s.394 - Unfair dismissal

Application for an unfair dismissal remedy - minimum employment period - whether dismissed - application dismissed

[1] On 9 October 2025 Mr Hazal Bulut Senel (the Applicant) made an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) alleging he was unfairly dismissed by Swann Communications Pty Ltd (Swann or the Respondent). In seeking an unfair dismissal remedy Mr Senel alleges that he was dismissed on 18 September 2025 and it was unfair.

• not an employee,
• that even if he was an employee at the time that the engagement ended, he had not met the minimum employment period of 6 months, and
• even if he was an employee and a casual, he was not eligible to access the unfair dismissal protections under the Act.

[3] Mr Senel submits that he was employed as a full-time graphic designer reporting to Mr Jeremy Stewart (Mr Stewart), from 16 October 2023 until his dismissal on 18 September 2025. He submits that the period between May and July of 2025 was a temporary pause to his employment due to budgetary constraints, but the period did not break continuity of employment. Mr Senel submits that while he provided invoices as a freelancer, the multifactorial test demonstrates that the engagement was one of employment and not an independent contractor.

[4] Neither party produced any evidence of either a written contract of employment or contractor agreement.

[5] Mr Senel gave sworn evidence and Mr Stewart, formerly the Vice President of Global Marketing gave sworn evidence for the Respondent.

[6] The Respondent was granted leave to be legally represented.

• [7] The Respondent sells home security systems and devices, and it engages a marketing team to produce its digital content for the market. Mr Stewart as Vice President Global Marketing was responsible for the global marketing strategy and the marketing team based in Melbourne. Mr Stewart gave evidence that he engaged the Applicant on two occasions: 16 October 2023 to 30 May 2025, and 24 July 2025 to 19 September 2025. Mr Stewart gave evidence that after a long-standing employee left the business in 2023, there was a need for urgent assistance with the workload associated with a consumer electronics tradeshow and to finish artwork for its Chinese New Year trade commitments. Consequently, a decision to engage a contractor was considered a quicker solution to resourcing at that time. The Applicant was a freelancer that was looking for work, and his personal website appeared to reflect the type of assistance the Respondent was seeking.[1]

• [8] Mr Stewart gave evidence of the discussion held with the Applicant in early October 2023 and says it was clear to the Applicant that he was seeking work as an independent contractor, and it was communicated that there was no commitment that the work will be either regular or ongoing on a long-term basis. Mr Stewart states that it was explained that the work was dependent on the projects to complete and whether additional support was required given the capacity of the internal team. Mr Stewart said that $66.60 per hour including GST was agreed with the Applicant; he states that the Applicant advised that he operated using an ABN and would submit an invoice for payment. Mr Stewart said that the Applicant advised that he preferred to work remotely and while flexible hours were understood, it was expected that deadlines for work would be met. Mr Stewart confirmed there was no agreement to provide insurance cover, make tax payments for the Applicant or provide any other benefits over and above the hourly rate.[2]

• [9] Mr Stewart said that in 2024 there were plans for major launches of new technology and there were further internal changes to its graphic design team, therefore it was in a position to offer work to the Applicant into 2024. He described the type of projects described in briefs that was referred to the Applicant by the Head Office Marketing Team.[3]

• [10] Mr Stewart gave evidence of how projects were managed including his role in approving the finished product. He denies that he closely controlled the manner in which the Applicant worked. He further disputes that the Applicant had to have his hours approved. He said that there were discussions about the Applicant's availability so as to have a window to discuss projects and that project workflow resourcing for the internal design team could be managed. Examples of invoices reflecting differing hours of work were tendered into evidence and Mr Stewart gave evidence that the invoices reflected when the Applicant was available and only engaged when there was project work and the internal team was unable to fulfil the requirements. He gave evidence that the Applicant was not required to hold himself available for full-time work, unlike a full-time employee as work was allocated when there was a demand and if the Applicant accepted the work. Further Mr Stewart gave evidence that the Applicant wanted to work from his home, while all staff of the Respondent work a minimum of 3 days a week from the office, the Applicant wished to be paid fortnightly and his invoices were consistently paid at the same time of other contractors and vendors[4] unlike the employee pay runs which were monthly.

