2023 WAIRC 00943
CONTRACTUAL BENEFIT CLAIM
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00943

CORAM
: COMMISSIONER C TSANG

HEARD
:
THURSDAY, 23 NOVEMBER 2023

DELIVERED : TUESDAY, 5 DECEMBER 2023

FILE NO. : B 33 OF 2023

BETWEEN
:
NATALIE THOMAS
Applicant

AND

JVS REAL ESTATE AUSTRALIA PTYLTD
Respondent

CatchWords : Industrial Law – Where s 29(1)(d) only available to an employee claiming a denied benefit under a contract of employment – Whether matter should be dismissed for lack of jurisdiction, estoppel or abuse of process when Fair Work Commission has determined that applicant is not an employee
Legislation : Industrial Relations Act 1979 (WA), s27(1)(a), s 29(1)(d)     
Result : Application dismissed
REPRESENTATION:

APPLICANT : MS N THOMAS (ON HER OWN BEHALF)
RESPONDENT : NO APPEARANCE

Cases referred to in reasons:
Matthew Gugiatti v Solariscare Foundation [2016] WAIRC 00141; (2016) 96 WAIG 346
Natalie Thomas v Jason Van Straalen Licensee / Director of Milestone Realty Dalkeith Nedlands [2023] FWC 751
Neil Pearson & Co Pty Ltd & Anor v The Comptroller-General of Customs (1995) 38 NSWLR 443
Springdale Comfort Pty Ltd t/as Dalfield Homes v Building Trades Association of Unions of Western Australia (Association of Workers) (1987) 67 WAIG 325
Walton v Gardiner (1993) 177 CLR 378
Reasons for decision
1 This matter was listed for hearing for the applicant (Ms Thomas) to show cause why the matter should not be dismissed under s 27(1)(a) of the Industrial Relations Act 1979 (WA) (Act):
(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it –
(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied –
(i) that the matter or part is trivial; or
(ii) that further proceedings are not necessary or desirable in the public interest;
(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or
(iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the mase may be;
2 Directions issued on 18 October 2023 ([2023] WAIRC 00820) listed the following issues for determination:
(a) Whether the Commission has jurisdiction to hear and determine the Form 3 – Contractual Benefit Claim filed on 14 July 2023 given the decision of Natalie Thomas v Jason Van Straalen Licensee / Director of Milestone Realty Dalkeith Nedlands [2023] FWC 751; and
(b) Whether the matter should be dismissed for other reasons such as estoppel or abuse of process.
Background
3 On 28 March 2023, Commissioner Yilmaz of the Fair Work Commission (FWC) handed down the decision of Natalie Thomas v Jason Van Straalen Licensee / Director of Milestone Realty Dalkeith Nedlands [2023] FWC 751 (FWC Decision), stating: (footnotes omitted)
Consideration and conclusion
[17] Ms Thomas describes the arrangement with Milestone Realty as one of sub-contractor and employment, however her materials reference a business partnership and not a subcontractor relationship. To be dismissed requires an employment relationship and not the relationship of a subcontractor or business partnership. Further there is no evidence of a dismissal followed by an engagement as a contractor.
[18] Ms Thomas contends that she was an employee and was misled that she was a subcontractor. Milestone Realty does not contend that Ms Thomas was engaged as a subcontractor, rather they state that she came on board as a business partner on a profit share arrangement. Ms Thomas tendered in evidence two invoices dated 26 October 2022. Both of these invoices covered a period after she left Milestone Realty and concerned outstanding commissions and work that she performed associated with court orders. Ms Thomas submits that tax was never deducted from her earnings and Milestone Realty did not contest this submission. Documentation relating to the “arrangement” does not detail any particulars other than how the income and costs would be shared between Ms Thomas and Milestone Realty and how ownership of the rent roll is split between the parties. The email of 10 August 2022 confirms the arrangements agreed for the business relationship:
“Hi Natalie,
From our discussions so far, it seems that we are in agreement that:
Rental income after outgoings goes to Natalie
Sales Income goes to Jason except where it’s one of Natalie’s properties that she brought in, in which case it’s a 50/50 split if the work is divided equally on the sale (opens, follow-ups etc) and 70/30 just one does the work (Jason will still always be available to assist in appraisals, negotiations and advice when needed).
50/50 ownership in the value of the rent roll
50/50 In the event of separation whether by internal or external sale or division of portfolio.
Non compete agreement for 3 years on the divided properties in the unlikely event of splitting up
If a rent roll is to be purchased in the future, we negotiate together how that fits in beforehand.
Rent roll income to cover all outgoings-
(Initially, Jason has approx $1500 PCM coming in)
Current Monthly Expenses:
$134.20 Vault RE- CRM
$275 Sauna Communications Monthly Email
$220 REA Account Fee
$395.31 REIWA Account Fee
$132 Property Tree
$219.98. RP Data
$52 Xero Accounting Software
$99 iiNet Internet Connection
Domain, Homes, Property View are all free membership
Corporate Renewal of Licenses (Jason and Corporate)
Rent and Outgoings TBA
Marketing Costs when not VPA:
50% each payable of Agency Banding marketing where the one side is property management ad and the other side is selling ad.
Funds Disbursed to Natalie and Jason as earned on Sales and Mid-month and End of the month for Natalie with property management at the same time as owner disbursements.
We review this quarterly and make adjustments if necessary by mutual consent.
In principle, if you agree to this via email we can get started straight away. Then we can print it out and sign it once we get the exact rent and outgoings from Robert.”
[19] The above email demonstrates a business relationship rather than an employment relationship or that Ms Thomas was a sub-contractor.
[20] A business partnership is where income and losses are distributed between the partners. The evidence shows that Ms Thomas had an ABN and her income from the business partnership was untaxed. There was no income tax deducted and no superannuation payable to her. I observe that in Western Australia, the Partnership Act 1895(WA) would apply to the business relationship. There is no evidence that the parties intended any other relationship other than a business partnership. There is furthermore no evidence of a subcontractor arrangement.
