1
Fair Work Act 2009
s.604 - Appeal of decisions
Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic
v
Mei Chan
(C2019/2709)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT MASSON
COMMISSIONER WILSON
MELBOURNE, 23 JULY 2019
Appeal against decision [2019] FWC 2315 of Senior Deputy President Hamberger at Sydney
on 8 April 2019 in matter number U2018/10383; whether particular persons engaged by the
Appellant were employees; permission to appeal granted; appeal upheld; decision quashed;
application remitted for rehearing.
Introduction and background
[1] Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic (the Appellant) has
applied for permission to appeal and has appealed against a decision1 made by Senior Deputy
President Hamberger on 8 April 2019 (the Decision), in which the Senior Deputy President
determined that Ms Mei Chan (the Respondent) was unfairly dismissed and determined that
compensation of $40,000 plus superannuation should be paid to the Respondent by the
Appellant.
[2] The background to the proceedings may be shortly stated. The Appellant conducts a
dental practice with two clinics at Hurstville and Hornsby in NSW. The Respondent
commenced working for the Appellant in July 2013 as a Dental Assistant in the Hurstville
Clinic. In 2014 the Respondent was promoted to the position of Practice Manager in the
Hornsby Clinic. The Respondent was dismissed on 21 September 2018 arising from the
Appellant’s concerns over the Respondent’s performance and conduct; specifically due to
claimed discrepancies in the cash accounts for which the Respondent was responsible, her
taking of an extended period of unauthorised leave and her alleged unauthorised withdrawal
of cash from the Appellant’s cash account.
[3] We turn firstly to the Decision which is the subject of the appeal.
1 [2019] FWC 2315
[2019] FWCFB 5104
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 5104
2
The Decision
[4] In its initial Form F3 response to the unfair dismissal application the Appellant
objected to the application on the basis that it was a small business employer and had
complied with the Small Business Fair Dismissal Code (the Code). The matter was set down
for hearing before the Senior Deputy President in respect of both the Appellant’s
jurisdictional objection and the merits of the substantive application.
[5] As required by s.396 of the Fair Work Act 2009 (the Act), the Senior Deputy President
in the Decision turned to the initial matters to be decided before considering the merits.2 In
considering the Appellant’s jurisdictional objection, the Senior Deputy President was required
to establish the number of employees of the Appellant employed at the time of the
Respondent’s dismissal. He ultimately found that the Appellant “…did not have fewer than 15
employees at the relevant time”3 from which conclusion it followed that the Respondent was
not a small business employer and that the Code did not apply (s.396(c)).4
[6] Critical to the Senior Deputy President’s conclusion was his finding as to the
employment status of 7 dentists engaged by the Appellant. The Senior Deputy President
found that these dentists were employees rather than contractors as contended by the
Appellant. We return later to this aspect of the Senior Deputy President’s decision.
[7] Having determined that the Code did not apply, the Senior Deputy President
considered whether the dismissal was “harsh, unjust or unreasonable”; and for that purpose
gave consideration to the matters set out at s.387(a)-(h) of the Act. As to whether there was a
valid reason for dismissal the Senior Deputy President concluded:
“[52] The evidence in this case is far from clear. This was compounded by the primitive
accounting practices used by the respondent. However, I generally accept the
applicant’s version of events, especially as it was generally consistent with the written
records, such as they are. In particular, I accept that the applicant had an understanding
with the respondent that she would receive both commission and a performance bonus,
and that these would continue to be paid while she was on maternity leave. The
applicant’s practice, accepted and condoned by the respondent over a long period of
time, was that she would take this money herself from the respondent’s cash receipts.
There was nothing hidden about this. Both the commission and the bonus were
included in the monthly cash reports that the applicant gave to the Dr Zhang and Mr
Guan. They were also included in the report that the applicant prepared on 11 June
2018.
[53] I do not consider there is sufficient evidence to sustain any of the allegations the
respondent made against the applicant. In particular, I am not persuaded that there are
any significant, unexplained discrepancies in the cash accounts the applicant had
prepared.
[54] Moreover, I accept on the balance of probabilities that Dr Zhang had verbally
agreed to pay the applicant a $200 performance bonus for every $12,000 of revenue
received per week.
