s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objections that Applicants were not employees and had not been dismissed and that the applications had been filed out of time - objection that Applicants were not dismissed upheld - applications dismissed

[1] Mr Matthrew Priestley and Ms Mika-Rose Tyson have made applications to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that they were dismissed from their employment with Blackfisch Films Pty Ltd (Blackfisch) in contravention of Part 3-1 of the FW Act.

[2] Mr Priestley requested to be referred to as Uncle Matt at the hearing of the proceedings, and I do so in this decision.

[3] Blackfisch claims that Uncle Matt and Ms Tyson were independent contractors rather than employees and were not dismissed. As the Commission must be satisfied that Uncle Matt and Ms Tyson were employees of Blackfisch and were dismissed before dealing with the dispute under s.368, the matters were set down for a jurisdictional hearing to determine these matters.

• [4] The applications were initially allocated to Deputy President Boyce and were dismissed after Uncle Matt and Ms Tyson did not comply with directions to file material in reply.[1] The decision to dismiss the applications was quashed by a Full Bench on appeal.[2] During the appeal proceedings, Blackfisch also claimed that the applications had been filed outside of the 21 day time limit required by s.366(1)(a).

[5] The matters have been remitted to me to determine the jurisdictional issues raised by Blackfisch.

[6] In summary, I have found that Uncle Matt and Ms Tyson were not dismissed within the meaning of s.365 of the FW Act. As such, it has not been necessary for me to determine whether Uncle Matt and Ms Tyson were employed by Blackfisch or whether the applications were filed in accordance with the requirements of s.366(1).

[7] Prior to the dismissal of the applications for non-compliance with directions, Uncle Matt and Ms Tyson had both filed witness statements and submissions on 29 October 2024 and Blackfisch had filed evidence and submissions on 8 November 2024. This material dealt with the issues of whether Uncle Matt and Ms Tyson were employees and whether they were dismissed.

[8] I initially listed the matters for a case management conference on 21 May 2025. Uncle Matt appeared at the conference, but Ms Tyson did not. Mr Simon Heath, who was formerly employed by Blackfisch as Head of Production, also attended the conference in the capacity of support person to Uncle Matt.

[9] Prior to the conference, my Chambers sent an email to the parties which explained that the purpose of the case management conference is to ascertain whether the parties wish to rely upon the material that was filed when the matter was before Deputy President Boyce or whether they wish to file new or additional material and to set the matter down for hearing.

[10] At the case management conference, both Uncle Matt and Blackfisch advised that they wished to rely upon the material filed on 29 October 2024 and 8 November 2024 respectively. Blackfisch indicated that it wished to file additional material and was given an opportunity to do so in directions which were subsequently issued. The directions also included a requirement for Uncle Matt and Ms Tyson to file material in relation to the extension of time issue on 4 June 2025 and in response to material filed by Blackfisch on 18 June 2025.

[11] Uncle Matt and Ms Tyson did not file material addressing the extension of time issue as required by the directions. My Associate followed this matter up by email on 6 June 2025 and received a response from Mr Heath on behalf of Uncle Matt and Ms Tyson on 10 June 2025 which relevantly provided:

Uncle Matt and Mika would like to reiterate the point that there was a delay in lodging the initial matter with the FWC as both Uncle Matt and Mika were homeless at that time.

[12] On 4 June 2025, Blackfisch filed evidence, submissions and other material which supplemented the material filed on 8 November 2024. Blackfisch also filed an application for an order for production of documents addressed to Mr Heath seeking the following documents in relation to the production of a documentary referred to later in this decision and an application to Documentary Australia for funding for that documentary:

Emails sent and received by Mr Heath in the period from 27 June 2024 until 31 October 2024 to -

(a) each or both of the Applicants,

(b) Clive Burcham,

(c) Beau Nielson,

(d) Paris Nielson, and

(e) any employee or representative of Documentary Australia

[13] I deal with this application for an order for production of documents later in this decision.

[14] On 12 June 2025, Uncle Matt and Ms Tyson filed material in relation to submissions made by Blackfisch about Uncle Matt's status as an Elder but which did not otherwise address the material filed by Blackfisch or the issues that I am required to decide. On 20 June 2025, Uncle Matt and Ms Tyson filed material in relation to the extension of time issue.

[15] The applications were listed for hearing on 9 July 2025 in relation to the jurisdictional issues raised by Blackfisch. Uncle Matt appeared at the hearing, but Ms Tyson did not. Mr Heath explained that Ms Tyson wanted to proceed with her application but was unable to attend the hearing due to health issues and sorry business in Moree. The following exchange then took place between Mr Heath and myself:

THE DEPUTY PRESIDENT: You might need to actually get some instructions from [Ms Tyson] about whether she wants to proceed or not, because the issue is that, if the respondent objects to the adjournment application and there's no medical evidence before me, the respondent can ask that I dismiss her case today. I'd be reluctant to do that without hearing from her, but on the other hand, it's also unacceptable for an application to be made on the day of the case when everyone, including myself, is ready for the case to proceed today.

MR HEATH: Our apologies. We weren't aware of that. We thought that she'd had a written statement, signed statement, from the appeal saying that she was happy for Uncle Matt and myself to act on her behalf.[3]

[16] At the conclusion of the hearing, and after hearing submissions from the parties about Ms Tyson's non-attendance, I indicated that my Chambers would write to Ms Tyson requesting medical evidence and list the matter for a case management conference if Ms Tyson wished to pursue her application. I also granted a request by Blackfisch that it be provided with an opportunity to make written closing submissions.

[17] On 17 July 2025, my Chambers sent an email to the parties which relevantly provided:

During the hearing, Mr Heath explained that the one of the Applicants in these proceedings, Ms Mika-Rose Tyson, could not attend due to medical and other issues. Deputy President Wright notes that Ms Tyson did not make an adjournment application or provide any medical evidence to explain her absence prior to the commencement of the hearing.

Deputy President Wright advises that it is necessary for Ms Tyson to participate in the hearing including giving evidence in person and being available for cross-examination if she wishes to proceed with her application.

If Ms Tyson wishes to proceed with her application, Deputy President Wright directs Ms Tyson to provide the following, by no later than 4:00PM on Thursday 17 July 2025:

1. Medical evidence supporting her absence at the hearing on 9 July 2025, and
2. Information confirming Ms Tyson's availability and fitness to attend a future hearing.

Once this information is received, the Deputy President will list the matter for a case management conference by Microsoft Teams and determine whether an adjournment of Ms Tyson's application will be permitted after hearing from both parties. If an adjournment is not permitted, it is likely that the Deputy President will determine Ms Tyson's application on the material before her (but excluding Ms Tyson's witness statement as she was not available for cross-examination) however the Deputy President will make a final decision about this matter at the case management conference.

