s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - Not an employee - No contractual relationship between applicant and respondents - Application dismissed

• [1] Section 365 of the Fair Work Act 2009 (Cth) provides that a person who has been dismissed may apply to the Fair Work Commission to deal with the dispute. When a person (an applicant) applies to the Commission under s 365, the Commission's role is to try to resolve the matter, and it usually does so by holding a conference. However, if a respondent denies that they dismissed the applicant, then the Commission must first determine whether the applicant has been dismissed, before we may exercise our jurisdiction to deal with the dispute.[1]

• [2] On 25 November 2025, Mr Wenpei (Steven) Hu (the applicant) applied for the Commission to deal with a general protections dispute under s 365 of the Act in which he says that he was dismissed by Optima REA Pty Ltd (ABN: 79 676 140 784). He also named Mrs Jia (Abbey) Jia as a respondent.

• [3] Optima REA and Mrs Jia objected to the application on the grounds that they had not employed Mr Hu, and so they could not have dismissed him.

• [4] This decision is about whether Mr Hu was an employee of Optima REA. I conclude that he was not, and so he is a not a person who has been dismissed. My reasons follow.

• [5] Section 365 of the Act sets out when the Commission can deal with a general protections application involving dismissal as follows:

"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."

• [6] Dismissed is defined in s 12 of the Act, which refers to s 386:

(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.

• [7] Section 386 is clear - for a person to be dismissed, they must be employed.

• [8] Section 335 of the Act provides that employee and employer have their ordinary meanings for the purposes of Part 3-1 of the Act. Section 15AA sets out how the Commission is to determine the ordinary meanings of employee and employer:

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.

• [9] Section 15AA began operation on 26 August 2024 and applies to relationships entered into on or after commencement.[2] Section 15AA applies to this matter.

• [10] A legislative note to s 15AA makes clear that it was enacted as a response to the decisions in of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd[3] and ZG Operations Australia Pty Ltd v Jamsek.[4] I do not entirely agree that as a result, 15AA requires a reversion to the multi-factorial test and common law principles established in Stevens v. Brodribb Sawmilling Co. Pty Ltd[5] and Hollis v Vabu Pty Ltd,[6] and summarised by a Full Bench of the Commission in Jiang Shen Cai trading as French Accent v. Do Rozario.[7] Rather, in ascertaining the ordinary meaning of employee and employer, I must consider the parties' legal rights and obligations, consistent with Personnel Contracting and Jamsek, and can have regard to the totality of that relationship (including the multi-factorial test as set out in the cases that predated Personnel Contracting and Jamsek) and how the contract was performed in practise, as required by s 15AA.

• [11] I held a hearing on 27 February 2025 and 21 March 2025.

• [12] I received a significant amount of material from both parties prior to, during and after the hearing. However, very little of the material was relevant or in the form of detailed written witness statements that could be relied upon. I necessarily had to accept oral evidence during the hearing. Mr Hu was distressed by the proceedings, and so I allowed the parties to provide final written submissions.

• [13] Mr Hu gave evidence on his own behalf.

• [14] Optima REA and Mrs Jia relied on the evidence of the following witnesses:

• Mrs Jia Jia, Director and Head of Rental Team for Optima REA;
• Mr Xiaowei (Steven) Jin, Head of Buyer's Agents;
• Mr Zhiyi (Joey) Dong, General Manager, IT Admin and Sales, and husband of Mrs Jia; and
• Ms Lexi Yang, Buyer's Agent

• [15] All witnesses, including the applicant, gave evidence with the assistance of an interpreter, although not all witnesses needed the interpreter's assistance for the entirety of their evidence.

• [16] Optima REA also filed witness statements from 4 other people who did not attend the hearing to affirm their statements. I do not take into account the information provided in those statements. One of the statements was from Mr Junyan Zhu, who attended the hearing to represent Optima REA and Mrs Jia. He also did not affirm his statement, and so I do not take it into consideration.

