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[119]
[2026] FWC 765
General information, not legal advice.
Fair Work Commission
2026-03-06
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
Application to deal with contraventions involving dismissal - jurisdictional objection - that Applicant not employed by the First Respondent - whether Applicant dismissed within the meaning of s.386 of the Act - s.15AA considered - employment relationship not found - jurisdictional objection upheld - application dismissed.
[1] Mr Daniel De Silva (the Applicant) had a friendship with Mr Glen McGarry, the Second Respondent and Director for the First Respondent - 75 688 174 585 Pty Ltd (formally Flying Robot Film Pty Ltd) for some time. Since around 2016, they have shared various family events, short vacations and travelled internationally together.
[2] Both Mr De Silva and Mr McGarry independently established themselves in the media, film and digital production industries. Mr De Silva established an entity called Cloakroom Media Pty Ltd that was engaged in producing digital content and materials for clients. Mr McGarry runs an entity call Flying Robot Media engaged in film, TV and digital production. Mr De Silva and Mr McGarry have collaborated on projects together through their separate entities; sharing referrals, opportunities, ideas and support over many years.
[3] Towards the end of 2024, Mr De Silva was confronted with financial difficulties and no longer able to comfortably meet his commitments. He discussed these difficulties with Mr McGarry. On the 22nd of May 2025, Mr De Silva had the ABN he used for the purposes of running Cloakroom Media cancelled. He submits following this he agreed with Mr McGarry to work together to establish a Melbourne production base for Flying Robot under this leadership. He says the arrangements agreed upon were that he would be employed as Head of Production and paid an annual salary of $150,000 plus superannuation, along with a performance bonus based on new clients he brought into the business. He brought his existing clients of Cloakroom Media with him to Flying Robot along with some $250,000 worth of tools and equipment.
[4] He says that he started working for Mr McGarry from around the 3rd of June 2025. He says that Mr McGarry asked him to provide an invoice for this work which he did for the sum of $1500.00 under his own personal ABN (73 900 729 220). The invoice was for video production services provided to Flying Robot Film Pty Ltd (ABN 75 688 174 585). The invoice was dated 23rd July 2025, with payment due 6th August 2025. Mr De Silva gives evidence that he received this and other payments into his account from Mr McGarry.
[5] At the time he commenced work, Mr De Silva says Mr McGarry had still not set up the business he was to lead. His evidence is that because he needed money, he provided Mr McGarry the invoice he requested so he could be paid.
[6] Mr McGarry's evidence is that Flying Robot Film (the First Respondent's previous name at the time this application was lodged) was registered and established on the 18th of June 2025 with himself as its director. His position is the only reason he established this entity was to provide a vehicle for his friend, Mr De Silva, to continue to be able to perform the work he had been doing at Cloakroom Media which needed to be wound up. He rejects Mr De Silva's assertion that he agreed Mr De Silva would be employed by Flying Robot Film or anything other than general terms of the arrangement they agreed to enter were discussed. His position is that these general terms were simply that to help Mr De Silva out he would set up a new company for him to perform his existing work from. That he would cover the establishment, compliance and associated costs of the new business and Mr De Silva would bring over his existing clients to the business, service them from there and receive all the windfall from any additional business he generated, less the costs of compliance.
[7] Mr De Silva says that when he started work, he was not provided with an induction or any information or documentation on company polices or procedures, his role, duties, reporting lines or responsibilities. He says that he just reported to Mr McGarry who left him to deal with the practical work while he took care of compliance, adding that he basically worked autonomously. He submits he was immediately expected to deliver outcomes and was required to oversee all aspects of the business; from production, coordination, client briefings, acquisition and managing budgets.
[8] Initially, he says everything was going well. Flying Robot Film was beginning to be established, winning new clients and his arrangement with Mr McGarry and his accounts manager and wife, Mrs McGarry, who worked at Flying Robot Media, was transparent and cooperative. In getting things set up, Mr De Silva was assisted by Ms Saliha Oz, who helped him with administration, accounts, invoicing and payments. At the time, Ms Oz was also an employee of Flying Robot Media.
