| [2016] FWC 7976 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adam Grinholz
v
Football Federation Victoria Inc
(U2016/8966)
COMMISSIONER ROE |
MELBOURNE, 4 NOVEMBER 2016 |
Unfair dismissal - jurisdictional objection - whether worker was a volunteer or an employee.
[1] This is an application for an unfair dismissal remedy pursuant to Section 394 of the Fair Work Act 2009 (the Act). The Application is made by Mr Adam Grinholz (the Applicant) in respect of his dismissal by Football Federation Victoria Inc (the Football Federation). Mr Grinholz argues that he was an employee whilst the Football Federation argues that he was a volunteer.
[2] There is little disagreement about the basic facts of the relationship between Mr Grinholz and the Football Federation:
● Mr Grinholz was the assistant coach of the Under 13 girls team in 2015 and then in the 2016 season he was the head coach of the Under 13 girls team. The role involved attendance at a number of training sessions each week during the season, attendance at the matches during the season and attendance at the youth championships. There was also some liaison with the full time coaches and administrators of the Football Federation.
● The number of sessions where attendance was required was significantly greater under the 2016 arrangement than under the 2015 arrangement.
● Under the contract signed by Mr Grinholz and the Football Federation in 2015 Mr Grinholz received $4000 as an honorarium, half at the beginning of the program and half at the end of the program.
● Under the contract signed by Mr Grinholz and the Football Federation in 2016 Mr Grinholz was to receive $6000 as an honorarium, half at the beginning of the program and half at the end of the program.
● The season was to end in October 2016 but the Football Federation stopped Mr Grinholz’s coaching role on about 9 August 2016 and the second payment was not made to Mr Grinholz. The Football Federation formally confirmed termination of the contract by email on 5 September 2016. The alleged breach of the contract was that Mr Grinholz had forfeited a game without appropriate approval.
● In the lead up to signing the 2016 contract Mr Grinholz questioned the level of payment given that he was expected to attend almost double the number of hours in the head coach role as in the assistant coach role he had in 2015. 1 Agreement was ultimately reached on the $6000 honorarium.
● When the agreement was terminated Mr Grinholz did not receive the second instalment of his honorarium. The Football Federation says that this was because the expenses were not incurred as the coaching role did not continue for the full season whilst Mr Grinholz says that the second payment was not made because he had allegedly breached the contract.
● Mr Grinholz invoiced the Football Federation for the payments and no taxation was deducted or GST paid.
● During the 2016 season Mr Grinholz also provided assistance to the Melbourne Knights Under 15 boys team. Mr Grinholz says that the Football Federation objected to this. In response on 4 April 2016 he wrote to the Football Federation saying he would ask the Melbourne Knights to take his name off their head coach list. 2 The Football Federation says that subsequently they agreed to allow Mr Grinholz to continue coaching the Melbourne Knights Under 15 boys team.
● The initial appointment of Mr Grinholz as coach occurred through informal contacts. Mr Grinholz then provided his CV and arranged a catch up meeting with the program head. 3 There was no formal application process and no other candidates were interviewed.
● The Football Federation provided placements for students in the Sport and Exercise faculty of Victoria University. A student, Daniela Slodyczka, was placed with Mr Grinholz during 2016 and Mr Grinholz signed documents on behalf of Football Federation as the supervisor of the student as the host organisation. 4 The placement program was coordinated by the Victoria University program coordinator.5
● There is no evidence that Mr Grinholz was ever described as an employee or told that he was an employee.
● Mr Grinholz was a member of the Football Federation Australia.
[3] The 2015 and 2016 contracts are similar. The following features of the contracts are of particular relevance:
● The contract is referred to as a “voluntary services agreement”
● The contract is for a particular season and the Football Federation will take into account whether or not the performance criteria in the contract have been met in deciding whether or not to renew the contract for a further term.
● Mr Grinholz under the contract agrees to provide certain volunteer services. The coaching duties can be amended in a non-substantial way by the Football Federation.
