and the Fair Work Info Line 13 13 94.

4.7 The Contractor ensures that all workers have been given their employment entitlements;under the National Employment Standards.

4.8 The Contractor ensures that all workers are covered by relevant insurance including workers compensation insurance.

4.9 All workers performing the Contract Services are free to leave their employment at any time on giving notice and the Contractor does not hold any deposit or identity papers belonging to workers.

4.10 Contractor will not charge to the workers any fee for finding the Job for them.

4.11 Regulatory compliance Employee records:are kept for at least seven (7) years;according to the Fair Work Act 2009 and regulations.

4.12 The contractor is responsible and in a position to pay its debts as and when they fall due,including all employee entitlements,tax,insurances and superannuation.

4.13 All workers will be obliged to Non Disclosure terms of the Host Company.

4.14. All workers must use their own Laptops &other teaching materials. However,through Informal approval from the Business,may access necessary resources in order to fulfil their Services.

. . .

8 CONTRACT PERIOD

From 10/01/2017 To 20/12/2017

There will be no guarantee of minimum/maximum work hours from Host Company during this period.”

[14] Ms Sodhi also gave oral evidence before the Commission. Her evidence included the following:

  3 of the contracting companies (Anny &Anny Media Pty Ltd,Worxlink Pty Ltd and Winfinity Consulting Pty Ltd) provided the services of more than one trainer to Apex;

  Apex had control over when the trainers worked,but not how they went about performing their work;

  the trainers provided by the contracting companies provided their own laptops and whiteboard markers,while Apex provides the classrooms and the fittings within them;

  the trainers signed on for work using a fingerprint recognition system;

  Apex paid the contracting companies a hourly rate for the trainers provided,with a daily rate being paid if 5 or more hours were worked in a day;

  the hourly rate was calculated by Apex in a manner which it considered sufficient to cover the award payments required to be made to the trainer;

  the contracting companies did not have to send the same trainer to meet their contractual obligations,as long as the person provided was qualified,and if the primary trainer was sick the contracting company was expected to provide another trainer;

  a number of the trainers did other work for other training providers and/or did other work to maintain their industry currency;and

  most of the contracting companies were already incorporated when they were first engaged by Apex,but in some cases they incorporated in order to obtain work with Apex.

[15] In response to an order for production issued by the Commission on the application of Mr Dal,Apex produced invoices issued to it by 8 of the 9 contracting companies for the period 10-17 July 2017 (Chee Holdings Pty Ltd did not,Ms Sodhi explained,provide Apex with any trainers during this period). The invoices of the following contracting companies showed that GST was being charged on the provision of their services:

  Study Help Australia Pty Ltd

  Worxlink Pty Ltd

  Robinson and Ronnie Pty Ltd

  Winfinity Consulting Pty Ltd

      ●Finance Credit and Investments Pty Ltd

[16] The following contracting companies did not charge GST on their invoices:

  Anny &Anny Media Pty Ltd

  AAAC Solution Pty Ltd

  Australian Institute for Sustainable Development Pty Ltd

[17] Ms Sodhi suggested in her evidence that the above 3 contracting companies may not have charged GST because their turnover was below the GST threshold.

[18] The invoices also show that:

  Worxlink Pty Ltd provided cleaning services and student support services as well as training.

  Australian Institute for Sustainable Development Pty Ltd has its own website address.

  The invoice for AAAC Solution Pty Ltd directed that the amount payable be paid into a bank account held by an individual,Ayasha Siddika.

  One invoice was in the name of “Trainer –Deuk Hyun LEE”,and only identified the contracting company,Winfinity Consulting Pty Ltd,as the holder of the account into which payment was to be made.

  All invoices for training services appear to charge an hourly rate of either $33 or $38 per hour.

[19] Also produced were the contracts between Apex and the contracting companies. In each case,the contract was in the same terms as the contract annexed to Ms Sodhi’s statement,except that they had varying contract periods. Each contract was signed on behalf of the contracting company by a person described as a director. Ayasha Sidika signed the contract for AAAC Solution Pty Ltd,and Jung Kim signed for Winfinity Consulting Pty Ltd.

