FWC junks unfair dismissal case after worker declared ‘non-employee’

The Fair Work Commission (FWC) recently dealt with a case involving a worker, performing his role as a running coach, who argued he was unfairly dismissed from work.

In its defense, the director of the company argued that the worker was not, at any time, employed.

It contended that the worker was not eligible to pursue an unfair dismissal claim.

Was the worker an independent contractor or employee?

In 2018, the worker and the company, who provided wellness and fitness services, made a contract wherein it was stipulated that the worker provide running coaching services to clients of the company in exchange for a financial payment.

During the early parts of his engagement with the business, the worker said that he performed unpaid work because he was expected to do so, and because he hoped that the company would offer him an opportunity to become a licensee.

“This unpaid work included administration work, jointly coaching extra sessions, attending fortnightly catch-up meetings…, attending coaches’ meetings, and attending weekly or fortnightly coaches’ check-in forums on a Sunday,” the FWC noted.

However, when the worker’s relationship with the company’s director started to weaken, the former decided to stop performing unpaid work for the company. He ceased to undertake coaching sessions and administrative work and had stopped attending catch-up and coaches’ meetings.

The worker contended that he had an expectation of ongoing work with the business as he had been working for the company for over nearly five years.

HRD previously reported about a case involving an individual who sought an order to ‘stop bullying at work’ against a tennis club association.

In a previous case, the Commission first had to decide whether the individual was actually an employee in the tennis club before finally deciding on the bullying allegations.

FWC’s decision

In deciding the case, the FWC focused on the totality of the relevant contractual rights and obligations signed by the business and the worker which pointed out that the worker engaged with the business as an independent enterprise.

For example, the fact that the worker was required to maintain his own insurance cover as a personal trainer, weighed in support of a principal independent contractor relationship.

The Commission noted that the worker’s coaching services for the business were “not so subordinate” to the extent that they could be seen to have been conducted as an employee of that company rather than an independent contractor.

Hence, because the worker was not employed in the company, the FWC noted that it does not have a jurisdiction to determine the merits of the worker’s unfair dismissal claim.