[21] Ms Thomas submits that the end to her relationship cost her access to the New Business Program Allowance. No further details were submitted, however, the Commonwealth Government allowance is a self-employment assistance program for new or existing businesses. The fact that Ms Thomas raised her loss of the allowance following the termination of the relationship between the parties further weighs against her argument that she was employed and dismissed.
[22] Having considered the evidence I am satisfied that the parties entered a business partnership relationship which encountered difficulties and it was subsequently agreed to split their business interests resulting in Ms Thomas exiting the business. The overwhelming evidence from both parties supports the view that they entered into a business relationship.
[23] The dispute that motivated this application appears to concern final payments of commissions and other amounts including how the rental roll is to be split on exit. Resolution of the dispute as enunciated by Ms Thomas is not within the jurisdiction of this Commission.
[24] Ms Thomas submits that the agreement of 10 August 2021 was invalid because it was not signed and not registered with the Fair Work Commission. I do not agree, the email expressed the private business arrangement between the parties, such arrangements are not registered with this Commission. It appears Ms Thomas may have confused processes for enterprise agreements. This private arrangement is clearly not an enterprise agreement.
[25] It is evident from the email material tendered that the parties had disagreements about their working partnership and while Ms Thomas states that she was dismissed abruptly with no notice, her own materials show that she ended the business arrangement by agreement. The below is taken from her email of 28 September 2022.
“I am in agreeance with discontinuance or break up of the business agreement between us but I do not accept the split of properties as mentioned by you below.
As per our last agreement was to pay you 30% of my total commissions and I manage my portfolio myself. Should there be a breakup then I take my portfolio and leave. This was spoken several times by you.
Besides that you have 2 listed for sale out of which 1 is under offer. You have made no mention of that.
I am in discussion with another agency to take over my portfolio and once I finalise it, properly this time, I will inform you immediately for a proper handover.”
[26] In addition, an email of 3 October 2022 does not support the contention that Ms Thomas was dismissed, but rather the two parties agreed to end their business partnership:
“Hello Jason
Due to the sudden decision we made, giving no Notice Period to discontinue the agreement of our Business partnership / Association and being very unwell last week till yesterday, the communication between us has not been the best.
I am now able to decide properly about us ending the business relationship and finalising the split share portfolio. Besides that I wish to end on better terms as I always have done in my previous work places. I am holding you to the same.”
[27] From this evidence, I can only conclude that Ms Thomas was not dismissed, but that she was in a business partnership with Milestone Realty and after a difficult business relationship, Ms Thomas with Mr van Straalen agreed that the business relationship would end. Negotiations followed to finalise business dealings between them with no resolution over the split of the property portfolio and payment of commissions. I am satisfied that Ms Thomas was not dismissed within the meaning of s.368 of the Act and her application does not properly fall within the jurisdiction of s 365 of the Act.
4 On 14 July 2023, Ms Thomas filed a Form 3 – Contractual Benefit Claim (Form 3), against JVS Real Estate Australia PTYLTD (JVS) trading as Milestone Realty Dalkeith Nedlands (Milestone Realty), stating:
(a) She worked for Milestone Realty under the license of Jason van Straalen (Mr van Straalen) and ‘agreed to work as a partner to build a rental portfolio, of which the management agreements were signed with Milestone Realty’.
(b) Her duties were of a property manager with an unrestricted sales representative license for Milestone Realty under the Licensee, Mr van Straalen.
(c) She worked exclusively for Milestone Realty from 10 August 2021 to 28 September 2022.
(d) ‘The contractual benefits was an email offer from Mr [van] Straalen that was accepted by me’.
(e) Her ‘case was dismissed by FWC as they did no [sic] have the power to order Mr [van] Straalen to pay my dues and I had to take the matter to court’.
(f) Mr van Straalen ‘has abruptly ended the work relationship and cut me out of the business and has taken over running of the portfolio and the income that should have been paid to me. He has not paid me any commissions after 14 September 2022.’
(g) She seeks:
(i) $12,348.98 for three unpaid invoices;
(ii) $35,454.54 for the ‘value of the portfolio’;
(iii) $25,000.00 in commissions;
(iv) Superannuation ‘and tax paid’ which she has ‘informed ATO’;
(iv) $49,400.00 in minimum wages of $950 per week ‘to be taken into account with what I am owed’; and
(v) Compensation ‘for no income from 1st October 2022 – 18th June 2023 causing me financial hardship’.
5 Ms Thomas attached to the Form 3, her email to Mr van Straalen sent on 9 August 2021, stating: (emphasis added)
Hello Jason
Thanks for texting me your offer to start our business partnership with Milestone Realty. Really excited and have very positive vibes in our new venture.
I am happy with the profit / value sharing of the portfolio existing and end value, however there are few questions I need to ask you.
1. Property Management Rental income ie. 100% of management fees, letting fees, condition reports, routine inspections, etc - outgoings as specified in your text amounting to around $1500.00 pcm
Can this be reviewed quarterly to see how things are going and to discuss if anything needs to be amended by mutual consent of both parties?
2. At this stage I can only offer my services to run your existing portfolio and build the business, so can you look into a base pay for me starting from 01/10/2021 for 3 months please. This can be done like sales people when they start off get paid a base and then every quarter it gets deducted from the rental income. This will give me some kind of stability to pay my mortgage and bills at home.
3. Payment terms to dad /Rob buying the office, strata fees, electricity
4. Can you please detail your expectations as a licensee of the business and my job responsibilities?
5. Our commitment to work with each other with honesty, hard work and respect on the top most level , is the base foundation of our sucess in this business partnership.
6. Marketing plan and ideas to get new biz sales and property management.
I think ive covered all.
Let me know your thoughts and lets get started.
If this agreement and dad/Rob to advise on the progress of the office starts immediately, then I can start my work from home till the office is opened.
We may need to have a inaugaration and opening of our office calling our clients.
Thanks
Nat
6 Ms Thomas also attached to the Form 3, Mr van Straalen’s 10 August 2021 email in response. This email is set out in full at FWC Decision [18], cited at paragraph [3] above.
7 On 25 July 2023, the Commission wrote to the parties noting the jurisdictional issues raised in the Form 3, and proposed the scheduling of a conciliation conference before JVS’ Response was due.
