Fair Work examines whether worker was dismissed or voluntarily left the role
The Fair Work Commission (FWC) heard an application from a delivery driver who alleged he was dismissed from his working arrangement with a logistics company in contravention of provisions prohibiting dismissal to engage workers as independent contractors.
The Commission was required to determine preliminary issues, including whether the application was filed within the required timeframe and whether the driver was dismissed from his engagement.
The logistics company objected to the application, arguing it was filed outside the 21-day time limit, that the driver was not employed by the company, and that he voluntarily resigned from the working arrangement.
The driver sought payment for outstanding work performed, GST amounts, and requested that his independent contractor contract be voided with back payment of taxes and pension.
Commission determines effective termination date for application timeframe
The Commission heard the company claimed the driver lodged the application outside the 21-day time limit, submitting the effective termination date was 9 April 2025, when the driver submitted his resignation notice.
The FWC noted the application was lodged on 1 May 2025, which would be 22 days after 9 April 2025 and outside the required timeframe.
The Commission found the company did not dispute that the driver performed work on 10 April 2025.
It determined the driver's performance of work on 10 April 2025, established that the working relationship was still continuing on that date, finding 10 April 2025 was the last date the driver performed work.
The FWC concluded 10 April 2025 was the effective date of termination and that the application was filed within the 21-day time limit as required by the relevant legislative provisions.
The Commission proceeded to examine whether the driver was dismissed within the meaning of the Fair Work Act.
Fair Work reviews working arrangement and vehicle usage terms
The Commission heard the driver's evidence that his work schedule, methods, and delivery processes were directed by the company, and he used a vehicle provided by the company for work.
The FWC noted the driver said he was repeatedly threatened with penalties or contract termination if he failed to comply with requirements.
The Commission found the company explained the driver was required to provide his own vehicle to perform work, but as he did not own a van, the company provided him with a car under a rental agreement.
The FWC accepted evidence that the rental agreement stated the driver would not be charged rental for the vehicle, but would be liable to pay insurance excess amounts in respect of any damage, regardless of fault.
The Commission heard the driver was required to be available every day for work apart from one weekday and received messages the previous day advising the time to commence at the depot.
It noted the driver was paid per delivery with rates varying between $17 and $22, depending on the day of the week, working an average of seven hours per day.
Vehicle damage deductions and withheld payments
The Commission heard the driver acknowledged being involved in a collision causing vehicle damage during his engagement.
The FWC found the company deducted the insurance excess of $1,250 from the driver's payments in three instalments, with evidence showing a $400 deduction from payments for one period.
The FWC accepted evidence of message exchanges where the driver requested insurance proof for the deduction and stated he would seek legal advice, while the company responded that the driver was liable for damage and would deduct the amount in three payments.
It noted evidence of messages from the company threatening penalties for early deliveries.
The Commission heard the driver did not receive payment for work performed from 3 April to 10 April 2025.
The FWC found the company claimed the driver owed money for three accidents and that the amount owed exceeded what was due to the driver, providing insurance emails citing three different claim numbers.
It noted that, according to these emails, the accidents the company held the driver responsible for all occurred after the driver ceased working.
Forced resignation claims against resignation evidence
The Commission heard the driver claimed he was forced to resign by unfair conduct, including failure to address concerns about vehicle tyre condition and deducting amounts from his payments.
The FWC found the driver complained that the company stopped assigning work after he submitted his resignation and requested vehicle return.
The Commission accepted evidence demonstrating the company threatened to penalise the driver and was not supportive of the driver's concerns about vehicle tyres, finding these matters may have caused the driver unhappiness and concern.
The Commission determined the driver appeared to continue working for some time after these events occurred.
The FWC found the driver did not point to any specific event immediately preceding his resignation on 9 April 2025, providing a clear connection between the conduct he complained about and his decision to resign.
It noted the driver did not refer to concerns about the company's conduct in his resignation message and simply stated he wanted to move to another city, with the first claim of forced resignation appearing in the application filed on 1 May 2025.
FWC finds insufficient evidence for forced resignation claim
The Commission determined there was nothing unreasonable about the company acting on the resignation and ceasing to assign work after receiving the driver's communication on 9 April 2025.
The FWC found insufficient evidence to establish that the company engaged in conduct with the intention of bringing the arrangement to an end or that termination was the probable result of the company's conduct such that the driver had no effective or real choice but to resign.
The Commission concluded that if the driver had no real choice but to resign, he would not have waited until 9 April 2025 to submit his resignation.
It determined that it did not accept that the driver was forced to resign because of conduct or a course of conduct engaged in by the company, finding that the driver was not dismissed.
The Commission found the driver was not dismissed within the meaning of the Fair Work Act and was therefore not eligible to make the application, dismissing the application.
The FWC noted the dispute appeared more likely to be about outstanding payment for work performed from 3 to 10 April 2025, observing the driver could pursue this claim in a court without requiring a finding of employment relationship or dismissal, and noting the company's explanation for non-payment was not convincing given the accident dates occurred after the driver ceased working.
