Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] The Applicant makes application under s. 394 of the Fair Work Act 2009 (Cth) (FW Act) alleging that she was unfairly dismissed from her employment. She seeks compensation. The Respondent, New Hopes Trust, opposes the application.

• [2] The Applicant worked as a sex worker in a massage parlour, Sir's for Massage (Sirs) She asked that her name not be published. The reason for the request was that she worked using a pseudonym for her personal safety. This practice appears to be common in the sex industry. I am satisfied that it is desirable to restrict the publication of the Applicant's name for her personal safety and will refer to her as the Applicant in this decision.

• [3] The Respondent contended that the Applicant was not an employee, she was engaged as an independent contractor. A second issue arose during the proceedings going to whether the Applicant was protected from unfair dismissal at the time she was dismissed.

• [4] The application was dealt with by way of conference. The Applicant represented herself and the Respondent was represented by two directors of the Trust, Ms Tse and Mr Greenland.

• [5] The Applicant contacted the Respondent on 12 October 2024 seeking work at Sirs. The Applicant states that during that conversation a manager told her that she would be provided work, and she should show up for a trial shift on 19 October 2024. The Applicant also stated that she was told not to work at any other parlour in the intervening period. The manager referred to was not called to provide their account of the conversation. The Respondent stated that if this was said it did not reflect the business's practice, as the Respondent does not require its sex workers to work exclusively on its premises.

• [6] The Applicant attended Sirs on 19 October 2024. She signed a document that had the title 'Welcome to Sirs - Masseuse Application Form'. The form records the date as 19 October 2024. It sought the Applicant's availability to work on shifts. The shift times were Day Shift Monday to Sunday 10.00 am to 7.00 pm and Night Shifts Monday to Sunday 7.00 pm to 4.00 am. The form asked the Applicant to provide a working name, date of birth, contact number and to indicate if she had any experience in the industry. The form asked the Applicant to describe her looks and to indicate, by responding to a list, what additional services she preferred to provide. The listed services were Doubles, Couples and Outcall. A separate question asked if the Applicant was interested in escorting. The Applicant was also asked to indicate if she had any issue with photos being taken of her for use on an online profile. The form noted that Sirs is a fully licensed establishment and that the Applicant was welcome to offer extra services but that there was a maximum charge for those services of $200 per booking. The note then stated

Ladies that are charging more per booking will have their employment terminated.

• [7] The second page of the document set out Sirs' Policies and Procedures. These included that a bond of $200 would be taken from the first 2 or 3 weekly payments. Two weeks' notice was required when leaving and all rostered shifts were to be worked before the bond would be returned. All masseuses were required to work one weekend shift per fortnight. All masseuses were required to arrive 10-15 minutes prior to their shift. Appearance should be immaculate at all times and outfits must be varied on a regular basis. Clients were to receive full booking times and service should be erotic/sensual, polite and of the highest standard.

• [8] The document then asked the Applicant to agree to the policies and procedures. The policies and procedures required included that all tenanted rooms were to be left clean. Masseuses must be prepared to pay casual rental to Sirs for the use of rooms with rates for 30 minute, 45 minute and 60 minute occupancies. They must also agree that Sirs could collect all receipts on their behalf, charge their client and retain proceeds for them where credit card facilities are used for payment.

• [9] The document also included warranties from the Applicant that she was allowed to work in Australia, would not break any laws, was over the age limit to provide sex service, was legally entitled to earn income, took personal responsibility for what she did, was aware that she was not covered by Sirs insurance, and should insure herself for any accident etc.

• [10] The third page of the document, headed Additional Information, went to a number of matters. The first was appearance. The document stated that hair must be styled and well groomed, makeup must be worn, lingerie and heels must be worn throughout bookings and when meeting clients, and outfits should be changed regularly. Clients were to be greeted with a smile and welcoming personality along with a handshake. Clients were to be permitted to ask questions, and privacy was to be given for this to occur. Workers were required to meet clients up until the last minute of their shift. Room etiquette was also dealt with. Fresh towels were to be provided, and rooms tidied at the end of a booking including drying shower areas. Rooms were to be stocked 15 minutes prior to a shift commencing. Oils and other amenities were to be topped up and bedding covers changed, and mirrors wiped down at the end of shift. Information was given about pay. Pay would be received at the end of shift and no earlier. The $200 bond must be paid in the first 2-3 weeks and would be taken out of the Applicant's pay. As to shifts, the Applicant was required to arrive 10 minutes before a shift. The roster would be completed on a week to week basis, and a weekend shift must be worked every two weeks. Shifts could be cancelled on at least 24 hours' notice.