[20] Apex submitted that Ms Sodhi’s evidence demonstrated that,at the time of Mr Dal’s dismissal,it had less than 15 employees and was therefore a small business employer. The 9 contracting companies who provided trainers were independent contractors,and the trainers whose services they provided were employed by the contracting companies and not by Apex. Accordingly,Mr Dal had not served the employment period necessary to qualify to be a person protected from unfair dismissal,and his application should therefore be dismissed.

[21] Mr Dal did not adduce any evidence relevant to the number of employees engaged by Apex at the time of his dismissal. He submitted that the contracting companies were sham contractors,and were actually nine persons who were employed as trainers working on specific programs for specific hours. He said that this was supported by the fact that the contractors,according to one of the contracts attached to Ms Sodhi’s statement,were to be paid award rates,which failed to recognise the contractor costs of superannuation,workers’compensation and professional indemnity insurance. While the contracts specified that those entitlements shall be the responsibility of the contractor,this could only be achieved if those costs were removed from the award rate,thus ensuring that contacted staff were paid less than the award. Mr Dal submitted that if the trainers were counted as employees of Apex,it had more than 15 employees as at the date of his dismissal.

Consideration

[22] The question to be determined is whether there were,in addition to Apex’s acknowledged 10 employees,at least 5 trainers providing services to Apex at the time of Mr Dal’s dismissal who can also properly be characterised as employees of Apex such as to prevent Apex falling within the definition of a “small business employer”in s 23 of the FW Act. Although there is some doubt as to whether formal legal concepts of onus of proof have a role to play in proceedings of a statutory tribunal such as this Commission,it can at least be said that Apex,as the party contending that it is a small business employer and that Mr Dal’s application should be dismissed because he did not serve the minimum employment period for a small business employer,bears the risk of failure if the Commission cannot be satisfied as to the factual elements of these contentions. Further,it is necessary for Apex to advance sufficient evidence to support its contentions to raise the issue for determination by the Commission and to require some evidentiary response from Mr Dal. 1

[23] The principles applying to the identification of an employment relationship as distinct from one involving a principal and independent contractor are well-established but do not yield a clear answer in every case. The leading recent authorities (Stevens v Brodribb Sawmilling Co Pty Ltd 2Hollis v Vabu Pty Ltd3 and ACE Insurance Ltd v Trifunovski4) establish that:

  the characterisation of the relationship by the parties,whilst of some weight,is not determinative of the proper characterisation of that relationship;

  no one matter is likely to be determinative of whether there is an employment relationship or not;

  a multi-factor test must be applied,requiring all of the relevant circumstances to be weighed and the totality of the relationship identified;and

  the fundamental distinction between an employee and an independent contractor is that the former serves his or her employer in the employer’s business,and the latter carries on a business of his or her own.

[24] Applying these principles in the context of the current proceedings presents some difficulty. It requires characterisation of the legal status of persons who are not parties to the proceedings and have not given any evidence in the proceedings. The most immediate difficulty is that the trainers who actually worked in the Apex business at the time of the dismissal have not been identified. That makes it difficult to determine whether they are simply arm’s length employees of contracting companies owned and controlled by other persons,or are the actual owners and controllers of the contracting companies such as to make possible the inference that the companies are merely exercises in formalism disguising what is in truth an employment relationship between the trainers and Apex.

[25] There was no challenge of significance to the credibility of Ms Sodhi,and the limited documents provided to the Commission tended to support her evidence. I see no reason not to accept her evidence. Her evidence,and the documentary material,demonstrate the following matters as supportive of the conclusion that the trainers were employees of genuine independent businesses rather than of Apex:

(1) The contracts described the relationship between Apex and the contracting companies as a commercial arrangement whereby the latter provided training and support personnel to the former. Although the label by which a relationship is contractually described is not determinative,it is a relevant factor which must be given some weight. As discussed in Fair Work Ombudsman v Ramsey Food Processing Pty Ltd 5 there may be legitimate arrangements for the provision of workers by a company at arm’s length from the business being supplied,where the individuals whose personal service is thereby provided may be engaged as the employee of the labour provider.