[18] Ms Tyson subsequently provided medical evidence to my Chambers by email which included a medical certificate from Dr Helen Phipps confirming that she had seen Ms Tyson on 9 July 2025 and that Ms Tyson was unfit that day.

[19] The matter was listed for a case management conference on 6 August 2025. Uncle Matt, Ms Tyson and Blackfisch all appeared at the case management conference. Blackfisch continued to be legally represented. Uncle Matt and Ms Tyson were assisted by Ms Sally Westlake. After hearing from the parties, I decided that the fairest way of dealing with the matter, having regard to the interests of both parties, was to determine Ms Tyson's application based on her witness statement but giving that statement appropriate weight as Ms Tyson was not available for cross examination on 9 July 2025. I note that this was one of the potential ways of dealing with Ms Tyson's evidence if the hearing including closing submissions had concluded on 9 July 2025 and appeared to be contemplated by Ms Tyson when she did not attend the hearing and advised the Commission through Mr Heath that she intended to rely on her statement.

[20] Blackfisch advised that it agreed to this course of action, provided it could file additional documents (but not witness statements) in response to Ms Tyson's evidence. I agreed to this condition. Blackfisch filed additional documents and final written submissions on 20 August 2025. Blackfisch sought to file further material on 27 August 2025 and was refused leave to do so. Uncle Matt and Ms Tyson filed final submissions in reply on 3 September 2025. My Chambers advised the parties by email on 4 September 2025 that to the extent that the submissions filed by Uncle Matt and Ms Tyson include additional evidence that was not before me at the hearing on 9 July 2025 or contained in Ms Tyson's witness statement, I would not take into account this evidence unless it is in response to the documents filed by Blackfisch on 20 August 2025.

Reasons for not setting aside the order for production issued to Simon Heath

[21] I issued the Order for Production addressed to Mr Heath in the terms sought by Blackfisch on 27 June 2025. On 30 June 2025 Mr Heath made an application for the Order to be set aside on the grounds that the order was a fishing expedition and that the emails requested may contain information that holds sacred and secret knowledge of the Gomeroi people, and as such, this should not be seen by those not authorised by very senior Knowledge Keepers or higher of the Gomeroi Nation.

[22] By email dated 3 July 2025, my Chambers advised that parties that I had determined not to set aside the Order and that I would provide reasons for this determination when I issued this decision.

[23] Blackfisch submitted that the documents were being sought for the following reasons:

(a) Blackfisch has included some of the emails requested in documents already filed with the Commission. Those emails and the further emails sought will show that each of the applicants while supplying their services to Blackfisch worked with Mr Heath while he was an employee of Blackfisch to establish a new business using Blackfisch's intellectual property and which would compete with Blackfisch's business. This occurred prior to the applicants ceasing to supply their services to Blackfisch, and the emails are also probative of the applicants ceasing their supply voluntarily.

(b) The documents are sought in part because the applicants have applied for the Commission not to take the emails into consideration in respect of Blackfisch's objection to the Commission's jurisdiction on the basis that the emails were unlawfully obtained (which is not admitted). Blackfisch also reasonably expects that there are additional emails in relation to the establishment by the applicants of their new business and which will in turn also be probative of the fact that they ceased supplying their services to Blackfisch voluntarily.

[24] Blackfisch submitted that the documents would assist the Commission with its determination of one of the central issues in respect of each of the proceedings, being whether Uncle Matt was 'dismissed' from his employment with Blackfisch (assuming Uncle Matt is found to have been an employee, which is not admitted), and whether Ms Tyson was 'dismissed' from her employment with Blackfisch (assuming Ms Tyson is found to have been an employee, which is not admitted).

[25] Section 590(2)(c) of the FW Act gives the Commission the discretionary power to make orders requiring a person to provide copies of documents or records, or any other information to the Commission, for the purpose of the Commission informing itself as to a matter before it.

• [26] In considering whether to exercise its discretion, the Commission is guided by the practice followed by courts in civil proceedings when issuing subpoenas.[4] It is necessary to establish grounds for a belief that a document or class of document exists, and that such a document or class of documents may be or have been in the possession, custody or power of the person required to produce.[5] The documents sought must be identified with sufficient particularity.[6] The documents sought must have apparent relevance to the issues in the proceedings.[7] The test for relevance does not require that a party demonstrate direct relevance, rather, the documents must have some potential relevance.[8] The documents sought must be used to support the requesting party's existing case.[9] An order to produce cannot be used for the purpose of a 'fishing expedition'; that is, used for the purpose of exploring if there is a supportable basis for a case that might potentially be advanced.[10]

[27] Prior to applying for the order, Blackfisch had filed email correspondence from Mr Heath addressed to or copied to Uncle Matt, Mr Clive Burcham and Documentary Australia which suggested that Uncle Matt was making plans to cease working for Blackfisch prior to the date that Uncle Matt alleged that he was dismissed. The order sought by Blackfisch was for a complete set of these documents to be produced. I found that these documents are potentially relevant to whether Uncle Matt was dismissed by Blackfisch. I rejected the submissions of Mr Heath that the order was for the purpose of a 'fishing expedition'. As to Mr Heath's submission that the documents 'may' contain information that holds sacred and secret knowledge of the Gomeroi people, I rejected this submission as Mr Heath did not specify any documents in his possession which would have resulted in such information being disclosed. I therefore did not accept that the order would have resulted in the disclosure of sacred and secret information. Taking all of these matters into account, I refused to set aside the Order for Production addressed to Mr Heath.

[28] Ms Tyson and Uncle Matt each filed a witness statement on their own behalf. Mr Heath filed a witness statement in support of Ms Tyson's application.

[29] Blackfisch filed witness statements from the following witnesses:

• Ms Malinda Rutter, Co-director and majority shareholder of Blackfisch
• Ms Annabell Rutter Peters, Producer, Blackfisch
• Ms Kathryn McArthur, Producer, Blackfisch
• Ms Riona Day, Producer, Blackfisch

[30] All of the witnesses gave evidence and were cross examined at the hearing apart from Ms Tyson.

[31] I granted Blackfisch permission to be legally represented at the hearing pursuant to s.596 of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently having regard to the complexity of the matter. Mr Heath provided assistance to Uncle Matt at the hearing and cross-examined Ms Rutter, Ms Rutter Peters, Ms McArthur and Ms Day. Ms Natalie Hyland, Aboriginal Community Liaison Officer, also provided assistance to Uncle Matt during the hearing.

