WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2016 WAIRC 00124 CORAM :Commissioner S J Kenner HEARD : Monday, 21 December 2015 DELIVERED : THURSDAY, 3 MARCH 2016 FILE NO. : B 169 OF 2015 BETWEEN : Mr. Kashlyn Brennan Applicant AND Document Management Experts Pty Ltd Respondent Catchwords : Industrial law (WA) - Contractual benefits claim - Whether Commission has jurisdiction - Whether employee or independent contractor - Principles applied - Applicant found to be an employee - Whether attempt by respondent to pervert the course of justice - Issue referred to the Western Australian Police for further consideration Legislation : Industrial Relations Act 1979 (WA) Criminal Code Act Compilation Act 1913 (WA) Result : Declaration issued Representation: Applicant : Mr C Sharpe as agent Respondent : Ms J Beeson as agent Case(s) referred to in reasons: AMP v Chaplin (1978) 52 ALJR 407 Digney v The Black Cockatoo Preservation Society of Australia (2014) 95 WAIG 562 Roy Morgan Research Pty Ltd v Commissioner of Taxation [2010] FCAFC 52 Re Shine; Ex parte Shine [1892] 1 QB 522 Massey v Crown Life Insurance Co [1978] 2 All ER 576 BWIU v Odco Pty Ltd (1991) 99 ALR 735 Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215 Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166 Hotcopper Australia Ltd v David Saab (2002) 82 WAIG 2020 Case(s) also cited: Gascoyne v Marvelle Tiling Pty Ltd T/A Marvelle Tiling [2014] FWC 8398Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 The Western Australian Builders’ Labourers, Painters and Plasterers Union of Workers v R B Exclusive Pools Pty Ltd trading as Florida Exclusive Pools (1996) 77 WAIG 4 Christopher Lawrence Peters v James Turner Roofing Pty Ltd (2001) 81 WAIG 3093 James Turner Roofing Pty Ltd v Christopher Lawrence Peters (2003) 83 WAIG 427 Hollis v Vabu Pty Ltd [2001] 207 CLR 21 Mr Paul Ernest Dallaston v Canon Foods [2004] WAIRC 13246 Personnel Contracting Pty Ltd T/AS Tricord Personnel v The Construction Forestry Mining and Energy Union of Workers (2005) 85 WAIG 5 === REASONS FOR DECISION === ¶1 The applicant Mr Brennan maintained that he was employed by the respondent Document Management Experts Pty Ltd as a Sales Cadet from 13 April 2015 to 13 July 2015. In this position Mr Brennan was responsible for selling office equipment, through canvassing potential new customers for new business. Mr Brennan said that while he was employed by DME, his employment was located at the premises of Fuji Xerox Australia Pty Limited in Belmont, Perth. ¶2 Mr Brennan further maintained that he was engaged on a contract of employment for a minimum period of six months at a guaranteed remuneration of $3,000 per month. As DME terminated the contract after three months, Mr Brennan now claims the balance of what, in effect, he contended was a fixed term contract for at least six months, in the sum of $9,000 as a denied contractual benefit. ¶3 DME resisted Mr Brennan’s claim on the basis that it contended that Mr Brennan was engaged not as an employee, but as a self-employed sole trader. Accordingly, a question of jurisdiction arises that must be decided by the Commission. [Factual background] ¶4 The facts are relatively straight forward and are as follows. Mr Brennan testified that in early March 2015 he responded to an advertisement for a job with DME. Mr Brennan had two interviews with the Director of DME, Mr Cummings. Both interviews were held in the office of Fuji Xerox in Belmont. As a result of the interviews, Mr Brennan said that he was offered the position of a Sales Cadet by DME by letter of 20 March 2015. The letter of offer, was annexed to Mr Brennan’s affidavit and formal parts omitted, was in the following terms: Letter of offer. I am pleased to be able to offer you the role of Sales Cadet with Document Management Experts Pty Ltd. Kashlyn, I would also like to confirm that you are a self employed sales agent and you need to invoice Document Management Experts Pty Ltd each month the commission or Guarrantee that is due. Based on a statement that I will provide you at the beginning of each month for the prior month. DME will usually get a commission statement in the second week of the month, issue statements to you as soon as practical after that and payment is made around the 19th or 20th of each month. You will need to have an ABN number in order to be paid. This can be done online in a day. The first 6 months will be paid as a guarantee of $3000.00 per month ex GST and will paid in the middle of the month of commencement as a starting point I will work through the pay plan with you on commencement, however if you have any questions then feel free to ask. Kashlyn, I am exciting in having you join our team. With your background and friendly manner I have