• [17] Mr Hu submitted that the witnesses had discussed their evidence during the hearing, and between the hearing dates, and colluded about the answers given. There were instances during the hearing where answers given by one witness was repeated, almost verbatim, by another, despite a different question being asked. I take into consideration that the verbatim answer may have been a result of use of an interpreter, but I do view the evidence of the respondent's witnesses with caution. The respondent's witnesses gave evidence directed to the conclusion that Mr Hu was an independent contractor. In making findings of fact, I place greater weight on evidence where the respondent's witnesses agree with the applicant's evidence, and also place greater weight on where there is corroborating documentary evidence.

• [18] The parties supplied me with voluminous materials and made detailed submissions, much of which was not relevant. Both parties accused each other of threatening and intimidating the other. While I have not referred to all the materials and submissions, I have considered them in reaching my conclusion.

• [19] Optima REA operates in the real estate industry. It is a buyer's agent, assisting buyers to purchase investment properties. It is also a property manager. Mrs Jia is the owner and director of Optima REA.

• [20] In around June 2024, Mr Hu had conversations with Mr Steven Jin about working with Optima REA, which was just starting its business. Mr Hu expressed interest in working with Mr Jin.

• [21] It is not entirely clear when but Mr Hu and Mr Jin discussed payments. Mr Hu recalled that $4,000 per client was promised. Mr Jin agrees with this figure and says that it was on the basis of concluded deals.

• [22] On 8 October 2024, Mr Hu met with Mr Jin and Mr Dong at a cafe. Mr Hu described this meeting as an interview and says that it was to include Mrs Jia, but she could not make it. Mr Hu. Mr Dong described the meeting as a coffee chat, and that Mrs Jia had not felt it necessary to meet Mr Hu.

• [23] On 9 October 2024, Mr Hu says that he began working for Optima REA. He was provided with access to various platforms and software, including:
  • A WeChat group;
  • Lark, an online platform for communication including arranging meetings and managing documents;
  • Online market research tools; and
  • Google Drive.

• [24] On the evening of 9 October 2024, Mr Hu received a 'confidentiality agreement' from Optima REA. This was sent to him by email from an 'admin' email address. Mrs Jia signed the agreement on behalf of Optima REA on 9 October 2024. Mr Hu also signed the agreement on the same date. The signatures appear to be electronic.

• [25] Mr Hu says that between 9 and 31 October, he repeatedly asked for an employment contract. He never received one.

• [26] Mr Hu also applied for police checks, which was required in order to be registered with Consumer Affairs Victoria as an agent's representative.

• [27] On 31 October 2024, Mr Hu obtained his Certificate IV in Real Estate Practice and was entered into Consumer Affairs Victoria's Estate Agents Public Register. The Licence holder was named as Optima REA Pty Ltd. Mrs Jia was named as the officer in effective control and an estate agent employed by the licensee (being Optima REA). Mr Hu, along with 4 other names were listed as "Employees - Agents representatives employed by licensee." Those other names included Mr Jin.

• [28] On 8 November 2024, Mr Hu attended an online meeting with Mr Jin and Ms Yang, and expressed that he wished to take a break due to health concerns and excessive workload. Shortly afterwards, Mr Hu found that he could no longer access Optima REA's systems.

• [29] It is uncontroversial that around this time, Mr Hu's relationship with Optima REA ended.

• [30] On 10 November 2024, Mr Jin and Ms Yang visited Mr Hu at his home. Mr Hu says that he and his family were threatened and intimidated by Mr Jin and Ms Yang. Mr Jin and Ms Yang say that Mr Hu threatened them during this interaction.

• [31] On 14 November 2024, Fumens Lawyers on behalf of Optima REA wrote to Mr Hu, alleging that he had breached the confidentiality agreement and defamed the company.

• [32] Mr Hu visited the police and made reports about the threats, including the visit of 10 November 2024 and letter of 14 November 2024.

• [33] Mr Hu never received any payments from Optima REA nor Mrs Jia, nor anyone else associated with Optima REA, in relation to the work that he performed from 9 October 2024 until around 8 November 2024. Mr Hu did receive a payment of $395 from Mr Jin on 8 October 2024, which was a reimbursement of his application fee for the Certificate IV in Real Estate Practice.

• [34] I am of the view that Mr Hu was not an employee of Optima REA.