2 [2019] FWC 2315 at [7]
3 Ibid at [18]
4 Ibid
[2019] FWCFB 5104
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[55] There is no basis for accepting the respondent’s contention that the applicant took
unauthorised leave during the period from May 2017 to February 2018. She appears to
have kept Dr Zhang informed when she needed to have time off because of
complications with her pregnancy. There is no evidence that she failed to meet any
requirements for ‘prior written approval’ of that leave.
[56] Finally, I am satisfied that any money the applicant took from the respondent’s
cash receipts was money that she was authorised to receive.
[57] Given these findings, I am satisfied that there was no valid reason for the
applicant’s dismissal.”5
[8] The Senior Deputy President considered the other matters he was required to take into
account under s.387 of the Act and relevantly stated:
“[58] I am satisfied that the applicant was broadly notified of the allegations made
against her, and that she was given an opportunity to respond. There is no evidence
that the applicant was prevented from having a support person present at any relevant
meetings.
[59] The process taken by the respondent in effecting the dismissal was broadly
consistent with its relatively small size and lack of access to dedicated human resource
management specialists or expertise.
[60] I do not consider there are any other matters I should take into account.”6
[9] The Senior Deputy President concluded that:
“Having regard to all these factors, I am satisfied that the dismissal was unjust and
unreasonable.”7
[10] The Senior Deputy President next dealt with the question of remedy and concluded
that reinstatement was inappropriate, noting that the Respondent had not sought
reinstatement.8 The Senior Deputy President then turned to the issue of compensation and
after consideration of the matters set out in s.392(2)(a)–(g) of the Act ordered that the
Appellant pay compensation in the amount of $40,000 plus superannuation.9
Grounds of appeal and submissions
[11] We discern from the Appellant’s Notice of Appeal the following three grounds of
appeal:
5 Ibid at [52] – [57]
6 Ibid at [58] – [60]
7 Ibid at [61]
8 Ibid at [62]
9 Ibid at [63] – [75]
[2019] FWCFB 5104
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1. The Senior Deputy President erred in his conclusion that the dentists engaged by
the Appellant were employees and that as a consequence the Appellant was not a
small business employer.
2. By wrongly concluding that the Appellant was not a small business employer the
Senior Deputy President consequently fell into error by failing to consider whether
the dismissal of the Respondent was consistent with the Code.
3. The Senior Deputy President wrongly concluded that the Respondent had
complied with the maternity leave notice requirements under the Act (s.74), that
being the requirement to provide prior written notice in respect of her intention to
take maternity leave.
[12] It is necessary only that we deal with the first ground.
[13] By the first ground, the Appellant submits that the contracts entered into between the
Appellant and dentists show on their face, a contractor relationship. Consequently, according
to the Appellant, the dentists should not have been counted as employees for the purposes of
establishing whether the Appellant employed 15 employees at the relevant time.
[14] Before the Senior Deputy President the Appellant provided relevant extracts of what
are said to be template contracts. Before us, the Appellant contended that the Senior Deputy
President did not raise any concerns regarding the Appellant’s evidence as to the contractual
status of the dentists during cross-examination of the Appellant’s witnesses. The Appellant
contends that it was deprived of an opportunity to adduce further evidence to address any
concerns the Senior Deputy President may have held regarding the contractual status of the
dentists and as a consequence was denied procedural fairness.
[15] The Respondent contends the Appellant’s Notice of Appeal and submissions in respect
of the first and second grounds of appeal do not engage with, address or challenge any of the
crucial findings of the Senior Deputy President in which he found that there was insufficient
evidence to sustain any of the allegations made against the Respondent. Rather, the
Respondent submits that the Appellant now complains of unfavourable or unavailable
conclusions that were not determinative of the unfair dismissal application.
[16] The Respondent further submits that the Appellant put on the sparsest of evidence in
the initial proceedings as to the nature of the contractual status of the dentists and failed to
address matters such as delegation, payment arrangements, commercial risk, control and
independence, the degree of input, influence or negotiation which took place in the formation
of each contract and whether the dentists were effectively running their own business. The
Respondent contends that even if the dentists were independent contractors the outcome
would not have changed given that the test for summary dismissal under the Code could not
be met by the Appellant in the case of fraud and/or theft having regard to the Senior Deputy
President’s findings in paragraphs [19], [52]-[53] and [56] of the Decision.
