Worker argues company oversight established employment relationship with clients
The Fair Work Commission (FWC) recently examined an unfair dismissal claim involving a home care worker who argued she was dismissed from her employment despite being classified as an independent contractor.
The case arose when the worker's services were terminated after providing home care to clients through a third-party platform, leading to a dispute over whether she was an employee or contractor.
The worker argued she had been unfairly dismissed, maintaining that despite operating through an online platform and holding an Australian Business Number (ABN), the practical nature of her working relationship indicated employment.
She contended that the employer determined her schedule, set client duties, and maintained ongoing communication and oversight through representatives.
The employer contested the worker's claim, raising a jurisdictional objection that the worker was not its employee and consequently could not have been dismissed.
The company argued it never directly engaged the worker, but rather she was engaged directly by clients as an independent contractor through a third-party platform arrangement.
Worker operates through online platform
The employment relationship involved a worker who provided home care services to clients of a retirement living company that managed Home Care Packages for residents and local community members.
The worker's engagement commenced in October 2023, providing services to two clients through the Mable platform, an Australian online marketplace connecting people with disability and older Australians with independent support workers.
The Home Service Manager explained that the company "engages a third-party provider, Mable to help with the delivery of services, including personal care assistance, to clients who have a Home Care Package."
The platform operated by connecting clients with "independent contractors" who "utilise the Mable platform to engage with clients and to invoice Mable for the services they provide."
The arrangement involved service agreements entered into directly between contractors and clients, with the company "overseeing the administrative aspects of the engagement under the client's direction."
The Head of Sector Partnerships at Mable confirmed that "independent support workers are not employed or engaged by Mable" and that "businesses such as [the employer] utilise the Mable platform to find independent support workers that meet their client's needs."
Worker claims employment despite contractor classification
The worker provided evidence that she had commenced work in October 2023, "primarily providing home care support to [clients] under their Home Care Package."
Despite operating via the Mable platform and holding an ABN, she argued "the practical nature of the working relationship indicated employment."
The worker contended that the company "determined my schedule, set client duties, and maintained ongoing communication and oversight through representatives."
She described the work as "regular and structured," providing approximately 7.5 hours per week to clients with duties including personal care, shopping, domestic assistance, and social support, totalling 26 hours of care work per week.
The worker's submissions included claims that the employer exercised high control over her performance, determined who could provide services to clients, coordinated meetings and service changes, collected weekly support notes, provided performance feedback, and was able to initiate termination of her services without client consultation.
Commission examines employment versus contractor indicators
The FWC noted several undisputed facts: the worker secured clients through platforms including Mable, entered into separate service agreements with each client, held an ABN, provided invoices through the platform with Mable responsible for payment, and had no written contract with the employer company.
The Commission found that not all of the worker's contentions were supported by evidence, noting that a letter she sent indicated she had "from time to time negotiated changes to her hours of work, and the services she was to provide, directly with [clients]. It appears to have been [the clients] who 'controlled' [the worker's] schedule."
The FWC determined that "it was [the clients], and not [the employer], who made the decision to terminate [the worker's] services," though the decision was communicated by the employer.
The Commission found that while the company "exercised a degree of oversight, even control," this was "consistent with the company's responsibility for managing home care packages for its clients, and protecting the interests and well-being of those clients."
Application dismissed on no employment relationship grounds
The FWC concluded that "apart from the 'control' relied on by [the worker], there are no other indicators of an employment relationship." The Commission noted that "the company does not pay [the worker] for her services.
Rather, she is paid by Mable on presentation of an invoice. This, coupled with the fact that [the worker] operates under an ABN, argues strongly against the existence of an employment relationship."
The Commission explained that "Mable provides a platform that allows organisations such as [the employer] to identify independent workers who can provide services to its clients. [The employer] apparently facilitates the connection between its clients and those workers. But the relevant service contracts are between the clients and the workers."
The FWC concluded: "It is for these reasons that I have found that [the worker] was not employed by [the employer]. It follows that she cannot have been dismissed by the company. I find that she was not. It further follows that [the worker] was not entitled to bring proceedings under section 394. The application is dismissed."
The Commission acknowledged the worker was "blindsided by the decision to terminate her services" but found that expectation of ongoing engagement did not establish an employment relationship.