● Mr Grinholz “Is not entitled to any fee or payment for services and the services are provided on a voluntary basis.” 6
● “It is agreed that the Coach enters into this agreement as a voluntary and independent contractor to FFV. The parties agree that nothing in this agreement creates a relationship between them of employer/employee, principal/agent, a joint venture or a partnership.” 7
● Football Federation has no responsibility for taxation, fines, insurance, GST.
● Mr Grinholz may have other roles or contracts but must disclose any other roles or potential conflicts of interest.
● “An honorarium payment will be made by FFV to the Coach to assist with travel, accommodation, and out of pocket expenses.” 8
● The arrangement can be terminated by either party on 30 days notice. Football Federation may terminate with less notice if the code of conduct or other policies are breached or if there is substantial non-compliance with the obligations under the agreement. 9 The coaching services are one of those obligations and those services must “satisfy the performance criteria.” The “performance criteria” are – to attend 100% of the squad games and training sessions during the relevant program and to achieve 85% satisfaction (or higher) level expressed by players in the post season survey.10
● The termination provisions of the contract also provide that if there is any property or money owed to the Football Federation on termination then this may be deducted from any money owed to Mr Grinholz. 11
● Mr Grinholz was required to act consistent with polices, to promote the organisation, to wear the uniform and coach consistent with the Football Federation technical coaching principles. Mr Grinholz was required to “report directly to the Technical Director on all coaching matters”; “attend scheduled meetings”; “engage in regular contact with the Technical Director, including a program review”; “actively participate in personal development with FFV’s Technical Director”; “fulfil any reasonable request made by FFV during the Term”; perform duties “at such location as FFV may reasonably require”; and “satisfy Performance Criteria”.
● The Football Federation was required to provide Mr Grinholz with the resources necessary for him to satisfy his obligations under the agreement.
[4] I am not satisfied that the contract can be read as specifying that the honorarium is not paid if the performance criteria are not met. The performance criteria are linked to the issue of renewal or extension of the contract for a further season. The performance criteria are linked to the issue of dispute resolution and termination of the contract. However, the payment of the honorarium is not linked to the performance criteria but in a global sense to expenses.
[5] I am satisfied that the increase in honorarium from 2015 to 2016 is consistent with the increase in likely expenses due to the increased hours required for the coaching duties.
[6] I am not satisfied that there is any direct relationship between the honorarium and the number of hours of work required or the skills and qualifications of Mr Grinholz. The relationship between the level of the honorarium and the expenses likely to be incurred is not fanciful. If the honorarium was for example $20,000 then I could not be satisfied that it was genuinely about expenses. However, given that in a coaching year more than 80 attendances might be required by the coach the cost of transport and food alone could approach the level of the honorarium paid.
[7] In this case there is no doubt about the existence of a contract between the parties:
● The terms have been agreed.
● There has been consideration provided by each party under the terms of the contract – the provision of services and the provision of consideration through remuneration.
● The agreement is in a form which is clearly intended by the parties to be legally enforceable.
● The agreement is certain and complete and there is nothing obvious which would deprive the agreement of legal effect.
[8] In this case the issue in contention is whether or not the essential character of the relationship is one of an employee/employer relationship.
