No paperwork meant no protection, and the ATO came knocking as well
A $150,000 "employment" deal, payslips included, with no written contract has been ruled not an employment relationship at all.
In a decision dated 6 March 2026, Commissioner Connolly of the Fair Work Commission dismissed a general protections application filed by Daniel De Silva against Glen McGarry and his company, 75 688 174 585 Pty Ltd (formerly Flying Robot Film Pty Ltd). Both parties were subsequently referred to the Australian Tax Office.
It began with a friendship. De Silva and McGarry had known each other since around 2016. When De Silva's media company, Cloakroom Media Pty Ltd, ran into financial difficulty and had its ABN cancelled in May 2025, McGarry registered Flying Robot Film Pty Ltd in June 2025 so De Silva could continue servicing his existing clients.
De Silva maintained he had been engaged as Head of Production on a $150,000 annual salary plus superannuation and a performance-based bonus. He pointed to payslips, superannuation payments, PAYG tax deductions and a July 2025 request from McGarry's wife for his tax file number and superannuation details to set him up in "payroll." McGarry denied any employment agreement, saying De Silva would simply keep all revenue less compliance costs. No written contract was ever signed.
When De Silva first started work, McGarry had asked him to submit an invoice, which he did on 23 July 2025 under his own personal ABN for video production services, pre-dating the payslips he later relied upon.
An employee of McGarry's other company, Flying Robot Media, Ms Saliha Oz, had created a payroll record for De Silva in Xero and processed wages and superannuation payments from the new company's account. McGarry alleged she had conspired with De Silva to create false payslips and make unauthorised payments. The Commissioner rejected this, accepting Ms Oz's evidence that she had acted on instruction from Mr and Mrs McGarry.
In early August 2025, De Silva raised concerns about how the company was being run, after which the relationship with McGarry deteriorated. Acting on those concerns, De Silva filed an initial General Protections application with the Commission — one not involving dismissal — and a subsequent application followed. Both were contested.
A text exchange from 6 August 2025 captured the arrangement's ambiguity. McGarry told De Silva: "You have my assurances all the money in film you can take net of compliance – PAYG tax, super, company tax and GST."
On 1 September 2025, McGarry sent a written notice advising that Flying Robot Film had reviewed its commercial and operational circumstances and that its operations were "self-evidently not commercially or operationally viable." The notice continued: "Consequently, to the extent that there may be anything characterised as an arrangement in place (including but not limited to any contract of service or contract for services, which is denied) between FRF and you, this letter provides notice of immediate cessation of that arrangement." De Silva filed the present general protections application involving dismissal on 22 September 2025.
Applying section 15AA of the Fair Work Act 2009, the Commission assessed the real substance and practical reality of the working relationship. De Silva had worked autonomously, supplied over $250,000 of his own professional production equipment, and ran a separate unrelated business concurrently. There was no evidence of set hours, structured reporting or direction from McGarry.
The payslips and superannuation payments were treated as neutral, reflecting one party's characterisation of the relationship rather than its actual nature. The application was dismissed.
McGarry admitted under sworn evidence to knowingly filing false records with the ATO, leading the Commissioner to make a formal referral. De Silva was referred separately.
The ruling is a clear signal that worker classification cannot rest on payroll records alone. The Commission will look past documentation to how an arrangement actually operated, and without a written contract, both parties are exposed regardless of how payments were labelled.
