s.394 - Unfair dismissal

Baldwin Care Group Pty Limited trading as Baldwin Living

Application for an unfair dismissal remedy - jurisdictional objection - whether applicant employed by respondent - applicant not an employee of respondent - consequently applicant not dismissed by respondent - jurisdictional objection upheld

• [1] Baldwin Care Group Pty Limited is a retirement living company, operating under the name Baldwin Living. As part of its business, it manages Home Care Packages for the residents of its villages as well as people from the local communities near those villages. It refers to those people as its "clients".

• [2] Hatmane Elezaj provided home care services to two of Baldwin Living's clients, Mrs and Mr Bruce.[1] Her engagement to provide services to Mrs Bruce commenced on or about 27 October 2023. She was later engaged to provide services to Mr Bruce from about 23 February 2024. Ms Elezaj's services for both Mrs and Mr Bruce were terminated on 21 March 2025.

• [3] On 14 April 2025, Ms Elezaj filed an unfair dismissal application under section 394 of the Fair Work Act 2009.[2] She claimed to have been unfairly dismissed by Baldwin Living.

• [4] Baldwin Living raised a jurisdictional objection to the application. It asserts that Ms Elezaj was not its employee and that, consequently, it cannot have dismissed her.[3]

• [5] I have determined to uphold the objection. I find that Ms Elezaj was not employed by Baldwin Living. It follows that Baldwin Living did not dismiss her. Consequently, Ms Elezaj was not able to bring proceedings under section 394.

• [6] The reasons for which I have made these findings are set out below.

• [7] An application for an unfair dismissal remedy can only be made by a person "who has been dismissed".[4] Section 386 provides the meaning of "dismissed" for the purposes of the Fair Work Act:[5]

(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.

• [8] From that language, a person who is not in an employment relationship cannot be dismissed within the meaning of the section. That is, only an employee can be dismissed within the meaning of the Act.[6]

• [9] There is no substantive definition of "employee" for the purposes of the unfair dismissal provisions of the Fair Work Act. The word is defined only as meaning a "national system employee".[7]

• [10] However, section 15AA sets out how the Commission is to determine whether a person is an employee within the "ordinary meaning" of the term.[8] That is, the Commission must ascertain "the real substance, practical reality and true nature of the relationship" between the parties. In doing so, the Commission must consider the totality of the relationship between them, and in that respect the Commission must have regard 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.

• [11] Sophie Byrne is the Home Serve Manager for Baldwin Living. She gave the following evidence:[9]

"4. Baldwin Living engages a third-party provider, Mable to help with the delivery

of services, including personal care assistance, to clients who have a Home Care Package.

5. Mable operates an Australian online marketplace that connects people with disability, older Australians, and their families with independent support workers and care providers. These workers are independent contractors and they utilise the Mable platform to engage with clients and to invoice Mable for the services they provide.

6. Baldwin Living, acting on behalf of our clients, help [sic] facilitate the service agreements between the independent contractors who provide Home Care services and our clients. These service agreements are entered into between the contractor and our clients directly, with Baldwin Living overseeing the administrative aspects of the engagement under the client's direction.

7. These agreements may be terminated at any time.

8. This arrangement is standard practice in the Home Care sector... At all times, the contractual relationship exists directly between the client and the independent contractor providing the services.

9. Contractors are responsible for invoicing for the services they provide to clients via the Mable platform. Mable pays the contractors and subsequently invoices the relevant client. In this case, the Respondent is invoiced by Mable on behalf of our client so that the appropriate funds may be withdrawn from the client Home Care Package."

• [12] Luke van Schie, the Head of Sector Partnerships with Mable Technologies Pty Limited, ("Mable") gave the following evidence:[10]

3. Mable operates an Australian online marketplace that connects people with disability, older Australians, and their families with independent support workers and care providers.

4. The Applicant is an independent support worker that signed up to market her services on the Mable platform on 23 June 2023. Independent support workers who market their services on Mable are sole traders that use the Mable platform to connect with individuals who are seeking support. As at the date of this statement, the Applicant remains an independent support worker on the Mable platform.

5. Once connected, independent support workers and clients negotiate the services to be provided, price and relevant terms which form part of the service agreement between the independent support worker and client. Mable is not a party to these service agreements.

6. Independent support workers are not employed or engaged by Mable, as clearly set out in our Terms of Use. These Terms were accepted by the Applicant when she created an account on the Mable platform. The 'Terms of Use' state repeatedly that the Independent Support Worker is not an employee of Mable nor does Mable in any way control or dictate the way in which the independent support worker chooses to provide his or her services.