no doubt you will achieve the highest possible levels of success. This of course will be based on your level of commitment to the role, some hard work and a structured and organised approach. If you have any questions at all then please don't hesitate to give me a call. Your start date will be 13th of April. If you could please sign below as an indication of your acceptance of the role and email back to me. [sic] ¶5 Mr Brennan testified that he accepted the offer from DME on the understanding that he would be paid $3,000 per month for the six months of the Sales Cadetship which would run until 12 October 2015. Mr Brennan said that he understood that thereafter, he would be paid on a commission only basis. As a young man with little experience in the office machinery industry prior to starting with DME, apart from about three months’ general retail sales experience, Mr Brennan testified that he was attracted to the position because as a Sales Cadet, he would receive training to help him achieve his career goals. ¶6 Mr Brennan understood from the offer from DME that he was to be responsible for his own tax and superannuation arrangements and he was required, as requested by Mr Cummings, to obtain an Australian Business Number. The ABN details, attached to DME’s notice of answer, referred to Mr Brennan as an “Individual/Sole Trader”. Also, as was required by DME, Mr Brennan invoiced DME for his monthly payments, a copy of one of which was exhibit A2. Mr Brennan was also given a business card in the name of Fuji Xerox, which described under his name, the words “Integrated Sales and Marketing”. At the bottom of the business card was reference to “Authorised Sales Agent Document Management Experts”. ¶7 In terms of the work required to be performed, Mr Brennan said that his work required him to “cold call” prospective customers either by telephone or in person, to sell the Fuji office equipment products. Part of the job also required assisting clients with document management and copying solutions. The work involved working with others in the sales team in the Fuji office where the DME representatives worked. All customer leads and details were to be recorded in a database, as required by Mr Cummings. ¶8 Mr Brennan testified that although he was a Sales Cadet, he received no training until the end of June 2015, when he had assistance from a “mentor”, Mr Martin. This involved sales training and coaching once per week via a “webcam” for about one hour. Apart from this, Mr Brennan said he had some informal help from another sales agent. Additionally, Mr Cummings gave Mr Brennan some guidance on how to plan his time, in scheduling meetings with customers and some sales techniques. Mr Brennan testified that he felt he had to comply with Mr Cummings’ requirements as DME were paying him a guaranteed income of $3,000 per month. ¶9 As to his working arrangements, Mr Brennan said he would normally attend the Fuji office each day at 8:30am. He said other sales staff would be there too, along with Mr Cummings. Mr Brennan said he had allocated desk space in the office. Whilst the position was to involve selling to customers, Mr Brennan said he regarded himself as having working hours of 8:30am to 5:00pm each day on a Monday to Friday basis. He said he understood his commitment to DME was a full time one and that he had no ability or time, to undertake work for anyone else. ¶10 In terms of responsibility for the work he was required to perform, Mr Brennan testified that he never considered it open to him to ask someone else to do any of his work as required by DME. ¶11 Whilst there was some dispute about the matter, Mr Brennan said he was allocated a sales area primarily in the Osborne Park industrial district. Mr Cummings denied this and said it was open for Mr Brennan to pursue opportunities both north and south of the river, although he suggested Osborne Park because of the concentration of businesses in this area. ¶12 In terms of work methods, Mr Brennan said he was required to follow work procedures prescribed by DME and to install software on his laptop computer at the request of Mr Cummings. There were regular sales meetings held each fortnight or thereabouts, at the Fuji Office, that Mr Brennan was expected to and did attend, along with other sales staff. Mr Cummings testified that these meetings were for the purposes of sales agents updating themselves on sales information and also hints and tips on sales performance. ¶13 In terms of how he was represented to customers, Mr Brennan testified that his business card, office location, co-worker relationships, training sessions and the use of technology and equipment, all demonstrated his integration into the business relationship between DME and Fuji Xerox. In this