Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - objection that applicant an independent contractor - whether applicant dismissed - meaning of employee for purposes of Fair Work Act 2009 - section 15AA

• [1] In these proceedings Mr. Leonard Dawe has applied for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act). The respondent to the application is Psychic TV Pty Ltd. Mr. Dawe worked for the respondent as what was described as a 'psychic reader' in the period from approximately November 2021 until April 2025, when he was initially advised by the respondent that his access to the respondent's platform was withdrawn and subsequently, that his services were no longer required.

• [2] The respondent has objected to the application on the basis that the applicant was not an employee of the respondent but worked as an independent contractor by using the respondent's platform to provide psychic reading services to customers engaging with the applicant through that platform. An application for an unfair dismissal remedy can only be made by a person who has been dismissed from employment. Subsection 386(1) of the Act sets out the circumstances in which a person is taken to have been 'dismissed' for the purposes of s.394. A person can only be dismissed when their employment comes to an end in one of the circumstances described in s.386(1). The respondent submitted that the applicant was not dismissed from employment and that the application should proceed no further.

• [3] For the reasons that follow, I have concluded that the applicant was not an employee of the respondent and was not 'dismissed' by them, and that the unfair dismissal application itself should be dismissed.

• [4] Although directions were made for the filing of evidence including witness statements, neither party provided statements. The evidence was taken from the applicant and the respondent's representative, Ms. McDonnell, at a conference held on 4 August 2025. As it transpired, much of the factual background to these proceedings was not in dispute and can be briefly summarised.

• [5] The respondent owns and administers an on-line platform through which members of the public make and pay for telephone contact with various psychic readers advertised on the respondent's website. The applicant was one such reader. The customers would choose which of the readers they wished to contact and would be charged for the call by the respondent on a timed basis. The customers would be transferred to the reader of their choice to receive their psychic reading. The reading would last for a maximum of 30 minutes. If callers wished to continue the conversation, they would have to call the reader again using the same process.

• [6] The applicant was originally introduced to the respondent in 2021 through a third person who was at the time, also working as a psychic reader through the respondent's platform. The applicant was familiar with the site as a viewer prior to his engagement by the respondent.

• [7] There was no written contract between the applicant and the respondent and the evidence about the terms on which the applicant was engaged was, to say the least, scant.

• [8] The applicant said he spoke with a representative of the respondent in late 2021 and was shortly thereafter provided with a website access code that allowed him to log in to the respondent's website and make himself available to customers as a reader through that website. The applicant said that he was issued with a silent telephone number by the respondent and once he was logged into the system he could identify from that number that he was receiving a call from a client calling through the respondent's platform.

• [9] The applicant also gave undisputed evidence that the only requirement of the respondent was that he was to be logged into the system for a minimum of 3 hours per week but that the log in time could occur at any time or times of the applicant's choosing. The log in time of the applicant would vary considerably. There were extended periods where he would not be logged in at all. There were extended periods where the applicant was logged in and available to take calls but did not receive any calls. The applicant worked from home or wherever else he was at the time he took calls.

• [10] The applicant would receive a proportion of the amount that the client would pay to the respondent. That amount would be paid by the respondent to the applicant. The applicant would be paid only for the time taken for the telephone call, not for the time during which he was logged in to receive calls. The platform monitored the duration of the call. The rate that the applicant was paid for taking calls would increase slightly if the applicant had been logged on for more than 8 consecutive hours.

• [11] The applicant was not paid for annual leave or public holidays and did not receive superannuation contributions. The payments made by the respondent to the applicant were not subject to any withholding for taxation purposes. The total amount of the payments received by the applicant from the respondent fluctuated from year to year. In the 12 months preceding April 2025, the applicant earned a total of $25 from his work with the respondent. Over the total period of the applicant's relationship with the respondent, the applicant earned approximately $1,000. Where payments were due at all, they were paid by the respondent to the applicant on a fortnightly basis.

• [12] The applicant would generally say to the clients he spoke with that he was not giving advice as a qualified expert. He said initially that this was not an instruction that he was given by the respondent but an approach he adopted himself. He also later suggested that he may have been given that instruction by someone from the respondent, although he could not identify who that was. I am unable to conclude on the evidence that any such instruction was given. Other than this, the applicant accepted that he was able to provide whatever advice he wanted to those he spoke with. No other personal instructions were given by the respondent to the applicant and the applicant rarely had contact with the respondent's manager. Occasional group emails were sent by the respondent to readers, including the applicant which contained information about what the respondent was doing.

• [13] During the period of his engagement by the respondent, the applicant also performed other work on-line through sites like Facebook and Tik Tok of a similar kind to the work he performed through the respondent's platform. Some of the work was paid work.

• [14] Section 15 of the Act provides:

15 Ordinary meanings of employee and employer

(1) A reference in this Act to an employee with its ordinary meaning:

(a) includes a reference to a person who is usually such an employee; and

(b) does not include a person on a vocational placement.

Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State.

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

Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State.

• [15] The method by which the ordinary meaning of the terms 'employer' and 'employee' is to be ascertained for the purposes of the Act is now set out in s.15AA. Section 15AA of the Act was inserted by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) and commenced on 26 August 2024. It applies to a relationship entered into before that commencement date that is in existence as at that date[1] which is the case here. Section 15AA provides as follows:

15AA 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.

(3) Subsections (1) and (2) do not apply to the following provisions of this Act:

(a) Divisions 2A and 2B of Part 1‑3;

(b) Part 3‑1, to the extent that Part 3‑1 applies only because of the operation of section 30G or 30R.

• [16] Section 15AA(2) requires a consideration of the totality of the relationship which involves a consideration of, amongst other things, the terms of the contract between the parties and an assessment as to how the contract is performed in practice. The approach to a consideration of the totality of the relationship under s.15AA is guided by the common law principles established by cases such as Stevens v. Brodribb Sawmilling Co. Pty Ltd[2] and Hollis v Vabu Pty Ltd[3] and involves a reversion to the multifactorial test that was well known and widely applied prior to the High Court decisions in CFMMEU v. Personnel Contracting[4] and ZG Operations v. Jamsek.[5]

• [17] The common law approach has been set out in numerous decisions of the courts and in decisions of this Commission. In Jiang Shen Cai trading as French Accent v. Do Rozario[6] the Full Bench summarised the approach to the determination of the employee/contractor issue including whether the worker is the servant of another in that other's business or whether the worker carries on a trade or business on his or her own behalf, the nature of the work performed and the manner of its performance, the identification and application of the relevant indicia to the circumstances, and the terms of the contract between the parties.[7]

• [18] In the same decision, the Full Bench identified the various indicia that are ordinarily considered in an assessment as to the nature of the relationship. They include the actual exercise, or the right to exercise, control over the putative employee, whether the worker performs work for others, or provides tools and equipment, whether the work can be delegated, whether the worker is remunerated by periodic wages or salary or by reference to completion of tasks and whether the worker is presented to the world at large as an emanation of the putative employer's business.[8] The Bench also cautioned that "no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances."

• [19] Having considered the totality of the relationship, including how the contract was performed in practice, I am of the view that the real substance, practical reality and true nature of the relationship was one of principal and independent contractor. In undertaking this assessment, I consider that there is only very limited assistance that can be drawn from the terms of the contract itself and the legal rights and obligations created by it, given the state of the evidence about the terms of the contract in this case.

• [20] It is significant however, and beyond dispute, that the applicant exercised considerable independence as to both when the work was performed and how it was performed. The respondent exercised little if any control over the way the applicant conducted himself in his discussions with clients and aside from a general requirement to be logged on for a minimum period, did not issue directions to the applicant about his work. In fact, there was very little evidence of any contact at all between the applicant and the respondent over the entire course of his engagement. As Ms. McDonnell described it, when the applicant was given access to the platform he received a test call from the respondent and then he was 'on his own'. In other words, there was little control by the respondent as to what the applicant was to do or how he was to do it.[9] The respondent also had no substantive control or right of control over where the applicant was when he performed the work.

• [21] There was also no dispute that the applicant generally determined when he was to work and when he did not. This obviously had some bearing on the applicant's earning capacity and earnings. The applicant's own performance as a reader would also have had an impact on his earnings. If he were successful with clients, he would presumably have received repeat calls, referrals or recommendations from clients. It was accepted that the applicant was paid for the time spent on calls rather than a periodic wage referrable to a particular period of time. These are factors which weigh in favour of a conclusion that the applicant was conducting his own undertaking as an independent contractor.

• [22] I also note that the applicant was provided with only login details and the details of a particular number which he would enter into his own phone so that he would know that the call was coming from a client. The applicant was not provided with a mobile phone from the respondent to conduct the calls. The main item of equipment used to conduct the work was supplied by the applicant himself.

• [23] I have taken into account the fact that the applicant may have appeared to third parties to be an emanation of the respondent's business, since they were sourcing the applicant's services through the respondent's website, but I do not think that this outweighs the other factors pointing to a conclusion that the applicant was an independent contractor.

I have weighed the totality of the evidence described above and conclude that the applicant was an independent contractor and not an employee of the respondent. The applicant was not dismissed by the respondent. It follows that the respondent's objection to the application is upheld and the application must be dismissed.

By video using Microsoft Teams at 10am AEST on Monday, 4 August 2025.

[1] Fair Work Act 2009 (Cth), Schedule 1 clause 116(1)(a).

[2] (1986) 160 CLR 16.

[3] [2001] HCA 44; (2001) 207 CLR 21.

[4] [2022] HCA 1.

[5] [2022] HCA 2.

[6] [2011] FWAFB 8307.

[9] Stevens v. Brodribb [1986] 160 CLR 16 at [35].

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