Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - specified task - not an employee - contractor versus employee - jurisdictional objection dismissed

• [1] Mr Michael Adams (the Applicant) brought an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from The Trustee for Syndicate Communications Trust (the Respondent). I previously allowed an extension of time for the Applicant to file his unfair dismissal application.[1]

• [2] The Respondent raised two jurisdictional objections, as I understand it. Firstly, the Applicant was employed for a defined task or, alternatively, the Applicant was not an employee of the Respondent and was a contractor.

• [3] The Respondent also argues that, alternatively, if the Applicant was an employee and is entitled to a redundancy payment, his redundancy pay should be reduced under s.120 of the Act as his declined a suitable offer of redeployment. I will not examine the variation to redundancy argument in depth, as the Respondent has not made a s.120 application in the Commission.

• [4] Directions were issued and a hearing was held on 6 May 2025. Both parties were self-represented at the hearing.

• [5] The Applicant has extensive experience in telecommunications. He previously worked for Telstra for twenty-three years, for Ericsson Australia for five years and then for Ericsson in Sweden for nine years.[2]

• [6] The Applicant obtained a role with the Respondent through the Telstra Customer Data Officer (CDO) Manager at the time, Mr Ray Rogers. The Applicant was introduced to Mr Rogers through another contractor working for Telstra. Mr Rogers had contacted the previous state manager of the Respondent, Mr Peter Jorgensen, to advise that Telstra was looking for contractors to perform the CDO role. Mr Rogers advised technicians to apply through the Respondent for the CDO role.

• [7] On 17 March 2015, the Applicant was sent a letter from the Respondent:

Further to our recent discussions it is with pleasure that we confirm your appointment as Technician / CDO at Syndicate Communications Pty Ltd. The proposed commencement date is 23/3/15. You will be working from Telstra Boondall office, reporting to Ray Rogers, Telstra CDO Manager. This offer is subject to a 6 month probationary period and continued employment will be subject to satisfactory performance in that time. In your position, your duties will be commission equipment and CDO duties for, and on behalf of Syndicate Communications Pty Ltd. At this stage this position will be as a casual.

As discussed, you will be paid the following annual remuneration items:-

Your Base Salary will be used for the purpose of calculating company superannuation contributions, pay in lieu of notice or any other entitlement, except as required by legislation. You will be paid on a weekly basis with direct transfer of funds into a bank account of your choosing every Thursday.

Would you please confirm by email your acceptance of this appointment by close of business on Thursday 19th March, 2015.

We take this opportunity to welcome you to Syndicate Communications Pty Ltd and we trust that you will find your employment to be a challenging and rewarding experience. If you have any concerns or queries, please do not hesitate to contact me on the phone numbers below.

• [8] On 9 March 2016, the Applicant was sent another letter from the Respondent:

It is with pleasure that we offer your permanent appointment as a Telstra Customer Data Officer of Syndicate Communications Pty Ltd. The proposed commencement date is Tuesday 29st March 2016. You will be working from Telstra's Boondall office, reporting to the Syndicate Communications Pty Ltd QLD State Manager.

You will be paid the following annual remuneration items in accordance with the nation

Wages $29.00 / Hr Based on a 40 hour work week (days 8 hours per day)

Over time First two hours at time and a half. Subsequent hours at double time

Saturdays First two hours at time and a half. Subsequent hours at double time

Superannuation to be paid of the statutory rote (currently) 9.5% of base wages

Annual Leave of l60 hours per calendar year entitlement accumulates based upon normal

Your Base Salary will be used for the purpose of calculating company superannuation contributions, pay in lieu of notice or any other entitlement, except as required by legislation. You will be paid on a weekly basis with direct transfer of funds into a bank account of your choosing every Thursday. Please note you may be subject to mandatory company shut down during the Christmas period in which time you will be required to toke accrued annual leave. This will be at the discretion of the Telstra business unit thot your position is engaged to undertake

Would you please confirm by email your acceptance of this appointment by close of business on Friday 18th March 2016.

We take this opportunity to welcome you to Syndicate Communications Pty Ltd and we trust that you will find your employment to be a challenging and rewarding experience.

If you have any concerns or queries, please do not hesitate to contact me on the phone numbers below.

• [9] On 17 March 2016, the Applicant signed a statement annexed to the letter of 9 March 2016, stating, "I accept the above mentioned employment conditions".

