FCAFC 118
This was a decision on an appeal from both Dr Moffet and Dental Corporation of the decision of 15th March 2019- Moffet v Dental Corporation Pty Ltd  FCA 344
The Decision in First Instance
Dr Moffet worked pursuant to an agreement for Dental Corporation after selling his practice to Dental Corporation in 2007 until he resigned in 2014.
Dr Moffet pursued a claim for unpaid leave and superannuation from Dental Corporation.
The Court decided that although Dr Moffet was not an employee for the purposes of the Fair Work Act, he was for the purposes of the Superannuation Guarantee (Administration) Act 1992 (Cth) s 12 .
The court found that “The claim founded upon the Superannuation Guarantee Act is accepted. Dr Moffet, it has been concluded, fell within the extended definition of “employee” in s 12(3) of the Act.”
No costs were ordered.
Dental Corporation appealed the decision that Dr Moffet was an employee for the purposes of the Superannuation Guarantee (Administration) Act. Dr Moffet cross appealed the decision that he was not an employee for the purposes of the Fair Work Act.
The Result of the Appeal
The Full Court dismissed both the appeal and the cross appeal. The Court ordered that the parties pay the costs of the other party in relation to the appeal and cross appeal.
The Court decided that one of the grounds of error was made out for Dr Moffet, but then considered that the decision was not incorrect to decide he was not an employee for the purposes of the Fair Work Act.
The Court decided that the some of the reasoning in relation to the question of the superannuation -employee issue may have been incorrect, but that the decision was correct.
Practically, Dr Moffet was ordered to pay Dental Corporations costs of resisting his cross appeal. Dental Corporation was ordered to pay the costs of Dr Moffet’s resisting the appeal.
What does this mean for dentists and those who engage them ?
Without an in-depth summary of the decision (which is beyond this case note) it is probably sufficient to say the the relevant case law going back some years in Australia is undisturbed, even on appeal.
The important distinction is made in the case between a dentist who is a worker for the purposes of the Superannuation Guarantee Act and a dentist who is a worker for the purposes of the Fair Work Act and the Long Service leave Act (different in each state). Put simply– as is well known- each jurisdiction has very different definitions and applications in terms of worker, and employment.
Some preliminary practical observations:
- Control (and the degree and precise type of control) and whether goodwill is created for the “paid party” or “paying party” are significant considerations in different jurisdictions.
- It may be easier to claim superannuation from a “paying party” in a services and facility agreement, than it is to claim unpaid leave entitlements.
- These claims are expensive to run to trial and to appeal and parties need to be aware that costs may be awarded against unsuccessful parties.
- Agreements are not the sole determinant of the characterisation of whether the relationship between parties is one of employment or otherwise.
- Each of these cases turns on its facts. Those who are engaged as dentists pursuant to similar or identical agreements such as the agreement in this case might wish to obtain advice about this case and how it has application to their circumstances.
- This decision might be appealed if leave were sought and granted to the High Court.
The decision can be read here. A comprehensive case note will be published here in coming weeks.
If you think this decision may have application to your circumstances, call 07 3007 1777 for an initial no cost discussion.