[2019] FWCFB 5104
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Consideration
Relevant statutory provisions
[17] Central to the resolution of the appeal is the Senior Deputy President’s finding that the
Appellant was not a small business employer for the purpose of consideration of compliance
with the Code.
[18] Section 385 of the Act sets out when a person has been unfairly dismissed as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code:
see section 388.”
(Emphasis added)
[19] Self-evidently, the requirements of this section depend upon the Commission itself
being satisfied of the state of affairs to which reference is made in s.385.10
[20] The circumstances in which a person’s dismissal is ‘consistent with the Small
Business Fair Dismissal Code’ is set out in s.388 as follows:
“388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair
Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal
Code if:
(a) immediately before the time of the dismissal or at the time the person was
given notice of the dismissal (whichever happened first), the person’s employer
was a small business employer; and
10 See also Clermont Coal Pty Ltd v Brown [2015] FCAFC 136 at [4] per Jessup J (with whom Buchanan and Rangiah JJ
agreed)
[2019] FWCFB 5104
6
(b) the employer complied with the Small Business Fair Dismissal Code in relation
to the dismissal.” (Emphasis added)
[21] The Code declared by the Minister pursuant to s.388(1) is as follows:
“Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the
employer believes on reasonable grounds that the employee's conduct is sufficiently
serious to justify immediate dismissal. Serious misconduct includes theft, fraud,
violence and serious breaches of occupational health and safety procedures. For a
dismissal to be deemed fair it is sufficient, though not essential, that an allegation of
theft, fraud or violence be reported to the police. Of course, the employer must have
reasonable grounds for making the report.
Other dismissal
In other cases, the small business employer must give the employee a reason why he
or she is at risk of being dismissed. The reason must be a valid reason based on the
employee's conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks
being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to
respond to the warning and give the employee a reasonable chance to rectify the
problem, having regard to the employee's response. Rectifying the problem might
involve the employer providing additional training and ensuring the employee knows
the employer's job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the
employee can have another person present to assist. However, the other person cannot
be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with
the Code if the employee makes a claim for unfair dismissal to Fair Work Australia,
including evidence that a warning has been given (except in cases of summary
dismissal). Evidence may include a completed checklist, copies of written warning(s),
a statement of termination or signed witness statements.”
[22] Whether an employer is a small business employer is determined by reference to s.23
of the Act which provides:
“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.
[2019] FWCFB 5104
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(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.”
[23] Thus, for the purposes of determining whether the Respondent was unfairly dismissed,
the Senior Deputy President was required to consider the Code by first determining whether it
applied. This depended on whether the Appellant was a small business employer at the time
of the Respondent’s dismissal.
[24] There is little doubt that the Appellant engaged more than 15 persons in its dental
practices at the time of dismissal. However, the controversy that required determination was
whether a number of those persons were independent contractors or employees, as only
employees are to be counted in assessing whether the Appellant was at the relevant time a
small business employer.
Permission to appeal
[25] As mentioned earlier, the Appellant has applied for permission to appeal, and has
appealed, the Decision.
[26] An appeal under s.604 of the Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.11 There is no right to appeal and an appeal may only be made with
the permission of the Commission.
[27] This appeal is one to which s.400 of the Act applies. Section 400 provides:
11 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[2019] FWCFB 5104
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“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation
to a matter arising under this Part can only, to the extent that it is an appeal on a
question of fact, be made on the ground that the decision involved a significant error
of fact.”
[28] The test under s.400 is “a stringent one.”12
[29] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.13 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full
Bench of the Commission identified some of the considerations that may attract the public
interest:
‘... the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.’14
[30] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.15 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.16
[31] We are satisfied that the first ground of appeal identifies an arguable case of
appealable error and that it engages the public interest. It is plainly arguable on the state of the
evidence that the Senior Deputy President wrongly concluded that some of the persons
engaged as dentists in the Appellant’s dental practices were employees, and therefore to be
counted in assessing whether the Appellant was a small business employer at the time of the
Respondent’s dismissal. If made out on appeal, the error is of the kind identified in House v
King17 and material to the outcome of the case. In the circumstances, it would be manifestly
unjust not to grant permission to appeal and we do so.