• [11] The Respondent contended that its standard contract included a fourth page. A copy was provided. The page was in the following terms:

By signing this document, you acknowledge and agree to the following:

1. You are operating as an independent contractor, not as an employee of SCT Enterprises Pty Ltd.

2. The arrangement between you and SCT Enterprises Pty Ltd is for the rental of rooms on our premises and does not constitute an employment relationship.

3. You are solely responsible for managing your own income and for meeting all obligations to the Australian Taxation Office (ATO), including the declaration and payment of any applicable taxes.

4.Any income you earn from clients during your use of our premises is not considered revenue of SCT Enterprises Pty Ltd, and SCT Enterprises Pty Ltd does not exercise control over your work methods, hours, or clients.

5. Either party may terminate this arrangement at any time and without notice, and such termination shall not give rise to any employment-related claims or entitlements, including unfair dismissal.

6. You understand and accept that this declaration forms part of the basis on which you are granted access to our premises.

By signing below, you confirm that you have read, understood, and agreed to the above terms:

Working Name: ___________________________Sign:___________________________

• [12] The Applicant denied ever seeing a fourth page. The Respondent did not provide a signed fourth page. No explanation was given about the reference to SCT Enterprises Pty Ltd in this document.

• [13] Going to the three page document provided by the Applicant, the Applicant responded to the questions on the first page of the form by indicating that she was 20 years of age, willing to provide all of the listed additional services, had no issue with having photos taken, and was interested in escorting. The form included a section to indicate the interviewer's name. The interviewer included handwritten comments that the Applicant was friends with another worker, was pretty, young and friendly, and that she was very new to the industry. A note was also placed on the form indicating that the Applicant would work a trial shift on 19 October 2024. The second page was dated but not signed. The Applicant signed the third page of the document indicating that she understood the requirements set out as additional information.

• [14] The Applicant worked a trial shift on 19 October 2024. She then worked regular shifts until she was dismissed. In March 2025 the Respondent introduced what was described as a new fines system. There was no fine if a shift was cancelled with 48 hours' notice, a $200 fine for not turning up to a shift, a $200 fine for cancelling less than 48 hours prior to a shift and for leaving early. This fine was reduced to $100 if a medical certificate was provided. The workers also had an option of picking up an extra shift, if available, and no fine would be imposed. A late arrival fine was introduced of $1.00 per minute after the commencement of a shift.

• [15] The applicant gave the following account of how the work was performed. Clients would generally arrive at reception and be shown by a receptionist to one of three meeting rooms. The workers, who were required to be in a waiting room in the basement of the building, would be asked to come to the meeting room one at a time. The client would then decide on one of the workers and confirm the booking. The client would be asked whether a standard room or VIP room was preferred. There were five VIP rooms and two standard rooms. Once a choice was made, the receptionist would allocate a room. The worker would then accompany the client to the room. Further discussion would occur as to what extra services were sought. Payment would be made in the reception area, or in the room. It may be by cash or by credit card. The service would then be provided. At the end of the booking the room was cleaned by the worker. Payment to the worker was only made for completed bookings. If a client did not choose a worker in the meeting room resulting in a booking, no payment would be made. The bookings were recorded on a work sheet with the sex worker filling in the details of the booking before providing the service. The work sheet included all bookings for a shift and was used as a record when payment was made to the sex worker. The payments were made based on the number of bookings each shift and the service provided. The Applicant stated that during her time at Sirs payment was made as follows:

• [16] The Applicant explained that of the extra services charged by the worker, as agreed with the client, Sirs would retain 25%. Sirs imposed a cap of $200.00 per booking for the extra services. No taxes were deducted from the payments made to the Applicant. Superannuation payments were not made on her behalf. The Respondent did not take out workers' compensation insurance and the Applicant did not have her own accident or income insurance.