• [11] It is submitted that there was no indication given to the Applicant that he was an employee and his rate per hour exceeded any salary paid to the graphic design team. The Applicant did not have tax deducted, nor was he paid public holidays or leave of any sort. Invoices tendered into evidence show that the Applicant had flexibility when he worked including if he chose to work on a public holiday even though the office was closed.[5]

• [12] It is contended by the Respondent that the Applicant did not work in, nor was considered part of the graphic design team. The Respondent tendered into evidence a staff contract[6] as an example of the contracts given to the graphic design team (which the Applicant did not have), the Applicant worked independently of the team of graphic designers, he was not integrated operationally[7] and in relation to IT equipment, Mr Stewart gave evidence that all employees and contractors were expected to use Company issued[8] equipment and systems including VPN access to protect its systems and sensitive information. The Applicant was not reimbursed for any work-related expenses.[9]

• [13] In relation to the immigration/ visa documents on which the Applicant relies, the Respondent submits that the documents refer to the Applicant as a freelancer and the documents were not altered on the assumption they were drafted in a way required for immigration purposes. Mr Stewart says that he agreed to the documents as a nice gesture in support of the Applicant's migration application.[10]

• [14] Mr Stewart gave evidence that the first engagement ended after the Group Financial Controller raised concerns over contractor spending. Mr Stewart contests the Applicant's evidence that there were any assurances or comments made by him promising that work was temporarily paused. Instead, he says that the Applicant's communications confirmed to him that he understood that he was finishing up and the practice of collecting the company laptop confirmed the termination of the arrangement.[11] On 30 June 2025 (a month after the first engagement ended) Mr Stewart received an email from the Applicant enquiring whether there was any further work as he had not been successful in his search for a job "since the Swann contract ended."[12]
• [15] In relation to the second engagement, Mr Stewart gave evidence that a full-time graphic designer resigned and again due to the workload and the need for short term relief while recruiting for a replacement, the Applicant was contacted to see if he was available to perform freelance work. Mr Stewart gave evidence that the discussion was that the work was temporary and it suited the Applicant while he continued to look for more permanent work.[13] The day after the discussion with the Applicant, Mr Stewart emailed the IT team about the arrangement.[14] Also tendered into evidence is the paperwork for IT to issue equipment and enable the new set up. Further Mr Stewart contends this is evidence that the two engagement periods are unconnected and there was no continuity between engagements.[15]

• [16] Mr Stewart invited the Applicant to the workplace to familiarise himself with changes to systems and processes and invited the Applicant to a team lunch "because it was a nice thing to do." Mr Stewart gave evidence that this was the only time the Applicant came into the office during this engagement. Evidence of varying hours depending on work performed was shown by invoices from the Applicant tendered into evidence.[16]

• [17] After the vacancy was filled, the Financial Controller again raised concerns about contractor spending and the Applicant's engagement was terminated the same day[17] but effective 19 September 2025.

[18] The Applicant submits that he was employed as a graphic designer and was part of the internal marketing and design team.

• [19] The Applicant submits the working relationship had the features of employment. Mr Senel gave evidence that he performed duties that were "substantially the same as those performed by Swann's employed graphic designers."[18] He further submits that he worked regular and consistent hours each week.[19] Mr Senel gave oral evidence that he had to seek permission to change his hours of work which were approved by Mr Stewart; he maintained that he had no discretion to change his hours without approval.[20]

• [20] In respect to the alleged control and supervision as an employee, Mr Senel submits that he was required to be responsive during his working hours, which also aligned with the business working hours. He submits that Mr Stewart monitored his work by giving instructions on design specifications and precise design amendments. He further submits that he received work instructions from two other senior managers in the business, which he describes as the ordinary internal workflow.[21]

