Independent Contractor status bars unfair dismissal application

Independent Contractor status bars unfair dismissal application

The Fair Work Commission has accepted the jurisdictional objection raised by an employer that an unfair dismissal application should not be heard because the person was engaged as an independent contractor. In doing so, the Commission rejected the Applicant’s argument that he was an employee who performed work pursuant to an employment agreement.

The case involved Rubik3, a business that provides strategic workforce solutions to clients in the private and public sectors.

On 7 July 2020, the Applicant entered into a Contractor Agreement (the Agreement) with Rubik3 to perform services as a data officer for a client of Rubik3, a federal government department.

The relevant provisions of the Agreement stated:

  • He was employed as an independent contractor to provide services;

  • There was no intention to create an employee-employer relationship;

  • There was a confirmed start and finish date to the contract, with the option for the department to offer an extension at their discretion, which he could refuse;

  • Neither Rubik3 nor the department were liable for any leave entitlements;

  • He was required to provide timesheets as evidence of his attendance;

  • He was required to rectify the services provided at his own costs if the department deemed he did not meet their required standards; and

  • Fees paid to him were inclusive of Superannuation Guarantee Charge requirements.

After failing to appear for work for a 10 day period, his contract was terminated on 5 February 2021. He denied any wrongdoing and claimed that he was unfairly dismissed.

In accepting his status as that of an independent contractor, Deputy President Lyndall Dean acknowledged the following key factors:

  • The written terms of the contract clearly spell out that he was engaged as an independent contractor with no intention from any parties to create an employment relationship;

  • He was engaged to provide specialist services which he could not delegate or assign to others;

  • Rubik3 did not control the hours he worked, and his hours did fluctuate during the course of his engagement;

  • He was able to undertake work for others, even though he may not have done so;

  • While he was provided with a computer, this was due to high-level security requirements that were associated with the work he was performing;

  • While PAYG tax was deducted from his monies, this was not in itself determinative of an employment relationship; and

  • No paid leave was provided to the Applicant.

Consequently, Deputy President dismissed the application.

K C v RUBIK3 Pty Ltd (U2021/1868) 20 July 2021

For questions about employment relationships, contractual arrangements, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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