• [17] The Respondent relied upon the following information concerning price contained on its web page:

Important note: Please note that above prices consists of 2 seperate sections.

1- The price for the masseuse who provides the erotic massage experience. This money is earned by our ladies and has no association with registered business (Sirs for massage). Sirs may hold this portion of the payment (ie cash or credit card payment) for safe keeping during the shifts but this money is not part of registered business income.

2- The price of the room hire: this money is earned by the business. To make the process simple customers pay for these services together in one go and above prices are combination of these 2 payments.

• [18] The Respondent provided work sheets for the shifts worked by the Applicant. The sheets show that the Applicant worked a combination of night shifts commencing at 7.00 pm and ending at 4.00 am and day shifts commencing at 10.00 am and ending at 7.00 pm. She had varying numbers of bookings each shift. For example, on Thursday 2 January 2025 she worked the day shift, only 5 bookings were made on the shift, and the Applicant took 2 of those for a total of 90 minutes. On the night shift on Saturday 5 April 2024, 20 bookings were made at and the Applicant provided services for 6 of those bookings for differing periods, in different rooms, for a total period of 4 and half hours. The Respondent also provided a spreadsheet showing the amounts paid on each shift the Applicant worked. Those figures ranged from $115.00 to $1940.00. The average amount was $792.00 per shift. Her total earnings were $54,615.00.

• [19] The Applicant provided her tax return for the 2024/2025 Financial year. She declared that she was running a business, using an Australian Business Number, providing personal services. She paid tax accordingly. I understand from the Applicant that her tax return included her income from the Respondent.

• [20] On 12 April 2025 the Applicant was overseas. In a text message exchange on that day the Applicant made an enquiry about shifts for the following week. The exchange was between the Applicant and Sir's receptionist. During the exchange the Applicant was informed that she was not being provided further shifts. The exchange was as follows:

Receptionist: Shifts for next week confirmed: Thursday night Thank you

Applicant: How many girls are working Wednesday night?

Applicant: Can you just confirm with Helen, I do need the sift if possible since I'm going away the week after that

Receptionist: She said not to confirm you for that night but I can ask again

Receptionist: The last message was a mistake, no more shifts for you. Helen has stated that you are welcome to pick up your bond

Applicant: I get amazing bookings, extension after extension. I has a 7 hour booking last week. I fixed my extra rate. I work so many shifts a week. And I even had a client leave a review on the work phone

Receptionist: Sirs is a drug free establishment and for that reason we are letting you go and to pick up your bond as soon as you are able

Applicant: I do not nor have I ever taken drugs. I'm happy to get a drug test right now from the chemist and one from a gp in the morning.

• [21] The Applicant was later told that a client had entered the business asking for a specific receptionist who had sold him drugs previously. He had identified the receptionist as having long black hair. As the Applicant met that description the Respondent believed that it was her. During the proceedings the Respondent stated that the reason for letting the applicant go was she had sold cocaine on the premises, she was late for shifts, she left before the end of shifts, and she was charging clients $700.00 for extra services. The allegations about selling cocaine were vague. The Respondent also stated that the Applicant had offered to sell cocaine to another worker at Sirs. The Applicant was not informed of the further reasons for dismissal prior to the proceedings. She denied them.

• [22] The first issue is whether the Applicant was an employee or an independent contractor. An application for an unfair dismissal remedy can only be made by a person who has been dismissed from employment. Subsection 386(1) of the Act sets out the circumstances in which a person is taken to have been "dismissed" for the purposes of s. 394. A person can only be dismissed when their employment comes to an end in one of the circumstances described in s. 386(1). In the absence of a relationship of employer and employee, there is no employment, and a person is not dismissed for the purposes of s. 394.