7. In addition to individuals, Mable is also used by businesses as an online tool to find independent support workers for their clients. The Respondent is one of these businesses.

8. Businesses such as the Respondent do not employ independent support workers through our platform. These businesses, such as the Respondent, utilise the Mable platform to find independent support workers that meet their client's needs. The clients then enter into service agreements with the independent support workers."

• [13] Mr van Schie provided copies of Service Agreements between Ms Elazaj and each of Mrs and Mr Bruce.[11] Baldwin Living separately provided the Commission with a copy of a document titled "Mable Support Worker Terms of Use", which are the "Terms of Use" referred to in Mr van Schie's statement.

• [14] Ms Elezaj did not fundamentally challenge the evidence of Ms Byrne and Mr van Schie reproduced above, other than to contend that she was employed by Baldwin Living. She gave the following evidence:[12]

"2. I commenced work with Baldwin Living in October 2023, primarily providing home care support to [Mr and Mrs Bruce] under their Home Care Package.

3. While I operated via the Mable platform and held an ABN, the practical nature of the working relationship indicated employment. Baldwin Living determined my schedule, set client duties, and maintained ongoing communication and oversight through representatives such as Jerili, Marisa and Sarah Maguire.

4. The work was regular and structured. I provided approximately 7.5 hours per week to the Bruces, with duties including personal care, shopping, domestic assistance, and social support. In total I had 26 hours of care work per week." (Emphasis in original)

Why I have decided Ms Elezaj was not employed by Baldwin Living

• [15] From the evidence, the following matters are not in dispute:

(1) Ms Elezaj provides home care services to a number of clients. She secures those clients through platforms including the Mable platform.

(2) Between 27 October 2023 and 21 March 2025, Ms Elezaj's clients included Mrs and Mr Bruce. She entered into separate Service Agreements with each of them. She secured that work through the Mable platform.

(3) Mrs and Mr Bruce are clients of Baldwin Living.

(4) Ms Elezaj holds an Australian Business Number ("ABN").

(5) Ms Elezaj provides invoices for her services through the Mable platform. Mable is responsible for paying those invoices.

(6) In turn, in the case of Mrs and Mr Bruce, Mable invoiced Baldwin Living.

(7) There is no written contract between Ms Elezaj and Baldwin Living.

• [16] Baldin Living contended that these facts demonstrate that Ms Elezaj was never its employee. Indeed, it submitted that it never directly engaged Ms Elezaj. Rather, it said that she was engaged directly by Mrs and Mr Bruce as an independent contractor.

• [17] Ms Elezaj submitted that Baldwin Living's evidence and submissions did not properly reflect the day-to-day reality of her relationship with the company. She submitted that the "central question before the Commission is whether [she] was, in substance, an employee of Baldwin Living, notwithstanding the contractual and commercial labels imposed".[13] She urged the Commission to "focus on the substance of the relationship rather than the formal structure described, and to find that an employment relationship existed between the parties".[14]

• [18] In this regard, Ms Elezaj's contentions included the following:

(1) Baldwin Living exercised a high degree of control over her performance of the services she provided. In particular:

(a) Baldwin Living determined who could provide services to its clients;

(b) Baldwin Living controlled Ms Elezaj's schedule;

(c) Baldwin Living coordinated meetings and service changes; collected and approved weekly support notes; and was present at team reviews and planning sessions;

(d) Baldwin Living gave Ms Elezaj feedback on her performance and escalated client issues. All significant communications, including complaints and service feedback, were conducted directly between Baldwin Living staff and Ms Elezaj, rather than with the clients themselves; and

(e) further in this regard, Baldwin Living was able to - and did - initiate the termination of her services without any consultation with the clients.

(2) Ms Elezaj had become integrated into Baldwin Living's team.

(3) Ms Elezaj lacked autonomy. She was unable to negotiate or modify service agreements independently.

(4) Ms Elezaj had provided consistent, scheduled services to Mrs and Mr Bruce, averaging 7.5 hours per week for approximately two years.

• [19] Not all of these contentions are borne out by the evidence. For example, Ms Elezaj annexed to her application a letter dated 27 March 2025 that she had sent to Sarah Maguire at Baldwin Living. That letter suggests that Ms Elezaj had from time to time negotiated changes to her hours of work, and the services she was to provide, directly with Mrs and Mr Bruce. It appears to have been Mrs and Mr Bruce who "controlled" Ms Elezaj's schedule.