• [21] Mr Senel gave evidence that when he commenced 'employment' he was onboarded with access credentials. He was issued with Swann technology as he was not permitted to use his own computer. Any access issues had to be resolved through the internal IT support and use of equipment had to comply with Swann systems and policies.[22]

• [22] Mr Senel contends that he was integrated into the team processes via the chat forum and all work allocated and reallocated through Trello.[23] Mr Senel referred to one occasion where he attended the office to participate in a training session on internal processes and systems and then attended a staff lunch. He further submits that he attended one Christmas party in December 2024.[24]

• [23] Mr Senel was paid fortnightly after submitting an invoice for $66.60 per hour of work. The invoices reflected the hours that he worked, rather than payment for a specific project and there was no payment if he was unavailable for reasons such as sickness or personal appointments. Copies of the invoices were tendered into evidence.[25]

• [24] Mr Senel tendered into evidence a letter of reference and job description that he drafted for Mr Stewart's signature intended to support his application for a subclass 190 permanent residency visa with the Immigration Department. He contends that the documents which Mr Stewart could have amended but did not, indicate that he was engaged as an employee and this supports his submissions that he was not a contractor.[26]

• [25] The period of break between May and July 2025, Mr Senel describes as a temporary pause. Mr Senel submits that after 19 months of regular work he was informed verbally by Mr Stewart that due to budgetary constraints that there would be a 'temporary interruption.' He gave evidence that Mr Stewart collected the company owned laptop and said words to the effect that they ought to stay in touch. Mr Senel contends that the discussion relayed to him was that there was to be a temporary pause. Mr Senel also gave evidence that he sent to Mr Steward an email "since my contract ended" enquiring whether there was any further work, either project based or part-time. When Mr Senel was contacted to work in August 2025, he says there was no new contract, and he was given the same laptop after he was onboarded. After a period of about 6 weeks, Mr Senel was informed that the work would end. Mr Senel submits that he became aware of a graphic designer employed some 2 weeks earlier to replace another staff member that had resigned from the business. He submits that this termination was understood to be final as no comments were made about temporary budget constraints or that he would be recalled.[27]

[26] Mr Senel contends that he understood that he was employed and not engaged as a contractor and that the dismissal was unfair.

• [27] Part 3-2 of the Act concerns unfair dismissal protections which apply to an employee. An employee means a national system employee[28] and the Object of the Part concerns employers and employees.[29]

• [28] The Commission can order a remedy for unfair dismissal if it is satisfied that an applicant was protected from unfair dismissal and is unfairly dismissed.[30] Section 382 of the Act provides that a person is protected from unfair dismissal, if at the time of being dismissed the person met the minimum employment period and an industrial instrument applied or their annual rate of earnings is less than the high-income threshold. Section 382 refers to a person that is dismissed and certain conditions apply. Relevantly s.385 of the Act provides that a person has been unfairly dismissed if firstly the person has been dismissed. The threshold issue is whether the person was dismissed from their employment pursuant to s.386 of the Act. Therefore, the Unfair Dismissal protections are for employees that have been dismissed and do not concern persons that are providing independent contractor services to a principal.

• [29] Sections 382 and 383 of the Act provides that a person is protected from unfair dismissal if they have completed a minimum employment period of 12 months if a small business employer,[31] or six months if not a small business employer. There is no dispute that the Respondent is not a small employer.

[30] The relevant provisions of the Act are sections 382 and 383. Section 382 provides:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold."

[31] The minimum employment period required to have been served to comply with s.382(a) is found in s.383 of the Act.

(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(b) if the employer is a small business employer - one year ending at that time."

[34] Section 385(a) of the Act provides that a person is unfairly dismissed if the Commission is satisfied that the person has been dismissed. Therefore, a threshold issue to determine is whether Mr Senel was dismissed from his employment. Section 12 of the Act defines dismissed with a reference to s.386 of the Act. Relevantly, s.386 of the Act provides:

(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.