• [23] In final submissions Mr Greenland stated that he had run the business for 20 years and had always regarded the sex workers at Sirs to be independent contractors. He understood that all sex workers are independent contractors. This submission simply cannot be accepted. There are a number of decisions of courts and tribunal including this Commission where sex workers have been accepted to be employees.[1] In other cases they were found not to be.[2]

• [24] Each case will be determined on its own facts. The test of what constitutes employment is set out in ss. 15 and 15AA of the Act. Section 15 and 15AA relevantly provide as follows:

(1) A reference in this Act to an employee with its ordinary meaning:

(a) includes a reference to a person who is usually such an employee; and

(b) does not include a person on a vocational placement.

Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State.

(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer.

Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State.

15AA Determining the ordinary meanings of employee and employer

(1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.

(2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:

(a) the totality of the relationship between the individual and the person must be considered; and

(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.

Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

• [25] The note in s. 15AA refers to High Court decisions in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek) where the High Court applied the principles of contract interpretation, which it described as the long-standing approach in determining the nature of the relationship between parties. The Court criticised the multi-factorial approach that had been adopted following the decisions in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Stevens v Brodribb) and Hollis v Vabu Pty Ltd ([2001] HCA 44; 2001) 207 CLR 21 (Hollis) and went on to explain that Stevens v Drodribb and Hollis had not departed from the long-standing approach to contract interpretation that predated those decisions. In particular reference was made to the earlier cases of Narich Pty Ltd v Commissioner of Pay‑roll Tax [1983] 2 NSWLR 597, approving the earlier decision in Australian Mutual Provident Society v Chaplin [1978] UKPC 7; (1978) 52 ALJR 407. Narich and Chaplin stood for the proposition that where there is a written contract between the parties a court is confined, in determining the nature of that relationship, to a consideration of the terms, express or implied, of the contract in the light of the circumstances surrounding the making of it, and it is not entitled to consider the manner in which the parties subsequently acted in pursuance of such contract. In Personnel Contracting the Court said that Stevens v Drodbribb and Hollis did not alter the orthodox principle that courts are not concerned with what has actually occurred in a relationship, but rather were concerned with the obligations by which the parties were bound.[3]

• [26] By contrast section 15AA sets a statutory test for ascertaining the real substance, practical reality and true nature of the relationship between the parties by considering the totality of the relationship having regard to not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.

• [27] Consequently, for the purpose of the Act, in determining the issue of whether a person is an employee or independent contractor, the Commission is required to ascertain the real substance, practical reality and true nature of the relationship between the parties. This adopts the approach described in Hollis:

It should be added that the relationship between the parties, for the purposes of this litigation, is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to establishing "the totality of the relationship" between the parties; it is this which is to be considered.[4]

• [28] Which is to say the approach to be taken under s. 15AA adopts the multi-factorial test that was eschewed in Personnel Contracting[5].

• [29] The multifactorial test was summarised by a Full Bench of the Commission in Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFB 8307 (Jiang Shen). There the Full Bench described the focus of the enquiry in Hollis as whether the person carries on a trade or business of his or her is working in the business of another; the nature of the work performed and the manner of its performance; and the terms of the contract between the parties.

• [30] While in Personnel Contracting the High Court's focus was on the contract between the parties it still had regard to the control and business tests. In Personnel Contracting the Court said at [35]:

In this Court, the appellants submitted that the question whether a labourer is conducting his or her own independent business, as distinct from serving in the business of the employer, provides a more meaningful framework to guide the characterisation of the parties' relationship. There is force in that submission.

• [31] The right to control as an indicator of an employment relationship was described by Wilson and Dawson JJ in Stevens v. Brodribb at [9] as whether the contractual arrangement "subjects the person engaged to the command of the person engaging" not just as to what shall be done, but how it shall be done.[6]

• [32] Returning to Jiang Shen, the Full Bench noted various indicia that may be considered. They include the actual exercise, or the right to exercise, control over the putative employee, whether the worker performs work for others, whether they provide 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.

• [33] 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. Which is to say that in each case there will be some factors which weigh in favour of a conclusion that an employment relationship existed between the parties and others which point to work being performed under an independent contractor arrangement. There is no single exhaustive list of factors to be considered and the considerations and the weight to be attached to them are likely to vary depending on the facts and circumstances of each case. The exercise involves an evaluative judgment beyond the mere mechanical ticking of indicia on a checklist.

