Worker, found to be a volunteer despite $6,000 payment, unable to pursue unfair dismissal remedy
The Fair Work Commission dismissed an application for an unfair dismissal remedy, finding the “essential character” of the relationship more similarly resembled that of a volunteer rather than an employee.
Grinholz commenced a relationship with Football Federation Victoria Inc (Football Federation) in 2015 as the assistant coach of the Under 13 girls team. In 2016 he was the head coach of the Under 13 girls team. This role required him to attend training sessions and matches during the season and attend the youth championships. In addition, he was required to liaise with other full time coaches and administrators of Football Federation.
In 2015, Grinholz signed a contract entitling him to a $4000 honorarium. Half of this was issued at the beginning of the season and the remaining half at the end of the season.
In 2016, Grinholz negotiated the contract due to a significant increase in the required number of sessions he had to attend. He signed a contract with a $6000 honorarium, with half received at the beginning of the season and half at the end.
Both contracts were referred to as a “voluntary services agreement” that specified Grinholz as a “voluntary and independent contractor” and stated the agreement did not create “a relationship between [the coach and Football Federation] of employer/employee”.
The 2016 season ended in October 2016, however Football Federation stopped Grinholz’s coaching role in August 2016, formally confirming this in an email dated 5 September 2016. The provided reason was a breach of contract based on Grinholz forfeiting a game without approval. Consequently, Grinholz was not provided with the second payment.
Football Federation claimed Grinholz did not receive the second payment because he had not completed the full season and therefore the expenses he would normally be required to pay were not incurred.
Grinholz claimed he did not receive the second payment because he had allegedly breached the contract. He also claimed he was an employee and sought an unfair dismissal remedy.
The Fair Work Commission (the Commission) considered the normal indicia of an employee/employer relationship and noted:
- Football Federation exercised detail control over which work Grinholz performed, the location of the work and the hours he worked;
- Grinholz did other coaching work and did not work exclusively for Football Federation;
- Grinholz could not freely promote his role as coach independently of Football Federation;
- All necessary equipment was provided by Football Federation;
- How coaching services were to be provided and what work could be delegated was determined by Football Federation;
- Football Federation had strong rights to terminate or suspend the agreement, however as these rights were similar to those for breach of contract, the factor was neutral;
- Grinholz was required to wear a uniform provided by Football Federation;
- Income tax was not deducted from the honorarium and the honorarium was paid by invoice and ABN, suggesting a volunteer relationship;
- There was no payment of a periodic wage suggesting a volunteer relationship;
- There were no paid holidays or sick leave;
- Being a football coach is a distinct profession often performed by volunteers or independent contractors;
- Football Federation is a not for profit organisation and the work of Grinholz did not provide goodwill for Grinholz;
- The cost associated with the coaching role, such as travel and food, would expend most, if not all, of the honorarium.
The Commission found the indicia did not clearly suggest an employee or volunteer relationship. Consequently, the Commission considered the issue practically by determining the “essential character” of the relationship.
Thus, the Commission found the “mutual intention of the parties in the formal legal contract [was] clearly to establish a volunteer relationship and not an employee relationship.”
Further, the contract had a legitimate purpose in protecting the standard of coaching, reputation of Football Federation and the interests of young participants. It was not used to prevent “Grinholz from achieving his rights as an employee”.
As Grinholz was found to be a volunteer and not an employee, the Commission dismissed the unfair dismissal application.
* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.