8 At the 11 August 2023 conciliation conference, the parties reached a settlement agreement in full and final settlement of all matters between them.
9 Paragraph 1 of the settlement agreement required Ms Thomas to email certain documents to Mr van Straalen by 13 September 2023.
10 On 18 October 2023, I issued Directions ([2023] WAIRC 00820), stating:
WHEREAS on 14 July 2023 the applicant filed a Form 3 – Contractual Benefit Claim that references the decision of Natalie Thomas v Jason Van Straalen Licensee / Director of Milestone Realty Dalkeith Nedlands [2023] FWC 751, in which the Fair Work Commission determined that the applicant and the respondent’s director were in a partnership pursuant to the Partnership Act 1895 (WA);
AND WHEREAS on 11 August 2023 a conciliation conference was held at which the parties reached a settlement agreement on terms that included a requirement for the applicant to email to the respondent a number of documents by 13 September 2023 (Pre-condition to settlement);
AND WHEREAS the date for compliance with the Pre-condition to settlement was extended but the applicant failed to complete the Pre-condition to settlement, rendering the settlement agreement unable to be completed;
AND WHEREAS the Commission’s role in facilitating the settlement concluded when the settlement agreement was unable to be completed, and on 3 October 2023, 9 October 2023, 11 October 2023 and 13 October 2023 the Commission requested the applicant to indicate whether she would discontinue the matter or seek to have the issue of the Commission’s jurisdiction heard and determined by the Commission;
AND WHEREAS on 17 October 2023 the applicant requested that the issue of the Commission’s jurisdiction be listed for hearing;
NOW THEREFORE the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979 (WA), hereby directs –
1. THAT the following issues be listed for hearing on Thursday, 23 November 2023 at 10.30am:
(a) whether the Commission has jurisdiction to hear and determine the Form 3 – Contractual Benefit Claim filed on 14 July 2023 given the decision of Natalie Thomas v Jason Van Straalen Licensee / Director of Milestone Realty Dalkeith Nedlands [2023] FWC 751; and
(b) whether the matter should be dismissed for other reasons such as estoppel or abuse of process.
2. THAT the applicant file any outlines of witness evidence and documents that she intends to rely upon at the hearing by Thursday, 9 November 2023.
3. THAT the applicant file any outline of legal submissions that she intends to rely upon at the hearing by Thursday, 16 November 2023.
Ms Thomas’ correspondence
11 On 12 August 2023, Ms Thomas sent an email to the Commission, stating:
My case does not fall under the jurisdiction of WAIRC to act on my behalf because i am not an employee. I have asked this prior to me applying for contractual benefits claim Form 3 if this office will take my case as I am not an employee as per The Fairwork Commission…
12 On 18 August 2023, Ms Thomas sent an email to the Commission, stating:
Due to reasons that the agreement between Mr Jason Van Straalen and myself has been termed to be a business partnership, I am not protected as an employee by both employment systems National and State in WA.
13 On 7 September 2023, Ms Thomas sent an email to the Commission, stating:
The employment status is not under National OR State Employment System but is a business partnership. 
14 On 8 September 2023, the Commission sent an email to Ms Thomas, stating:
As previously explained, the Commission’s jurisdiction to deal with matters, whether through conciliation or hearing, is limited to those matters specified in the Industrial Relations Act 1979 (WA) (Act).  You can find further details about the Commission and its jurisdiction on our website: About us » Western Australian Industrial Relations Commission (wairc.wa.gov.au).
As you are aware, B 33/2023 falls under section 29(1)(d) of the Act, which states:  
29. Who may refer industrial matters to Commission
(1) An industrial matter may be referred to the Commission –
(d) in the case of a claim by an employee that the employer has not allowed the employee a benefit, other than a benefit under an award or order, to which the employee is entitled under the contract of employment – by the employee; and
In circumstances where the Fair Work Commission has issued a decision determining that you were in a partnership with the respondent, it becomes arguable that you are not an employee pursuant to section 29(1)(d) of the Act.  If this argument holds, it in turn means the Commission may lack the jurisdiction to hear B 33/2023.
15 On 8 September 2023, Ms Thomas sent an email to the Commission, stating:
I have made enquiries and my case is not a matter that falls under the State commission jurisdiction and I do not wish to waste anymore of your time.
16 On 11 September 2023, Ms Thomas sent an email to the Commission, stating:
My last emails that its no use to list this matter and would ne [sic] a waste of your time as i am not an employee in National or state system. 
17 On 22 September 2023, Ms Thomas sent an email to the Commission, stating:
I have recently heard of what has been said about me and I am going to leave it for now as I have other important things to attend to. But I wish this matter to be recorded by the Commisioner even though they may not have the jurisdiction to act on my behalf but for future reference should this misconduct and behaviour continue.
18 On 26 September 2023, the Commission sent an email to Ms Thomas, stating:
I also want to address your statement in your email sent on Friday at 1.33pm that the Commission does not have jurisdiction to “act on my behalf”. I would like to clarify that the Commission is an independent quasijudicial tribunal established under the Industrial Relations Act 1979 (WA) to deal with industrial matters in Western Australia. The Commission’s role is to assist parties in resolving their industrial or employment disputes through conciliation and arbitration. The Commission does not act on behalf of any party.
19 On 9 October 2023, the Commission sent an email to Ms Thomas, stating:
The Commission’s jurisdiction is defined by the Industrial Relations Act 1979 (WA) (Act). You filed a Form 3 – Contractual Benefit Claim under section 29(1)(d) of the Act, which states: [highlighting added]  
29. Who may refer industrial matters to Commission
(1) An industrial matter may be referred to the Commission –
(d) in the case of a claim by an employee that the employer has not allowed the employee a benefit, other than a benefit under an award or order, to which the employee is entitled under the contract of employment – by the employee; and
As highlighted above, section 29(1)(d) of the Act pertains to a claim by an employee concerning their contract of employment. However, the Fair Work Commission has already determined that you were in a partnership with the respondent: see Natalie Thomas v Jason Van Straalen Licensee / Director of Milestone Realty Dalkeith Nedlands [2023] FWC 751 (copy attached). Consequently, it is arguable you do not meet the criteria of an employee under section 29(1)(d) of the Act, and therefore, the Commission lacks jurisdiction to hear your case.  