context, Mr Cummings said that DME has an agency agreement with Fuji to sell its products in Western Australia and DME is paid by Fuji, based on commissions on sales. ¶14 In the three months that Mr Brennan was with DME, he said he had very little support and feedback from Mr Cummings as to his performance. That which he did receive, he thought was encouraging. However, all of this changed when on 13 July 2015, after a regular fortnightly sales meeting, Mr Brennan said that Mr Cummings requested to have a discussion with him. Mr Cummings informed Mr Brennan that after considering his performance over the last three months, he had decided to “let him go”. Mr Brennan said that he was shocked and distressed by this and in all the circumstances, considered that he had been summarily dismissed. ¶15 Whilst not disputing much of what Mr Brennan said, Mr Cummings’ evidence was that he took Mr Brennan on as a sole trader and he was to be responsible as he put it to “run his own show”. Mr Brennan’s role in the early days would be to obtain business leads and to build up a database of contacts from which sales may eventually flow. The idea of a guaranteed commission of $3,000 per month for the first six months, was payable in recognition that Mr Brennan was learning the role and he needed to have income to cover his expenses. Mr Cummings described Mr Brennan as a “Sales Cadet”, as occupying an entry level sales position. ¶16 As to the issue of hours of work, Mr Cummings took issue with the contention by Mr Brennan that he worked the hours as alleged, they being generally 8:30am to 5:00pm Monday to Friday. According to Mr Cummings, sometimes Mr Brennan was not contactable and DME did not hear from him. Mr Cummings also disputed that Mr Brennan was in the Fuji office as often as he maintained. In this respect, exhibit R1, tendered by DME, was a record of access by Mr Brennan to the Fuji office through its secure entry, which showed no access to the premises on a number of days in the period 14 April 2015 to 29 June 2015. I pause to note however that on this issue, Mr Brennan testified that sometimes the door to the Fuji office was open and it was not necessary for him to use his security key to gain entry. As to him not being contactable, Mr Brennan denied this and said he was in the field to get leads to sell machines, as he was required to do. ¶17 Mr Brennan further said that at all times he regarded Mr Cummings as his “boss”. ¶18 As the question of jurisdiction has been raised, the Commission will deal with it as a preliminary issue. [Employee or independent contractor?] ¶19 It is trite to observe that the label assigned to a relationship between two persons in a workplace, for the performance of work, cannot alter the substance of it: AMP v Chaplin (1978) 52 ALJR 407. As to the legal tests for determining whether a person is an employee or an independent contractor, in Digney v The Black Cockatoo Preservation Society of Australia (2014) 95 WAIG 562 I observed at 565 as follows: 23 The relevant principles as to whether a person should, as a matter of fact and law, be regarded as an employee or an independent contractor, have been dealt with by the Industrial Appeal Court. In Personnel Contracting Pty Ltd t/as Tricord Personnel v The Construction Forestry Mining and Energy Union of Workers (2004) 85 WAIG 5, Steytler J dealt with this issue at pars 20-28, EM Heenan J at pars 50-52 and Simmonds J dealt with the issue at pars 98-100. In particular, Simmonds J said at pars 95-101 as follows: 95 The common law test for distinguishing a relationship of employer/employee, on the one hand, and principal/independent contractor, on the other, has recently been reviewed in some detail in the judgment of Hasluck J of this Court in Birighitti (supra), at [57] to [67]. The other members of the Court (Anderson J, who dissented on the jurisdictional issue in the case, and Scott J) did not find it necessary to enter into the question in as much detail because of the case's particular facts. 96 In this case, where it seems to me the matter is rather more evenly balanced than in Birighitti , I consider it is necessary to review the matter again, particularly as it was contended in this case that there had been a shift in the law not entered into in Birighitti . I review the matter again without meaning to depart from the view of Hasluck J there in any way, but to emphasise matters of first principle particularly relevant to this case. 97 The most recent High Court authority in point, for the purposes of vicarious liability for the negligence of a bicycle courier, is Hollis v Vabu Pty Ltd (supra). There was a clear majority on the issue of the application of the test, that of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, with