Engagement of Uncle Matt, Ms Tyson and Mr Heath

[32] Blackfisch is an indigenous owned media and film company which was incorporated in in May 2018. Ms Malinda Rutter is the co-director and majority shareholder of Blackfisch. Ms Annabell Rutter Peters, who is Ms Rutter's daughter, is employed by Blackfisch as a Producer. Ms Rutter and Ms Rutter Peters are members of the Gomeroi Nation.

• [33] Uncle Matt has been a co-director and minority shareholder of Blackfisch since incorporation. Ms Rutter described Uncle Matt as her third cousin and said that she met him in Moree in 2016.[11]

• [34] Uncle Matt is a Lore Man and Community cultural leader and a member of the Terry Hie Hie Clan of the Gomeroi Nation. Uncle Matt has a long career in the arts and has worked as a visual artist, filmmaker, traditional dancer, song writer, theatre director and musician. Uncle Matt started to work for Blackfisch as an Aboriginal Consultant and Cultural Advisor.[12]

• [35] From time to time during the period from May 2018 to November 2023, Uncle Matt travelled to Sydney to carry out work for Blackfisch as an Aboriginal Consultant and Cultural Advisor.[13] During this period, Uncle Matt also performed work for other organisations including Desert Pea Media.[14]

• [36] In November 2023, Uncle Matt came to Sydney to perform work for Blackfisch and remained living there until he ceased working for Blackfisch in September 2024. About this time, Uncle Matt had a discussion with Ms Rutter about certain matters which are sacred and secret to the Gomeroi people, which led to Ms Rutter deciding to make a documentary about these matters (the Documentary).[15] I do not refer to the subject matter of the Documentary in this decision due to its sacred and secret nature. Blackfisch submitted that it initially incurred expenses in excess of $128,200 during the period from 21 November 2023 to 27 June 2024 in developing the Documentary including staff and equipment costs.[16]

• [37] From November 2023 to September 2024, Uncle Matt lived in the Blackfisch office in Chippendale, which Ms Rutter described as a large, fully furnished double New York loft-style apartment.[17]

• [38] Uncle Matt said that for the majority of his employment with Blackfisch, he did not get paid for the work he performed even though he was working five days a week.[18]

• [39] Ms Tyson first met Ms Rutter in December 2023 at the Blackfisch Christmas Party and started working for Blackfisch soon after as a Production Assistant.[19] Ms Tyson is a member of the Gomeroi Nation.

[40] On 15 January 2024, Mr Simon Heath commenced employment with Blackfisch as Head of Production.

[41] Uncle Matt said that from about 28 February 2024, Blackfisch started paying him a regular wage after he left the office in protest about not getting paid. Uncle Matt said that he had a discussion with Ms Rutter in which he made a verbal agreement with Blackfisch that included the following terms:

1. Uncle Matt would continue to work for Blackfisch full time.
2. Blackfisch would pay him $1,000 per week, in addition to allowing him to continue to live in the office.

• c. Blackfisch would keep $500 aside each week from his weekly pay of $1,000 in savings for him to access when he needed it.[20]

• [42] Ms Tyson said that she did all sorts of work for Blackfisch including administration duties, cleaning the office, doing Aboriginal consultations with Uncle Matt, and working with stakeholders to give views on Aboriginal youth issues. Ms Tyson also did assistant work for the producing of some films and documentaries by Blackfisch.[21]

• [43] Ms Tyson said that initially she did not get paid for her work at Blackfisch and was working five days a week under the supervision of Mr Heath. Ms Tyson said that Ms Rutter allowed Ms Tyson to live at the Blackfisch premises and Ms Tyson stayed there while working at Blackfisch.[22] Ms Rutter said that she was not aware that Ms Tyson was living in the Blackfisch office and that this occurred when Ms Rutter was working overseas in July and August 2024.[23]

• [44] Ms Tyson started getting paid for her work for Blackfisch from about 26 July 2024 at the rate of $25 per hour. From that time until she stopped working for Blackfisch, Ms Tyson sent invoices to Ms Rutter Peters, Ms Riona Day and Ms Rutter pursuant to Ms Rutter's instructions. Ms Day helped Ms Tyson to prepare the invoices. Blackfisch paid Ms Tyson by weekly deposit into her bank account.[24]

• [45] In or around June 2024. the Neilson Foundation (TNF) agreed to provide a gift of $300,000 to Blackfisch towards the cost of producing the Documentary. It appears that Mr Heath obtained this funding through his contacts with TNF.[25] This was to be provided to Blackfisch through Documentary Australia. On 27 June 2024, Documentary Australia committed to provide the funding to Blackfisch and advised that the funding would be ratified at its board meeting on 9 September 2024.[26] Blackfisch submitted that in reliance upon the funding, Blackfisch incurred further expenses in excess of $111,700 for the period after 27 June 2024 in developing the Documentary including staff and equipment costs.[27]

• [46] Ms Tyson said that she was bullied during her employment at Blackfisch. Ms Tyson said that the other office employees, Ms McArthur, Ms Day and Ms Rutter Peters would not give her work because they thought that she was illiterate and uneducated. Ms Tyson said that she was excluded from work meetings and social events. Ms Tyson did not get invited to lunches and was told the other office employees would not give her work because they did not want to overwhelm her. Ms Tyson felt like these other workers looked down on her because she came from a poor background and was Aboriginal.[28]

• [47] Ms Tyson said that sometime in August 2024, she made a complaint about the bullying she experienced to Mr Heath.[29]

[48] On 19 August 2024 Mr Heath sent an email in the following terms to Ms Rutter and Uncle Matt:

I just want to get you, Matt and Me together sometime this week to have a chat about how Mika is being treated by the girls.

I know that you would want the best working environment we can have for Mika, especially as she has only just started. So it would be great to have a discussion and work out how we can make her work-life better.