• [10] The parties agree that the Applicant's role required technical skills. The CDO role which the Applicant performed involves providing technical support for Telstra's telecommunications projects. Mr Rogers gave evidence that the CDOs worked across a broad range of networks providing technical telecommunications support for the mobile broadband network, SMS area and PTSN network.

• [11] At the time the Applicant commenced working with Telstra, the Applicant worked on disconnecting the 2G network and connecting the 3G network. The Applicant worked with field technicians in connecting the mobiles network to the major Telstra network.

• [12] Mr Rogers gave evidence that there were 57 CDOs. There was a base of full-time staff, as well as a number of contractors sourced from the Respondent and other companies. Mr Rogers gave evidence that contractors and full-time CDOs were treated the same. Mr Rogers gave evidence that he had the control over the type of work the CDOs performed, depending on the current workload.

• [13] The Respondent gave evidence that a supply agreement was in place between the Respondent and Telstra for the Respondent to supply services to Telstra. The scope of work which the Respondent agreed to perform was stated to involve: "Wideband Service Activation Wireline Network Integration tasks" including, among other things, CDO mobiles and CDO Legacy.[3]

• [14] Since around March 2020, the Applicant has been working from home. Prior to the COVID-19 pandemic, the Applicant worked from the Telstra offices in Boondall.

• [15] On 9 December 2020, the Applicant was sent a termination letter from the Respondent noting termination by reason of redundancy. That letter was later retracted apparently and the Applicant continued to perform work as a CDO. However, the Applicant relies on the letter, which states:

TERMINATION OF YOUR EMPLOYMENT BY REASON OF REDUNDANCY

The purpose of this letter is to confirm that our client that you were engaged to work specifically for has notified us they will no longer require your services after March 26th 2021.

Regrettably your position with Syndicate Communications will become redundant.

This decision is not a reflection on your performance.

Based on your length of service and your age and in accordance with Fair Work Australia requirements your notice period is 3 weeks. Your employment will end on the 26th March 2021.

Your redundancy entitlements will be 9 weeks pay as per the redundancy requirements stipulated by Fair Work Australia.

You will also be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment. This includes the balance of any annual leave accrued but not yet taken and superannuation.

We thank you for your valuable contribution during your employment with us. Please contact me if you wish to obtain a reference in the future.

• [16] On 15 November 2024, Mr Hall received an email from the Telstra as follows:

We are writing to inform you that due to a reduction in WNI work volumes, the CDO

Due to this change, the requirement for CDO's has decreased, resulting in the termination of the following seven contractors.

This decision has been made after careful consideration of our current business needs and workload.

If you can please inform them today, and we are happy to give them 4 weeks' notice.

Therefore, their final day will be on Friday 13th December 2024.

Please ensure that all Telstra property, including laptops, keys, documents (if any) are returned to their Team Manager/assignee by COB 13th December 2024.

We appreciate the work they have done with us in WNI; their contributions are truly valued. We are grateful for their hard work and wish them the very best

• [17] On the same morning, the Applicant had a telephone call with Mr Jason Bird, State Manager for the Respondent. Mr Bird informed the Applicant that Telstra had given 4 weeks' notice. Mr Bird stated that the conversation was brief, as he had others he needed to speak to. The Applicant also recalls Mr Bird informed him that he would be terminated.[4] The Applicant stated that he was informed that one of the other contractors had been offered a job.[5]

• [18] Mr Bird gave evidence he rang the Applicant again a short while later. Mr Bird said he discussed a field technician role which was available. Mr Bird states that the Applicant declined that role because it would involve too much travel. In the hearing, Mr Bird confirmed that the role would require "significant" travel, with days spent away from home. The Applicant does not recall being offered a field position and does not recall declining such a position.

• [19] On the same day, the Applicant was sent a termination letter from Mr Hall, stating:

We refer to the contract between Syndicate Communications Pty Ltd (us, our or we)

and for provision of Telstra CDO/SMNG services dated 9

In accordance with letter of engagement, we are exercising our right to terminate the Contract due to Telstra (the customer) no longer requiring your services as per your letter of offer dated 9th March 2022.

We are providing you with 4 weeks notice of termination, meaning that the Contract will be terminated effective on 13th December 2024.

We ask that you return all equipment and destroy all confidential information by this date

• [20] The reference to a letter of offer dated 9 March 2022 appears to be an error. The two offer letters provided in evidence are dated 17 March 2015 and 9 March 2016, respectively.

• [21] On 15 November 2024 the Applicant replied to Mr Hall's email asking, "Do I get anything paid to me other than my R/L balance?"