• [20] Further, the evidence also clearly suggests that it was Mrs and Mr Bruce, and not Baldwin Living, who made the decision to terminate Ms Elezaj's services. This is made clear in an email from the Bruces' son to Baldwin Living of 28 March 2025 which set out the circumstances in which that decision was made.[15] I accept that the decision was communicated to Ms Elezaj by Baldwin Living, which also later directed her to have no further contact with Mrs and Mr Bruce. However, this does not change the fact that it was not the company which made the decision to terminate her services, much less that it did so without any consultation with its clients.

• [21] But more particularly, the evidence does not rise to the point of demonstrating that there was a relevant contract between Ms Elezaj and Baldwin Living. There is no question that Baldwin Living exercised a degree of oversight, even control, over the relationship between Ms Elezaj and Mrs and Mr Bruce. But that is consistent with the company's responsibility for managing home care packages for its clients, and protecting the interests and well-being of those clients. It does not necessarily suggest the existence of an employment relationship.

• [22] Apart from the "control" relied on by Ms Elezaj, there are no other indicators of an employment relationship between herself and Baldwin Living. The company does not pay Ms Elezaj for her services. Rather, she is paid by Mable on presentation of an invoice. This, coupled with the fact that Ms Elezaj operates under an ABN, argues strongly against the existence of an employment relationship.

• [23] These invoicing arrangements bring into focus the structure in which Ms Elezaj secured the work with Mrs and Mr Bruce. Ms Elezaj accepted that Mr van Schie and Ms Byrne accurately described that structure. However, she contended that the arrangements between herself and Mable were not relevant to determining whether she was an employee of Baldwin Living. I do not agree.

• [24] Mable provides a platform that allows organisations such as Baldwin Living to identify independent workers who can provide services to its clients. Baldwin Living apparently facilitates the connection between its clients and those workers. But the relevant service contracts are between the clients and the workers.

• [25] Ms Elezaj worked for Mrs and Mr Bruce collectively for about 17 months. She believed that she had a good relationship with them. She expected that her engagement would continue. I accept that she was blindsided by the decision to terminate her services. However, while she may have had an expectation of an ongoing engagement, this does not necessarily suggest an employment relationship. This is particularly the case in the absence of any other indicators of a relevant contract or arrangement between Ms Elezaj and Baldwin Living, or any evidence that Baldwin Living gave her any assurances or guarantees regarding ongoing work.

• [26] It is for these reasons that I have found that Ms Elezaj was not employed by Baldwin Living. It follows that she cannot have been dismissed by the company. I find that she was not. It further follows that Ms Elezaj was not entitled to bring proceedings under section 394.

[1] I have determined not to identify either Mrs or Mr Bruce by their first names

[2] In this decision, all references to legislative provisions are to provisions of the Fair Work Act

[3] I observe that in her application, Ms Elezaj stated that her dismissal had been effective on 10 April 2025. However, on the evidence presented by the parties on the jurisdictional objection, it seems to be accepted that Ms Elezaj's engagements to provide services to Mrs and Mr Bruce were terminated on 21 March 2025. That is the event which she contends amounted to her dismissal. On that basis, the application appears to have been made out of time: section 394(2)(a). Baldwin Living did not raise that objection. Given the findings that I have made on Baldwin Living's jurisdictional objection, it is not necessary that I traverse that issue.

[4] Section 394(1)

[5] The Dictionary in the Act, contained at Part 1-2 Division 2, provides that the meaning of "dismissed" is to be found in section 386

[6] John Grass v NSW Chinese Tennis Association Inc [2021] FWCFB 3443 at [11]- [12]

[7] Section 380. See also section 12

[8] Section 15AA was inserted into the Act by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. It commenced on 26 August 2024. Under the transitional provisions, it applies to a relationship between an individual and a person entered into before commencement that is in existence as at commencement: clause 116 of Part 17, Division 2 of Schedule 1 to the Act. The relevant relationships in the present case were created before, and continued to apply as at, 26 August 2024. I am mindful that in Part 3-2 of the Fair Work Act "employee" is not defined to have its "ordinary meaning", in contrast, for example, with section 335 in Part 3-1. Even so, I consider that section 15AA has some relevance in determining the relationship between Ms Elezaj and Baldwin Living.

[9] Statement of Sophie Byrne, 26 June 2025

[10] Statement of Luke van Schie, 26 June 2025

[11] Statement of Luke van Schie, Attachments 1 and 2

[12] Statement of Hatmane Elezaj, 4 July 2025

[13] Response to Witness Statement of Mr Luke van Schie, 4 July 2025, par 4

[14] Response to Witness Statement of Ms Sophie Byrne, 4 July 2025, p 2

[15] That email is an attachment to the Form F3 Employer response to unfair dismissal application filed by Baldwin Living

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