• [49] A few days after Mr Heath sent the email to Ms Rutter, Ms Rutter arranged a meeting with Ms Tyson. Ms Tyson said that during the meeting, Ms Rutter told Ms Tyson that the other office employees were not bullying her, that she supported those employees not giving Ms Tyson work, stated she was spending too much time with Uncle Matt and mentioned that 'The company was too Black'. Ms Tyson said that Ms Rutter also stated that Uncle Matt was 'going too deep into the cultural stuff'. Ms Tyson said that Ms Rutter stated that she would put Ms Tyson under the supervision of Ms Rutter Peters, although Ms Rutter Peters was one of the people that Ms Tyson complained was bullying her.[31]

• [50] Ms Rutter Peters denied that Ms Tyson was bullied. Ms Rutter Peters said that it was difficult to assign tasks to Ms Tyson, due to her lack of education and experience in performing the work expected of her. Ms Rutter Peters said it was difficult to ensure that tasks were within Ms Tyson's capabilities, and that there was no intention to create a hostile environment.[32]

• [51] Ms McArthur is employed as a Producer by Blackfisch. Ms McArthur said that she, Ms Rutter Peters and Ms Day welcomed Ms Tyson and that they tried as much as possible to include her in the work they were doing including setting up a desk in their area of the office for her and eventually relocating their work to a large desk where the four of them could work together. Ms McArthur said that shortly after Ms Tyson commenced working at Blackfisch, Mr Heath told her, Ms Rutter Peters and Ms Day that Ms Tyson was feeling excluded. Ms McArthur said that they were all shocked and upset to hear this and continued their efforts to include Ms Tyson. Ms McArthur said that this was difficult at times as much of their work involved correspondence with clients, tender writing, and organising crews, all things that are not easy or appropriate to delegate to someone who has just begun work in an intern type role. Further, work was delegated to them by Mr Heath and there was often not enough to delegate to Ms Tyson. Ms McArthur said that they did not want to overwhelm Ms Tyson and they delegated work whenever there was work available that matched her skill level. Ms McArthur said that they asked Mr Heath to help delegate work to Ms Tyson but he failed to do so.[33]

• [52] Ms McArthur said that when Mr Heath raised these concerns, he did so in an aggressive tone, especially towards Mr Rutter Peters.[34]

[53] Ms McArthur said that as a group, she, Ms Rutter Peters and Ms Day invited Ms Tyson to coffee several times and would pay for her coffee. Ms McArthur said that Ms Tyson's assertion that they excluded her from lunches and social outings is confusing as they eat lunch in the office almost exclusively. Ms McArthur said that she does not recall a time when they went to lunch as a group without Ms Tyson. Ms McArthur said that did not have any after-work drinks or parties that Ms Tyson was excluded from and that they do not have a company culture of having after-work drinks and parties.

• [54] Ms McArthur said Ms Tyson's claims that she was discriminated against due to her age and race are extremely upsetting. Ms McArthur said that she has worked at Blackfisch for three years and has never witnessed racial discrimination or discrimination on the basis of age. Ms McArthur and her colleagues frequently work with interns who are the same age as Ms Tyson and have received positive feedback from their university. Ms McArthur said that she would not continue to work for a company that tolerated racial discrimination.[35]

• [55] Ms Day is employed as a Producer by Blackfisch. Ms Day's evidence was consistent with Ms McArthur's in relation to allocation of work to Ms Tyson, including Ms Tyson in coffee, having lunch in the office and there being no culture of after work socialising at Blackfisch.[36] Ms Day said that she is deeply upset by the allegations of bullying, as she, Ms McArthur and Ms Rutter Peters made conscious efforts to engage Ms Tyson, providing advice on clothing, discussing birthday plans, and inquiring about her personal life and well-being.[37] Ms Day said that both Ms Rutter and Ms Tyson came to them stating that Ms Tyson would rather work under the 'girls' instead of Mr Heath and Uncle Matt so Ms Rutter Peters began overseeing her work.[38] Ms Day said that during her time at Blackfisch, she has never witnessed any form of racial discrimination and that she would not feel comfortable working at a company that tolerated such behaviour.[39]

• [56] Ms Tyson said that everything got worse in her employment with Blackfisch after the bullying complaint. She said that from 26 August 2024 to 30 August 2024, she worked for Blackfisch in Brisbane for the Supply Nation conference. Uncle Matt also worked for Blackfisch in Brisbane for the Supply Nation conference. Ms Tyson said that in Brisbane she had to stay in Ms Rutter's apartment, instead of having her own hotel room like the other staff. Ms Tyson said that she was placed on a curfew of 10pm and was not given a key to the apartment. Ms Tyson said that in Brisbane, she worked long hours as a Junior Producer but had to finish one night's work early, as she was being stalked and harassed at the job site.[40]

Arrangements to transfer funding from Blackfisch

• [57] Emails produced by Blackfisch to the Commission show that in August and September 2024, Mr Heath and Uncle Matt were making arrangements to divert the funding which Documentary Australia had committed to provide to Blackfisch to a new entity called Gunnibinna Yarns. Mr Heath and Uncle Matt claimed that these emails were improperly obtained by Blackfisch, however there was no evidence which established that this was the case. It appears that Ms Rutter was able to access these emails after Uncle Matt ceased working for Blackfisch as the emails were copied to Uncle Matt's private Gmail account, and Uncle Matt had logged in to this account, but not logged out, using one of Blackfisch's computers.[41]

[58] On 27 August 2024, Mr Heath sent an email from his personal email address to Uncle Matt and Mr Clive Burcham of the Conscience Organisation which relevantly provided:

Seriously looking forward to creating a pretty historic film.

Simon and Matt talk with Documentary Aust and the Neilsons about the new direction.

Clive creates the new entity, sends through a basis deal memo to set the structure

Simon and Matt move over to Gunnibinna Yarns and begin production

[59] On 30 August 2024, Mr Heath sent an email to Mr Burcham in which he referred to:

• needing an entity that can receive the funds from the Neilson Foundation, to begin the production of the Documentary;
• that the production of the Documentary was expected to last around a year to 18 months, and they are ready to go into production, having spent the past six months in pre-production;
• From the funding for the Documentary, Mr Heath and Uncle Matt would look to pay their salaries of $140,000, which are slightly below feature documentary Producer/Director rates, but will allow them to make the film.
• They would also look to cover the wage of Ms Tyson, who has been working on the project over the past 6 months. Her wage would be approximately $65,000.