McHugh J dissenting, and Callinan J not expressing a concluded view on the matter. As to the test itself, however, I see no clear difference between all of the members of the Court who expressed a concluded view. 98 The test set out in Vabu by the majority is expressed in terms of the difference between a person (an employee) whose work serves another, and is done in that other's business, on the one hand, and a person whose work is likewise for the benefit of another's business, but is done in the course of the carrying on of a trade or business of the person doing the work, on the other. The majority referred (Vabu, at 39) for this purpose to Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41, at 48, per Dixon J, and to Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210, at 217 per Windeyer J, where language of this sort is used. The Vabu majority also referred to Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, at 366 per McHugh J, where the distinction is expressed in terms of the independent contractor as a person who does the work not as "the representative of the employer". 99 For the application of the test, and particularly for the relevance of the matter of "control" of the work done, the Vabu majority refer to the dicta in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, at 29 per Mason J. There, his Honour acknowledges the historical significance of the "control test" and the difficulties in using it in the historical ways in modern working conditions, where he says "The common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, 'so far as there is scope for it', even if it be 'only in incidental or collateral matters': Zuijs v Wirth Brothers [(1955) 93 CLR 461, at 571]. Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered." 100 What his Honour meant by the reference to the factors, including but not limited to control, subsumed by the "totality of the relationship" is indicated by an earlier passage in his judgment in Stevens (supra), which is not referred to in Vabu, but which is a passage quoted in Odco as setting out the law on this point ((supra) at 754): "The approach of this court has been to regard it [control] merely as one of a number of indicia which must be considered in the determination of the question: Queensland Stations Pty Ltd v FCT (1945) 70 CLR 539 at 552; Zuijs' case [supra]; FCT v Barrett (1973) 129 CLR at 401; 2 ALR 65; Marshall [supra] at 218. Other relevant factors include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee." 101 As these dicta tend to indicate, the application of the test is a matter of some difficulty, as this case illustrates. I need to consider that question separately. 24 His Honour then went on to apply the test set out in the various decisions of the High Court referred to, and took into account a number of factors including control, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax, the delegation of work, indicia of a separate business, integration in the organisation, and the language of the parties’ written contract: see pars 108-150 inclusive. 25 The “multi factor” test referred to and applied by Simmonds J, as set out above, was referred to and applied by the High Court in Hollis v Vabu Pty Limited (2001) 207 CLR 21. ¶20 I adopt and apply these principles in this matter. A summary of the “multi factor” test for whether a person is an employee or a contractor, is set out by the learned authors Sappideen C, O’Grady P, Warburton G and Eastman K, Macken’s Law of Employment (6th ed, 2009), pars 2.105 to 2.170. I set out my findings, based on the evidence, against these factors as follows. This consideration will inform my ultimate assessment as to whether Mr Brennan was a self-employed person conducting his own business, or was an employee of DME. ¶21 Firstly, as to the question of control, the test is not just actual control on a day to day basis, but the right to exercise control. Some types of employment exhibit very high degrees of autonomy. In this case, Mr Brennan was engaged by DME as a Sales Cadet. As such, and as he had very little experience in the work to be undertaken, Mr Brennan was required to work in accordance with the systems and procedures of DME, as embedded in the Fuji business. While there was some dispute about it, I am satisfied that Mr Brennan did have regular hours of work and that DME expected Mr Brennan to meet them. Mr Brennan was required to and did attend the Fuji office as directed, if not every day then very regularly, and also for the purposes of training and product information sessions, as required. ¶22 I also accept that Mr Brennan was required to adopt a work method and recording system that Mr Cummings and those on his behalf, required. It was a clear