(2) The contracts did not require the provision of personal services by any nominated individual,but simply (in clauses 2.1 and 4.1) required that a sufficient number of qualified workers be provided to meet Apex’s requirements. The contracts were not confined to the provision of a single worker. That this was not an artifice but represented the reality of the arrangement is demonstrated by Ms Sodhi’s evidence that 3 contracting companies provided more than one trainer,that the contracting companies generally were required to and did provide alternative trainers when the primary trainer was sick,and they were not required to always provide the same trainer so long as the person provided was qualified. The lack of any requirement for personal service is a matter which must be given significant weight.6

(3) The contracting companies providing the trainers were all incorporated entities,and most were incorporated before they commenced dealings with Apex. Although incorporation may not be determinative against a finding of employment where the principal of a company is required to provide personal service to the other contracting party7,there is no reason on the facts here not to give weight to this factor as indicative of a genuine independent contracting arrangement. As earlier stated,there was no evidence as to whether,in any case,the trainer provided was the principal of the relevant contracting company.

(4) At least 5 of the 9 contracting companies charged GST on the amounts they claimed in their invoices,and that they did so as a result of a deliberate business decision (rather than because they were required to by Apex) can be inferred from the fact that 3 other contracting companies chose not to charge GST with the apparent acquiescence of Apex. In Tattsbet Limited v Morrow 8 Jessup J,with whom Allsop CJ and White J agreed,said:

“…in contemporary Australia,it is impossible to ignore,and difficult to depreciate,the taxation implications of the mode of operation which parties to a relationship have voluntarily adopted. In the past,the deduction of what are now called PAYG instalments was always treated,uncontroversially,as indicative of an intention that the relationship in question was one of employment. To any suggestion that the absence of such instalments tended to point to the relationship being one of principal and independent contractor,it was often rejoined that such an argument was circular,in the sense that a consequence of the relationship being one of employment was,under legislation,that such instalments had to be deducted. In contemporary times,however,there are legislative markers on both sides,as it were. It is no longer just the absence of PAYG deductions that may make it more difficult to characterise the relationship as one of employment,it is the presence of GST collections by the putative contractor,and his or her compliance with the regulatory requirements which apply to the provision of services by persons who are not employees,that point quite strongly against the relationship being characterised in this way. These observations are made,of course,in the context of the present case,where there is no suggestion that the respondent’s participation in the GST system did not reflect her own conscious,well-informed,intentions.”

(5) Although the evidence is somewhat sketchy,there are a number of indicators that the contracting companies were running genuine businesses in their own right rather than simply being used as vehicles for the provision of personal services by individuals to Apex. As earlier stated,3 contracting companies provided more than one trainer to Apex. One of these 3,Worxlink Pty Ltd,also provided cleaning services to Apex. Australian Institute for Sustainable Development Pty Ltd has its own website. The majority were already incorporated before they began contracting with Apex. Some trainers themselves work for other providers.

[26] The evidence as to control is neutral. Apex controlled when the work was performed,which appears to me to be a natural concomitant of the type of business it conducted. However Ms Sodhi’s evidence was that it did not control the way in which work was performed,and there was no evidence to contradict this. Nor do the contracts contain any provision conferring a right of control over the manner of the performance of work. In any event,in the context of a contract for the provision of labour by one party to another,a degree of control by the latter party over the work of the worker whose services are provided is not necessarily indicative of an employment relationship with that worker. 9

[27] There was no significant capital input on the part of the contracting companies,in that they only provided the laptops and whiteboard markers used by the trainers. However,given that the nature of Apex’s business was classroom training,which did not require any facilities of significance beyond Apex’s own classrooms and the fittings in them,I regard this as a neutral factor.

[28] Mr Dal relied on the fact that the contracting companies were paid hourly rates calculated by reference to award rates (but insufficient to meet all employment obligations) as indicative of the fact that the contracts were shams to disguise employment relationships in which the employees were not being paid all their legal entitlements. I do not accept that such an inference can be drawn from the limited evidence before me. There is no evidence as to how the trainers are actually being paid,or that they are being underpaid,but the requirements of clauses 4.5-4.12 of the contracts evince an intention that that the trainers be paid all their lawful entitlements by the contracting companies. That the hourly rates have been calculated with the applicable award rates in mind is not surprising,since as a matter of business practicality Apex could be expected to understand that it would need to pay the contracting companies a sufficient amount in order that they might meet the obligations in clauses 4.5-4.12. The matters to which I have earlier referred in paragraph [25] above do not support the proposition that the contracts were a sham in the sense that they were not intended to give rise to any legal obligations. As earlier stated Ms Sodhi’s evidence was that the contracts were given effect in accordance with their terms.