[9] In early August, Mr De Silva says that he became concerned about how the company was being run and whether all its requirements were being met. His evidence is that he raised these concerns directly with Mr McGarry. He says that after this his relationship with Mr McGarry changed. What had been an open and collaborative dynamic, began to feel tense and defensive. Communication became less transparent and decisions were made without his input or consultation.
[10] Throughout August, Mr De Silva says he continued to raise concerns, including seeking confirmation the personal production equipment he had brought to the business was being insured and seeking clarity of the terms of his engagement. He says that while he was working for Flying Robot Film he was treated and presented as an employee. That he was issued payslips consistent with the agreement he and Mr McGarry reached, reflecting a salary of $150,000 plus superannuation, and PAYG tax deductions.
[11] Acting on his concerns, Mr De Silva made an initial General Protections application to the Fair Work Commission, not involving dismissal. A subsequent application followed and both applications were contested. The relationship between him and Mr McGarry continued to deteriorate, his concerns got worse and he remained unclear about both the nature of the relationship and whether it would continue.
[12] On 1 September 2025, Mr McGarry sent Mr De Silva an email in the following terms:
Flying Robot Film Pty Ltd ("FRF") has reviewed its commercial and operational circumstances.
FRF's prior and current operations are self-evidently not commercially or operationally viable.
FRF has determined, as of today, to cease all prior, and not continue any current, commercial or operational projects and activities. FRF will no longer need services supplied to it the same or similar to its prior or current (as of today) operational volumes.
Consequently, to the extent that there may be anything characterised as an arrangement in place (including but not limited to any contract of service or contract for services, which is denied) between FRF and you, this letter provides notice of immediate cessation of that arrangement."
[13] In proceedings, Mr McGarry accepted that if it was found to be the case an employment relationship existed between the parties, this letter terminated the relationship.
[14] This decision concerns the application by Mr Daniel De Silva filed on 22nd of September 2025 pursuant to s.365 of the Fair Work Act 2009 (the Act) in which he alleges his dismissal by Flying Robot Film Pty Ltd (as it was known at the time) was in contravention of Part 3-1, General Protections, of the Act.
[15] After Mr De Silva's application was made, Mr McGarry applied to change the name of Flying Robot Film Pty Ltd to 75 688 174 585 Pty Ltd. This change was made effective on the 13th of October 2025. The First Respondent in this case is now known as 75 688 174 585 Pty Ltd, Mr Glen McGarry being the Second Respondent.
[16] The Respondents object to the application on the basis that the Applicant was not dismissed by the First Respondent because he was not an employee. The Respondents' position is that at all material times, the Applicant was an independent contractor engaged by them.
[17] Section 365 of the Act provides as follows:
365 Application for the FWC to deal with a dismissal dispute
(a) A person has been dismissed; and
(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.
(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.
[19] A contravention of s.365 requires a dismissal to have occurred. The Commission must conclude this to be so as a matter of jurisdictional fact.
[20] It is clear from the terms of s.386(1) above, that a person can only be dismissed when their employment comes to an end in the circumstances described. In the absence of a relationship of employer and employee, a person cannot be dismissed within the meaning of s.386 and an application under s.365 cannot proceed.
[21] This decision deals with the issue of whether an employer and employee relationship existed between the Applicant and the First Respondent.
[22] As is often the case when friendships sour, much of the evidence presented by the parties in this case is not relevant to question the Commission is required to determine. Mr McGarry claims to be the victim of Mr De Silva and that his generosity has been taken advantage of. He refers to Mr De Silva's past record, tax liabilities and difficulties acting as a director in his own right to support these submissions. Mr De Silva makes references to questionable business practices Mr McGarry is alleged to have engaged in and associated reports he has made to the Australian Tax Office (ATO) about these concerns. By his own admission in proceedings, Mr McGarry falsely filed material with the ATO.