[35] Section 15 and 15AA of the Act define employee and employer. Relevantly, these provisions provide as follows:

"15 Ordinary meanings of employee and employer

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.

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

15AA Determining the ordinary meanings of employee and employer

(1) [Determining ordinary meanings of employee and employer]

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) [Real substance, practical reality and true nature of relationship]

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."

[36] The Applicant contends that application of the multifactorial test to the relationship demonstrates an employee/ employer relationship and therefore he is entitled to protection under the unfair dismissal provisions under Part 3-2 of the Act.

[37] The definition of employee and employer have their ordinary meanings, however, as it is contended that the Applicant was not an employee s.15AA requires the Commission to consider the real substance, practical reality and true relationship. In considering the totality of the relationship, regard must be had to the terms of the contract as well as other factors.

[38] Firstly, the contractual arrangement is not in writing, but both the Applicant and Mr Stewart gave sworn evidence about the discussions prior to commencement of the working relationship. While stating repeatedly that English is not his first language, I observed that Mr Senel demonstrated a strong grasp of English and effectively had shown that he understood the difference between employment, fixed term employment, working as a contractor and offering work as a freelancer. Having observed both witnesses, I prefer the evidence of Mr Sewart that the initial engagement and the second engagement was on the clear understanding that the Applicant was engaged as a freelancer and not an employee. The work offered was consistent with the services the Applicant publicly promoted as a freelancer on his website and consistent with the discussions with Mr Stewart given the immediate need to supplement the work of the Respondent's internal graphic design team. The evidence does not support the contention that the Applicant was part of the regular team; he was not employed under consistent terms and conditions, not worked alongside them in the office, nor attended the regular team meetings. The rate of pay far exceeded the most experienced graphic designer, on the basis that there were no other entitlements nor was tax deducted. The Applicant was sent design briefs, and he charged the number of hours taken to complete the digital content as specified. The hours taken to complete the work was itemised on an invoice which also identified his ABN. The Applicant was paid fortnightly as he requested.

[39] The evidence of attending a training session, a luncheon and one Christmas party is insufficient to evidence an employment relationship.

[40] It is not contested that the Applicant largely performed his work during business hours, this assisted with communication about availability to perform work and design amendments to the developed content. However, the Applicant also completed work at times that the internal design team did not work. I do accept that the parties discussed the hours that the Applicant would complete his work, but I do not accept that the Respondent approved the hours of work. I prefer the evidence of Mr Stewart in this regard. Mr Senel insisted that his hours had to be approved including his alleged request to vary his hours while he was cross examined but did not press this point when he questioned Mr Sewart.

[41] I am satisfied that the Applicant understood that his engagement ceased with no expectation of further work on 30 May 2025, the evidence of Mr Stewart was consistent and convincing while further supported by email evidence between the parties.

[42] The second engagement was on the same terms as the first but was for a short period of 7-8 weeks. I do not accept the contention of the Applicant that the second engagement was a continuation of the first, and furthermore, the evidence does not support a "pause" as he described. Rather the Applicant's email of 30 June 2025 was evident that his first engagement concluded, as this email queried whether the Respondent was in a position to offer any work on any basis until he could find a permanent job because the job market was quiet. The response on 3 July 2025 was that there were no opportunities at that time. Mr Stewart's sworn evidence was that when he returned to work some weeks later, he learnt of a staff member resigning and the offer then made to the Applicant on a short-term basis as a freelancer is credible and I accept this evidence.

[43] I am satisfied by the evidence that there was a verbal agreement to engage Mr Senel as a freelancer- an independent contractor and not as an employee.

• [44] However, s.15AA is relevant and requires the Commission to ascertain the real substance, practical reality and true nature of the relationship and not simply rely on the terms of the contract, particularly where there is no written contract. Application of the multifactorial test[32] is relevant to s.15AA of the Act. This multifactorial approach requires evaluative judgement of various indicia, rather than ticking off a number of factors on a list.

