Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - no dismissal - found Applicant was not an employee - application dismissed.

• [1] On 31 July 2025, Mr Adrian Smith (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging his employment was terminated by Amart Furniture (the Respondent) on 12 July 2025 in contravention of the general protections provisions of the Act.

• [2] On 28 August 2025, the Respondent lodged a Form F8A Employer Response which raised two jurisdictional objections, the first being that the Applicant was not an employee, but rather an independent contractor, and second, that the Applicant was not dismissed.

• [3] On 1 September 2025, my Chambers issued a Notice of Listing to the parties advising a Hearing was listed on 9 October 2025 in respect of the jurisdictional objections and provided Directions for the filing of material.

• [4] The Applicant filed submissions and a witness statement along with Ms Lauren Smith & Ms Catherine Griffiths, all of which gave evidence. The Respondent filed submissions and a witness statement from Mr Ryan McKillop-Davies (National Transport Manager).

• [5] The material filed by the parties was collated into a Digital Court Book (DCB) and sent to the parties on 2 October 2025. The DCB was received into evidence by consent of the parties with weight being apportioned based on the admissibility and relevance.

• [6] A Determinative Conference was conducted via video at 10:00am (SA) Thursday, 9 October 2025 and was recorded. The Applicant represented himself, the Respondent was represented by Ms Derillo, permission granted pursuant to s.596(2)(a) based on complexity and efficiency. The Hearing was conducted as a Determinative Conference in order to ameliorate my decision to grant permission for the Respondent to be represented.

• [7] At the conclusion of the Determinative Conference, I determined that the Applicant was not an employee and therefore could not have been dismissed. The detailed reasons for this decision follow.

• [8] The Act provides that for the FWC to deal with a dismissal dispute (s.365 application), a person has to have been employed and dismissed in contravention of the general protections provisions. A copy of the s.365 of the Act is outlined below:

"365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."

• [9] The meaning of dismissed is contained in s.386 of the Act:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

• [10] The witness evidence is summarised as follows:

• The Applicant is the beneficial owner (via a Trust) of Adrian Smith Enterprises Pty Ltd (ACN 603 786 349). Adrian Smith Enterprises (ASE) own the business name Adelaide Delivery Services.

• ASE rents a 950 square metre warehouse in Wingfield and owns 10 delivery trucks, a van and a station wagon.

• ASE employs 5 drivers and 5 offsiders to collect and deliver goods (including lounges, beds and other furniture) and provide house moving services. A contract mechanic is retained to service the vehicles.

• ASE also engages Ms Catherine Griffith to perform administration duties and one other person to provide accounting support.

• The Applicant spends the majority of his time (20-30 hours per week) 'running the business' and undertaking administration activities. The Applicant assists with delivering goods and driving when they are short staffed or an urgent order is received.

• Ms Smith is the Applicant's wife and performs driving, delivery and marketing duties, previously as an employee but at present not as an employee. Ms Smith appears to be remunerated via distributions from the Trust.

• ASE provides services to a number of furniture retailers. Approximately 50% of ASE's revenue is received from Amart, 15% from a bedding retailer, 20% from a furniture retailer, 10% from providing storage services to a retailer, and 5% from providing house moving services direct to the customer, and 'too hard' furniture deliveries to other retailers.

• Mr Smith contended he was responsible for determining the delivery routes to be used for Amart deliveries using Amart's software.

• In January 2025, Mr Smith as Managing Director executed a written comprehensive Contractor Service Agreement with Amart Furniture Pty Ltd in the name of Adrian Smith Enterprises. The agreement is for the provision of delivery and assembly of goods such as home furniture, outdoor furniture and homeware. It requires DSE to provide and maintain vehicles, insurances, and allows for the services to be provided by employees and/or subcontractors and allows for substitution.

• Clause 3.1 of the Contract requires certain things of ASE including compliance with road traffic laws, provision of equipment, materials and fuel, following the routes generated by the software, taking measures to protect the goods transported, complying with health and safety standards and regulations, obtaining and holding required licenses and consents.

• Amart provided ASE with a weekly statement of services which was then used by ASE to submit tax invoices to Amart in accordance with the schedule of rates.