[23] Whilst I have considered these materials in the context of the totality of the real nature of the relationship between the parties, I consider them of little relevance to the question I am required to determine.
[24] What is required is an objective assessment of the real substance, practical reality and true nature of the relationship between the parties to determine whether the Applicant was an employee of the First Respondent. This requirement is set out in s.15AA of the Act as follows:
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.
[26] Section 15AA requires regard to be had to the totality of the relationship, including the terms of the contract governing the relationship and other factors relating to the totality of the relationship, including how the contract is performed in practice.
[27] This approach draws the distinction as an employment relationship being when an individual provides their personal service (skill, time, effort etc) under a contract of service to be discharged by the individual personally. Whereas an independent contracting relationship is a contract for services where an individual is conducting their own independent business with a degree of control over how their services are provided.
[29] I have applied these principles to the circumstances of this case.
[30] It is not disputed that there is no record of the agreement reached between the parties in this case. Neither party presents a clear record or version of what it is they discussed and agreed to do together towards the end of May and early June 2025. However, the fact a discussion occurred is not contested.
[31] Mr De Silva is adamant Mr McGarry agreed to employee him for a salary of $150,000, plus superannuation and a performance-based bonus tied to new business. He points to pay slips he received for the period 14-27th July and 28 July-10th August, recording payments made to him reflecting the agreed salary level, PAYG payments, bank records referring to wages and superannuation contributions in support of his position. Further, submitting that on the 15th of July, Mrs McGarry requested his tax file number and superannuation details to set him up in "payroll".
[32] Mr McGarry is adamant there was no such agreement. He submits if it was ever his intention to employ Mr De Silva, he would have simply engaged him as an employee of his existing entity, Flying Robot Media, and avoid the hassle of establishing a separate company and all that was to follow. There is some force to this submission.
[33] It became clear in proceedings that the parties agree Mr McGarry agreed to help Mr De Silva after he was confronted with the cancellation of his ABN for Cloakroom Media. It is also clear, and not in dispute, that Mr McGarry established a new company, Flying Robot Film for this purpose. The parties do not agree on whether Mr De Silva was employed by Flying Robot Film or engaged by it as an independent entity. They do not agree there was agreement on what would be the terms and nature of Mr De Silva's 'engagement' with Flying Robot Film.
[34] Tellingly, Mr De Silva refers to a text exchange he and Mr McGarry engaged in on the 14th of August 2025. A copy of this exchange was presented into evidence by Mr De Silva. The material was accepted by Mr McGarry as an accurate record of their conversation.
[35] This exchange reveals that prior to this conversation, neither Mr McGarry or Mr De Silva bothered to confirm or clarify the terms of the understanding each of them thought they had reached prior to Mr De Silva starting work. It also reveals Mr McGarry sought to use this opportunity to clarify the terms of the relationship, and that Mr De Silva perceived this to be a "set back".
[36] Mr De Silva's assumptions were that Mr McGarry was going to employ him as Head of Production at Flying Robot Film (FRF). That he would continue to service the clients he had established with Cloakroom Media through this new entity. That he would perform this work using the tools and equipment he had previously used and had been acquired over a significant period, valued at some $250,000. That as FRF grew and became established he would share in the profits of any new businesses that were acquired and that FRF would ultimately become part of Flying Robot Media (FRM). While things established, he understood Mr McGarry would look after FRF's compliance and administration needs through FRM, and he would be paid a salary of $150,000 plus superannuation and bonuses paid when new clients were acquired.
[37] Mr McGarry's assumptions were not articulated to Mr De Silva, his work colleagues or his wife. He submits that he agreed to establish FRF to help Mr De Silva out so he could continue servicing his existing clients. His evidence is that the terms of engagement or employment were never discussed, no contract was signed, and that Mr De Silva made it clear to him he did not want to be an owner or director of the new entity but preferred being a contractor or employee so he did not have to manage the burdens of running a company. Mr McGarry is clear and consistent that his only intention was to establish FRF so Mr De Silva could continue working, use it to invoice his existing clients and receive 100% of what was paid by its clients, less expenses.