Moreover, it is arguable that you should not be allowed to challenge the Fair Work Commission’s decision in this Commission, in line with the precedent set in the case of Matthew Gugiatti v Solariscare Foundation [2016] WAIRC 00141 (copy attached).
20 On 11 October 2023, Ms Thomas sent an email to the Commission, stating:
Even though the respondent and myself are in the an industry covered by the national employment system, I am not an employee but a business partner only because the respondent says so. But the fact of the matter is that I was hired to use my services of a property manager doing exactly the same job of a full-time paid property manager but was paid only when the agency got paid.
21 On 11 October 2023, the Commission sent an email to Ms Thomas, stating:
In accordance with the Western Australian Industrial Appeal Court’s decision in Springdale Comfort Pty Ltd trading as Dalfield Homes v Building Trades Association of Unions of Western Australia (Association of Workers) (1987) 67 WAIG 325, the Commission is unable to proceed unless satisfied that the Commission has the necessary jurisdiction to do so.
This means that the only steps that can be taken by the Commission are those outlined in my email sent Monday, 9 October 2023, at 08.59am.
Ms Thomas’ written outlines of evidence and submissions
22 On 14 November 2023, Ms Thomas filed her outline of evidence, stating:
Not intending to disrespect The decision made by the Commissioner as seen in FWC 751.
…
20/10/2023 – Legal advice from REIWA hotline as below:
– That I do not qualify to be a partner in the business as Mr Jason Van Straalen was the sole bonafide Director / Owner / Licensee of the company and even though it was agreed that I get paid on profit shares under a business partnership, I had no control of the business or any decision making. That means the Owner/Director of the company could make an agreement to work as a property manager and be paid by profits or percentage of the profits / commissions paid the the agency but my status is of an employee not a business partner and has to be paid the minimum wage +Super, that brings up awareness of a sham agreement.
– FWC 751, in which the Fair Work Commission determined that the applicant and respondent’s director were in a partnership pursuant to the Partnership Act 1895 (WA) is partially correct…
…
[T]he Commissioner need not dismiss the matter for reasons such as estoppel or abuse of process as the applicant does not intend to dispute or disrespect the decision the Fair Work Commission made in reference to the relationship between Ms Natalie Thomas and Mr Jason Van Straalen was a business partnership as per The Partnership Act that two or more people can work for the same intention of making profit in a common business but there are other facts in the Partnership Act as well as the fact that the applicant Ms Natalie Thomas was engaged as an employee of JVS Real Estate Pty Ltd trading as Milestone Realty Dalkeith Nedlands where Mr Jason van Straalen was the Owner / Licensee and had bonafied control of the business and has registered with Dmirs that Ms N Thomas is an employee and Mr J Strallen was the employer.
23 Ms Thomas attached to her outline of evidence, the following documents:
(a) Mr van Straalen’s 10 August 2021 email, cited at FWC Decision [18] and attached to the Form 3.
(b) Her email to cpilicensing@dmirs.wa.gov.au sent on 12 August 2021, stating:
Employer name & licence number: - JASON VAN STRALLEN – MILESTONE REALTY / RA77011
Employee name & licence/ certificate number: NATALIE THOMAS / RR 50026
Role: CO-OWNER / PARTNER
Date employment commenced: 11/08/2021
Date employment ceased:N/A
Completed by: (name & role) N/A
(c) Her email to Mr van Straalen sent on 5 October 2022, stating:
Please be advised that I have joined hands to work as a Business Associate with Mr Graham Magee Licensee / Director of Magee Real Estate.
As per your suggestion by email dated 28th of September 2022 and my email response to yourself and Geoff Duning on the 3rd of October 2022, accepting the division of the portfolio that was under my management with Milestone Realty – Dalkeith Nedlands.
Can you kindly do the necessary paperwork for the properties listed below with all relevant documents and keys to be transferred to Graham Real Estate with no liabilities or costs to myself , Graham Magee - Licensee / Director of Magee Real Estate and the Owners of the property listed below.
…
You can inform the owners of our decision to separate with a reason that we both need to agree on the email going out so that we are on the same page with what we tell the owners. Please include in your email that I will be in contact with them by email giving them a brief of Graham Magee - Licensee / Director of Magee Real Estate and my Association with him.
(d) A letter sent by Sunstone Legal to JVS dated 17 November 2022 (Letter of Demand), stating:
We act for Natalie Thomas in relation to the above matter.
We are instructed as follows by way of relevant background:
1. On or about 10 August 2021, you entered into an agreement with our client whereby it was agreed that:
a. our client retains 100% of the rental income after paying outgoings;
b. for properties our client brought in to the Business for sale, the sales income would be split:
i. 50/50 if the work was divided equally on the sale; or
ii. 70/30 in favour of who carried out the work;
c. sales income would be paid when received;
d. rental income would be paid at the same time as owner disbursements, being midmonth and end of month;
e. in the event of separation, ownership of the rent roll would be split 50/50 (the “Agreement”).
2. In April 2022, the Agreement was varied as follows, in respect of all new properties moving forward:
a. the rental income would be shared 70/30 in favour of who carried out the property management services;
b. the sales income would be split 80/20 in favour of who carried out the work; (the “New Terms”)
3. On 28 September 2022, the relationship broke down and you told our client to leave, providing no notice to her.
4. You have:
a. failed to pay our client rental income from 15 September – 30 September 2022, as set out in detail in invoice 100030 dated 30 September 2022;
b. failed to pay the sales income to our client on settlement of 5/56 Riversdale Road, Rivervale, as set out in invoice 100032;
a. failed to pay our client for her time, as set out in detail in invoice 100031 on 22 September 2022,
in breach of the Agreement and the New Terms.
2. Our client has suffered loss and damage as a result.
3. On 22 September 2022 and 30 September 2022, pursuant to the terms of the Agreement and the New Terms, our client has issued 2 invoices to you, which remain outstanding.
TAKE NOTICE our client demands payment of the outstanding damages, estimated to be $11,028.98, within 7 days of this letter, failing which she will have no other option other than to start Magistrates Court action against you for recovery of the outstanding amounts plus interest without further notice to you.