expectation of Mr Cummings that Mr Brennan would generate a “pipeline” of customer leads and that they be generated, collated and recorded in the DME database as required and in the manner determined by Mr Cummings. ¶23 Further, I have no doubt on the evidence, that Mr Brennan felt obliged to comply with Mr Cummings’ requests and directions, because as he himself put it, he was being paid a guaranteed income of $3,000 per month. ¶24 As to the element of working for others, an ability to do so points to independence. In this case, there was no evidence that Mr Brennan did or had the capacity to do so. I have no doubt also, based on the evidence, that because Mr Brennan was being paid a guaranteed income of $3,000 per month, Mr Cummings fully expected Mr Brennan to devote his full time and attention to the requirements of DME. This was certainly the understanding of Mr Brennan on the evidence. ¶25 As to the place of work and advertising for services, this may be a relevant factor. In this case, the evidence suggested that Mr Brennan did have some office obligations and did attend the office of Fuji, on behalf of DME, regularly. Given the nature of the work involved, being out canvassing for customers, this factor is however, of lesser weight in this case. ¶26 There was little by way of tools and equipment required by Mr Brennan to perform the work for DME. He did use his own phone and laptop computer, although he also said he accessed IT services from the Fuji office. The provision of his own car, from which no doubt expenses were paid from the $3,000 guaranteed payment per month, is not decisive either way: Roy Morgan Research Pty Ltd v Commissioner of Taxation [2010] FCAFC 52. There was no evidence of any significant capital investment by Mr Brennan in this case. ¶27 A further factor is the capacity to delegate work. The presence of a right of delegation is an indicator of independence. In this case there was no suggestion of any capacity for Mr Brennan to delegate his performance of work for DME to any other person. In this case I have no doubt that Mr Cummings expected Mr Brennan to perform the services required by DME personally. ¶28 Whether a person is paid by way of a salary or wage, or by completion of a project, or for the completion of a specified service, is also a relevant consideration. Payment of a wage or salary, as a fixed payment computed by time, is an indicator of employment. ¶29 In this case Mr Brennan was paid a guaranteed sum of $3,000 per month, irrespective of sales results or work performed. This was to recur for the first six months of the engagement. Thereafter, Mr Brennan was to be remunerated solely by commission. ¶30 The fact of a regular payment each month to be made by DME to Mr Brennan, at least in the first six months of the engagement, had the characteristics of a regular wage or salary, despite its description as a “guarantee”: Re Shine; Ex parte Shine [1892] 1 QB 522 per Bowen LJ at 529. Even a commission only payment is not determinative of an independent contractor relationship, as a number of employee occupations may be remunerated by results, such as piecework rates, whilst still being classified as employees: Roy Morgan Research at par 47. In this case, I consider that the remuneration method tends to point to employment. ¶31 In general terms, the possession of an ABN, and a person being responsible for their income tax deductions, can be relevant but may also be a neutral factor. This is so because income tax legislation imposes a somewhat different test to the common law test as to whether a person is an employee or independent contractor. Furthermore, where these requirements are imposed by a putative employer as a condition of an offer of engagement, the strength of this factor is lessened. Overall in the present circumstances, I regard this factor as neutral. ¶32 In relation to the question of integration, it was the case on the evidence that Mr Brennan was integrated into the business of DME and Fuji Xerox and was represented to others dealing with him accordingly. This was clear from Mr Brennan’s business card and the fact that he participated in activities including sales training, mentoring and regular sales meetings, in the Fuji office. In all respects it would have been difficult for an outsider to tell that Mr Brennan was an independent operator. ¶33 As to a right of suspension or dismissal, the presence of such will indicate an employment relationship. There was no express contractual right in this case and even though Mr Cummings ceased the engagement between DME and Mr Brennan, I regard this factor as neutral in the assessment. ¶34 As to the express declaration of intent, this can be a factor to tip the scales, all other things being equal. However, as