Employer objected to the worker's application, arguing the applicant was a subcontractor and could not have been dismissed
The Fair Work Commission (FWC) examined whether a support worker was an employee after the employer objected to her general protections dismissal dispute application, submitting she was a subcontractor rather than an employee and, for that reason, could not have been dismissed for the purposes of the Act.
Only an employee can be dismissed, and only a person who has been dismissed or their representative can apply to the Commission for a general protections dismissal dispute.
The applicant worked as a support worker performing home care work under the national disability insurance scheme until her employment was terminated on the grounds of serious misconduct.
Worker provided with ambiguous documentation during onboarding
The applicant found work with the employer as a support worker through her friend, who was also working there.
She was put in touch with a manager who, after some initial correspondence, sent the applicant a request for information for the purpose of onboarding her to the employer.
The applicant provided the information requested by the employer by filling out some forms. She was then rostered for work according to her availability until her employment was terminated.
The documents sent to the applicant to complete as part of the onboarding process were somewhat ambiguous in relation to her contracting status with the employer. The terms worker and employee were used interchangeably.
A worker handbook mostly used the broader term of worker throughout and appeared to distinguish between staff and worker in one section but also used these terms interchangeably in other sections. A worker's information form included space to provide an ABN number.
Contract described as both subcontract agreement and employment
The applicant filled out the forms she was given, describing her position on those forms as full time casual. An ABN number was specifically requested by the employer and provided by the applicant.
On an induction checklist, boxes were checked indicating that the applicant had been given a letter of offer and an employment contract, and an explanation of her employment conditions. She signed an employee declaration at the end of the induction checklist in her capacity as the new employee.
The employment contract provided to the applicant had a covering letter describing the contract as a subcontract agreement support worker for disability.
It started with the words stating it was pleased to confirm the subcontract agreement with the employer, followed directly by the words stating the enclosed employment agreement sets out the terms.
The first page of the contract was headed employment contract. One clause confusingly stated the applicant was employed as a subcontractor and in the same paragraph stated that this employment agreement sets out the terms and conditions of employment that shall apply to each engagement that the applicant worked.
Contract stated employment governed by NES
One clause of the subcontract agreement stated that the terms and conditions of the applicant's employment were governed by the national employment standards in the Act.
The FWC noted this was relevant because the national employment standards only apply to employees not contractors.
The contract set out the applicant's duties and responsibilities including that she was required to report to her director or to such other person as the company may require or direct from time to time, that she comply with company policies, and that she act in its best interests.
Separately, the contract provided for termination of employment.
The FWC concluded that, on the terms of the contract alone, the relationship between the applicant and employer was properly characterised as one of employment.
The FWC stated this conclusion was consistent with the real substance, practical reality and true nature of the applicant's relationship with the employer.
The FWC noted that, as the applicant submitted, she worked under the company's direction and supervision.
Her shifts, clients and duties were allocated by the employer, and she had no control other than by advising of her unavailability for work as any casual employee might do over her roster, clients or pay rates.
Payments sometimes described as salary for hours worked
Payments to the applicant's account were sometimes described as employer hours worked, and on at least one occasion as salary. The applicant worked according to the roster set and managed by the employer.
She was required to comply with all employer procedures and client instructions. The relationship came to an end when the applicant was issued with a letter of termination for alleged serious misconduct.
The FWC acknowledged that indications of a contractor relationship might be present in the fact that the applicant provided an ABN and submitted invoices for her hours worked, and that she did not appear to have been paid any superannuation.
The FWC noted further that it was not apparent who, if anyone, paid tax on the earnings of the applicant. The FWC emphasized in the circumstances, these indicators were not determinative.
The FWC explained that the applicant submitted invoices to the employer because this was the process she was told to follow in order to get paid for her work.
The FWC’s decision
The FWC observed that the failure to pay superannuation could equally have arisen from the employer's mischaracterisation of its relationship with the applicant. The FWC noted the applicant also provided some of her own equipment, including a laptop and a car.
The FWC clarified again, this was likely because it was expected of her rather than because of a choice made in the context of her own enterprise and it was not a feature unique to contracting as opposed to employment.
The FWC stated there was no sound reason to consider that the applicant was working in her own business. The FWC explained she was a support worker in the disability industry, working for and reliant on others to allocate work to her and subject to their direction and control.
The FWC concluded so far as there was any evidence of the employer's intention in relation to the contract, the materials together indicated a misguided understanding that the incidents of an employment relationship can be avoided simply by giving it a different name, requiring an ABN and invoices from the worker in return for payment for hours worked, and placing responsibility on the worker to provide some of the equipment needed to perform their work.
The FWC dismissed the jurisdictional objection. The FWC noted the applicant's advice to the Commission that she did not wish to settle the dispute and directed the parties to advise chambers by a specified date if they would like the opportunity for settlement discussions.
The FWC explained that, depending on that advice, the matter would either be listed for conference or a certificate issued in relation to the matter.
