Was Mr Noy reckless as to whether the contracts would be contracts of employment?
The Court held there was no evidence at all that Mr Noy was aware at the time that there was a risk that he engaged the workers as independent contractors when in fact they were employees. The Court also held that Mr Noy did not know and was not reckless as to whether the contracts would be contracts of employment rather than contracts for services. While Mr Noy agreed that he accepted “now” that there would be a risk that there would be ramifications if a person was wrongfully categorised, the Court found at the time there was no evidence Mr Noy was aware of the risk. Therefore, Nubrick did not contravene the sham contracting provisions in relation to either of the workers.