[38] Assumptions aside, the contemporaneous evidence surrounding the parties' agreement provide some basis for Mr De Silva to form the assumption he did. In a text exchange the parties exchanged on the 6th of August, Mr McGarry said the following to Mr De Silva:
You have my assurances all the money in film you can take net of compliance - PAYG tax, super, company tax and GST.
We also now have payroll tax with you added at $150k to all combined wages across NSW and Vic *upside smile emoji*."
[39] Mr McGarry says that what led to this exchange was his wife's discovery that Mr De Silva was seeking approval for additional payments. Prior to sending the above, Mr McGarry forwarded a message to Mr De Silva he received from Ms Oz, which stated that "...between the boys, the deal was that earnings from FRF make up his regular wage, while any additional income generated through FRM is to be added to his payslip. I add the FRM earnings as overtime hours on his next payslip, correct?".
[40] Mr De Silva replied to Mr McGarry as follows:
"Yeah don't know why she jumped the gun! I just told her that I spoke with you and Glen or Rhi will provide instruction. She totally gets it! No issues and thanks!
If that's how it started no wonder Rhi went hold on!"
"Yep moving forward, you and I have the conversation on how to do all these things as they pop up and if I don't have the answer, most likely Rhi will and if not we can run past Darren & Co and then Rhi or I will instruct Sal with you copied in or consulted if structurally diff from what you and I have agreed.
There is a conflict of interest for Sal potentially (employed and paid by media with no cost to film) with emotion thrown in coz naturally she cares about you and your needs.
"Perfect. I think if she is starting to do more work for Film, a fee should be put aside - would be good to work out what % she does and factor in"
[43] Ms Oz was a close friend of Mr De Silva and employed by Mr McGarry at Flying Robot Media. Mr McGarry claims she conspired with Mr De Silva to create false payslips and make unauthorised payments to support Mr De Silva's claims that he was an employee. Ms Oz provided clear and consistent evidence in proceedings. Ms Oz's evidence is that under instruction from Mr and Mrs McGarry she created a payroll record for Mr De Silva in Xero and made payments of wages and superannuation to him from the FRF account the same way as any other employee. I accept Ms Oz's evidence.
[44] In reaching this conclusion, I have considered Mr McGarry's submissions that he was the victim of Mr De Silva. In support of this submission, Mr McGarry submits he did not pay attention to what was going on, trusted Mr De Silva and did not authorise the creation of a payroll profile for Mr De Silva or any payments to be made to him. Mr McGarry accepted in proceedings that multiple payments were made from the First Respondent's account marked "wages" into that of Mr De Silva. One such payment was made on the 28th of July for $4253.23 associated with a payslip Mr De Silva provided for the fortnight ending 27th of July. In the weight of this evidence, I find Mr McGarry's version of events implausible. I prefer the evidence of Ms Oz.
[45] The fact that Mr McGarry and his wife made and referred to subsequent payments made to Mr De Silva marked "wages" for fortnightly periods, including a further payment on the 25th of August supports this conclusion. As Mr De Silva points out, the fact that on the 9th of October Mr McGarry filed a record with the ATO for the reporting period of 14 July to 24 August 2025 indicating FRF employed 1 person, paid an amount of $17,307.69 in gross wages, withholding $5,028.00 in PAYG further supports this to be the case.
[46] Mr McGarry's explanation for his filing of these records is that they were in response to Mr De Silva reporting him to the ATO for non-compliance. His position is that he made this decision because of the threats he says Mr De Silva was subjecting himself and his wife to and that he did not want to also have to deal with the ATO. He accepts that knowingly filing false records with the ATO is a serious matter and something he may well have to account for.