[45] The indicia in the authorities include not only consideration of control in the relationship, but whether the person works for others, whether the person supplies their own tools, whether they can delegate work and how they are remunerated amongst other considerations. The indicia are now applied to the facts in this matter.

[46] In respect to control, the Applicant's times, days and place to work were not regulated even though he predominantly worked during business hours which assisted both parties with communication. The Applicant had a right to accept or reject a project. The Respondent required that digital content projects were completed in accordance with design briefs and branding requirements by the scheduled deadline. The Applicant regulated his own time and breaks and worked autonomously. The Respondent had no right to regulate how the hours were worked. At times Mr Stewart did check on progress or asked the Applicant to make changes to the content when he was not satisfied that the work met the design brief or where related entities or resellers or distributors required changes. The Applicant did not need to account for his hours of work, he simply invoiced the Respondent for the time taken to complete his work and he was not questioned on the time taken to complete each project, all that was required was that he meet a deadline and the specifications in the design brief. There was no control over how the work was done, he was not directly supervised, and the Applicant could reject the work if he chose. Having considered the real substance and practical reality of these considerations I am not satisfied that the Applicant was an employee and the changes sought by Mr Stewart to digital content was not sufficient to characterise an employment relationship.

• [47] The Respondent had no right to prevent the Applicant from working with other clients, it did not demand exclusivity. The Applicant may not have worked for other clients, noting this was not traversed during the hearing, nevertheless there was no evidence that the Applicant did not have a genuine and practical right to do so.[33]

• [48] The method of payment was on receipt of an invoice. The Applicant invoiced the Respondent when convenient and after a few weeks into the first engagement advised that his preference was to invoice fortnightly.[34] The payment did not accord with the payment of wages made to the Respondent's employees. No tax was deducted as the Applicant was responsible for his own tax liabilities. Having an ABN meant that no PAYG tax was deducted; clearly the payment was not characterised as wages.

[49] The reality of the relationship was that the Applicant charged for his services and was responsible for any expenditure in relation to that service. The Respondent did not reimburse the Applicant for any business-related expenses. Presumably the rate offered by the Applicant was intended to cover his tax and personal liabilities such as power and the like. The Respondent accepted the offered rate on the understanding there were no other expenses associated with the engagement, noting further that the rate exceeded any employee's hourly rate of pay.

[50] The Applicant did not delegate any work, but his business structure provided no means for delegation; the arrangement was that the Respondent referred work to the Applicant as a freelance graphic designer because of his personal skills which he publicly promoted on his website. In this matter delegation is an irrelevant consideration because the business relationship was between the Respondent and the freelancer direct.

• [51] The Applicant had a distinct profession, trade or calling and he performed his profession[35] for the benefit of his own business and did not serve the Respondent in the business. I am satisfied that the Applicant was not integrated in the Respondent's business as contended. The Applicant was not required to comply with any employee related policies or procedures, the only exception was the IT/ data security policy. The Applicant was not prevented from working on public holidays or weekends. Attendance at one Christmas party, a lunch and a training session makes no material difference to the reality of the rights and obligations in the relationship.

[52] The Applicant raised the documents that he presented to the Respondent for signature to assist in his immigration application. These documents describe the Applicant as graphic design freelancer even though the attached job description used the word "employee' and may infer an employee position. However, I am not satisfied that the document practically changes the rights and obligations in the contract.

• [53] Tools of the trade or profession may in certain circumstances be a relevant consideration which distinguishes a contractor from an employment relationship. The Applicant gave evidence that he was not permitted to use his own computer but instead was given a desktop and subsequently this was replaced by a laptop to complete the projects for the Respondent. This evidence was not contested. However, the Respondent gave evidence that its security precautions required the Applicant to use its own hardware and software, and this was not peculiar solely to its own employees. Contractors engaging with the Respondent were required to comply with its IT/ data security policies and procedures to maintain control over its company data in a secure environment. The policy prevented any employee or contractor from connecting "any non-Swann provided PCs, laptops or other hardware to the Swan Communications IT Network."[36] To access the Respondent's platforms, the Applicant required a Swann email address. While in certain circumstances provision of tools may be relevant, it does not follow that it is so in all circumstances. In this circumstance, the provision of a laptop and compliance with IT/ data security protocols does not change the rights and obligations to reflect an employment relationship.