…
(e) Her email exchanges with Consumer Protection at the Department of Mines, Industry Regulation and Safety dated November 2022 and June 2023 and with Wageline dated February 2023 and June 2023, including:
(i) Her email to call.centre@dmirs.wa.gov.au sent on 26 November 2022, stating:
I am writing to make an official complaint about the business I worked as a Property Manager on commission basis only. I am not sure what employment I will go under, as my agreement says Business partner but was registered with REIWA as a property manager. I was paid commissions after the job was completed, then Lessor was charged and after owner payment and payment to the agency, I was paid on receipt of my invoice using my ABN.
Please see attached agreement for details and verification.
The business and work relationship ended abruptly by Jason van Straalen on 28th of September 2022 cutting me out of the business without giving me appropriate notice to complete pending jobs and do a proper handover.
(ii) The response to her 26 November 2023 email, from a Compliance Coordinator, Property Industries Directorate – Consumer Protection sent on 28 November 2022, stating:
In respect to the division of the management agreements, this is a commercial matter between yourself and the licensee and as such it will require independent legal advice if you are unable to resolve the matter with the licensee directly.
(iii) A further email from a Compliance Coordinator, Property Industries Directorate – Consumer Protection, sent on 14 June 2023, stating:
If Wageline and the Fairwork Commission have been unable to resolve the matter your only additional recourse will be to seek independent legal advice and seek the restitution through a civil claim in court. Regrettably the Department is unable to assist with this issue.
(iv) Her email to Properties.Industries@dmirs.wa.gov.au sent on 14 June 2023, stating:
I was paid on the basis that profits would be paid to me on jobs I worked for as a property manager not as a business owner, as I was not paid profits that the company made.
…
The evidence of the former employers / business owner and Licensee has been given to the FWC. There were 28 attachments and perhaps there are more that I did not have the time to attach and my case was dismissed. I can send it all to you again.
…
If your department cannot help me then can you let me know how do I take this matter to a higher authority which is not the magistrates court?
(v) Her email to Wageline sent on 14 June 2023, stating:
But my case has been dismissed by the FWC because they were not satisfied with my argument, that I am an employee and it was out of their jurisdiction to order the former employer to pay me my dues.
…
Why am I pushed from one system to the other and the only way I can sort this matter out is by going to court, whereas legal advice given to me can go for years and will cost money with lawyers. … The evidence I have given to the FWC is 28 attachments and perhaps there are more that I did not have the time to attach.
24 On 14 November 2023, Ms Thomas filed an outline of evidence for Graham MaGee (Mr MaGee), stating:
When Natalie Thomas contacted me to work at MaGee Real Estate as a Property Manager on commission basis, I had said that I was under the impression that only Sales Representatives worked on a commission basis. I also asked her to check that out.
From my side I spoke with Fair Works Ombudsman on 1313 94 and was informed that:
1) Independent Contractors don’t receive Paid leave and they pay their own Super.
2) They are not like an employee
When I spoke with REIWA I was told to refer to REBA Act Sec 44
25 On 22 November 2023, Ms Thomas filed an outline of legal submissions, stating:
This above matter is a dispute between the Applicant and the Respondent (The Firm JVS REAL ESTATE AUSTRALIA PTY LTD) for non-compliance of contractual benefits of an employee that is entitled to the Applicant and is irrelevant to the agreed profit share partnership between two individuals Ms Natalie Thomas and Mr Jason Van Straalen.
…
Points to be taken into consideration.
– 10/08/2021 – Agreement between Jason Van Straalen and Ms Natalie Thomas with minimum terms and obligations.
– 09/08/2021 Email to JVS requesting base wage but was not included in the agreement but was denied over a phone call.
– Ms Natalie Thomas was not made aware of the Employment and business partnership legalities as she has become aware of them now.
– The previous hearing and Decision of FWC 751 was determined as a business partnership since both individuals agreed on a profit sharing and Co-owner partner of the property management portfolio.
…
04/10/2022 – Graham Magee – Director / Owner / Licensee of Magee Real Estate Informed me that he has spoken to DMIRS and REIWA and both advised him that I could not work under his license in a profitsharing agreement without him paying me the minimum wage + super.
…
20/10/2023 - Legal advice from REIWA hotline as below:
a. That I do not qualify to be a partner in the business as Mr Jason Van Straalen was the sole bonafide Director / Owner / Licensee of the company and even though it was agreed that I get paid on profit shares under a business partnership, I had no control of the business or any decision making. That means the Owner/Director of the company could make an Agreement for anyone to work as a property manager and be paid by profits or percentage of the profits / commissions which is illegal as no such disclosure of the ACT or Employment law was explained to the Applicant which brings up awareness of a sham agreement.
26 Ms Thomas attached to her outline of legal submissions her email to ceo@reiwa.com.au sent on 25 February 2023, stating:
Please be advised that I need to make a complaint about Jason van Straalen who is the Licensee of Milestone Realty Dalkeith Nedlands.
I worked with him at that office located in Nedlands in the property management department as a partner working only on commissions only.
On the 28th of September 2022 he ended the work relationship abruptly and I have suffered loss of income and no job as he has bad mouthed me to clients and recruitment agencies.
…
He has failed to pay me my commissions owed since 15th of September 2022 and is not going to. He wants to let the matter go to court. This has really upset me as I have not been paid the minimum wage as per ward of Level 2 Real Estate representative + not paid my super or tax for me, misrepresented me into a sham contract of business partnership which he had no intention of splitting up the portfolio in the event of a break up in the partnership. He owes me $11,000.00
The hearing
27 At the hearing, Ms Thomas gave evidence that:
(a) She spoke with Ross McCallum through the REIWA hotline. She explained to Mr McCallum that she was in a business partnership that had ‘gone wrong’ and asked about options. While she was advised that two individuals can enter into an agreement to be paid by profit share, she took from that discussion that JVS were required to hire her as an employee and pay her minimum wage. Mr McCallum told her that if ‘it is done [in] other ways, then I could sue Mr van Straalen’ (ts 4).
(b) From day one, Mr van Straalen’s email proposed a business partnership which she entered into and does not dispute. ‘I have to agree that I went along with it and it was meant to be a business partnership’ (ts 5).