[47] Mr McGarry's admission is a significant fact. It was made in proceedings while providing sworn evidence to the Commission. It is not something to take lightly and something without consequence. Furthermore, it is a matter of such import that I am obliged to refer it to the ATO. Correspondence to this effect will follow the publishing of this decision.
[48] In the context of what I am required to determine, Mr McGarry's admission weighs significantly in favour of his version of events as to the real nature and practical reality of the relationship that he agreed to enter with Mr De Silva. I found Mr McGarry's evidence in this regard clear, consistent and genuinely provided. I favour his version of what in fact was the true nature of the relationship that the parties created than that of Mr De Silva.
[49] Mr McGarry complains he was a victim of Mr De Silva and taken advantage of.
[50] While I have considered these submissions, I do not discern any level of threat or animosity in the many and varied records of correspondence between the parties that have been provided to the Commission. Rather, what this correspondence indicates is that up until the middle of August 2025 when he sought to confirm the status of his relationship with Mr De Silva, the two men engaged in friendly and collaborative correspondence between equals - indicative of the relationship they both acknowledge had previously existed.
[51] The fact that the parties collaborated, engaged as equals, loaned funds to each other, and discussed "fee" arrangements in practice further supports Mr McGarry's version of events.
[52] This is not to say that Mr De Silva was wrong to assume he was going to be an employee. As the discussions above indicate, he was not the only one to have this assumption. Ms Oz acted like this was the case. The evidence also suggests that to some extent so did Mr McGarry's wife.
[53] I am not persuaded, however, that this is in fact what the parties had agreed to or intended. Rather, my conclusion is that ill-advisedly and incompetently Mr McGarry thought he could just set up a business from which Mr De Silva could operate servicing the clients of the former business he was no longer able to operate and that would be that. He did not give the matter much more thought and just assumed Mr De Silva would get on with things. It was never his intention to enter an employment relationship with Mr De Silva. I am satisfied that this is the case.
[54] As set out above, both parties agree that FRF was set up to provide a mechanism to help Mr De Silva. This was clearly the case. The fact that Mr De Silva thought he was going to be an employee cannot be taken to mean the parties agreed to create a contract of employment. An agreement to contract requires just that. In the circumstances of this case, I am satisfied that there was no such contractual agreement. I consider the fact there is no contemporaneous evidence to support either version of events, including details of any bonus or profit share to support this conclusion.
[55] This being the case, my finding is what in fact occurred is considering the trust and goodwill that existed between them at the time, both parties got on with implementing what they thought they had agreed to. Mr De Silva commenced communicating with his former clients and informing them that he was moving over to FRF and would be servicing them from there. The evidence supports this to be the case.
[56] Mr McGarry registered FRF on the 18th of June 2025. Thereafter, he left the running of the business to Mr De Silva as he thought had been agreed. He arranged his existing staff employed at Flying Robot Media to provide Mr De Silva some assistance in getting things set up in terms of invoicing and payments. Foolishly, he again did not take the time to make clear what the nature of the terms of the agreement was or Mr De Silva's engagement.
Determining the true nature and practical reality of the relationship between the parties
[57] In the absence of clear terms of agreement, the task of determining the true nature and practical reality of the relationship between the parties falls to an objective assessment of all relevant factors and a balancing of evidence in favour or against. I have considered all the relevant evidence and submissions in this regard.
[58] I have set out below this assessment and the findings in this case considering the relevant indicative factors established by the authorities that provide guidance in determining the existence of an employment relationship.
Was the Applicant conducting an independent business or serving in the business of the First Respondent?
[60] In the present case, I have found that the very purpose the First Respondent was established was to provide a mechanism for Mr De Silva to continue the work he had previously been engaged in at his own business, Cloakroom Media. When he started working for Mr McGarry the overwhelming evidence is that Mr De Silva reached out to his former clients, made them aware of the new entity he was working for and continued to provide them services. In doing so, he used the considerable tools and equipment he had accumulated over many years to provide the services on offer.
