Tay v Fanous and Goubran trading as Five Dock Newsagency

LEGISLATION CITED: Industrial Relations Act 1996

Allchin v Commissioner of Police (No 2) [2007] NSWIRComm 280; (2007) 168 IR 170 Bankstown City Council v Paris (1999) 93 IR 209 Dee Donovan and Tanya Sullivan t/as Blaze on Stage Pty Ltd [2005] NSWIRComm 362 CASES CITED: Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 Joseph Tay and A Fanous & F Fanous & J Goubran & ME Goubran trading as Five Dock Newsagency [2009] NSWIRComm 1094 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Mr J Tay (Appellant) Self-represented LEGAL REPRESENTATIVES: Mr A Fanous (Respondent) Self-represented

JOSEPH TAY v A FANOUS, F FANOUS, J GOUBRAN AND M E GOUBRAN TRADING AS FIVE DOCK NEWSAGENCY

Application by Joseph Tay for leave to appeal and appeal against a decision of Commissioner Bishop given on 7 December 2009 in Matter No IRC 604 of 2009

1 Before the Full Bench is an application for leave to appeal and appeal against the decision of Bishop C in Joseph Tay and A Fanous & F Fanous & J Goubran & ME Goubran trading as Five Dock Newsagency [2009] NSWIRComm 1094. Bishop C dismissed the appellant's claim under s 84 of the Industrial Relations Act 1996 ("the Act") for want of jurisdiction, finding that the appellant at the time of his dismissal was not an employee of the respondent.

2 The sole issue raised on the appeal concerns the appellant's working relationship with the respondent at the time of his dismissal, that is, whether the relationship between the parties was one of employee and employer or one of principal and independent contractor. The evidence before Bishop C

3 The appellant commenced working for the respondent in about September 2005 rolling and delivering newspapers. He was provided with a car by the respondent in order to conduct the deliveries, and was responsible for maintenance and repairs to the car. According to the evidence, which was set out by the Commissioner, the appellant was paid in cash and issued with a pay slip and a Group Certificate from about September 2005 until July 2008. After July 2008, the appellant submitted tax invoices to the respondent which itemised payments sought for labour, a van and petrol, inclusive of GST. The invoices also quoted the appellant's ABN. Other evidence relied upon in the proceedings below established that from 1 July 2008 until June 2009, the appellant operated a business as a sole trader, trading as Ha Co and using the ABN quoted on the tax invoices submitted by him to the respondent for the delivery work. It appears that from July 2008, the appellant also used his own vehicle (the van) to deliver the newspapers. In the tax invoices provided from that time until 17 April 2009, the appellant claimed costs, for which he was paid, associated with operating the van, including petrol. The evidence also disclosed (and Bishop C found) that the appellant used his van to carry out contract deliveries for Australia Post on Monday to Friday commencing at 8am. He was also employed by a bakery under a written contract. 4 From about 11 April 2009, the respondent engaged another person to carry out the appellant's deliveries during week days. Over the following three weeks the appellant, at the request of the respondent, trained his replacement to take over the delivery run on week days. The appellant continued to work for the respondent delivering newspapers on the weekends. 5 The tax invoices submitted by the appellant indicated that during the period July 2008 until 17 April 2009 payment was sought from the respondent for labour, the van and petrol in the sum of $560 per week. Thereafter, until 25 April 2009, the appellant submitted tax invoices for "wages" in the sum of $280 for the weekend delivery work. These later tax invoices also quoted the appellant's ABN. Although the appellant said he did not submit any documentation after 24 April 2009, other evidence indicated that he was paid $280 by the respondent for the weekend work during the period April 2009 until the cessation of the working relationship, which Bishop C found was 19 June 2009. 6 During the hearing of the appeal, the appellant provided an explanation as to why he wrote "wages" on the tax invoices submitted by him between 18 April and 25 April 2009 (there were only two) and why he submitted no documentation after 25 April 2009 to the respondent seeking payment for the weekend work. The explanation, as we apprehended it, was that he realised a tax invoice could provide evidence that he operated as an independent contractor, not an employee. He said he had always regarded himself as an employee of the respondent. Writing "wages" on the last two invoices was therefore meant to signify his working relationship with the respondent as an employee. 7 The contract (or arrangement) between the parties was never reduced to writing. The Commissioner's Decision 8 Bishop C, in her decision, set out the evidence in some detail. Much of that evidence concerned various disputes between the parties arising from aspects of the working relationship, such as the circumstances under which the appellant came to utilise his own vehicle for deliveries after July 2008 and allegations by the respondent with regard to complaints from customers that the appellant either did not deliver newspapers on time, or at all. It is not necessary to explore these issues in the present proceedings as they do not impact on the principal issue in dispute, namely, whether the appellant was an employee or an independent contractor during the period of his working relationship with the respondent. 9 The event which appeared to precipitate his dismissal by the respondent, Bishop C found, involved the appellant's failure to deliver newspapers on 21 June (a Sunday) because he said the paper rolling machine had broken down and he was unable to roll the newspapers. The appellant left the respondent's premises after complaining to shop staff that the paper rolling machine was not working. He was contacted by the respondent at some stage after he left the premises and was informed that Fairfax Media had complained about the non-delivery of newspapers. Fairfax Media had also advised the respondent by letter that in the event of any further instances of non-delivery, it would "prepare its own delivery run and ... take over all Fairfax distribution within the territory". The respondent informed the appellant that he was no longer to do the delivery run. 10 In order to determine whether the appellant had been unfairly dismissed, Bishop C was required to first consider the issue concerning the nature of the working relationship between the parties in order to ascertain whether the appellant was in fact an employee, not an independent contractor. Recognising this as the necessary approach, Bishop C considered that the following factual indicia (which she found established on the evidence) were relevant: 1) The relevant period for consideration is July 2008 to June 2009.