• • Mr Heath would work in the role of Head of Production, and Executive Producer, while Uncle Matt would work as Presenter, Cultural Custodian and Executive Producer. Mr Burcham would operate in a role similar to Corporate Director, and Executive Producer over GunniBinna Yarns.[43]

Alleged dismissal and finalisation of arrangements to transfer funding from Blackfisch

• [60] On Saturday 31 August 2024, Uncle Matt and Ms Tyson flew back to Sydney from Brisbane following their attendance at the Supply Nation conference. Ms Rutter asked Uncle Matt and Ms Tyson to clean the Blackfisch office and make it spotless by Monday.[44]

• [61] Uncle Matt and Ms Tyson said that they spent the weekend cleaning the Blackfisch office.[45]

[62] Uncle Matt and Ms Tyson both said in their witness statements that on Monday 2 September 2024, Ms Rutter walked into the office and saw a bit of toothpaste in the sink. Uncle Matt and Ms Tyson both said that Ms Rutter screamed at them:

This is not a hostel so you can both f*ck off.[46]

• [63] Uncle Matt said that took this to mean that he was dismissed.[47] Ms Tyson said that she took this to mean that she was dismissed but she was not certain. Ms Tyson said that she kept waiting for Ms Rutter to call her and apologise or clarify Blackfisch's position about her employment.[48]

• [64] Ms Rutter agreed that she told Uncle Matt to 'F*ck off' but denied that she directed this statement to Ms Tyson.[49]

• [65] Ms Day and Ms McArthur were both present during this interaction and gave evidence about it. Ms Day said that both Uncle Matt and Ms Rutter said 'F*ck Off' to each other and Uncle Matt and Ms Tyson immediately left the office. Ms Day said that Ms Tyson was not part of this exchange.[50] Ms McArthur said that Ms Rutter and Uncle Matt both raised their voices and used strong language. Uncle Matt said something to the effect of 'I don't need this'. Ms McArthur said that Ms Tyson and Uncle Matt left the office and did not return.[51]

[66] On 2 September 2024, Mr Heath sent an email to Documentary Australia, copied to Uncle Matt and Mr Burcham which referred to the 'new direction' of the Documentary and relevantly provided:

The funds ($300k) are already with Documentary Australia, and we only need to redirect the money to Clive's organisation, The Conscience Organisation.[52]

[67] On 3 September 2024, Mr Heath sent a further email to Documentary Australia which relevantly provided:

Great to chat yesterday, and to learn how the film...can now be moved over to a new entity....We're looking forward to beginning production on this film as soon as possible.[53]

[68] On 3 September 2024, Ms Rutter sent the following message to Uncle Matt:

I am really sad and sorry I yelled. You have been amazing and so problem at the office at all. Bringing little Mika in has changed the dynamic living in the office. I love her, but it just doesn't work and I constantly clean the bathroom sink from toothpaste spat in it and left and the toilet and the balconies with ash everywhere. The office and your home turned into something unmanageable. You don't have to leave at all but we can't accommodate Mika as well. It was for her to stay for a week or so because of issues with her dad until she sorted herself out. Its unfortunate as it is what it is. I do love you cuz.[54]

[69] Uncle Matt did not respond to this message. On 6 September 2024, Ms Rutter sent the following message to Uncle Matt:

Yaama Cuz, I have a letter that was delivered to my house. Have taken it to the office most days in case I saw you. It may be important. Do you want me to open it and take a photo and send it to you? Let me know. Yallu xxx[55]

[70] Uncle Matt did not respond to this message.

• [71] Ms Tyson said that her last day of work for Blackfisch was on or around 5 September 2024 when she attended work for the Sepsis Social Media filming in Pyrmont, after Mr Heath told her to go work that day. Ms Tyson said that by the end of that shift she knew that she had been dismissed by Blackfisch because Mr Heath told her that Ms Rutter had said that Ms Tyson could 'go back to the mission' in Moree.[56] Ms Rutter denied making this statement to Mr Heath.[57]

[72] On 9 September 2024, Mr Heath sent a further email to Documentary Australia, signed 'Simon & Uncle Matt' which relevantly provided:

What are the next steps in regards to the funding the Neilson Foundation has given Documentary Australia for this project?

Clive Burcham is cc'd in this email, and the project will now be overseen through his organisation, The Conscience Org. Which strongly aligns with the goals of the film...

We are having a kick-off meeting tomorrow in Redfern which we'd love a representative from Documentary Australia to attend if possible.

Please be aware that Blackfisch Films are no longer involved with this project.[58]

• [73] On 20 September 2024, Mr Heath resigned from his employment with Blackfisch on 20 September 2024.[59]

[74] On 17 September 2024, Documentary Australia sent the following email to Uncle Matt and Mr Heath:

Thank you for speaking with us yesterday and providing further information on your project.

We are pleased to advise that the Documentary Australia Applications Committee has now approved your project [redacted]. Congratulations - you should have just received the automated approval email, with the next steps outlined.

Regarding the separate application for your previous project [redacted] with Blackfisch Films,

we will issue a 'declined' letter to this project tomorrow, based on the discussion with you both yesterday and the new direction of your team.

We recommend that you communicate the new direction of your project and production partners with Blackfisch Films in writing, to avoid any confusion.

Congratulations once again on the approval of your project.[60]

[75] On 18 September 2024, Mr Heath sent an email to the Chief Executive Officer of Documentary Australia signed 'Simon & Uncle Matt' in which he referred to the email of 17 September 2024 advising that Documentary Australia would issue a 'declined' letter to Blackfisch Films. In this regard Mr Heath stated:

This discussion to explain the project's home with GunniBinn would be better done by Uncle Matt and myself with Blackfisch.

Could you please give me a call to discuss this further before any letters are sent.[61]

• [76] Mr Heath does not dispute that he had no discussions with Ms Rutter about the matter.[62] Mr Heath claimed that the funding was taken from Blackfisch due to Ms Rutter's bullying of Ms Tyson and Ms Rutter disrespecting the process.[63] He said that the concerns about Blackfisch doing the documentary crystalised when Ms Rutter told Uncle Matt and Ms Tyson to f*ck off.[64] He admitted that he deleted his Blackfisch emails when he resigned.[65] Mr Heath said that the Documentary was unable to be done with Blackfisch because the clan leaders, had said that Ms Rutter and Blackfisch were transgressing some pretty important cultural issues.[66]

[77] Emails provided by Blackfisch between Documentary Australia and Ms Rutter, and between Documentary Australia and Mr Burcham show that:

• Documentary Australia became aware that there was a 'dispute' about the funding involving Blackfisch on 23 September 2024;
• Documentary Australia asked Mr Burcham to return the funds to its account on 23 September 2024;
• The funds were returned to Documentary Australia on 25 September 2024;
• By email dated 25 September 2024, Documentary Australia advised that:

The funds will be held in trust by Documentary Australia until the issues over ownership have been resolved. The resolution of the IP needs to be resolved between Blackfisch and the other parties involved, Simon Heath and Matthew Priestly. Documentary Australia will not be involved in this process.[67]

[78] On 24 September 2024, Uncle Matt and Ms Tyson filed general protections applications with the Commission.