• [22] On 18 November 2024, Mr Hall responded by email as follows:

Whilst I'm pretty annoyed at how they have gone about this, they did provide us with 4

As these are contract roles , on top of this notice period you will only receive any

Whilst I don't want to give you any false hope, we are desperately trying to work on some other options in the background .

Although realistically even if we can pull something off, its unlikely to be this side of

• [23] The Applicant states that on 19 November 2024, Mr Bird had a conversation with the Applicant regarding a possible redeployment role with Optus. The role would involve travelling to Sydney for training. Once the training was completed, the role would involve working from home. The Applicant argues that the Respondent misconstrued his response as a refusal, where in fact, the Applicant had said he would think about it.[6] Apparently, the role never "came to fruition" though.

• [24] On 16 December 2024, the Applicant emailed the Respondent requesting that his redundancy entitlements be paid. The Applicant said that he is entitled to 16 weeks' redundancy pay, plus an additional week as he is over 45.[7]

• [25] On 17 December 2024, Mr Bird replied:

As per the fair work guidelines your role falls under an identified task or project .

Who doesn't get redundancy pay - Fair Work Ombudsman

• [26] The email includes a link to a webpage on the Fair Work Ombudsman website. The relevant section of the webpage states:

The following employees don't get redundancy pay under the NES:

• employees whose period of continuous service with the employer is less than 12 months
• employees employed for:
  • a stated period of time
  • an identified task or project
  • a particular season
• employees terminated because of serious misconduct
• casual employees
• trainees engaged only for the length of the training agreement

• [27] The Applicant states that he called Mr Bird after receiving his email. The Applicant states that Mr Bird said that Mr Hall may be mistaken and that the Applicant should be paid a redundancy payment.

• [28] The Applicant states that Mr Bird told him over the phone on or around 23 December 2024: "I am under the impression or led to believe that your redundancy will be paid to you on 30/12/2024."[9]

• [29] The Applicant made lodged his unfair dismissal application with the Commission on 21 January 2025. For reasons stated in my decision of 24 March 2025,[10] I granted the Applicant an extension of time to lodge his application.

• [30] The "specified task" argument provides a very narrow exception for dismissal-related claims.

• [31] Section 386(2) of the Act states:

(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

• [32] The Respondent argues that the CDO role is a "specified task" within the meaning of s.386(2)(a) of the Act:

The executed Statement of Work dated 1 December 2021 between Telstra and

• Mr. Adams' role as a "CDO Mobiles" resource under Wideband Service Activation

• Telstra-managed hours, training, deliverables, and approvals;

• Project milestones and Purchase Orders as the basis of engagement.

The SOW evidences that Mr. Adams was employed to deliver defined, finite services

governed by external contract terms.[11]

• [33] In Dale v Hatch Pty Ltd [2016] FWCFB 922, the Full Bench found:

[8] The consideration of Ms Dale's appeal must start with determining the meaning of the expression "contract of employment ... for a specified task" in s.386(2)(a). The ordinary meaning of the word "task" is, as stated in the Decision, a piece of work to be performed or undertaken. That was the meaning assigned to the term in the decision of a Full Bench of the Australian Industrial Relations Commission (AIRC) in Qantas Airways Limited v Fetz. It must be the task of the employee, not the employer, as was pointed out by Wilcox CJ in Drury v BHP Refractories Pty Ltd in relation to the same expression then appearing in reg.30B(1)(b) of the Industrial Relations Regulations:

"The words "for a specified task" qualify the words "contract of employment". Thecontract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words "for a specified task" have nothing to do with the employer's task, or project. This seems clear as a matter of grammar and it makes sense in policy terms. One can understand a view that the protections provided by Division 3 of Part V1A should not be available to people who undertake only a specified task. Especially after the task is completed, it would be anomalous to restrict the employer's right to terminate the contract of employment. Bearing in mind that many projects undertaken by employers continue for many years, while employees come and go, it would be equally anomalous to exclude relief under Part V1A simply because the employee was engaged in connection with a particular project."

[9] The task must be "specified" - that is, identified in definite terms. In a written contract of employment, it could usually be expected that the task would be identified in express words, although it is not impossible to conceive of a case whereby the task might be specified as a matter of necessary implication. Further, the relevant contract of employment must be "for" the specified task, meaning that it has been entered into for the purpose of the performance and completion of that task.