• [34] The Respondent contends that the Applicant was not employed as she operated as an independent contractor, providing personal services at her own discretion from rooms that she rented from the business. It contends that by signing the "Agreement of Policy and Procedures" the Applicant acknowledged that the arrangement was for room rental, and she managed her income through negotiations with clients. The Respondent also asserts that the Applicant signed the declaration which it asserted was provided with the other documents at the commencement of the engagement. I take this to be a reference to the fourth page of the template document that was provided by the Respondent during the proceedings. The Applicant denies seeing, let alone signing, that document. I noted earlier that the document did not refer to the Respondent but to another entity. The Respondent did not provide a signed copy of the document. I find that the Applicant did not sign the document and that it did not form part of the contract between the parties.

• [35] The documents that were seen and signed were the Application form, Agreement of Policy and Procedures and Additional Information documents. Read together these documents indicate that the Respondent exercised significant control over the work performed. Reference is made in those documents to rosters being prepared, shifts being worked, weekend work being performed, and penalties to be paid by the Applicant when cancelling or being late for shifts. They included standards of appearance, dress codes, how clients were to be greeted, and room etiquette. Work tasks such as stocking rooms and cleaning rooms were specified. A two week notice period for leaving the business was specified. Reference was also made to reporting to managers and to employment being terminated if rules about charging clients were breached. All of these matters indicate the Respondent exercised control over the way the Applicant worked.

• [36] The Respondent relied on the references in the documents to rental payments being made by the Applicant. I do not consider these references to take the matter anywhere. The way the contract was implemented suggests that these references were merely a means by which the Respondent determined how the revenue gained from the activities conducted in its business would be distributed between those performing the work and the business.

• [37] Section 15AA requires that the true relationship between the parties be determined by reference to the totality of the relationship between the parties. Regard must be had not only to the terms of the contract governing the relationship, but also to other factors including, but not limited to, how the contract is performed in practice.

• [38] In practice, the Respondent exercised significant control over the Applicant's work. ​ Policies and procedures dictated appearance, shift times, room preparation, client interaction, and service standards. ​ Workers were required to arrive early, maintain immaculate appearance, and adhere to strict guidelines for client service and room cleanliness. ​Fines were imposed for late arrivals, cancellations, and leaving shifts early, further indicating control over the Applicant's conduct.

• [39] ​The work was performed on the Respondent's premises. The Respondent provided rooms, amenities, and other materials necessary for the work. The notion that the Applicant was renting a room is illusory. It was not a room that the worker had chosen or had possession of or control over.

• [40] ​ The Applicant was presented as part of the Respondent's business. ​ The Respondent's website described the masseuses as providing services at the establishment, and the Applicant was required to adhere to strict appearance and conduct standards that aligned with the business's expectations. The Applicant could not delegate her work to others.

• [41] The Applicant was paid based on completed bookings, with no payment for time waiting to be selected for a booking during a shift. ​ Payments were calculated based on a fixed structure for base services with Sirs taking more than half of the payment made for those services describing its share as rent. Sirs also retained 25% paid for extra service fees. ​No taxes or superannuation were deducted, and the Applicant was responsible for her own insurance. The payment structure was set by Sirs, and it set the rates with a maximum imposed for the extra services. The Respondent directed me to its website that stated that payments to workers were not part of the business's income. ​ However, the practical reality of the relationship, including the way the payments were set, collected and distributed contradicts this claim.

• [42] I accept the Applicant's account and find that the work was performed in the following way. The services available on the premises were advertised by the Respondent. Clients would visit the premises of the Respondent. The Respondent engaged a receptionist to greet them. The Applicant was required to work on shifts and be present and waiting on the premises. She and other workers greeted the client. The client might choose her to provide the services. The room used for each booking was allocated by the Respondent. The rate paid by the client for the massage service was set by the Respondent. Further discussion was had between the client and the Applicant as to the extent of extra services provided and there was some discretion with the Applicant about what she would charge for those services. The Respondent set a limit on those charges. Payment was made by the client to the Respondent. The Respondent controlled the funds, calculated the amount to be paid to the worker, and made payment at the end of the shift. The service was provided by the Applicant to the client. At the end of the booking the room was cleaned by the Applicant. The Respondent required that all bookings be recorded on a work sheet. The work sheet included all bookings for all workers on the shift and was used as a record for payment.