12 Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43] per Buchanan J (with whom
Marshall and Cowdroy JJ agreed)
13 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
14 [2010] FWAFB 5343; 197 IR 266 at [27]
15 Wan v AIRC (2001) 116 FCR 481 at [30]
16 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
17 [1936] HCA 40; (1936) 55 CLR 499 at 505
[2019] FWCFB 5104
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The appeal
[32] As earlier noted, the first ground of appeal contends that the Senior Deputy President
erred in his conclusion that the dentists engaged by the Appellant were employees and should
therefore be counted in the analysis of whether the Appellant was a small business employer.
[33] The Senior Deputy President correctly identified at [7] of the Decision the matters to
be assessed in dealing with the requirements of s.396, including whether the dismissal was
consistent with the Code. He correctly states the relevant question at [8] of the Decision that
required determination, namely whether the Appellant was a small business employer as
defined by s.23 of the Act at the relevant time.
[34] Before the Senior Deputy President the Respondent provided a witness statement
dated 1 December 2018 in which she listed 22 persons which she claimed were employees18
and a supporting photograph of persons engaged by the Appellant taken at its annual dinner in
2018.19 The list of persons said to be employees provided by the Respondent relevantly
included 7 dentists and Mr Kelvin Guan who was identified as a “Working Director”.
[35] The Appellant’s Director Mr Kelvin Guan also gave evidence in the proceedings
before the Senior Deputy President by way of a witness statement dated 18 December 2018 in
which he said there were 14 employees at the time of the Respondent’s dismissal.20 In a
supplementary statement21 Mr Guan said that of the 22 employees identified by the
Respondent:
the 7 dentists identified by the Respondent as employees were contractors and in
support of that contention included extracts of contracts entered into between some
of the dentists and the Appellant;22
two of the employees in the Respondent’s list named as “Rebecca” and “Natalie”
both left the Appellant’s employ to study full-time respectively on 5 August and 14
July 2018;
Mr Lawrence Guan was the Appellant’s contracted business consultant and was not
an employee; and
Dr Silvia was a sub-contractor Doctor and had terminated her contract with the
Appellant in June 2018.23
[36] The only other apparent evidence before the Senior Deputy President in relation to the
contractual status of the dentists was a witness statement dated 22 January 2019 prepared by
Ms Jun Zhang who is the wife of the Appellant’s Director Mr Guan. She is also engaged as a
18 Appeal Book at pp.15-16
19 Ibid at p.64
20 Ibid at p.107
21 Ibid at p.219
22 Ibid at pp.226-238
23 Ibid at p.221
[2019] FWCFB 5104
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dentist in one of the Appellant’s practices. In her statement Ms Zhang described herself as “a
dentist employed by Advanced Health Invest Pty Ltd.”24
[37] The Senior Deputy President accepted Mr Guan’s evidence that four of the persons
listed by the Respondent as employees should not be included in the number of employees.25
In the result there was a reduced number of persons identified on the Respondent’s list of
names, though it was more than 15. Critical to the Senior Deputy President’s conclusion that
the Appellant was not a small business employer was his finding that the 7 dentists engaged
by the Appellant were not independent contractors as contended by the Appellant but rather
were employees. In reaching this conclusion the Senior Deputy President assessed and made
findings in relation to the evidence as follows:
“[14] Annexure 2 to Mr Guan’s second statement consists of extracts from a number of
different documents. The first two pages of the annexure appear to be (a small part of)
an agreement which purports to be a ‘Contractors Agreement’ in which ‘the
Contractor’ (Dental Comprehensive Care Pty Ltd) ‘sends its employee’ Dr Tian Shu
Wang (who does not appear to be a person included in the applicant’s list of
employees) to work as a dentist to provide dental services at the respondent’s
premises. The next two pages appear to be an extract from an agreement which also
purports to be a ‘Contractors Agreement’, this time in relation to a dentist whose
surname name has been redacted (though his first name, Max, corresponds to one of
the people identified by the applicant). This agreement appears, however, to have been
made directly with ‘Dr Max’. The next three pages appear to be an extract from a
‘Contractors Agreement’ reached directly between another dentist whose surname has
also been redacted. (I note her first name, Ying, does not appear to correspond to any
of the people identified by the applicant.) The next four pages of the annexure appear
to be an extract of a ‘Contractors Agreement’ made directly between the respondent
and a dentist whose first name is Mary (which could correspond to one of the dentists
named by the applicant).The last two pages of the annexure appear to be an extract
from another document purporting to be a ‘Contractors Agreement’ made directly
between the respondent and a dentist, whose first name is Louise (who could be one of
the dentists named by the applicant).