2. Prior to this time Mr Tay was considered an employee.

3. There was no written contract between the parties. However a written contract is not necessary to establish that in fact a contract for the provision of services existed.

4. Mr Tay performed a service rolling and delivering newspapers to subagents and customers on seven days per week.

5. He provided his own vehicle for this purpose and was paid a fee for maintaining his vehicle and an amount for petrol (a flat amount regardless of the amount of petrol used or fluctuations in the price of petrol from time to time).

6. Mr Tay was responsible for maintaining his vehicle.

7. Mr Tay was able to use his van for other business purposes and did so, being also a contractor for Australia Post.

8. The only equipment supplied by the respondents was the paper rolling machine, but if this broke down newspapers could be rolled by hand and secured with a rubber band or delivered unrolled.

9. Mr Tay was paid a flat weekly amount for the service he performed regardless of the hours worked (e.g. any additional hours required due to any circumstance).

11. Whilst he had a set route for deliveries he could make changes as to how he carried out the route. The only proviso being the delivery of the newspapers.

12. Whilst Mr Tay had certain hours he scheduled for deliveries (see above) if he was able to deliver in less time he would have been able to leave and go home.

13. The starting time of deliveries was dependent on the time the newspapers arrived at the Newsagency. The only proviso being that the contract between the Newsagency and Fairfax Media required newspapers to be delivered to customers by 6.30am.

15. Mr Tay provided invoices to the respondents for the services he provided setting out amounts for labour, van and petrol.

11 Based on these facts, and after taking into account some relevant authorities on the issue, Bishop C found that the appellant was an independent contractor from July 2008. Leave to appeal

12 In the application for leave to appeal and appeal the appellant set out the reasons why leave to appeal should be granted. These reasons were: The Commissioner's decision has found a majority of time in the past 4 years the parties were in an employment relationship, however incorrectly found a 11-month period in between as that of a contractor's. 13 For present purposes, we need only be concerned with the appellant's working status at the time of his dismissal which was in June 2009. This is so because the appellant, in order to demonstrate that his dismissal was unfair under s 84, must show that he was in an employment relationship at the time of dismissal. According to the appellant he was an employee of the respondent at that time because he did not provide any further tax invoices. He also appeared to place some reliance on the fact that there was no written contract during this period and he continued to use his van in order to make the weekend deliveries only because the respondent did not have a vehicle that he could use. 14 The appellant also submitted that Bishop C found that for the two periods falling either side of the period July 2008 until April 2009, the appellant was an employee of the respondent. We have earlier set out Bishop C's findings. Contrary to the appellant's analysis of those findings, the Commissioner found that from July 2008 until June 2009, the appellant was not an employee of the respondent. The appellant also said that the Commissioner "incorrectly found" that he was a contractor during July 2008 until April 2009. For reasons which follow we do not share this view. 15 In order to prosecute his appeal the appellant must first make out a successful case for leave to appeal. This approach is warranted under s 188 of the Act which provides: Appeals to Full Bench by leave only

(1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench.

(2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.

(3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal.