(c) She agrees with the FWC Decision that she had a business partnership with Mr van Straalen and agreed to be paid from the partnership profit.
(d) There were two days of hearing before Commissioner Yilmaz. Ms Thomas filed the FWC application in December 2022. The first hearing was held in February 2023. At this hearing, Commissioner Yilmaz raised the issue of the FWC’s jurisdiction to hear the matter, and questioned why she had submitted an application to the FWC when the application refers to her issuing an invoice and agreeing to a partnership agreement. At this hearing, Commissioner Yilmaz told her that ‘you have to … get advice why you’re coming to me’ (ts 9). At this hearing, Commissioner Yilmaz outlined that she would hear from the parties at a second hearing on the issue of what the relationship between the parties was.
(e) Commissioner Yilmaz allowed three to six weeks between hearings for preparation. In this time, she submitted around 48 or 50 documents evidencing ‘our relationship and the business’ (ts 11).
(f) On the FWC Decision date or the next day, she contacted Commissioner Yilmaz’s associate about appeal rights and was informed she could appeal the FWC Decision (ts 7-9).
(g) She elected not to appeal the FWC Decision because she had ‘moved on’, and because ‘it takes about three months … for the application to go to a Commissioner and for us to get a hearing, so I didn’t want to waste any more time to … deal with this matter’ (ts 89).
(h) She understands her issues with Mr van Straalen can be resolved in court. She has been ‘advised everywhere to go to court, and I know I can go to court’ (ts 12). ‘I don’t feel that I should go to court to get this matter resolved’ (ts 11). ‘Because I don’t have the money for lawyers’ (ts 12).
(i) As she is not a licensee, she had approached Mr MaGee, a ‘one man … show’ and the only person she knew who was a licensee, to take her clients into his business (ts 16). Mr MaGee said as a registered sales representative, she would need to be his employee with base wage and superannuation. As he was not prepared to do that, he would not take on her eight or 10 properties, since he can manage his portfolio by himself.
(j) Her discussion with Mr MaGee led her to understand JVS should have employed her, and that the partnership ‘agreement that Mr van Straalen as a licensee had … offered and was accepted by me was illegal’ (ts 19).
28 At the hearing, Mr MaGee gave evidence that:
(a) Ms Thomas contacted him about working at MaGee Real Estate as a property manager on a commissiononly basis. He expressed his belief that only sales representatives worked on a commission basis and suggested Ms Thomas verify this independently.
(b) Apart from his wife who works with him in the business, he has not employed anyone before and paid wages, leave and superannuation. Therefore, he called the Fair Work Ombudsman’s (FWO’s) hotline to enquire about his obligations. He enquired if a property manager could be remunerated solely on commission. He was advised this would resemble an independent contracting arrangement, which does not include paid leave and requires self-payment of superannuation. As he did not wish to pay superannuation, he opted against engaging Ms Thomas.
(c) He spoke with REIWA and was told to refer to s 44 of the REBA Act.
(d) He relayed his conversations with the FWO and with REIWA to Ms Thomas.
Consideration
29 On 9 October 2023, the Commission sent an email to Ms Thomas, attaching a copy of Matthew Gugiatti v Solariscare Foundation [2016] WAIRC 00141; (2016) 96 WAIG 346 (Gugiatti), stating:
Moreover, it is arguable that you should not be allowed to challenge the Fair Work Commission’s decision in this Commission, in line with the precedent set in the case of Matthew Gugiatti v Solariscare Foundation [2016] WAIRC 00141 (copy attached).
30 Gugiatti [24]-[25] states:
The FWC is a tribunal with jurisdiction over claims of unfair dismissal and heard evidence of the merits of Mr Gugiatti’s claim of unfair dismissal, sufficient to be able to find that Mr Gugiatti’s employment terminated at the end of his specified period of employment and therefore he had not been dismissed. The decision disposes once and for all of that fundamental matter so that, except on appeal, it cannot be relitigated between the persons bound by the decision. That same fundamental matter should not be permitted to be re-litigated in this Commission between these same parties as the parties to the FWC decision. It is that which is undesirable in the public interest.
This does not raise complex questions of whether the respondent is a constitutional corporation. If estoppel applies at all, it is not whether Mr Gugiatti has changed his position; he has not done so. It is that a tribunal with the jurisdiction to decide at least whether he was or was not dismissed, has heard the evidence about that threshold issue and determined it against him and he should not be permitted now to argue in this Commission that the FWC decision was wrong. The respondent’s request that Mr Gugiatti’s application be dismissed should be granted.
31 In Walton v Gardiner [1993] 177 CLR 378 (Walton), 393 - 394 (Mason CJ, Deane and Dawson JJ) state: (footnotes omitted)
Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
…
In Jago v. District Court (N.S.W.), at least three of the five members of the Court clearly rejected “the narrower view” that a court’s power to protect itself from an abuse of process in criminal proceedings “is limited to traditional notions of abuse of process”. Mason CJ. considered that a court, “whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves”, possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness. His Honour quoted, with approval, the following remarks of Richardson J. of the New Zealand Court of Appeal in Moevao v. Department of Labour:
“public interest in the due administration of justice necessarily extends to ensuring that the Court’s processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court’s processes may lend themselves to oppression and injustice.”
32 In Neil Pearson and Co Pty Ltd & Anor v The Comptroller-General of Customs (1995) 38 NSWLR 443 (Pearson), 450 - 452 (Kirby ACJ) states:
The original form of estoppel by record is res judicata. This preclusive rule was expressed by Fullager J in Jackson v Goldsmith (1950) 81 CLR 446 in the following terms (at 466):
“The rule as to res judicata can be stated sufficiently for the present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action.”
Res judicata thus operates so that, once a cause of action between certain parties has been finally determined by a competent tribunal, neither of those parties can challenge the adjudication in subsequent litigation between them. This is because “the very right or cause of action claimed or put in suit has … passed into judgment, so that it is merged and has no longer an independent existence …”: see Blair v Curran (1939) 62 CLR 464 at 532, per Dixon J. Res judicata has two effects. First, it prevents the successful party from relitigating the same cause of action. Secondly, it prevents the unsuccessful party from denying the correctness of the decision reached by the initial tribunal.