[61] Mr De Silva's own evidence is that he had a significant amount of autonomy in doing so. That Mr McGarry effectively left him to run things, while he looked after Flying Robot Media and any compliance needs associated with the establishment of FRF. Mr McGarry provides similar evidence. The record of conversations between the parties suggests likewise. That the parties engaged as equals and Mr De Silva was free to conduct the business of FRF as he saw fit.
[62] The following email Mr De Silva sent on the 9th of July to Nova Entertainment reinforces this to the be case.
"As mentioned last week, I have a new entity that I will be operating under "Flying Robot Film PTY LTD" - Switching out from Cloakroom Media by end of this year.
I have attached all documentation to setup a new supplier for Nova Entertainment.
[64] These factors indicate he was not acting in an employment relationship in service to Mr McGarry and the First Respondent. They are factors that weigh against the real substance, practical reality and true nature of the relationship being one of employment.
[65] The level of control one party exercises, or has a right to exercise, over the other party is also a useful indication of the true nature of their relationship. In the present case, Mr De Silva asserts he was required to report and work under the direction of Mr McGarry. Mr McGarry rejects this assertion. Considering my findings above of the little attention to important details demonstrated by Mr McGarry in this case, I am more persuaded by his evidence in this regard than that of Mr De Silva.
[66] It is also of significance that there is little to no evidence of any instruction or direction Mr McGarry provided to Mr De Silva in the material presented to the Commission. In large parts the record of these exchanges records their nature to be requests, options or clarifications. There is no record Mr De Silva was required to work set hours, perform specific tasks or present himself in any way other than he saw fit. As his own evidence, discussed above, indicates he had a large degree of autonomy, including the freedom to seek out new business. There is also no evidence of any limitation on his capacity to delegate or subcontract work.
[67] These characteristics are not features of a relationship where one party does, or has the power to, exercise control over the other. They are more akin to relationship of equal, independent parties, not one of employment. Being unable to discern any substantive degree of control the First Respondent exercised over Mr De Silva, I consider this factor is to be weighed against a finding that Mr De Silva was an employee.
Remuneration, Superannuation, PAYG and other matters
[68] As discussed above, the evidence of pay slips, superannuation payments and PAYG tax being withheld are all clear indicators of a traditional employment relationship. On face value, this evidence weighs in favour of Mr De Silva.
[69] However, these are not the only record of payments Mr McGarry made to Mr De Silva. Mr De Silva's own materials refer to one $2000 payment and a loan to repay. Furthermore, he accepted in proceedings that for the first payment he received Mr McGarry requested he submit an invoice. Mr De Silva complied with this request and on the 23rd of July provided an invoice under his own ABN to the First Respondent for the payment of $1500, due the 6th of August.
[70] Mr De Silva explained that he provided this invoice at Mr McGarry's request because he needed money and Mr McGarry had not yet set up the new company. This explanation is not consistent with the fact that Mr McGarry completed the registration and set up of the First Respondent on the 18th of June. Nor does it provide any explanation to the status of his relationship or how he was being paid from when he says he commenced work in early June to when he received this first payment.
[71] Mr McGarry asserts the invoice reflects the true nature of the relationship being a contract for video production services, not a contract for the services of Mr De Silva as an employee. This contention is consistent with his overall submission. Considering the above anomaly, the fact this invoice pre-dates the payslips Mr De Silva has provided is not insignificant.
[72] Considering this competing evidence, I am not persuaded that the existence of payslips, invoices, or bank statements weigh in favour or against the true nature, real substance and practical reality of the relationship between the First Respondent and Mr De Silva being one of employment. While I have considered the parties' submissions with regards to these factors, I consider these terms to be neutral in the overall analysis.
[73] I make similar findings in relation to several other factors referred to by the parties, including references to reimbursements and leave entitlements, the provision of a vehicle and insurance records.