[54] The Applicant had no right to portray his engagement with Swann to any third party as a representative or employee of the Respondent.

[55] Following the hearing the Applicant contacted chambers to advise that he had only just become aware of a superannuation contribution. The Respondent replied noting that this was the case. I have considered this new evidence but am not satisfied that it changes the relationship. The Superannuation Guarantee (Administration) Act 1992 (the SGC Act) requires the payment of superannuation contributions where an individual performs work that is wholly or principally for their labour regardless if they are an independent contractor. Section 12(3) provides an interpretation under the SGC Act of employee, employer. Despite this interpretation, it does not apply more broadly than the Superannuation Guarantee (Administration) Act 1992.

[56] For the above reasons I am satisfied that Mr Senel was an independent contractor and he understood that he was engaged as a freelance graphic designer on both engagements. Recharacterising the relationship at a later point despite the contractual agreement does not have the effect of changing an independent contractor into an employee.

• [57] In any event the Respondent raised further jurisdictional arguments should I find that Mr Senel was an employee. One of those objections is that the second engagement did not meet the minimum employment period. I do not consider this jurisdictional objection necessary, however, if I am wrong on the above, I do agree that Mr Senel would have difficulty meeting the minimum employment period if he was an employee. The reason this objection would succeed is because on the evidence I am satisfied that Mr Senel understood that the first engagement well and truly ended.[37] The second engagement was distinctly separate, the engagement was characterised as new, requiring onboarding to meet IT/ data security requirements. The second engagement fell short of the required 6 months of minimum employment.

[58] For the above reasons, I am satisfied that Mr Senel's application does not meet the requirement of being dismissed under ss. 382 and 386, nor met the minimum employment period if he was an employee within its ordinary meaning. However, I am satisfied that Mr Senel's engagement was not as an employee capable of being dismissed but rather a freelance graphic designer, that being an independent contractor. I have considered both ss. 15 and 15AA and I am satisfied that Part 2-3 of the Act does not apply to Mr Senel. Accordingly, the application is dismissed.

[1] Exhibit R1, Witness statement of Jeremy Francis Stewart, at [1] - [10].

[3] Consisting of Mr Sewart, Marketing Coordinator and Product Marketing Manager.

[4] Evidence of batch payments, Exhibit R1 annexure JS-9.

[5] Exhibit R1 annexures JS-12 and JS-13.

[7] No attendance of weekly team meetings, nor expected to follow the company policies (except the IT data security policy), not included in the team group chat except the AUS Marketing All MS Teams chat to coordinate workflow, and did not attend team events or lunches except one Christmas party as a gesture given the empty spot to fill and one luncheon team.

[8] Contractors were temporarily issued with equipment for the duration of their engagement.

[11] Exhibit R1 annexures JS-21 and JS-22.

[13] Ibid at [90] and witness evidence.

[14] Exhibit R1 at [91] and annexure JS-24.

[18] Exhibit A1, Applicant's statement of evidence, at [7].

[28] Fair Work Act 2009 s.380.

[29] Ibid s.381.

[30] Ibid s.390.

[31] If the employer employs less than 15 employees.

[32] See Stephen's v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, and more recently traversed in Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFB 8307.

[33] Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFC 8307.

[34] Exhibit R1 at [49] and oral evidence.

[35] He had a Master of Visual Communication Design and numerous software skills relevant for the project-based work offered by the Respondent.

[36] Exhibit R1 annexure JS-11 at section 10.

[37] The communication was clear and unambiguous, the Applicant invoiced for his work promptly and conveyed the end of the relationship and all IT equipment was returned.

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