The second manifestation of estoppel by record is issue estoppel. Unlike res judicata which operates so as to prevent the bringing of a cause of action which has previously been definitively determined in a suit at law, the plea of issue estoppel asserts that a relevant issue or matter has been decided by a prior action. Thus, the two concepts are closely aligned. The only difference lies in whether the issue said to have been resolved constituted the tribunal’s formal conclusion, or whether the issue was subsidiary to, or underlay the conclusion. The term “issue estoppel” appears to have been coined by Higgins J in his dissenting judgment in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537: see Spencer Bower and Turner, The Doctrine of Res Judicata, 2nd ed (1969), at 150. His Honour (at 560-561) stated:
“I fully recognize the distinction between the doctrine of res judicata where another action is brought for the same cause of action as has been the subject of previous adjudication, and the doctrine of estoppel where, the cause of action being different, some point or issue of fact has already been decided (I may call it ‘issueestoppel’). As stated by Lord Ellenborough in Outram v Morewood [3 East, at p 355], ‘the estoppel precludes parties and privies from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them.’ In the cases relating to res judicata in the former and stricter sense – a decision as to the same cause of action – it seems clear that the verdict and judgment are conclusive, not merely as to the points actually taken, but also as to points which might have been taken (Henderson v Henderson [3 Ha 100, at p 115]; Hall v Levy [LR 10 CP, 154]). But in the case of what I call ‘issueestoppel’ it must appear that the precise issue was previously taken.” (Emphasis in original.)
The third, and most limited form of estoppel by record, occurs when a court prevents a party from litigating an issue because to do so would amount to an abuse of process. This mechanism will most often be employed where, although not technically bound by an earlier determination, a party should, in substance, be so adjudged. An example of the application of this principle can be found in the case of Hunter v Chief Constable of the West Midlands Police [1982] AC 529. In that case a number of accused was charged with murder. During their trial, they challenged the voluntariness of statements containing admissions which they had allegedly made during police interviews, claiming that they had been assaulted by the police officers. The trial judge admitted the evidence and the accused were convicted. They subsequently brought a civil action against the police officers seeking damages for assault. The House of Lords dismissed their claims. Although they rejected the argument that issue estoppel operated, the Law Lords held that the action was an abuse of process. Lord Diplock, with whom the other Law Lords agreed said, (at 541):
“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.”
33 Similar to Gugiatti, the FWC, a tribunal with the jurisdiction to decide whether Ms Thomas was an employee, has examined the evidence on this threshold issue and ruled against her. Therefore, Ms Thomas should not be allowed to contest the FWC Decision in this Commission.
34 Ms Thomas gave evidence that after being informed by Commissioner Yilmaz that the determination of her employment status was to be addressed, she had three to six weeks to prepare for the case. She stated that she submitted 48 to 50 documents to substantiate her position, and she also had the opportunity to present her stance to the Commissioner during the hearing on the matter. Therefore, it is abundantly clear that the FWC ‘heard the evidence about that threshold issue’ and the FWC Decision ‘disposes once and for all of that fundamental matter so that, except on appeal, it cannot be relitigated’: Gugiatti [24]-[25].
35 Ms Thomas stated at the hearing that she understood she had the option to appeal the FWC Decision but decided not to do so. It is trite to say that this Commission cannot entertain an appeal of a FWC decision. Furthermore, by pursuing a Contractual Benefit Claim that only employees are eligible to bring, Ms Thomas appears to be seeking to re-litigate the issue of her employment status.
36 Ms Thomas states in the Form 3, noted at paragraphs [4(a)], [4(d)]-[4(f)] above, that she worked with Mr van Straalen as a business partner, and that her case had been dismissed by the FWC for want of jurisdiction.
37 Ms Thomas acknowledges in each correspondence to the Commission extracted at paragraphs [11]-[13], [15]-[17] and [20] above, that she was in a business partnership, and as such the Commission does not have jurisdiction to hear her matter as she was not an employee.
38 Ms Thomas indicated that she does not contest the correctness of the FWC Decision. She acknowledges that Mr van Straalen offered her partnership, which she accepted, and they subsequently operated as partners until the business relationship deteriorated.
39 Applying Walton, I find that in light of Ms Thomas’ own statements that she worked with Mr van Straalen as a partner in the Form 3, her correspondence with the Commission, her emails attached to her outline of witness evidence, and her email to REIWA attached to her outline of legal submissions at paragraph [26] above, these proceedings are ‘foredoomed to fail’.
40 Applying Walton, I find these proceedings are ‘unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.’
41 Therefore, I conclude that Ms Thomas’ action in initiating and pursuing these proceedings amounts to an abuse of process.
42 Applying Pearson, I also find that issue estoppel operates to prevent Ms Thomas from arguing in this Commission that she was an employee.
43 Ms Thomas argues that it was illegal for Mr van Straalen to have offered her partnership. She relies on s 44 of the Real Estate and Business Agents Act 1978 (WA) (REBA Act) and her conversation with Mr MaGee that if she wanted to work for MaGee Real Estate as a property manager, Mr Magee would be obliged to employ her as an employee.
44 I find Ms Thomas’ argument that s 44 of the REBA Act rendered Mr van Straalen’s partnership offer illegal to be untenable for the following reasons:
(a) Section 44 of the REBA Act states: (footnotes omitted)
44. Real estate sales representatives must be registered etc.
(1) On and after the appointed day, a person not being a licensee who is the holder of a current triennial certificate shall not act as, or carry out any of the functions of, a real estate sales representative unless he is the holder of a current certificate of registration and he acts, or carries out those functions, for and on behalf of a licensee who is the holder of a current triennial certificate, or for and on behalf of a developer.
Penalty for this subsection: a fine of $25 000
(2) On and after the appointed day, a person not being a licensee who is the holder of a current triennial certificate shall not unless he is the holder of a current certificate of registration hold himself out by any means as a real estate sales representative or as being in the employment of, or as acting for or on behalf of a licensee who is the holder of a current triennial certificate as a real estate sales representative, or as being in the employment of, or acting for or on behalf of a developer as a real estate sales representative.