"It is also difficult, in my view, to give much independent weight to arrangements about taxation, or even matters of insurance cover or superannuation. These are reflections of a view of one party (or both) that the relationship is, or is not, one of employment. For that reason, in my view, those matters are in the same category as declarations by the parties in their contract (from which the often proceed). They may be taken into account but are not conclusive."
[76] In the present case, Mr De Silva's own evidence is that he personally "owned more than $250,000 worth of professional cinema-grade equipment, including cameras, lenses, lighting, gimbals, drones, monitors, audio recording gear and data management systems". That from the first day at FRF, this gear formed the backbone of the Melbourne division's production capability.
[77] In contrasting to the provision of a bicycle, I consider the tools and equipment Mr De Silva provided to the relationship to be significant.
[78] I consider this factor weighs against a finding that the true nature and practical reality of his relationship with the First Respondent was one of employment.
[79] I have considered the totality of the nature of the relationship between Mr De Silva and the First Respondent in the context of what I am required to determine.
[80] I have made positive findings that the principal purpose the First Respondent was established was to provide an entity from which Mr De Silva could continue the trade of an entity whose ABN had been cancelled.
[81] I have made findings that, on balance, this is what occurred. Mr De Silva continued to work for most of his former clients of Cloakroom Media under the name of the First Respondent, set up by Mr McGarry.
[82] I have not been satisfied there was any other agreement or clear arrangement entered between the parties.
[83] I have also not been satisfied that the way Mr De Silva went about his business at FRF; independently, autonomously, and using his significant tools and equipment as he saw fit, was any different to operating his own business at Cloakroom Media.
[84] I have considered Mr De Silva's claims that this was not the case and that he was an employee having regard to the relevant authorities, submissions and evidence of the parties. I have considered the totality of the relationship of the parties and made findings in respect of the key indicia in favour and against a relationship of employment. While I have considered some matters may weigh in favour of a finding of employment, for the reasons set out above, I consider such factors to be neutral. Other matters I have found point squarely against a finding that Mr De Silva was an employee.
[85] Taking all these matters into account, on balance, I have formed a viewed that the true nature, practical reality and real nature of the relationship between Mr De Silva and the First Respondent was not one of employment.
[86] Because of this finding, it cannot logically follow that Mr De Silva was dismissed within the meaning of s.386 of the Act. Accordingly, there is no jurisdiction to deal with his general protections involving dismissal application and thus, it must be dismissed.
Remarks on Creditability and Referrals to the Australian Tax Office
[87] As indicated at paragraphs [47]-[49], I have made positive findings with respect to Mr McGarry's creditability in these proceedings. Ultimately, these findings may be to his detriment in that his admissions necessitate a referral to the Australian Tax Office.
[88] In the circumstances of this case, I am also resolved to make a similar referral of Mr De Silva. While he has not made admissions of the significance in comparison to Mr McGarry, it is clear from the above that FRF was established because he was no longer able to effectively operate Cloakroom Media. He also conceded in proceedings that he continued to issue invoices after Mr McGarry terminated their relationship. As to Mr De Silva's creditability, I do not consider the evidence he sought to provide to the Commission presents anything other than the version he perceives to be in his best interests.
Mr G McGarry as the Second Respondent and on behalf of the First Respondent
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.
[4] For example, Hollis v Vabu Pty Ltd [2001] HCA 44; Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 among others.
[9] [2013] FCAFC 3 at [37].
[10] [2001] HCA 44 at [47].
[11] For example, he identifies no less than 4 different occasions he is to have started work for the First Respondent - 3rd June 2025 in a Statement dated 20 October 2025; 18th June 2025 in his F8 Application lodged on 22 September 2025; 17th July 2025 in his Witness Statement dated 11 November 2025; and "in July" in his final Witness Statement dated 24 November 2025.
Printed by authority of the Commonwealth Government Printer
Daniel De Silva
75 688 174 585 Pty Ltd, Mr Glen McGarry [2026] FWC 765