[79] On 26 September 2024, Uncle Matt send the following message to Ms Rutter:

Blackfisch paying for the smoking that I have done for $1200 I'll got no where to camp n no food so please pay me

[80] On 26 September 2024, Ms Rutter sent the following response to Uncle Matt:

Matt your my cousin and I love you but you did very bad things to the company. I have a duty to the company as a director and so do you. The situation you find yourself in is your own doing. I like to believe that you were lead astray by a shinny object as a Jeremy say a Shyster. I forgive you but can't forget. I am so sad that you hadn't replied to my texts and calls. You know I never do the wrong thing and fair loving and generous. You walked out on a family company, you and Mika behaved badly and unprofessionally in Brisbane and now I know why, even though Annabell new dishonesty was going on with you and Simon. The Monday in the office put me over the edge. You have destroyed Annabell and I emotionally as your family. You alienated Mika from her cousin and Aunty who could have made a huge difference in her life and lead her on a crazy path. You left a home set up for you with all expenses paid. I sent you papers to sign for the company which you have failed to acknowledge. I can drop them to you to sign and I will give you cash. The smoking ceremony you got paid direct for. But are you talking about the one at Blackfisch we had to cleanse the office that Simon organised? So be it.[69]

[81] On 4 October 2024, Uncle Matt sent the following reply:

I didn't walk out on my family company you told me to F*CKOFF. im home now so thanks can you give me what owe me

You not going to give me what you owe me???????[70]

[82] Ms Rutter Peters, Ms McArthur and Ms Day all provided evidence about the conduct of Mr Heath which was not challenged by Mr Heath, Uncle Matt or Ms Tyson. Ms Rutter Peters said that:

• Mr Heath made her feel uncomfortable and reduced her to tears on multiple occasions.
• On one occasion, Mr Heath insisted she change her clothing before a meeting, even though she had sent a photo of her outfit to Ms Rutter, Ms McArthur, and Ms Day, who all felt she was dressed appropriately.
• Mr Heath also pressured her into attending a voice coaching session despite her expressing anxiety and then fell asleep in the room during the session.

• • Mr Heath instructed her to drive unfamiliar men home from shoots, despite her discomfort and anxiety.[71]

• From the outset, Mr Heath showed open disdain for Ms McArthur and her working style and would rewrite her work even when Ms Rutter told him that it was not required.
• Ms McArthur, Ms Day and Ms Rutter Peters expressed to Mr Heath that they were disappointed that the crews he organised for shoots were made up exclusively of men. Mr Heath dismissed this saying that it is disappointing that there are not more women working in film and continued to book exclusively male contractors on set. Mr Heath said if Ms McArthur, Ms Day and Ms Rutter Peters wanted to work with women they had to find them themselves.
• Mr Heath commented to Ms Rutter Peters on numerous occasions that he believed her attire to be inappropriate. On one occasion he insisted that Ms Rutter Peters drive home and change prior to a meeting. Everyone else agreed that Ms Rutter Peters was dressed appropriately.
• Mr Heath showed open disdain for the women he worked with. He frequently assigned Ms McArthur and other women menial tasks that he deemed to be beneath him and took work away from them that was previously within their remit.
• She found Mr Heath's behaviour towards Ms Tyson strange as he would oscillate between directing her to put away groceries and assemble cheese boards for clients and including her in important meetings without briefing her.
• Mr Heath repeatedly belittled her in front of all staff in staff meetings, often calling out her body language if she failed to maintain eye contact for the duration of the meeting which Ms McArthur found extremely embarrassing.
• Prior to Mr Heath starting work at Blackfisch she found it to be a welcoming and inclusive workplace where she was supported. Ms McArthur never received negative feedback from her colleagues or clients on how she conducted herself in meetings until Mr Heath began running meetings.
• At one stage Ms McArthur specifically requested that Mr Heath stop commenting on her body language as she found it exhausting. Mr Heath responded that he was exhausted too and proceeded to continue to comment on her body language.
• During Mr Heath's tenure at Blackfisch, Ms McArthur witnessed his aggressive tone and derisive language bring Ms Rutter Peters, Ms Day and Ms Tyson to tears. Mr Heath caused Ms McArthur to cry also with his repeated belittling, micromanaging and demeaning behaviour towards her.
• Mr Heath would take Uncle Matt to almost every meeting he attended and included female staff in meetings with clients less and less during his time working at Blackfisch, often pushing female staff out of projects entirely. Mr Heath would frequently have 'boys lunches' that included only himself, Uncle Matt and occasionally a male Blackfisch editor. Invitations to these lunches were rarely if ever extended to female staff.

• • From August 2024, Mr Heath was barely communicating with Ms McArthur, Ms Rutter Peters and Ms Day. Ms McArthur said that she and her colleagues made efforts to speak with Mr Heath about projects and he would offer brief responses or tell them not to worry about it.[72]

• She often experienced discrimination from Mr Heath as a woman, and a younger person in the industry.
• Mr Heath did not like Ms Day and her female colleagues, often rolling his eyes or dismissing what they were trying to say.
• On numerous occasions, Mr Heath brought Ms Rutter Peters, Ms Day and Ms McArthur to tears, and one time he took Ms Day aside to tell her to 'stop being so emotional' because no one would take her seriously or listen to her if she was expressing emotion.

• • Mr Heath would often assign one of the 'girls' to make a cheeseboard for clients who were coming to the office, which was amenial task, that anyone could do, himself included. When Ms Day asked Mr Heath if he could make these himself, he stated he could not because he 'didn't want to get his grubby man hands all over it'. Mr Heath also assigned this task to Ms Tyson.[73]

[85] The application has been brought under s.365 of the FW Act which provides:

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.

[86] Section 366(1) of the FW Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

[87] The dictionary at clause 12 of the FW Act refers to section 386 for the definition of 'dismissed'. Section 386 of the FW 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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

1. to whom a training arrangement applied; and
2. whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

1. the demotion does not involve a significant reduction in his or her remuneration or duties; and
2. he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

[88] I have considered the submissions made by the parties and all the evidence in my determination of this matter and the conclusions I have reached.

[89] Uncle Matt and Ms Tyson alleged that they were terminated by Blackfisch for exercising workplace rights and due to unlawful discrimination, in breach of ss.340 and 351 of the FW Act. However, these claims cannot be determined until the Commission deals with the matter under s.368, and only if the Commission issues a certificate of attempted conciliation under s.368(3). Under s.368, the Commission may deal with the matter in numerous ways including by mediation or conciliation, or by making a recommendation or expressing an opinion.

