Worker said she never really wanted to stop working, but sought to put pressure on the employer by indicating she wouldn't work anymore
A worker challenged her dismissal, arguing she was forced to resign because her employer would not respond to requests for full payment of entitlements and fair resolution of car arrangement issues before her visa expired.
The worker contended she was an employee required to wear a uniform, had no freedom to choose when and how she worked, and was paid weekly at a flat hourly rate.
The employer maintained that the worker was an independent contractor who voluntarily ended her engagement, had freedom to pick and choose work, and was paid through the company's invoicing system using her own ABN.
Disputed employment relationship
The worker has made an application to deal with contraventions involving dismissal. The employer, in its response, argued that the worker did not meet the requirement as they were not an employee, but an independent contractor who voluntarily ended her engagement.
The worker contends she was an employee of the employer who was forced to resign. The question of whether an applicant has or has not been dismissed goes to the validity of the application and must be determined in favour of an applicant before the Commission can proceed to deal with the dispute.
Directions were issued for parties to file evidence and submissions on the jurisdictional issue. Both the worker and the employer filed evidence and material, along with providing sworn evidence to the Commission at the hearing.
In order for there to be a dismissal under this section, there must be a relationship of employment between the parties and the employment must be brought to an end by one, or the other in circumstances described by the Act. Both the worker and employer have provided detailed evidence and submissions to the Commission on both these issues.
Worker's evidence of employment relationship
The worker, who provided evidence to the Commission with the assistance of an interpreter, identifies that she had a verbal employment contract with the employer to offer her services as a domestic cleaner in her business.
Among other things, she identifies the following factors point to the existence of an employment relationship: she was required to wear a uniform and work to an expected standard, being subject to reprimand if she failed to do so; she had no freedom to choose when and how she worked; she did not have insurance, and her employer took responsibility for any work issues arising; she couldn't manage her work schedule, refuse clients or jobs, or negotiate a separate price for her work; she did not invoice for her work and was paid weekly into her nominated account at a flat hourly rate for the total hours she worked each week.
The worker's further evidence is that for some time she has been seeking that her employer provides her a full and complete copy of all the hours that she worked as recorded in the scheduling application used to schedule her work.
She believes she has not been paid her full legal entitlements. In January this year, following a reduction in work, she started asking questions of the employer and accepted she was forced to take up other work to make ends meet.
She was also trying to reach a fair and amicable settlement with the employer of all her entitlements, along with arrangements for the use and purchase of a car, prior to having to leave Australia before her visa expired.
Worker's explanation for resignation message
The worker accepts the terms of her agreement with the employer for her work and other matters, where not clearly set out. All she wanted was a fair deal and a fair price. She tried to reach the employer to find a middle ground and work things out.
She was unable to get a clear response. As an international student, the worker's visa was due to expire in the middle of July 2025. As a result, she submits she urgently needed to sort things out.
From early June she sought to set a deadline with the employer for things to be addressed. She did this not because she wanted to leave her employment, but because she wanted to put some pressure on the employer to get a result, sort things out and have her issues resolved.
The employer's position is that the worker was engaged by her business to provide cleaning services as an independent contractor.
She accepts that the arrangement they had was a verbal agreement.
Her evidence is that the worker could pick and choose when, where and how much she worked. That she was not subject to reprimand or control and was paid for her work through a company created invoicing system.
And further, that the worker worked as a contractor under an ABN and had freedom to work for others, regularly doing so.
Three resignation messages in June
The employer accepts that the worker has been seeking to negotiate a series of issues with her for some time.
Her evidence is that these are unrelated matters about the sale and use of her motor vehicle. Her evidence is that on three separate occasions in June 2025, the worker made it clear to her that she would no longer be working with her business.
Variously, this involved the worker advising her as follows: "My last day will be 18th July" on 8 June 2025, "If you do prefer I can quit now and return the keys tomorrow" on 13 June 2025, and on 19 June 2025 "Friday will be my last day for your company" and "Monday onwards I wont work for you anymore".
On Thursday, 19 June, the employer accepted that she had removed the worker's access to jobs on the company's booking application on the basis that it was clear she would not be providing any further services.
Employment status question left undecided
The determination of the question of whether the worker was an employee or an independent contractor for the employer is not a straightforward task.
