Fair Work examines if 'verbal agreements' were enough, amid other factors
A worker recently filed a dismissal claim against his alleged employer, with the latter denying having an employment relationship with him. It said it clarified in numerous phone conversations that he was an independent contractor, with subsequent emails outlining that he had a fixed schedule of fees.
On June 26, 2023, Andrei Meltser filed a general protections application concerning dismissal with the Fair Work Commission against his employer, Toppa Sports Pty Ltd, but the latter argued that no dismissal occurred.
Meltser said he responded to an advertised position on LinkedIn for a sports performance analyst (videographer), which was described as part-time and casual, requiring weekend work.
Toppa Sports, through a certain "Mr. Burnett," said that Meltser was engaged as a contractor for a different role, a camera operator or videographer, as outlined in a February 24, 2022 email.
Discrepancies emerge during conference
Discrepancies in the understanding of the offered role emerged during a determinative conference. Meltser said that Toppa Sports changed the position through a February 24, 2022 email without informing him, a claim Burnett denied, stating that the email concerned the camera operator/videographer role.
The parties' dialogue revealed conflicting views of the nature of Meltser's engagement. He insisted on being an employee due to verbal agreements, while Toppa Sports maintained he operated as an independent contractor, citing submitted invoices with an ABN.
Disputes extended to the handling of work schedules, with Meltser adding that he had an obligation to accept shifts and Toppa Sports emphasising the voluntary nature of shift acceptance.
Allegations of dismissal arose when a disagreement over equipment and payment led to Toppa Sports notifying Meltser of the termination of work contracts on June 6, 2023, citing concerns about his conduct and communication.
‘Completely controlled every shift’
Meltser disputed he had been employed as an independent contractor and said he was recruited as an employee to perform the same job as performed by an employee.
Meltser submitted there was “no reason why Toppa Sports could not have requested his ABN and made the independent contractor agreement available when he first commenced work.”
He rejected “any suggestion that it was he who had proposed the independent contractor relationship, contending Burnett was the initiator for the purposes of shifting Toppa Sports’ superannuation and tax burden.”
Meltser also said that “apart from having been required to furnish Toppa Sports with invoices, all other factors were under the control of Toppa Sports.”
He said that Burnett “completely controlled every shift and managed the minutiae of operations, such as camera placement. He claimed that once he had accepted a shift, he was not authorised to unilaterally transfer it if he subsequently became unavailable.”
Independent contractor or employee?
The FWC found that he was not employed. “Based on the evidence before me, Meltser was not an employee,” it said.
“The parties made an oral contract that Meltser would provide camera operator services to Toppa Sports as an independent contractor on the terms discussed in the telephone conversation that took place between [them].”
It also said that the terms were sent to him, as well as the rates. “[The employer sent] the particulars outlined in [an] email and the various rates outlined in the [fee schedule], which was varied [later on].”
“Meltser then proceeded to work as an independent contractor, invoicing as such and disclosing labour hire income for taxation purposes,” it said. Thus, since he was not an employee, the FWC dismissed his application against the alleged employer.