Penalty for this subsection: a fine of $25 000.
(3) On and after the appointed day, a real estate sales representative who is the holder of a current certificate of registration shall not hold himself out by any means as being in the employment of, or as acting for or on behalf of a licensee who is the holder of a current triennial certificate, or as being in the employment of, or as acting for or on behalf of a developer, unless that licensee or developer, as the case may be, is his employer, principal or partner.
Penalty for this subsection: a fine of $25 000
(b) Section 44 of the REBA Act requires a real estate sales representative to hold a current certificate of registration. Ms Thomas confirmed that she holds such a registration.
(c) Section 44(2) of the REBA Act prevents a person without a current certificate of registration, unless they are a licensee, from representing that they are a real estate sales representative or representing that they are employed by, or acting for and on behalf of, a licensee or developer as a real estate sales representative.
(d) In addition to holding a current certificate of registration:
(i) Section 44(1) requires the real estate sales representative to act ‘for and on behalf of’ a licensee or a developer. This is consistent with advice Ms Thomas received, indicating that as she does not hold a license, she is not authorised to perform property management functions independently. Instead, she must either transfer her clients to a licensee or seek a license through the Licensing directorate.
(ii) Section 44(3) prohibits a real estate sales representative from representing that they are employed by, or acting for and on behalf of, a licensee or developer, unless the licensee or developer is the real estate sales representative’s employer, principal or partner.
(e) While s 44(1) and s 44(3) of the REBA Act provide for employment, they also provide that a real estate sales representative may act ‘for and on behalf of’ a licensee. These terms have wide import, and there is no indication that a real estate sales representative would be precluded from acting for and on behalf of a licensee in a partnership capacity.
(f) Further, such a construction is expressly supported by s 44(3) of the REBA Act, which explicitly provides that a real estate sales representative can act for and on behalf of a licensee, if the licensee is the real estate sales representative’s ‘principal or partner’.
45 I find Ms Thomas’ argument that she could only be remunerated on a commission-only basis as a property manager if she was an employee, and thus it was unlawful for Mr van Straalen to offer her partnership, to be untenable for the following reasons:
(a) There is no evidence that Ms Thomas could only work as a property manager on a commission only basis as an employee. Mr Magee did not give this evidence. The evidence Mr Magee gave was that he thought that only sales representatives worked on a commission only basis, and he asked Ms Thomas to investigate it. Ms Thomas did not provide any evidence or make anything other than a bare assertion that such an offer was illegal.
(b) While the Real Estate Industry Award 2020 (Award) provides for commission-only employment for an employee engaged in property sales or commercial, industrial or retail leasing as a Real Estate Employee Level 2 or higher (other than a casual employee), the coverage clause expressly provides that the Award only covers employers in respect to their employees engaged in the classifications in clause 14 of the Award.
(c) The Award does not apply to nonemployment relationships such as an independent contracting relationship or a business partnership.
(d) Put simply, there was nothing to support the contention that Ms Thomas was required to be employed as an employee, and it was illegal for Mr van Straalen to offer to form a business partnership with her.
46 I find that a further basis for an abuse of process finding resides in Ms Thomas’ evidence that she was advised that to resolve the issues arising from the dissolution of the partnership, she would need to go to a court. However, she does not ‘feel’ she should have to do so, as she does not have the money to do so (ts 11, 12).
47 Ms Thomas’ knowledge that a court is the appropriate forum for her to resolve her dispute with Mr van Straalen is evident from the following:
(a) The Letter of Demand her solicitors sent to JVS on 17 November 2022, stating: (emphasis added)
TAKE NOTICE our client demands payment of the outstanding damages, estimated to be $11,028.98, within 7 days of this letter, failing which she will have no other option other than to start Magistrates Court action against you for recovery of the outstanding amounts plus interest without further notice to you.
(b) Ms Thomas’ email to ceo@reiwa.com.au sent on 25 February 2023, stating: (emphasis added)
He wants to let the matter go to court.
(c) Ms Thomas’ email to Properties.Industries@dmirs.wa.gov.au sent on 14 June 2023, stating: (emphasis added)
If your department cannot help me then can you let me know how do I take this matter to a higher authority which is not the magistrates court?
(d) Ms Thomas’ email to Wageline sent on 14 June 2023, stating: (emphasis added)
Why am I pushed from one system to the other and the only way I can sort this matter out is by going to court, whereas legal advice given to me can go for years and will cost money with lawyers.
(e) The email Ms Thomas received from the Compliance Coordinator, Property Industries Directorate – Consumer Protection, sent on 14 June 2023, stating: (emphasis added)
If Wageline and the Fairwork Commission have been unable to resolve the matter your only additional recourse will be to seek independent legal advice and seek the restitution through a civil claim in court. Regrettably the Department is unable to assist with this issue.
(f) The Form 3 filed on 14 July 2023, stating: (emphasis added)
After my case was dismissed by FWC as they did no [sic] have the power to order Mr Straalen to pay my dues and I had to take the matter to court.
48 I find that since at least 17 November 2022, the date of the Letter of Demand, Ms Thomas was aware that the Magistrates Court was the proper forum to resolve her dispute with Mr van Straalen regarding the dissolution of their relationship and her claim for unpaid sums under their agreement. Relatedly, I find that Ms Thomas was cognisant that this Commission was ‘a clearly inappropriate forum’: Walton (393).
49 I find that despite this, Ms Thomas opted to initiate these proceedings in this Commission. I find she elected not to commence action in the Magistrates Court, which she has been advised was the appropriate forum, because she has been advised that pursuing the case there could take years and ‘cost money with lawyers’. Ms Thomas has chosen to represent herself in these proceedings, and as an individual there is no reason preventing her from selfrepresentation in the Magistrates Court. In these circumstances, it constitutes an abuse of process for Ms Thomas to pursue these proceedings in this Commission.
Conclusion
50 For the preceding reasons, I am satisfied that Ms Thomas’ Contractual Benefit Claim should be dismissed under s 27(1)(a) of the Act on grounds of want of jurisdiction, estoppel and abuse of process.
51 Therefore, application B 33 of 2023 will be dismissed.