s.365 - General protections

Ethical Nursing Care Pty Ltd; Shoeib Rasouli; Ashti Aminzadeh

Application to deal with a general protections dismissal dispute - whether employee

• [1] Ms Jiali Wang has applied to the Commission to deal with a dispute under s.365 of the Fair Work Act 2009 (Cth) (Act). Ms Wang alleges that she was dismissed by Ethical Nursing Care Pty Ltd (ENC) in contravention of the general protections provisions in Part 3-1 of the Act. ENC objects to the application. It submits that Ms Wang was a subcontractor rather than an employee and for that reason, she could not have been dismissed for the purposes of the Act.[1] It is true that only an employee can be dismissed, and only a person who has been dismissed (or their representative) can apply to the Commission under s.365.

• [2] The question is whether Ms Wang has been dismissed by ENC. I find that Ms Wang was an employee of ENC and that the answer to the question is 'Yes'.

• [3] Ms Wang found work with ENC as a Support Worker, performing home care work under the National Disability Insurance Scheme, through her friend who was also working there. She was put in touch with Ms Samantha Betts who, after some initial correspondence, sent Ms Wang a request for information for the purpose of 'onboarding' her to ENC. Ms Wang provided the information requested by ENC including by filling out some forms. She was then rostered for work according to her availability until her 'employment' was 'terminated' on the grounds of serious misconduct on 14 September 2025.

• [4] The documents sent to Ms Wang to complete as part of the onboarding process are somewhat ambiguous in relation to her contracting status with ENC. The terms 'worker' and 'employee' are used interchangeably. A 'Worker Handbook' mostly uses the broader term of 'worker' throughout and appears to distinguish between 'staff' and 'worker' in section 16, but also uses these terms interchangeably in other sections (for example, sections 18 and 22). A 'Worker Information' form has space for providing information, including an ABN number.

• [5] Ms Wang filled out the forms she was given, describing her position on those forms as 'full time (casual)'. An ABN number was specifically requested by ENC and provided by Ms Wang. On an 'Induction Checklist', boxes were checked indicating that Ms Wang had been given a 'letter of offer' and an 'employment contract', and an explanation of her 'employment conditions'. She signed an 'employee declaration' at the end of the Induction Checklist in her capacity 'as the new employee'.

• [6] The employment contract provided to Ms Wang had a covering letter describing the contract as a 'Subcontract Agreement Support Worker - Disability'. It starts with the words: 'I am pleased to confirm the subcontract agreement with Ethical Nursing Care', followed directly by the words: 'The enclosed employment agreement sets out the terms...'. The first page of the contract is headed 'Employment Contract'. Clause 1.2 confusingly says 'You are employed as a subcontractor'... and in the same paragraph, states that 'this employment agreement ... sets out the terms and conditions of employment that shall apply to each engagement that you work'.

• [7] Clause 1.3 of the 'Subcontract Agreement' states that the terms and conditions of Ms Wang's employment are 'governed by the National Employment Standards' in the Act (NES). This is relevant because the NES only apply to employees (not contractors). The contract sets out Ms Wang's duties and responsibilities including that she was required to report to her director, Mr Shoeib Rasouli or to such other person as the company may require or direct from time to time, that she comply with company policies, and that she act in its best interests. Separately, the contract provides for termination of employment. On the terms of the contract alone, the relationship between Ms Wang and ENC is properly characterised as one of employment.

• [8] This conclusion is consistent with the real substance, practical reality and true nature of Ms Wang's relationship with ENC. As Ms Wang submits, she worked under the company's direction and supervision. Her shifts, clients, and duties were allocated by ENC, and she had no control (other than by advising of her unavailability for work as any casual employee might do) over her roster, clients, or pay rates. Payments to Ms Wang's account were sometimes described as 'ENC hours worked', and on at least one occasion, as 'salary'. Ms Wang worked according to the roster set and managed by ENC. She was required to comply with all ENC procedures and client instructions. The relationship came to an end when Ms Wang was issued with a letter of termination for alleged serious misconduct.

• [9] Indications of a contractor relationship might be found in the fact that Ms Wang provided an ABN and submitted invoices for her hours worked, and that she does not appear to have been paid any superannuation. Further, it is not apparent who, if anyone, paid tax on the earnings of Ms Wang. In the circumstances, these indicators are not determinative. Ms Wang submitted invoices to ENC because this is the process she was told to follow in order to get paid for her work. The failure to pay superannuation could equally have arisen from ENC's mischaracterisation of its relationship with Ms Wang. Ms Wang also provided some of her own equipment, including a laptop and car. But again, this is likely because it was expected of her, rather than because of a choice made in the context of her own enterprise and it is not a feature unique to contracting as opposed to employment.

• [10] There is no sound reason to consider that Ms Wang was working in her own business. She was a support worker in the disability industry, working for and reliant on others to allocate work to her, and subject to their direction and control. So far as there is any evidence of ENC's intention in relation to the contract, the materials together indicate a misguided understanding that the incidents of an employment relationship can be avoided simply by giving it a different name, requiring an ABN and invoices from the worker in return for payment for hours worked, and placing responsibility on the worker to provide some of the equipment needed to perform their work.

• [11] The jurisdictional objection is dismissed.

• [12] Noting Ms Wang's advice to the Commission that she does not wish to settle the dispute, the parties are directed to advise my Chambers by no later than 4.00pm on Monday 22 December 2025 if they would like the opportunity for settlement discussions. Depending on that advice, the matter will either be listed for conference, or a certificate issued under s.368 in relation to the matter.

[1] Fair Work Act 2009 (Cth), s.386

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