[15] None of these extracts appears to represent anything other than a very small part
of each document. Two of the pages extracted are ‘tables of contents’, the text of
which implies that each document consists of at least 19 pages. Despite the documents
being described as ‘Contractors Agreements’, they are very far from amounting to
persuasive evidence that the dentists in question are anything other than employees of
the respondent. There is virtually no evidence in relation to those factors which one
would normally consider in determining whether a person is a contractor rather than
an employee, such as the ability to delegate, the basis of payment, the provision of
tools and equipment, the allocation of commercial risks, control over the work or the
degree of his or her independence.
[16] My doubts about whether the dentists who work for the respondent are genuinely
contractors, rather than employees, are reinforced by Dr Zhang’s evidence. Dr Zhang
24 Ibid at p.103
25 [2019] FWC 2315 at [18]
[2019] FWCFB 5104
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works as a dentist for the respondent. In her statement, she describes herself an
employee of the respondent.
[17] On balance, I am satisfied that the dentists should be considered as employees of
the respondent.”
[38] It is clear on review of the Decision that in dealing with the relevant question before
him as to the number of employees the Senior Deputy President considered the evidence
which was, taken at its highest, limited to the content of witness statements provided by the
Respondent, Mr Guan and Ms Zhang. Specifically, that evidence was confined to the
Respondent’s list of 22 claimed employees and an accompanying annual dinner photograph;
Ms Zhang’s description of herself as an employee; and Mr Guan’s evidence as to the formal
contracts in place with the dentists and his evidence as to four of the names on the
Respondent’s employee list that should be removed, referred to above at [37].
[39] It is apparent from a review of the transcript that the witness statement evidence
referred to above and in particular the evidence of Mr Guan as to the nature of the contractual
status of the dentists, was not subject to further examination in chief or cross-examination or
challenge, a point conceded by Counsel for the Respondent in closing oral submissions in the
proceedings before the Senior Deputy President.26 However, as was also argued before us on
appeal, Counsel for the Respondent submitted before the Senior Deputy President that the
onus of establishing the true nature of the contractual status of the dentists was borne by the
Appellant and it had failed to discharge that onus.
[40] It appears to us that the Senior Deputy President reached his conclusion as to the
employment status of the Appellant’s dentists on the barest of evidence, to which we have
already referred. Acceptance of that evidence, which in our view is not particularly probative,
was central to the Senior Deputy President’s finding that the Appellant employed at least 15
employees at the time of the Respondent’s dismissal.
[41] True it is that the Appellant also provided limited probative evidence but that evidence
was in a written form by way of extracts of certain dentists’ contracts which on their face
supported the Appellant’s contention that the dentists were independent contractors. Certainly
there was no evidence adduced by the Respondent to seriously contradict that which was
contained in the contractual extracts. Moreover, neither the Appellant nor the Respondent
adduced any other evidence directed to the indicia that would ordinarily be considered in
assessing whether a person was an employee or an independent contractor, a point made by
the Senior Deputy President at [15] of the Decision.
[42] While the Respondent contended that the Appellant bore an onus to establish the
contractual status of the dentists in pressing its jurisdictional objection, a failure of the parties
to provide probative evidence on what was a contested point does not relieve the Commission
of its statutory obligation to reach the requisite satisfaction as to the status of the disputed
persons or the basis of relevant and probative evidence. A state of satisfaction on the question
whether 7 dentists were employees or independent contractors cannot be safely arrived at on
the basis only of an assertion and a dated photograph on the one hand and extracts of a
contract said to be a template suggesting engagement as an independent contractor on the
other. In circumstances where there is a contest over a key issue and an apparent absence of
26 Transcript of proceedings 22 March 2019, PN1547
[2019] FWCFB 5104
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probative evidence, orders for the production of documents or witnesses may be made in
order that the Commission can inform itself. This did not occur in the proceedings before the
Senior Deputy President.