[29] There are a few matters which are somewhat ambiguous. Clause 4.9 of the standard contract is curious,since it apparently requires the trainers to give notice to the contracting companies when leaving their employment. It is not clear how or why the contracts between Apex and the contracting companies could or would purport to regulate the employment relationship between the contracting companies and their employees. However the provision,because it does contemplate particular trainers leaving their employment with contracting companies during the currency of the contracts between the latter and Apex,does tend to confirm that the personal service of particular trainers was not required. The invoice given in the personal name of a particular trainer,Deuk Hyun Lee,with the invoiced amount to be paid to the account of Winfinity Consulting Pty Ltd,does tend to suggest a more direct personal relationship with Apex. However I note that Mr Lee was not the person who executed the contract between Winfinity Consulting Pty Ltd and Apex,and that Winfinity was one of the contracting companies which provided more than one trainer to Apex. This prevents the inference being drawn that Winfinity was merely a vehicle for the provision of personal services by Mr Lee. In the case of AAAC Solution Pty Ltd,it may be noted that the invoiced amounts were payable to a natural person,Ayasha Siddika,and that the same person executed the contract on behalf of AAAC Solution Pty Ltd. However in the absence of evidence that Ms Siddika was the trainer provided by AAAC Solution Pty Ltd to Apex,it cannot be inferred that the contracting company was simply the means by which she provided her personal services. Finally,it is noted that 3 of the contracting companies did not charge GST,although Ms Sodhi advanced a possible explanation. Certainly there was no evidence that Apex deducted any PAYG tax with respect to these 3 contracting companies.

[30] As earlier stated,because of the absence of any identification of the trainers actually provided by the various contracting companies,it is not possible to assess the extent of their involvement in the contracting companies which provided their labour to Apex,and therefore it is not possible to conclude that the contracting companies were merely artificial vehicles for the provision of their personal services to Apex. The evidence adduced by Apex,for the reasons set out above,strongly favoured the conclusion that the contracting companies were independent contractors engaged by Apex and that the trainers were employees of those companies rather than Apex. Even if the position is a little ambiguous with respect to a few of the 9 contracting companies,I am comfortably satisfied on the evidence adduced by Apex that at least a majority of them were independent contractors who employed the trainers provided to Apex pursuant to their contracts. That evidence was not rebutted by Mr Dal. That makes it impossible to get to 15 employees engaged at the time of Mr Dal’s dismissal.

[31] I find that Apex was a small business employer within the meaning of s 23 of the FW Act at the time of Mr Dal’s dismissal,and accordingly,because Mr Dal did not serve the minimum employment period of one year required by s 383(b),he is not a person protected from unfair dismissal under s 382. His application is therefore dismissed.

VICE PRESIDENT

Appearances:

R. Dal on his own behalf.

P. Ludeke,solicitor,on behalf of Apex Institute of Education Pty Ltd.

Hearing details:

2017.

Sydney:

27 October.

 1  See Teterin v Resource Pacific Pty Limited t/a Ravensworth Underground Mine [2014] FWCFB 4125;244 IR 252 at [23]-[29]

 2  [1986] HCA 1; (1985) 160 CLR 16

 3  [2001] HCA 44; (2001) 207 CLR 21 

 4  [2013] FCAFC 3; 209 FCR 146

 5  (2011) 198 FCR 174 at [61]-[92];see also Damevski v Guidice (2003) 133 FCR 438 at [173] and FP Group Pty Ltd v Henry &Hancock and Others [2013] FWCFB 9605 at [10]-[29]

6 ACE Insurance Ltd v Trifunovski [2013] FCAFC 3, 209 FCR 146 at [102]

7 Ibid at [150]-[153]

 8  [2015] FCAFC 62 at [70]

 9  FP Group Pty Ltd v Henry &Hancock and Others [2013] FWCFB 9605 at [25]-[29]

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About this document
(1)
Code:
PR597898
Title:
PR597898 - Decision - 14 Dec 2017
Effective:
14 Dec 2017
Updated:
15 Dec 2017
Related Information
1.0.11.0 SD