[10] A critical element in this part of the exception in s.386(2)(a) is, we consider, that the task be sufficiently definite in its nature and delineation such that identification of when the task is completed is not a matter of doubt or speculation or contingency but is clear and predictable. We draw that inference from the fact that s.386(2)(a) requires the termination of employment to occur at the end of the completion of the task, thus requiring it to be identifiable with certainty. The context supports that inference in that the other exceptions contained in s.386(2)(a) - a contract for a specified period terminating at the end of that period, or for the duration of a specified season terminating at the end of the season - likewise involve the termination of employment occurring at an identifiable time or upon an identifiable event.

• [34] The Applicant worked as a CDO for almost nine years, during which time he worked on several projects for Telstra. This would tend to suggest against the Applicant's employment being linked to a specified task.

• [35] The Respondent was unable to clearly delineate what the defined task of the Applicant was. The Respondent suggests that the CDO role is a "specified task". However, as was made clear by Mr Rogers' evidence during the hearing, the CDO role had wide ranging duties depending on what Telstra's current business needs were. It is not a task for which there is a clear date for completion. The Respondent appears to conflate the underlying supply contract between the Respondent and Telstra with the Applicant's "specified task". However, that supply contract defines what the Respondent's obligations are; it does not define a specified task which the Applicant must complete. It is not the case that merely having an underlying agreement for the supply of services by an employer to a client means that the employees are working in a "specified task". If that were the case, it may be concluded that no labour hire company can ever be found to have "dismissed" anyone.

• [36] In both offer letters I have been provided I can see no evidence of a clearly defined task upon which the Applicant's employment is contingent. The offer letters only go so far as to state that the Applicant's role is as a Telstra CDO. That is defining the Applicant's role, not defining a specified task, which, when completed, brings the contract to an end.

• [37] It follows that the jurisdictional objection that the Applicant was not dismissed because he was employed for a "specified task" under s.386(2)(a) must fail.

• [38] Alternatively, the Respondent appeared to argue that the Applicant was a contractor and not an employee due to the limited practical control the Respondent had over the Applicant. The Respondent's written arguments were not well articulated, but the Respondent confirmed during the hearing that this was an argument the Respondent was attempting to make.

• [39] If the Respondent's argument is accepted, then the Applicant is not an employee of the Respondent. However, it is not suggested that the Applicant is an employee of Telstra either. It is essentially argued that an Odco arrangement applies, where the Applicant is not an employee of either the Respondent or the client and is an independent contractor.

• [40] The Applicant was dismissed effective from 13 December 2024. This date is after the commencement of s.15AA of the Act. It follows that I must apply s.15AA in considering whether the Applicant was an employee at the time of his dismissal.

Determining the ordinary meanings of employee and employer

(1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.

(2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:

(a) the totality of the relationship between the individual and the person must be considered; and

(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.

Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

• [42] In considering the substance and practical reality of the relationship between the parties, I have followed the approach of Deputy President Roberts in Murray v 239 Brunswick Pty Ltd & Mousa Raffoul [2025] FWC 978 and have considered the indicia set out by the Full Bench in French Accent v. Do Rozario [2011] FWAFB 8307.

Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like.

• [43] In relation to the element of control, Mr Bird gave evidence that he had no control over the day-to-day tasks the Applicant performed. This is, however, not surprising given the triangular relationship between the Respondent, Telstra and the Applicant. I do not consider the Respondent's absence of control over the Applicant's day-to-day tasks to be determinative.

• [44] The Applicant was required to submit timesheets to the Respondent for his hours worked. When requesting leave, he informed the Respondent in advance.

• [45] The Respondent's practical control over the Applicant's hours of work suggests an employment relationship.

Whether the worker performs work for others (or has a genuine and practical entitlement to do so)

• [46] The Applicant did not perform work for others while engaged as a CDO. He stated during the hearing that he would not have done so without informing the Respondent first, as he understood the Respondent to be his employer. This is consistent with an employment relationship.

Whether the worker has a separate place of work and or advertises his or her services to the world at large.

• [47] Initially, the Applicant was required to attend the Telstra office in Boondall. I note the Applicant has been working from home since 2020. I consider this to be a neutral consideration.

Whether the worker provides and maintains significant tools or equipment.

• [48] The Applicant worked on a laptop which was provided by Telstra. He was required to return the laptop once the contract with Telstra ended. I consider this to be a neutral consideration.

Whether the work can be delegated or subcontracted.

• [49] The Applicant's evidence is that could not delegate his work. Once he accepted a job, he was required to complete it. This is consistent with an employment relationship.