[43] As to the issue of onus agitated by the Respondent, it must be said that the extent to
which the legal concept of onus or burden of proof arises in relation to matters considered by
an administrative tribunal such as the Commission is a difficult one. However, in the context
of the question whether a dismissal is unfair, to the extent that there is a legal onus or
something analogous to it, the onus rests on the applicant in the sense that it is the applicant
who bears the risk of failure if the satisfaction required by s.385 including s.385(c) is not
reached.27 As to evidentiary onus, plainly a party seeking to establish a fact bears onus of
adducing evidence necessary to establish that fact. In a practical sense, in most cases the
question of where an evidentiary onus resides will be answered by asking: in relation to each
matter about which the Commission must be satisfied, which party will fail if no evidence or
no further evidence about the matter were given? In this case, the Appellant’s evidentiary
material was insufficient to enable the Senior Deputy President to reach a conclusion as to the
status of the 7 dentists, but so too was the Respondent’s evidence. A mere assertion from a
person not party to the contractual arrangements coupled with a photograph is an insufficient
basis to conclude that a particular person engaged by the Appellant is an employee.
[44] Having reviewed all the evidence before the Senior Deputy President, including the
transcript of the proceedings, we do not consider the Senior Deputy President’s conclusion
that each of the 7 dentists were employees of the Appellant, was reasonably open on the
evidence. Critically, there was almost no evidence and certainly insufficient evidence directed
to the indicia that would normally be considered in assessing whether a person or persons
were employees or contractors. It is concerning that such a situation has arisen in a matter in
which both parties were given permission for representation by lawyers and were represented
in the original proceedings. It is unsatisfactory that either permitted the case to be determined
on such a paucity of probative evidence on the critical question of the employment status of
the 7 dentists. On the other hand, the Senior Deputy President was entitled to order, direct or
request the parties to adduce further evidence on the subject and perhaps should have done so.
Nonetheless, there was no sound evidentiary basis to support the Senior Deputy President’s
conclusion that the Appellant was not a small business employer. By having reached the
conclusion we are satisfied that the Senior Deputy President fell into error. The first ground of
appeal is made out.
[45] A conclusion whether the Appellant is a small business employer is central to the way
in which the case thereafter is conducted. The Respondent’s submission that the erroneous
finding would not have made a difference to the outcome is rejected. If the Appellant is a
small business employer the application was not considered by reference to compliance with
the Code. Self-evidently, the considerations in s.387 of the Act are different in a material
sense to those raised by the Code. For that reason, the Senior Deputy President’s ultimate
conclusion cannot be permitted to stand and we therefore uphold the appeal on this ground.
27 See Teterin v Resource Pacific Pty Limited T/A Ravensworth Underground Mine [2014] FWCFB 4125 at [23]-[29] and
[31]-[32]; Jain v Infosys Limited T/A Infosys Technologies Limited [2014] FWCFB 5595 at [34]-[35]
[2019] FWCFB 5104
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Conclusion
[46] As we have mentioned, the decision subject to appeal was made under Part 3-2 -
Unfair Dismissal of the Act. Section 400(1) provides that permission to appeal must not be
granted from such a decision unless the Commission considers that it is in the public interest
to do so. For the reasons given, we are satisfied that it is in the public interest to grant
permission to appeal. We grant permission and uphold the appeal.
[47] Given our findings in the appeal, it is not appropriate to determine the application to
finality for ourselves. There may be questions as to the admission of further evidence and
cross examination of witnesses, which are more properly dealt with by a single Member on
remittal.
[48] We make the following orders:
(1) Permission to appeal is granted;
(2) The appeal is upheld;
(3) The Decision in [2019] FWC 2315 is quashed; and
(4) Matter U2018/10383 is remitted to the Region 1 Regional Coordinator for
allocation to another Member for re-hearing.
DEPUTY PRESIDENT
Appearances:
Q Guan for the Appellant.
W Clarke for the Respondent.
Hearing details:
2019.
Melbourne and Sydney (by video):
June 11.
Printed by authority of the Commonwealth Government Printer
PR710590
FAIR WORK MMISSION SEAL OF THE