• [43] The Respondent argued that once the Applicant entered the room with the client she was in control of what happened. This may be the case, but the relationship between the Respondent and the Applicant was much more than each 30 to 60 minute booking. It was about the workers being available at the Respondent's premises to provide the services, being present for the duration of her shift, meeting the Respondent's appearance and clothing standards, presenting herself in the meeting room to the clients, and then providing the service to the client.

• [44] Balancing all of these factors, I find that the relationship was an employment relationship. Despite some elements resembling independent contracting, including the ad hoc manner of the payments made and the taxation arrangements, the overall relationship involved the Respondent exercising significant control over the Applicant, the Applicant being integrated into the Respondent's business, and the Applicant being dependent on the Respondent to gain work. The Applicant was, for all intents and purposes, working in the business of the Respondent. That business was to provide its clients with massage and sexual services on the premises known as Sirs. The Respondent advertised that those services were available and included on its website photos of the Applicant and others and indicated that they were available to perform the services. The Applicant was required to be in attendance at the premises and be available to provide the services during shifts that it allocated. The Respondent had dress regulations, appearance standards and etiquette guidelines the Applicant was required to meet. The Respondent set the price for the services, albeit allowing some flexibility associated with additional services sought and provided. The Respondent collected and controlled the revenue arising from the services and paid the Applicant from that revenue. Rooms were provided by the Respondent, and the Respondent allocated those rooms on a booking by booking basis for the Applicant to perform the services requested by the Respondent's clients.

Did the Applicant complete the minimum employment period?

• [45] Section 396 requires the Commission to decide the issue of whether a person was protected from unfair dismissal before considering whether the dismissal was unfair.

• [46] Section 390(1)(a) of the FW Act provides that the Commission may order a remedy if the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed. Section 382(a) provides that a person is protected from unfair dismissal if, at the time of being dismissed the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period. The minimum employment period is defined in s. 383 as 6 months unless the employer is a small business employer. The Respondent in this matter is not a small business employer.

• [47] The Applicant was notified that the employment was terminated on 12 April 2025. The Applicant contends that her employment with the Respondent commenced on 12 October 2024 when she contacted Sirs seeking work and was told to come in for a trial shift and not to work at another parlour in the meantime. I accept that the Applicant contacted the Respondent on 12 October 2024. I do not accept that that contact was sufficient to constitute the commencement of the employment. The Applicant did not commence employment until 19 October 2024, when she attended the premises, completed and signed the documents referred to above, and worked her first shift.

• [48] In those circumstances, the Applicant did not work for the minimum employment period of 6 months and was not protected from unfair dismissal. Had she worked a week longer and been protected from unfair dismissal I would have had no hesitation in finding that her dismissal was unfair.

• [49] Had the Applicant worked the minimum employment period, I would have concluded that here dismissal was unfair. Based on the material before the Commission, there is no indication that there was a valid reason for dismissal related to the applicants' capacity or conduct within the meaning of s 387(a). The Applicant was also not provided with any procedural fairness as required by s. 387(b) and (c). The Applicant provided statements from colleagues which indicated that she was a diligent worker and was well regarded by her peers and by clients of the business.

• [50] For all the above reasons, I find that the Applicant was an employee however she was not protected from unfair dismissal as she had not completed the required minimum employment period.

[1] Phillipa v Carmel [1996] IRCA 451; Brooke and ALHMU - Miscellaneous Workers Division v Coppin Cafe Pty Ltd [1996] IRCA 518 "Claudia" v Allmen Pty Ltd t/as Body Line [1998] AIRC 185; McElligott, Samantha v Reason Management PTY LTD - [2020] FWC 1501

[2] Ms Lucy Helft v Top Of The Town [2022] FWC 2656

[3] See Personnel Contracting at [44] -[58]

[6] See also JMC Pty Ltd v. Commissioner of Taxation [2023] FCAFC 76 at [90] and [91].

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