It involves a detailed examination and overall assessment of the relationship between the parties and the application of the provisions of the Act.
These provisions necessitate a thorough consideration of a range of different factors to determine the real substance, practical reality and true nature of the relationship. The totality of the relationship must be considered.
In the present case, both the worker and the employer agree the terms of the agreement between them were not committed to writing. The worker makes an arguable case that the relationship was one of employment, identifying a variety of factors in support of this position.
On the other hand, the employer identifies a series of factors that point to a conclusion that the worker was engaged as an independent contractor, including that she had the freedom to pick and choose when and how much she worked and was paid by invoicing for her work through an ABN.
The difficulty of attempting to arrive at a concluded view in this case is highlighted by the fact that neither party has provided any independent evidence to support their respective positions.
Both parties presented a large volume of material, supported by oral evidence and submissions. Much of this material overlaps in the form of emails and text messages exchanged between the parties that are selectively interpreted to support opposing positions.
Focus on dismissal question
On the other hand, the evidence relating to the question of whether there was dismissal as a matter of fact is relatively confined. While contested, this evidence is much less subjective and can be more objectively assessed.
It is not disputed that on Thursday, 19 June the worker sent the employer the following message: "Monday onwards I wont work for you anymore". The worker argues she sent this message because she had no choice to do so and was therefore dismissed. The employer disputes that this is the case.
Her position is it was clear to her from these communications that the worker resigned from her position and would no longer be performing any work for the business.
For the purposes of this decision, the Commissioner proposed to assume in the worker's favour and without determining the matter, that the relationship between the parties was that of employee and employer and that the worker was capable of being dismissed from her "employment" with the employer.
This being so, the Commissioner considered whether, objectively viewed, this in fact was the case.
Legal test for forced resignation
The worker argues that she has been forced to resign by the employer. In support of this submission, she identifies that she was on a working visa that was soon to expire, that she had entered an arrangement with the employer for the use of a car and to perform work for her cleaning business.
She was concerned she was not getting all she was entitled to for her work and that the arrangements regarding the car were unbalanced. She wanted to reach a fairer deal with the employer and made efforts to do so.
The employer was either not contactable or agreeable to renegotiate terms. With her visa soon to expire, the worker says she needed to get things sorted out before she had to leave the country.
She identifies she was owed over $5000 and in early June sought to put pressure on the employer to reach an agreement by indicating she wouldn't work for her anymore. But ultimately, that she never really wanted to stop working for the business.
The employer's position is that the arrangements regarding the car are separate matters from those relating to the worker's work for her company.
Her position is that she understood the worker was on a visa and may have had to leave the country.
She accepts she was busy and hard to contact, but she understood from the worker's multiple communications that she was resigning and would no longer be working for her from 19 June. She then removed the worker from the business application on this basis.
Previous decisions have considered what is required for an employee to establish they have been forced to resign.
A Full Bench examined the relevant authorities and summarised the definition of dismissed. A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal.
The test to be applied is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign.
No forced resignation found
Previous decisions require that there be some action on the part of the employer which is either intended to bring the employment relationship to an end or has the probable result of getting the employment relationship to an end.
It is not simply a question of whether the act of the employer resulted directly or consequentially in the termination of the employment.
In determining whether a termination was at the initiative of the employer, an objective analysis of the employer's conduct is required to decide whether or not it was of such a nature that resignation was the probable result or that the worker had no effective or real choice but to resign.
The Commissioner considered the evidence and submissions provided by the worker which she indicates makes clear she was forced to resign in light of these authorities.
The Commissioner was not persuaded that any act or omission of the employer forced her to resign. The Commissioner accepted that the worker may have wanted to get the employer's attention, and that she felt like she was being ignored and not getting a fair deal. This may well be the case.
However, at no stage does the evidence presented point to the employer engaging in conduct or a course of conduct with the intention of bringing the employment relationship to an end.
Nor does it lead the Commissioner to conclude that the end of the relationship was the probable result of the employer's conduct, such that the worker had no real or effective choice but to resign.
On the basis of the evidence, the Commissioner concluded it was the worker who decided to bring the employment relationship to an end of her own volition and that she communicated this clearly to the employer.
Therefore, concluding that even when assuming the worker was in an employment relationship, she was not dismissed for the purposes of the Act. It follows that the application is not validly made and must be dismissed.