• ASE submitted BAS returns in respect of its employees and GST matters.

• The Contract between ASE and Amart appears to have ended on 12 July 2025.

• The Applicant's relevant submissions contend that the following criteria support the characterisation of Mr Smith as an employee;

Amarts control over invoicing, oversight of Mr Smith and his staff, rigid task definitions, provision of tools, imposition of strict deadlines and responsibilities outside of the contract.

• Mr Smith provided correspondence from Amart which appeared to be related to complaints and incidents which occurred during deliveries undertaken by ASE. This correspondence appears to be related to the safe and competent undertaking of deliveries and does not establish excessive control was being exerted by Amart.

• Mr Smith contends he was almost entirely dependent on Amart for income. This view was inconsistent with the spread of income from various suppliers.

• [11] Amart provided detailed submissions on the facts and law as to why it contends that Mr Smith was not an employee and thus could not have been dismissed, thus precluding his application under s.365 of the Act.

• [12] The Applicant contends that he was an employee throughout his engagement with Amart, as a result of the application of s.15AA of the Act. The Respondent contended that the Applicant was a Contractor and not an employee and thus cannot have been dismissed.

• [13] In determining whether the Commission's jurisdiction has been enlivened for the purposes of s.365, the question is whether Mr Smith was an employee on the date the engagement came to an end (12 July 2025) and therefore was susceptible to being dismissed on that date.

• [14] This requires consideration of the meaning of "employee" as affected by s.15AA of the Fair Work Act 2009 as in force at the time the engagement. In Murray v 239 Brunswick Pty Ltd, Roberts DP was faced with a similar task, and stated:

"[17] Section 15AA(2) requires a consideration of the totality of the relationship which involves in turn a consideration of, amongst other things, the terms of the contract between the parties and an assessment as to how the contract is performed in practice. The approach to a consideration of the totality of the relationship under s.15AA is guided by the common law principles established by cases such as Stevens v Brodribb Sawmilling Co Pty Ltd and Hollis v Vabu Pty Ltd and involves a reversion to the multifactorial test that was well known and widely applied prior to the High Court decisions in _CFMMEU v Personnel Contracting_21 and ZG Operations v Jamsek.

[18] The common law approach has been set out in numerous decisions of the courts and in decisions of this Commission. In Jiang Shen Cai trading as French Accent v Do Rozario the Full Bench summarised the approach to the determination of the employee/contractor issue including whether the worker is the servant of another in that other's business or whether the worker carries on a trade or business of his or her own behalf, the nature of the work performed and the manner of its performance, the identification and application of the relevant indicia to the circumstances, and the terms of the contract between the parties.

[19] In the same decision, the Full Bench identified the various indicia that are ordinarily considered in an assessment as to the nature of the relationship. They include the actual exercise, or the right to exercise, control over the putative employee, whether the worker performs work for others, or provides tools and equipment, whether the work can be delegated, whether the worker is remunerated by periodic wages or salary or by

reference to completion of tasks and whether the worker is presented to the world at large as an emanation of the putative employer's business.

The Bench also cautioned that "no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances."

• [15] I adopt the Deputy President's summary of the approach to be taken.

• [16] When I balance the factors contained in the multi factorial approach, I am not persuaded that Mr Smith was an employee of Amart on or about 12 July 2025. Mr Smith was (and remains) the Managing Director of a Company which provides delivery and storage services to multiple clients, with a fleet of vehicles and 12 employees. ASE maintains its fleet and rents a warehouse. The distribution of work is controlled by ASE as is the routes. There is no evidence that Mr Smith is presented to the world as an Amart employee. The majority of Mr Smith's time is spent on the business noting that when needed, he provides 'hands on' support. The control exerted over ADE (and thus Mr Smith) appears consistent with the terms of the commercial contract and does not appear to be excessive.

• [17] When these facts are considered objectively and as a whole, Mr Smith cannot fairly be described as an employee of Amart. I find that as Ms Smith was not an employee he cannot have been dismissed and his s.365 application fails for want of jurisdiction.

• [18] Accordingly, the general protections application is dismissed.

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