His complaint annoyed the boss - and that reaction turned the sacking into a Fair Work breach
For more than a decade, a funds management company treated one of its most senior people as a consultant. On June 26, 2026, the Federal Court looked past the label and called it employment.
In Vize v. Whistle Funds Management Company Pty Ltd, the court found that a worker engaged in 2012 through his own consultancy - with his own ABN, billing for "consultancy services" - had in fact been an employee of Whistle Funds Management Company since July 2017. The wording of the contract did not match the reality of the job.
The facts that decided it will look familiar to any HR team. From mid-2017, the worker drew a fixed salary paid monthly - $250,000, then $300,000, and $350,000 by October 2023 - whether or not he worked, took leave, or was off sick. He no longer had to invoice to be paid. He worked full time from the company's offices, used its resources, did work central to the business and had stopped taking outside clients. By April 2021 he was managing director. All of that, the court said, pointed to employment. Only the tax arrangements - he collected GST and paid his own income tax - pointed the other way, and they were not enough.
The ruling is one of the first clean tests of the new statutory definition of employee. Section 15AA of the Fair Work Act, introduced by the Closing Loopholes No. 2 reforms and in force from August 26, 2024, tells courts to weigh the real substance and practical reality of a working relationship, not just the paperwork. Applying it, the court found that, tax aside, nothing about this relationship resembled genuine contracting - an additional basis for the same conclusion it had already reached at common law.
Getting the characterisation wrong proved costly. Because the worker was an employee, the court declared that Whistle Funds had breached the Fair Work Act by not paying his accrued annual leave on termination and by failing, from January 1, 2024, to pay superannuation. It also declared a breach of the NSW Long Service Leave Act for long service leave accrued from July 2017. The amounts are still to be calculated, but they reach back years. The court also found he should have had six months' notice.
The dismissal is the part managers should sit with. Whistle Funds ended the engagement on March 5, 2025, and its pleaded case was that the only reason was a broken-down working relationship, citing "recent emails" in the termination letter. But under the general protections in the Fair Work Act, the employer must prove a dismissal was not because the worker exercised a workplace right - and complaining or asking questions about your own employment is one of those rights.
The company could not clear that bar. The court found that the company's founder and chairman made the decision to dismiss and that, on his own concessions under cross-examination, a substantial and operative reason was that the worker had complained. The worker's March 4, 2025 email had pushed back on a directive and revived a claim to a 10% equity entitlement. Asked whether he had been annoyed that the worker raised legal advice in that email, the founder replied, "Absolutely." The court found he "reacted emotively" to the complaint and that the dismissal was unlawful adverse action under s 340 of the Fair Work Act.
The judge did not soften his read of the evidence. He described parts of the founder's account as "unimpressive, unsatisfactory, unreliable, combative and inconsistent," and found his explanation of when and why he decided to dismiss the worker shifted as he gave it. Where the accounts clashed, the court preferred the contemporaneous record.
Two findings went the company's way. The personal claim against the founder - that he was an accessory to the breaches under s 550 - was dismissed, because the court was not satisfied he knew the facts that made the worker an employee. And the company's argument that the worker was "estopped" from claiming entitlements, because both sides had long treated him as a contractor, was dismissed as contrary to law and public policy. You cannot contract out of Fair Work minimum entitlements, the court held, and you cannot reach the same result through estoppel.
For HR, the case ties together two risks that tend to arrive as a pair. A contractor arrangement that quietly turns into employment can unlock years of leave and superannuation liability the day it ends. And a dismissal driven by irritation at a complaint - no matter how carefully the letter is worded - is exactly what the general protections are built to catch. Under the law, what counts is the decision-maker's real reason, and that gets tested under oath.
This decision settles liability only. The Federal Court has reserved remedy, penalties and damages and listed the matter for case management on July 16, 2026, with mediation a possibility.
