Andonovski ats Park Tec Engineering Pty Limited, [2009] NSWCA 305.

Many cases come before the Courts where the Plaintiff does not know whether he or she is an employee, and if he or she is an employee, the identity of the employer.   Andonovski ats Park Tec Engineering Pty Limited is such a case which has  been decided by the  NSW Court of Appeal on the 27 October 2009 comprising their Honours Tobias JA, Young JA and Sackville AJA who wrote the judgment with which the others agreed.

It was common ground that Mr Andonovski was employed by a company within the Barbeques Galore group.  However, the identity of the employing company within the group became a very important question under  the provisions of the Workplace Injury Management and Workers Compensation Act 1998 and also the Limitation Act.  Mr. Andonovski  had commenced employment with the Barbeques Galore group in about late 1996 or early 1997 and whilst working at the premises of a subsidiary of the Barbeques Galore group in March 2004, injured himself when he was attempting to empty some cardboard waste contained in a wire cage, when he  encountered some difficulties which led him to fall backwards from a platform onto a concrete floor.  The premises were occupied by Park Tec, which manufactured components for barbeques and other items.  When injured, Mr Andonovski was given a workers’ compensation claim form to complete under the heading, “Park-Tec Engineering Pty Limited.”  In determining this  appeal  from a District Court Judge who  had found that Park Tec Engineering was the employer, Justice Sackville went through a number of the indicia or hallmarks of employment, in order to determine on an objective basis who was the employer.  His Honour referred  approvingly to a decision  of Shaw ats Bindaree Beef [2007] NSWCA 125 where Giles JA at [61]-[62] said that,

“In ascertaining which entity has entered into a contract of employment it is to be determined on an objective assessment of the state of affairs relating to the contract.  The subjective intention of the parties is not material to the enquiry.”

Justice Sackville said that ordinarily, the starting point for identifying a person’s employer might be expected to be his or her letter of employment.  Neither party tendered a letter of employment, either in relation to the Appellant’s first period of employment, or his second period of employment.  No evidence was called from the signatory to the letter of termination given to Mr Andonovski on a Barbeques Galore letterhead on the 10 November 2004.

In order to assist as to the identity of the employer, Justice Sackville cited authority, which  concerned the distinction between employment and independent contract.  In particular, reference was made to Justice Mason’s judgment in the High Court in Stevens ats Brodribb Sawmilling [1986] HCA 1; 160 CLR 16 at page 24, where Justice Mason said,

“In determining the nature of the relationship between a person who engages another to perform work and the person so engaged, is the degree of control which the former can exercise over the latter.”

However, as Justice Sackville quite rightly pointed out [55], the extent of control whilst significant is not the sole criteria to apply.  He referred to Justice Mason referring to other relevant matters being,

“The mode of remuneration, the provision of maintenance and equipment, the obligation to work, the hours of work and the provisions for holidays, the deduction of income tax and the delegation of work by the putative employee.”

Using such general principles, some of which were relevant and some  not  to the task at hand, Justice Sackville pointed to a number of matters such as the Applicant having completed a form seeking employment with, “Group employer – Barbeques Galore Limited” [24].  The weekly payslips issued were in the name of Barbeques Galore and made no mention of Park Tec [25].  The payment summary provided to the Appellant for the year ending 30 June 2004, issued for income tax purposes, recorded the payee’s name as Barbeques Galore [26] and the letter of termination was signed on the letterhead of Barbeques Galore [27].  Contrary to that, was the admission by Park Tec in the pleadings that it was the employer and that a code number  on the employee’s details in the personnel file referred to the employer as Park Tec, although later  inexplicably, the code number changed to a different one .  Also tending towards Park Tec,  was  that the work was performed at Park Tec’s premises involving Park Tec’s operations and leave forms were submitted to and approved by Park Tec [34].  Justice Sackville dealt with this evidence and identified that some of the evidence was probative, some less so, however, on the balance of probabilities, found that the trial judge was wrong and that the employer relevantly   on the date of the accident, was Barbeques Galore and not Park Tec.

In determining the identity of an employer there is no magic touchstone .This case provides  good advice to both employers and employees to keep good records in relation to the employment contract.

Employers should make sure that key parts of employment contracts are in writing and signed by all parties.Importantly any major changes to an employment agreement are agreed to by an employee for consideration( see Martech v Energy World [2006] FCA 1004 @[141]-[142] per French J)  Employees in particular should keep a folder of all documents they receive pertaining to their employment and any variations to their employment. In our world such problems can easily arise when  working for groups with many related or subsidiary companies , long term secondments and transfers of business.  This record keeping  can be particularly useful, not just for ascertaining the employer’s  identity  but also is relevant to find   the terms of one’s employment.  The identity of the employer can be crucial in determining whom to sue.This choice can be a crucial one particularly where limitation questions arise. For example, in  Fair Work Australia where the time in which one needs to file proceedings for unfair dismissal is only  fourteen (14) days(see s.394(2)(a) of the Fair Work Act).  People who  sue the wrong employer may find that their action is statute barred  and may not get an extension (s.394(2)(b) & (3) )if they had sufficient material available to them to realise that the true  employer was someone else.

In this secular world sometimes the good shepherd does not know his sheep and  the sheep do not know him.