Whether the putative employer has the right to suspend or dismiss the person engaged

• [50] It is relevant that the Respondent referred to the Applicant's "employment" during the offer letter of 9 March 2016. The Respondent purported to dismiss the Applicant twice.

• [51] First, the termination letter of 9 December 2020 notes that the Applicant will be paid 9 weeks of redundancy pay and states: "We thank you for your valuable contribution during your employment with us. Please contact me if you wish to obtain a reference in the future."

• [52] Secondly, on 15 November 2024, the Applicant was provided with a termination letter but there was no reference to redundancy pay.

• [53] This is consistent with an employment relationship.

Whether the putative employer presents the worker to the world at large as an emanation of the business

• [54] The Applicant was not required for wear a uniform when working. I do note, however, that since 2020 the Applicant has been working from home. I consider this to be a neutral consideration.

Whether income tax is deducted from remuneration paid to the worker; Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks

• [55] The Respondent notes that the Applicant was required to submit timesheets to the Respondent. The Respondent would then pay the Applicant for hours worked. Income tax was taken out of the Applicant's pay each week. The Applicant was paid on a weekly basis and received payslips from the Respondent.

• [56] The Applicant's pay arrangements are consistent with an employment relationship.

Whether the worker is provided with paid holidays or sick leave

• [57] The Applicant was provided with holiday leave and personal leave under the letter of offer dated 9 March 2016. Overtime and public holidays were paid by the Respondent.

• [58] The Respondent noted that if the Applicant wanted to take holiday leave, he would have to initially inform Telstra and also notify the Respondent. This is consistent with an employment relationship.

Whether the work involves a profession, trade or distinct calling on the part of the person engaged.

• [59] I note that the Applicant's work involves technical skill and experience. The Respondent gave evidence that the CDOs perform work which is distinct from the Respondent's other workers, who are primarily electricians. This factor is consistent with an independent contractor relationship.

Whether the worker creates goodwill or saleable assets in the course of his or her work; Whether the worker spends a significant portion of his remuneration on business expenses.

• [60] I did not receive evidence regarding these indicia, and do not consider them to be of significance in this matter.

• [61] The relationship between the Applicant and Respondent was an employment relationship. The factors which are particularly relevant to that assessment are the Respondent's putative control over the hours worked by the Applicant through requiring the Applicant to submit timesheets and through the practice of the Applicant requesting approval for leave. Further, the pay arrangements and entitlements provided by the Respondent are consistent with an employment relationship. The Applicant is therefore eligible to make an unfair dismissal claim.

• [62] I note the Respondent has argued that the redundancy pay owed to the Applicant should be reduced by virtue of s.120 of the Act.

• [63] I cannot consider a s.120 application unless one is made and it has not been made. Therefore, I do not propose to deal with those arguments. However, I observe that the Respondent may have difficulty establishing that the Applicant's redundancy pay should be reduced to zero. There is doubt about whether the Applicant refused an offer of redeployment and, on the Respondent's own admission, that redeployment offer involved "significant" travel.

• [64] In relation to the further programming of the matter, I have not received submissions which address the merits of the matter under s.387 of the Act. The Applicant is primarily agitating for his redundancy entitlements to be paid.

• [65] Redundancy pay is a statutory entitlement which is distinct from the Commission's power to award compensation for unfair dismissal in accordance with statutory criteria. It is not appropriate for the Commission to order that redundancy entitlement be paid as compensation for unfair dismissal. The Respondent has a lawful obligation to pay a redundancy entitlement under s.119 of the Act, which is a National Employment Standard (NES) entitlement. That obligation is only discharged where the amount is paid or where the redundancy amount is varied after applying to the Commission under s.120 of the Act. A breach of an NES entitlement may result in pecuniary penalties against the Respondent under s.44 of the Act.

• [66] I recommend that the Respondent either pay the Applicant's redundancy entitlement in full, or lodge a s.120 application within 7 days of this Decision. I will then hear from the parties as to the further programming of the matter.

• [67] The jurisdictional objection is dismissed. I Order Accordingly.

[1] [2025] FWC 743

[2] Applicant Resume, page 111 Digital Hearing Book.

[4] Applicant Timeline of Events 15 November 2024

[6] Applicant Submissions for hearing on 6 May 2025.

[7] Applicant email to Sabrina Van Ristell dated 16 December 2024.

[8] https://www.fairwork.gov.au/ending-employment/redundancy/who-doesnt-get-redundancy-pay

[10] [2025] FWC 743

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