• [90] If there is a dispute as to whether the alleged dismissal the subject of the application has occurred, this is a preliminary issue which, according to the Federal Court Full Court decision in Coles Supply Chain Pty Ltd v Milford (Milford),[74] 'must be resolved before the powers conferred by s.368 can be exercised at all'.[75] In Milford, the Federal Court observed that where a respondent admits that a dismissal has occurred but disputes that the dismissal took effect within 21 days of the date that the application was filed, this may give rise to an issue under s.366(1), as to whether it is necessary for the Commission to determine whether more time should be 'allowed' for the application to be made under s 365. The Federal Court stated that this is also an antecedent dispute, going to the question of whether an application has been made and must be resolved before the powers conferred by s.368 can be exercised.[76]

[91] Therefore, before conducting a conciliation conference or otherwise dealing with this matter under s.368, I must find that Uncle Matt and Ms Tyson were employees of Blackfisch who were dismissed within the meaning of s.386(1) and that their applications were made in accordance with s.366(1).

[92] In relation to the Commission's power to allow further time under s.366(1)(b) for an application to be made under s.365, the Federal Court stated in Milford:

[58]...the power to allow more time to make an application presupposes that there has been a dismissal in fact and that the application was not lodged within 21 days of its occurrence. The following features make that plain:

(1) First, the requirement that the FWC take into account the reason for the delay necessarily comprehends that the length of the delay may be objectively ascertained.

(2) Second, the requirement that the FWC take into account any action taken by the person to dispute the dismissal focuses attention on the steps taken (or not taken) after the dismissal has occurred. By its nature, that task requires the FWC to identify the time from which steps ought to have been taken.

(3) Third, the requirement that the FWC have regard to any prejudice to the employer "including prejudice caused by the delay" also requires a finding to be made as to the length of the delay, being the delay between the dismissal taking effect and the expiration of the usual 21 day limitation period. To calculate the length of the delay from the date upon which a dismissal is alleged would be to deny the actual length of the delay and hence disregard the consequent prejudice to the respondent.

(4) Fourth, the FWC must also consider the fairness of granting or refusing an extension of time as between the person and others in a like position. That, too, is an objective enquiry. A person is not "in a like position" just because he or she alleges that to be the case.

[59]... there may be cases where the FWC may avoid drawing a conclusion as to whether or not an employment relationship has ended in circumstances that amount to a dismissal, and proceed to determine an application for an extension of time on the assumption that it has so ended. But on an application for an extension of time, ascertainment of the length of the delay between the date that the relationship ended and the expiration of the statutory time limit must be identified.[77]

[93] In my view, there is an issue, at least in relation to Uncle Matt's application, as to whether it was in fact filed after the 21 day time limit prescribed by s.366(1)(a). This is because Uncle Matt indicated in the application that he was notified of his dismissal on 2 September 2024. However, in response to paragraph 1.3 of the application which asks when the dismissal took effect, Uncle Matt stated:

There was no writing I was dismissed, it was never clear when I stopped working. I received my last pay on Thursday 19th of September.

[94] As Blackfisch continued to pay Uncle Matt until 19 September 2024, this suggests that the alleged dismissal took effect on 19 September 2024, which is five days before the application was filed, rather than on 2 September 2024.

[95] In the circumstances of each of the applications before me, and consistent with the decision of the Federal Court in Milford, I believe that it is appropriate to determine whether there was a 'dismissal in fact', before considering whether the applications were made in accordance with s.366(1)(a) and if not, whether the Commission should allow further time for the applications to be made under s.366(2).

[96] The determination of the question of whether Uncle Matt and Ms Tyson were employees or independent contractors involves the application of the provisions of s.15AA of the FW Act which requires a detailed consideration of a range of different factors to determine the real substance, practical reality and true nature of the relationship. As the evidence relating to the question of whether there was a dismissal in each case is relatively confined, it is convenient to deal with the issue of whether the circumstances constituted a dismissal in the first instance. For that purpose, I have assumed, without determining the matter, that the relationship between the parties was one of employer and employee and that Uncle Matt and Ms Tyson were therefore capable of being dismissed from their 'employment'.

• [97] The expression 'termination at the initiative of the employer' is well understood to be a reference to a termination that is brought about by an employer, and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[78]

[98] Uncle Matt claimed that Blackfisch dismissed him when Ms Rutter told him to 'F*ck off' on 2 September 2024. Ms Rutter did not dispute saying these words but denies that they resulted in Uncle Matt's dismissal. In order to assess whether Ms Rutter's actions on 2 September 2024 were the principal contributing factor which resulted, directly or consequentially, in the termination of Uncle Matt's employment, it is necessary to make an objective assessment of the facts with regard to all of the surrounding circumstances.

• [99] During the hearing, Mr Heath gave evidence that he and Uncle Matt were completely committed to Blackfisch having the opportunity make the Documentary and that they had the support of the Terry Hie Hie Clan. Mr Heath said that they began to have concerns about Blackfisch making the Documentary because Ms Tyson was being bullied and that those concerns crystallised when Ms Rutter told Ms Tyson and Uncle Matt to f*ck off. Mr Heath said that it was only at that point in time that they become serious about organising another entity to make the Documentary.[79] I find that Mr Heath's evidence in this regard is disingenuous, and I do not accept it.

[100] Ms Rutter's evidence was that she was overseas in July and August 2024, so it appears that Mr Heath was the most senior employee present in the workplace when the alleged bullying of Ms Tyson occurred. To the extent that there may have been a culture of bullying at Blackfisch, the evidence overwhelmingly establishes that this was created by Mr Heath and not Ms Rutter, Ms Rutter Peters, Ms McArthur or Ms Day.

[101] Ms Rutter Peters, Ms McArthur and Ms Day initially filed evidence in the proceedings in November 2024 which included allegations about Mr Heath's poor behaviour. Mr Heath was provided with an opportunity to respond to this evidence but did not do so despite being on notice of the allegations about his behaviour for eight months prior to the commencement of the hearing before me.

[102] Ms Rutter Peters, Ms McArthur or Ms Day all gave evidence at the hearing before me. They were credible witnesses who gave considered and convincing evidence. Mr Heath cross-examined Ms Rutter Peters, Ms McArthur and Ms Day and had the opportunity to challenge their evidence about his behaviour but did not do so. In the circumstances, I accept the evidence from Ms Rutter Peters, Ms McArthur and Ms Day about Mr Heath's behaviour. Further, I believe that it is likely that any concerns or unhappiness that Ms Tyson experienced in the workplace were likely to have arisen because of her inexperience and Mr Heath's conduct and not because of the conduct of Ms Rutter Peters, Ms McArthur or Ms Day.

