Case shows why job titles and regular pay aren't enough to prove employment
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a worker claimed he transitioned from performing occasional unpaid duties to becoming a permanent full-time employee, despite never working full-time hours.
The worker said he started in early 2022 as a support worker while maintaining another full-time job. After being made redundant from his primary employment in March 2023, he increased his involvement with the business, taking on an Allied Health Assistant role and various administrative duties including accounting and human resources tasks.
The case centred on whether the worker qualified as an employee under section 382 of the Fair Work Act 2009, which is a prerequisite for unfair dismissal protections. The employer objected to the application, stating the worker was a shareholder through a family trust rather than an employee.
The application was lodged on 11 June 2024, following the end of the working arrangement on 25 May 2024. The physiotherapy practice began as a sole practice before incorporating in March 2021.
Throughout early 2022, while working full-time at an insurance company, the worker performed various duties for the practice.
According to the decision, when the existing Allied Health Assistant began transitioning to an occupational therapist role, discussions occurred about the worker's future involvement.
The practice owner testified about work arrangements: "[The worker] had control of his own hours of work, including how he spent his time as between the business and their family life and when he took leave."
This autonomy extended to workplace participation, with the Commission noting he "was never required to participate in staff meetings although he occasionally joined them."
The Commission examined payment records showing three distinct periods. From February to July 2023, fortnightly payments were $881.85.
Between July and November 2023, payments increased to approximately $2,000 and were marked as "loan." From December 2024 until May 2024, regular payments of $1,627.08 were made.
In applying recent High Court precedents from CFMMEU v Personnel Contracting Pty Ltd and ZG Operations v Jamsek, the Commission focused on two key considerations: the employer's right to control work performance and whether the worker operated their own business versus working in the employer's business.
The Commission found: "[The worker] was not an employee of [the employer]. [The employer] did not have direction or control over the performance of his work; [the worker's] participation in [the employer] related to his assistance with the conduct of a business of which he was a part owner. Payments made to him are consistent with this and not with employment."
Based on these findings, the Commission dismissed the unfair dismissal application on 16 October 2024, as the worker did not meet the employee status requirement under section 382 of the Fair Work Act 2009.