[9] I doubt that the relationship is that of an independent contractor based upon the test as posed by Bromberg J in On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No. 3). 12
[10] I will now consider the indicia to be considered an employee as identified in Abdalla v Viewdaze Pty Ltd t/a Malta Travel 13 and updated in Jiang Shen Cai t/a French Accent v Do Rozario.14
Criteria to be generally considered an employee |
Assessment of the evidence in respect to the criteria |
Employer exercises, or has the right to exercise, control over the manner in which work is performed, the location and the hours of work etc. |
The evidence in respect to these matters strongly suggests that the Football Federation exercises detailed control over these matters. They determine the fixtures and training schedules, they determine the detailed policies and procedures which regulate how the work is to be performed, they require regular reporting and supervision, and they have the capacity to make appropriate directions and variations. |
Employee works solely for the employer |
Mr Grinholz did other coaching work. The fact that there were limitations on potential conflicts of interest does not mean that there was a strong limitation on work for others. |
Employer advertises the goods or services of its business |
The Football Federation strongly controlled media and other public presentation under the contract. Mr Grinholz was constrained in what he could do to independently promote his role as coach of the team. |
Employer provides and maintains significant tools or equipment. |
The Football Federation provided the necessary equipment for the team and its coaching. |
Employer can determine what work can be delegated or sub-contracted out and to whom. |
The Football Federation determined how coaching services were to be provided and what work could be delegated to others. However, Mr Grinholz could perform other independent work. |
Employer has the right to suspend or dismiss the worker. |
The contract provided the Football Federation with strong rights to suspend or terminate the relationship. However, these rights were similar to the rights for breach of contract. This is a neutral factor in this case. |
Employer provides a uniform or business cards. |
The Football Federation provided uniform which was required to be worn. Business cards were not provided. |
Employer deducts income tax from remuneration paid. |
Income tax was not deducted. Payment of honorarium for expenses was by invoice and ABN and there was no GST deducted. This factor indicates a volunteer relationship and not an employee relationship. |
Employee is paid by periodic wage or salary |
There was no payment of periodic wage. The payment of an honorarium for expenses which was reasonably proportionate to likely expenses indicates a volunteer relationship and not an employee relationship. The timing of the payments in equal instalments at the beginning and the end of the season does not suggest an employee relationship. The timing is consistent with payment for services in an independent contractor arrangement but it is not inconsistent with honorarium for expenses. |
Employer provides paid holidays or sick leave to employees. |
There were no paid holidays or sick leave. |
The work does not involve a profession, trade or distinct calling on the part of the employee |
The work of football coach is a distinct profession which is commonly but by no means exclusively performed by volunteers or independent contractors. |
The work of the employee creates goodwill or saleable assets for the employer’s business. |
The Football Federation is a not for profit organisation. The work of coaches of junior teams does not create significant goodwill or saleable assets for the Federation. The work does create potential goodwill for Mr Grinholz’s coaching business. |
The employee does not spend a significant portion of their pay on business expenses. |
The cost of performing the coaching role in respect to matters such as travel and food would fully or almost fully expend the honorarium paid. |
[11] The indicia in this case point both ways and do not yield a clear result. However, viewed as a practical matter the focus should be on whether the essential character of the arrangements is more like that of a volunteer or an employee. In circumstances where a person is engaged to perform work which contributes to the successful operation of a for profit business it will be unusual for them to be legitimately a volunteer even if there is a contract which expresses the mutual intention of the parties to enter into a volunteer relationship. In cases of not for profit community organisations where there are many volunteers involved, different considerations will need to be balanced to derive the essential character of the relationship.
[12] I am satisfied that in this case the balance is towards a volunteer not an employee/employer relationship. The mutual intention of the parties in the formal legal contract is clearly to establish a volunteer relationship and not an employee relationship. The strong level of control over the work to be performed and the standard of that work is not inconsistent with a volunteer relationship in the context of an organisation like the Football Federation which organises team sports on a not for profit basis. There is little in this case that suggests that the contract is a sham to prevent Mr Grinholz from achieving his rights as an employee. The contract has other apparent and legitimate purposes including to protect the standard of coaching, the reputation of the Football Federation and the interests of the young people who participate in sporting activities.
[13] The jurisdictional objection is upheld. I am satisfied that Mr Grinholz was a volunteer and not an employee. The application is therefore dismissed and an Order will be issued.
COMMISSIONER
Appearances:
Mr Grinholz for himself
Mr Proietto of Landers and Rogers for Respondent
Hearing details:
2016.
Melbourne:
October 28
1 Email dated 16 March 2016
2 Applicant’s submission - Attachment D16
3 Applicant’s submission - Attachment D8
4 Applicant’s submission - Attachment D12
5 Witness statement of Mr A Varallo at para [23]
6 Voluntary Services Agreement clause 2.8
7 Ibid clause 4.1
8 Ibid clause 14
9 Ibid clause 15
10 Ibid Item 10
11 Ibid 15.3
12 (2011) 206 IR 252 [208].
13 (2003) 122 IR 215 [34)]
14 (2011) 215 IR 235 [30].
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