[103] In relation to Mr Heath's suggestion that his and Uncle Matt's concerns about Blackfisch making the documentary crystallised when Ms Rutter told Ms Tyson and Uncle Matt to f*ck off, this is not supported by Mr Heath's emails of 27 and 30 August 2024. That evidence shows that prior to 2 September 2024, Mr Heath and Uncle Matt were planning to move to a new entity, Gunnibinna Yarns, to begin production on the Documentary and that from the funding of the Documentary, Mr Heath and Uncle Matt were looking to pay their salaries of $140,000, and to cover the wage of Ms Tyson, of approximately $65,000. By planning to use of all the $300,000 for future salaries for Ms Tyson, Mr Heath and Uncle Matt, it is clear that Uncle Matt and Mr Heath had no intention of reimbursing Blackfisch for any of the pre-production costs incurred by Blackfisch prior to September 2024, although Mr Heath acknowledged in his email dated 30 August 2024 that the Documentary had been in pre-production for the last six months.

[104] The Terry Hie Hie Clan may have had good reasons for deciding that they no longer wanted Blackfisch to produce the Documentary and it is not the role of the Commission to question or examine these reasons. However, the actions of Uncle Matt and Mr Heath in working to ensure that Blackfisch was deprived from obtaining any reimbursement for the work it had already undertaken occurred prior to 2 September 2024 while engaged by Blackfisch were clearly inconsistent with their respective obligations towards Blackfisch. The alleged dismissal needs to be considered in this context.

[105] In my view, Ms Rutter's actions in apologising to Uncle Matt by text message on 3 September 2024, stating, 'you don't have to leave at all' in the same text message and continuing to pay Uncle Matt until 19 September 2024 are inconsistent with Uncle Matt being dismissed on 2 September 2024 and indicate that the working relationship between Uncle Matt and Blackfisch continued at least until 19 September 2024. The emails that are in evidence before me establish that arrangements were being made from late August 2024 for Uncle Matt to be engaged by Gunnibinna Yarns after arranging with Mr Heath that the $300,000 funding grant for the Documentary would be paid to the Conscience Organisation. Although it is unclear of the extent to which Uncle Matt was involved in making these arrangements, he was copied into all of the relevant emails and some of these emails were signed 'Simon and Uncle Matt'. Taking all of the evidence before me into account, I find that Uncle Matt was not dismissed but that he initiated the termination of his engagement with Blackfisch when he and Mr Heath began planning to divert the Documentary Funds from Blackfisch on or about 27 August 2024 and that the termination took effect on or around 19 September 2024.

[106] Ms Rutter denied that she told Ms Tyson to 'F*ck off' on 2 September 2024. Ms Rutter's evidence in this regard was supported by Ms McArthur and Ms Day who witnessed the altercation between Ms Rutter and Uncle Matt and gave evidence that Ms Rutter's words were directed to Uncle Matt and not Ms Tyson. I accept Ms Rutter's evidence that she did not tell Ms Tyson to 'F*ck off'. It follows that I do not believe that Ms Rutter was under any obligation to contact Ms Tyson and inquire why she ceased attending the workplace.

[107] Ms Rutter's text message to Uncle Matt on 3 September 2024 indicated that she was concerned about Ms Tyson living at Blackfisch's premises but did not suggest that she wanted Ms Tyson to cease working for Blackfisch. Ms Tyson's evidence was that she was not certain if she was dismissed on 2 September 2024 but she knew that she was dismissed on 5 September 2024 because Mr Heath told her that day that Ms Rutter had said to him that Ms Tyson could 'go back to the mission' in Moree. There is no evidence that Mr Heath had authority to advise Ms Tyson on behalf of Blackfisch that Ms Tyson was dismissed. It is unfortunate that Ms Tyson may have mistakenly believed that she was dismissed as a result of her conversation with Mr Heath on 5 September 2024. However, this mistaken belief does not support a finding that Ms Tyson was dismissed. Based upon the evidence before me, I am not satisfied that the evidence establishes on the balance of probabilities that Ms Rutter's actions on 2 September 2024 or at any other time were the principal contributing factor which resulted, directly or consequentially, in the termination of Ms Tyson's employment. I therefore find that Ms Tyson was not dismissed.

[108] I have found that Uncle Matt and Ms Tyson were not dismissed within the meaning of s.386(1) of the FW Act. Uncle Matt and Ms Tyson are therefore not eligible to make an application under s.365. It is not necessary for me to determine whether Uncle Matt and Ms Tyson were employed by Blackfisch or whether the applications were filed in accordance with the requirements of s.366(1).

Uncle Matt and Mr S. Heath for the first Applicant

[1] PR781527; PR781528

[2] [2025] FWCFB 40

[4] Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 3847, [23]

[5] McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233, [36]

[7] Clermont Coal Pty Ltd v Brown [2015] FWCFB 2460, [19]

[8] McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233, [35]

[9] Kirkman v DP World Melbourne Ltd [2015] FWCFB 3995, [19]

[12] Statement of Matthrew Priestley dated 29 October 2024 (Uncle Matt Statement) [3]

[14] Supplementary Statement of Malinda Rutter dated 7 February 2025 [7]

[19] Statement of Mika Rose Tyson dated 29 October 2024 (Tyson Statement) [5]

[20] Uncle Matt Statement [14]-[15]

[30] Statement of Simon Heath dated 25 October 2024 [8]

[32] Witness Statement of Annabell Rutter Peters dated 6 November 2024 (Rutter Peters Statement) [2], Supplementary Appeal Book 40

[33] Statement of Kathryn McArthur dated 6 November 2024 (McArthur Statement) [4]; [f], Supplementary Appeal Book 46, 48

[34] Ibid [f], Supplementary Appeal Book 48

[35] Ibid [f5], Supplementary Appeal Book 46

[36] Witness Statement of Riona Day (Day Statement), Supplementary Appeal Book 53

[39] Ibid, Supplementary Appeal Book 53

[41] Submissions filed by Simon Heath on behalf of Uncle Matt and Ms Tyson dated 1 June 2025

[44] Uncle Matt Statement [20]; Tyson Statement [26]

[45] Uncle Matt Statement [21]; Tyson Statement [27]

[46] Uncle Matt Statement [22]; Tyson Statement [28]

[50] Day Statement, Supplementary Appeal Book 53

[51] McArthur Statement [6], Supplementary Appeal Book 50

[57] Supplementary Statement of Malinda Rutter dated 7 February 2025 [18], Supplementary Appeal Book 247

[71] Rutter Peters Statement [10], Supplementary Appeal Book 41

[72] McArthur Statement [h]-[q], Supplementary Appeal Book 49

[73] Day Statement, Supplementary Appeal Book 54

[74] [2020] FCAFC 152

[78] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; 62 IR 200

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