(4) This section does not apply to an appeal made by the Minister. 16 The appellant's reasons as to why leave should be granted are directed towards Bishop C's findings on the jurisdictional issue. A consideration of those findings involves issues of mixed fact and law. An inquiry at appellate level is concerned with whether the findings of fact and law made at first instance reveal any error warranting appellate intervention: Allchin v Commissioner of Police (No 2) [2007] NSWIRComm 280; (2007) 168 IR 170. Whether leave to appeal should be granted however, involves different considerations. 17 In Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380, the Full Bench, after observing that in accordance with s 188(2) of the Act, "... leave will not lightly or automatically be granted", posited some instances where leave might be successfully granted. These included whether the appeal, "... raises substantial issues of principle or law or has wider implications for the jurisprudence of the Commission, including whether the decision has widespread practical application" (at 382); see also Dee Donovan and Tanya Sullivan t/as Blaze on Stage Pty Ltd [2005] NSWIRComm 362 (at [48]). 18 Leave to appeal has been granted where demonstrable error has been disclosed in the first instance decision. On this matter, the Full Bench in King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407, commented (formal references omitted): [54] Having regard to the submissions of the appellant on the question of leave in his appeal, it is plain that in large measure, the appeal seeks to challenge the findings of fact made by his Honour. As was made clear by the Full Bench in Knowles an appeal which seeks, by and large, to challenge findings of fact or the exercise of discretion of a member of the Commission, will face a significant hurdle in obtaining leave to appeal. In this regard we would reiterate what was stated by the Full Bench in Box Valley Pty Ltd v Price at [4]: In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave. 19 In the present proceedings, the appellant has raised no substantial issues of principle or law, or identified any matters of relevance to the jurisprudence of this Court, which might have attracted leave. It is also our view that Bishop C's findings to the effect that the nature of the relationship between the parties was one of principal and independent contractor from July 2008 until the appellant's termination in June 2009 were available on the evidence. The factual indicia which underpinned those findings we have earlier set out, and need no repetition. 20 In addition, we perceive no error in the approach adopted by Bishop C in deciding the jurisdictional issue. The decision records that the learned Commissioner's consideration proceeded by reference to a number of authorities dealing with the appropriate tests to be applied in determining the precise nature of a working relationship. Two authorities relied upon included Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21. Both authorities outline relevant indicia for the determination of the existence or otherwise of an employment relationship. The matters relied upon by Bishop C, which were established on the evidence, demonstrate that she had in mind both authorities when she determined that issue. 21 These matters in combination lead us to conclude that no proper basis has been made out by the appellant for the grant of leave. Our orders, therefore, will be that leave to appeal is refused and the appeal is dismissed. Costs

22 This leaves an outstanding issue of costs of the appeal. Both parties applied for costs. The respondent, during oral hearing, sought a sum of $5,500 for, "my costs of today". He also informed the Full Bench that he had attended the Court on five occasions consisting of "three directions, two hearings and one conciliation". It was unclear whether the respondent sought costs incurred in the proceedings below, as well as on appeal. The reference to "conciliation" suggests that the respondent sought costs in relation to both sets of proceedings. The appellant also sought costs in the sum of $3,500 on the basis that he had attended the Court, "at least six times", and he had foregone monies that would otherwise have been earned by him as a courier in order to come to court and prosecute his appeal. He added, in support of the application that, "the most important thing is that [the respondent] used extraordinary measures to dismiss me". 23 No other grounds were advanced by either party to support their respective applications for costs. We should explain at this point that both parties were unrepresented in the proceedings below and on appeal. 24 The respondent also made an application for costs before Bishop C, which he later abandoned. The reasons for this remain unclear. The decision simply records (at [72]) that the grounds upon which costs could be awarded and their relevance to the substantive application were explained to the respondent after which the application for costs was not pressed. Given these circumstances, it is not open to the respondent to re-agitate the earlier costs application in the present proceedings. 25 The relevant provisions which arise for consideration of an application for costs made in relation to an appeal against the dismissal of an application made under s 84 are s 181(2)(a), (b) and (c) and s 181(4) of the Act. Those provisions provide: (2) ... the Commission when it is not in Court Session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or

(b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or

(c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious.

(4) In this section, costs includes: (a) costs of or incidental to proceedings in the Commission, and

(b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. 26 The statutory regime under s 188 of the Act which governs applications for costs associated with unfair dismissal applications, mandates a two-stage process, that is, once a positive finding has been made that one or more of the criteria in s 181(2)(a), (b) or (c) apply to the proceedings, then a discretionary order for costs may be made under s 181(1) of the Act: Bankstown City Council v Paris (1999) 93 IR 209 at 219. 27 In the same passage, the Full Bench emphasised the intent of the legislature that strict limits should be imposed on the power of the Commission to award costs in unfair dismissal proceedings. The provisions provide that costs orders may be made if the Commission finds that an application to it was "frivolous or vexatious", or made "without reasonable cause", or there was an unreasonable failure to agree to the settlement of the claim. The parties did not address any of those criteria. The respective assertions by both parties that their court attendances resulted in costs being incurred were made without the benefit of any explanation and without any supporting documentation that might have assisted in establishing the threshold criteria set out in the subject provisions. We note that none of the criteria are applicable to the appellant, who has been unsuccessful in prosecuting his appeal. As for the respondent, in the absence of any further explanation or material in support of the application we are unable to give it due consideration. Both applications must therefore be rejected. Orders 28 Accordingly, we make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. No order as to costs.

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