Casestudy:

In May 2021, Delia Jacenko's job was terminated by her employer,Fragrant Pty Ltd. Delia filed an application under section 394 of the Fair Work Act 2009, alleging that the termination was harsh, unjust and unreasonable. The Respondent (Fragrant) filed an objection to the application, alleging that the FWC did not have jurisdiction to hear the case as the Applicant was engaged as an independent contractor and was not an employee ofFragrant. The FWC is due to hold a jurisdictional hearing on the matter.

The owner of Fragrant is Robert Rossini.Fragrantsells perfumed products to hairdresser, manicure and other beauty salons for them to stock and sell to their clients. The salons areFragrant's customers. Between September 2017 and 25 May 2021,Fragrantengaged Delia to sell its products to customers. This was a job that did not require any special skills or qualifications.

There was no written contract of employment. Delia was paid solely by commission.She leased a vehicle fromFragrantfor the purpose of carrying out the job. Originally, Rossini had told her she needed to supply her own vehicle. When Delia said she could not afford to, Rossini offered to rent a van to her at $312 per month. This leasing arrangement was not in writing and involved Delia having the 'rent' deducted from her commission. Delia paid for petrol and tolls (using her own E-Toll gadget), whileFragrantpaid to service, register and insure the van. Delia returns the van toFragrant's business premises at the end of every day and cycles home.

Delia has not received fromFragrantany holiday pay or personal leave, and no income tax has been deducted.Delia has paid her own personal tax on a pay as you go basis. Delia does not belong to a superannuation fund.

The owner ofFragrant P/L, Robert Rossini, claims that he had a verbal agreement with Delia, the applicant, that she was engaged as an independent contractor and that he had required that she have an ABN because, he said, he 'doesn't do tax'. He claims she had no set hours of work and he had never cared how she did her work, so long as specific customers' needs were met. When she was injured, for a period in 2018, Delia had engaged a friend to drive for her, but she had not paid her friend for this. In addition to sellingFragrant's goods, Delia also provides collections of costume jewellery to some of Rossini's customers for them to on-sell to their salon clients. She sources the jewellery on Etsy.com and Ebay. Delia dresses in her own idiosyncratic flamboyant style and wears lots of costume jewellery which has proven to be a great advertisement for these products.

Rossini claims that Delia's engagement was terminated due to poor performance and unsatisfactory conduct towards him. He also claims that, in 2019, he attempted to formalise his arrangements with Delia, and sent to her a 'subcontractor agreement' which established the minimum number of customers to be seen per day, the working hours (starting at 8.30 am and working at least 8 hour days) and that Delia was not to sell any products that Rossini had not agreed she could sell. Delia never signed the 'contract'.Fragranceis a small business, and while most of his 'staff' are hired as 'sub-contractors', some are quite clearly 'employees'.

The Respondent agrees that he has provided Delia with a Business Card. The business card has theFragrant P/Lwebsite and contact details on it along with Delia's personal mobile phone number. Every fortnight, Rossini provides Delia with a new list of all the customers she must visit over the coming fortnight. He expects her to visit all the customers listed each fortnight, but he does not tell Delia the order or days of her visits to each customer. However, to keep him 'in the loop' with what she does during each fortnight, he also requires her to deliver avisits and summary sales sheeton her return toFragrantat the end of each working day. Delia only services customers that Rossini has referred her to. Delia does not buy the products from Rossini, rather he provides them to her, and he manages the accounts with the salons. Further, Rossini sets the prices for the perfumed products which Delia sells to the salons, although Delia is permitted to provide small discounts (up to 5%) without reference to him (as an incentive to customers).

Use IRAC to answer: What decision do you think the Fair Work Commissioner will make in this case? Justify your decision.