noted at the outset, a label attached to a relationship cannot alter its essential substance, if in all other respects it does not reflect the true nature of the relationship between the parties. In this case, Mr Brennan’s letter of offer, set out above, referred to him as a “self employed sales agent”. On the face of it if all other factors were evenly balanced, this may tip the scales in favour of independence, particularly in the case of overall ambiguity in a relationship: Massey v Crown Life Insurance Co [1978] 2 All ER 576 at 579. In some circumstances, it may be an important factor: BWIU v Odco Pty Ltd (1991) 99 ALR 735. ¶35 Taking all of these factors into consideration, I cannot come to the conclusion that Mr Brennan was performing work for DME in the performance of his own business in its own right. Apart from the factors to which I have referred, is the engagement of Mr Brennan by DME as a “Sales Cadet”. In ordinary parlance, a cadetship is a period of training and instruction, during which the individual “learns the ropes” of the particular trade, occupation or calling, in much the same way as does an apprentice or trainee. In my opinion, this notion of a cadetship is, of itself, wholly inconsistent with the notion of such a person conducting their own business. On the contrary, in this case, all of the evidence pointed to Mr Brennan’s integration into and part of the DME/Fuji operations. Viewed in a practical sense, in my opinion, it is difficult to come to any other conclusion on the basis of the evidence before the Commission: Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215. ¶36 Accordingly on balance, I consider that for the time of his engagement, Mr Brennan was an employee of DME. Therefore, the Commission has jurisdiction to hear and determine Mr Brennan’s contractual benefits claim. The matter will now be re-listed for hearing on the merits. [Threat] ¶37 A final matter requires some consideration. ¶38 Before these proceedings were listed for hearing, and whilst the matter was in the Chambers of another Commissioner, a letter was received by the Registrar from Mr Sharpe, the agent for the applicant, which was dated 19 October 2015. The letter referred to the claim brought by Mr Brennan in these proceedings. It referred to a telephone call made by Mr Cummings of DME at approximately 4:20pm on Friday 16 October 2015 to Mr Sharpe’s home telephone. The letter explained that Mr Sharpe’s partner, Ms Wells, answered the telephone and spoke to Mr Cummings. Ms Wells is Mr Brennan’s mother. According to the letter, the telephone conversation lasted approximately 10 minutes. ¶39 Mr Sharpe referred to Mr Cummings being upset with Ms Wells on the telephone and angry about Mr Brennan having commenced these proceedings. According to the report of the conversation with Ms Wells, Mr Cummings told Ms Wells words to the effect that “Kashlyn would not get any money from him and issued a threat towards Kashlyn to the effect that he would make sure Kashlyn would not get a job anywhere unless he withdrew the claim.” It was reported that Mr Cummings further told Ms Wells that Mr Brennan had not performed well, and the decision by Mr Cummings to terminate Mr Brennan’s engagement was justified. The letter further stated that Ms Wells was left in no doubt that she was under pressure by Mr Cummings to have Mr Brennan’s application to this Commission withdrawn. Mr Sharpe wrote that Ms Wells felt that “Mr Cummings was hectoring and bullying her to this end”. ¶40 This matter was raised in the cross-examination of Mr Cummings by Mr Sharpe in these proceedings. Mr Sharpe asked Mr Cummings about the telephone call to Mr Brennan’s mother at 61T. Mr Cummings testified that he wanted to ask her whether she was aware that Mr Brennan had made the present claim. He referred to a previous conversation about three weeks prior, where Mr Cummings informed Ms Wells that Mr Brennan “wasn’t making the grade” and that his time with DME “was on thin ice”. When asked initially about whether he had issued threats concerning Mr Brennan proceeding with his claim, Mr Cummings said that he did not, but that he did not think pursuing the claim was a good idea: 62T. After a question from the Commission and a few further questions from Mr Sharpe the following exchange took place in cross examination at 62-63T: So did you say I’m to – to Kashlyn’s mother when you – when she answered the phone did you say, “I am in shock about receiving this claim from Kashlyn” or words to that effect?---Yes. Did you say, “Was this your idea?”?---No. I don’t think so. Did you say, “I’m telling you to withdraw it, as I would rather pay $10,000 to lawyers to fight it than give Kashlyn a cent of my money”?