She used their laptop and reported to their managers - but Infosys still wasn’t her employer
A consultant on an Optus project brought an unfair dismissal claim against Infosys - but the Commission found it was never her employer.
The ruling, handed down in Sydney on September 8, 2026, landed on a question that keeps surfacing for HR teams who bring people in through labour hire: when someone sits at your site, uses your laptop and sends timesheets to your manager, who actually employs them?
The worker, a data specialist, was approached by Infosys on LinkedIn in March 2024 for a consultant role on a transformation project the company was running for its client, Optus. From the first conversation, Infosys told her it could not put her on its own books because of her visa, and that she would have to be engaged through a third-party labour hire arrangement.
That arrangement grew complicated. She was first engaged as an independent contractor and supplied up a labour hire chain to Infosys, then signed a full-time employment contract with a different company - one that held the government approval needed to sponsor her skilled-worker visa. Her day-to-day work barely changed. She stayed on the Optus project, used a laptop Infosys gave her, and emailed her weekly timesheets to an Infosys manager to sign off.
She resigned in writing in March 2025. The following month she lodged an unfair dismissal application, naming Infosys. Her argument was that, whatever the contracts said, she had been treated as an Infosys employee in practice, and that the paperwork was, in her words, a "sham." She pointed to a part of the Fair Work Act that asks decision-makers to look at the "real substance, practical reality and true nature" of a working relationship rather than just the labels on a contract.
Infosys raised a threshold objection. It had never held any contract with her, it said, so it could not have been her employer - and an employer is the only party that can dismiss someone. Without a dismissal, there was nothing for the Commission to hear.
The Commission agreed with Infosys. It found this was a standard three-way labour hire set-up, and that in those arrangements the employer is the labour hire business, not the client the worker is placed with. The "real substance" test she relied on, it held, is about telling employees apart from independent contractors - it does not let a worker treat the business they are placed with as their employer when the two never had a contract. Searching for any agreement that might be implied from how everyone behaved, the Commission found none, noting that visa rules meant Infosys was never in a position to employ her in the first place.
The Commission was careful to spell out what it was not deciding. It made no findings on whether the arrangements between the various labour hire and sponsoring companies were a sham, and said no such question arose in relation to Infosys. Because it found Infosys was not her employer, it did not go on to decide her separate claim that she had been pushed into resigning. The application was dismissed.
For HR, the decision is a useful marker. Bringing skilled people in through on-hire chains can put real legal distance between a host business and unfair dismissal exposure - recruiting someone, handing them a laptop and approving their timesheets did not, on their own, make Infosys the employer. It is also a reminder that the "real substance" test, for all the attention it draws, did not hand workers a new path to the business sitting at the top of a labour hire chain.