---Yes. Did you say, “You’d better withdraw it and I’m going to make sure that Kashlyn never ever works in this industry again. He won’t get a job anywhere”?---No. You didn’t say that?---No. “He didn’t respond to phone calls and missed meetings”, did you say that?---Ah, are we talking about in this conversation with his mother? Yes?---Yes. Did you say, “With all his cold calling he didn’t get one lead”?---Yes. Did you say, “I cannot take it seriously. I want you to tell him to withdraw it, as it won’t be heard” - - -?---No. - - - presumably in relation to the application. You didn’t say that?---I wouldn’t say it wouldn’t be heard. It’s not up to me to hear it. No. Did you say, “I can’t take it seriously and want you to tell him to withdraw it, as it won’t be heard”?---I said the first bit, didn’t say the second bit. Right. So, “I cannot take it seriously and I want you to tell him to withdraw”?---No. No. No. Is that what you said?---I said, “I can’t believe he’s doing it. I would suggest you tell him to withdraw”. I mean, at the end of the day of course I want him to withdraw, why wouldn’t I want him to withdraw it? But it’s the manner – well, so – but you agree that you made the call to his mother and - - -?---Well, I - - - - - - said these things?---- - - think I agreed that a long time ago. Right. Fair enough. Did you say Kashlyn was on probation and he was not owed notice of termination?---No. I don’t think so. I don’t – I don’t recall saying that at all. Right. Did you say, “This is a waste of my time and will not go anywhere”?---Don’t recall saying that at all. Right. Commissioner, this has been the subject of some correspondence to the Commission shortly after it happened, being a letter from myself to the Registrar dated 19 October. ¶41 Later in the cross-examination, in response to a further question from the Commission, Mr Cummings denied that the purpose of the telephone call to Mr Brennan’s mother was to get Mr Brennan to discontinue the proceeding. However, Mr Cummings confirmed that at the time he made the call he was very upset and flabbergasted that the claim had been made. ¶42 Subsequent to the Commission reserving its decision in these proceedings, Mr Cummings wrote to my Chambers on 13 January 2016. In the letter, Mr Cummings did say that he suggested to Ms Wells that she convince Mr Brennan to withdraw his claim as he “absolutely believed that he had no claim”. Mr Cummings denied that he made a threat to Mr Brennan through Ms Wells, that Mr Brennan would not get a job anywhere unless he discontinued the proceedings. Mr Cummings further said that he informed Ms Wells that the reference to Mr Brennan not working in the industry again was based on a prior conversation between Mr Cummings and Mr Brennan, where he encouraged Mr Brennan to get further sales experience after which he may be given another opportunity. ¶43 Subsequently by letter of 29 January 2016 Mr Sharpe wrote to my Chambers responding to Mr Cummings letter of 13 January 2016. In it, Mr Sharpe referred to his original letter to the Registrar of 19 October 2015. He further referred to that letter being raised in conciliation proceedings before Harrison C on 4 November 2015 and Mr Cummings not making any comment about it at that time. Mr Sharpe referred to the evidence before the Commission given by Mr Cummings on 21 December 2015 and that Ms Wells stood by her recollection of the conversation she had with Mr Cummings on 16 October 2015. Whilst the letter did confirm a prior contact by Mr Cummings to Ms Wells before 16 October 2015, her recollection of the subject matter of that telephone discussion was different to Mr Cummings. ¶44 Given the nature of the issues raised in both the correspondence to the Registrar and the subsequent correspondence to the Commission, despite an amount of it being hearsay, and the evidence given in these proceedings, an issue arises as to whether the conduct of Mr Cummings may constitute an offence relating to the administration of justice for the purposes of Chapter XVI of The Criminal Code of Western Australia. Under s 143 of the Code, any person who attempts to obstruct, prevent, pervert or defeat the course of justice is guilty of a crime. ¶45 I make no further comment on the evidence and the issues arising before the Commission in this respect. However, given that these matters were raised in open court I consider it only proper that I refer the issue to the Western Australian Police for their further consideration as they may see fit. A copy of these reasons for decision, relevant pages of the transcript of proceedings and the correspondence referred to above, will accompany the referral. [Conclusion] ¶46 For the foregoing reasons, a declaration will be made that Mr Brennan was at all material times an employee of DME.