• [35] The primary basis of my conclusion is that there is insufficient evidence of a legal relationship between Mr Hu and Optima REA. No written agreement sets out the relationship between Mr Hu and Optima REA. The only relevant written agreement is the confidentiality agreement that was signed by Mrs Jia and Mr Hu on 9 October 2024. There is very little evidence of the conversation during which a contract may have been made. The best evidence I have is of conversations between Mr Hu and Mr Jin, and the meeting on 8 October 2024, which included Mr Dong. Mr Hu never met (in-person or electronically) nor otherwise communicated directly with Mrs Jia during his relationship with Optima REA. At its highest, Mr Hu may have had a legal relationship with Mr Jin to perform work for Optima REA.

• [36] No payments were made by Optima REA to Mr Hu during the short period of the relationship. Three witnesses (Mr Jin, Mr Dong and Ms Yang) on behalf of Optima REA repeated, near verbatim, that "Mr Hu was fully aware that payment would be by ABN" and that the payer would be Mr Jin. Only 2 of those witnesses (Mr Jin and Mr Dong) were present during the meeting on 8 October 2024. I do not give any weight to those statements. The witnesses cannot give evidence about what Mr Hu believed. Both Mr Hu and Mr Jin referred to payment of $4,000 on a 'per client basis.' This tends more towards a contractor relationship than employment but not necessarily one between Mr Hu and Optima REA. There is also no evidence of Mr Hu completing any relevant forms for payment nor providing any information to Optima REA for payment. There is evidence that Mr Jin reimbursed Mr Hu $395.00 for his Certificate IV in Real Estate Practice. This is not evidence that Optima REA reimbursed Mr Hu.

• [37] Evidence about the performance of the contract was sparse. The period of the relationship was only one month.

• [38] There is limited evidence of whether Optima REA exercised any control over Mr Hu in the performance of his work. Mr Hu gave evidence that he attended daily meetings via video. Those meetings were with Mr Jin and Ms Yang. Mr Jin's and Ms Yang's evidence confirms that there were daily meetings that Mr Hu attended. Mrs Jia did not attend those meetings. Mr Hu also gave evidence that he was required to occasionally attend meetings in a shared office space that Optima REA used. He did not meet with Mrs Jia. Mr Hu also gave evidence of his web browsing history for 3 days on 6, 7 and 8 November. The browsing history shows he visited a number of addresses on Realestate.com.au and on Google Maps. It does not demonstrate Optima REA or Mrs Jia instructing Mr Hu to perform any tasks or how those tasks should be performed. Mr Hu says that he was provided with leads to follow up. It was Mr Jin who provided him with those leads, being clients to contact and houses to visit. This evidence goes no further than that work was being performed, and the work was facilitated by Mr Jin. There is no evidence that Mr Hu was instructed about when and how to perform that work.

• [39] Information about the tools used to perform his work is inconclusive about whether Mr Hu was an employee of Optima REA. Mr Hu says that Optima REA provided him with the tools that he needed to perform his work by giving him access to its work platforms (Lark and Google Drive), inviting him to a communication group (WeChat) and access to research tools. However, Mr Hu also used his own phone, computer and vehicle to perform his work. On balance, this tends more towards a contractor relationship.

• [40] Mr Hu argued that Mr Jin and Mr Dong exercised ostensible authority on behalf of Optima REA. This argument was not well-developed and there was insufficient evidence from which to infer that Mr Jin or Mr Dong had authority to contract with Mr Hu on behalf of Optima REA. Neither Mr Jin nor Mr Dong are directors or company secretaries of Optima REA. Only Mrs Jia is a director and company secretary of Optima REA.

• [41] In his initial submissions and evidence, Mr Hu argued that Mr Jin had said he was a co-founder of Optima REA. Mr Hu provided a screenshot from Optima REA's website that says it had an 'Elite Team' with 'Co-founders with expertise in data science, top MBAs, and managing $300M in assets.' The website does not name who any of the co-founders are. Mr Hu also supplied a WeChat message in which he says Mr Jin introduced him to Mr Dong with the words, "we are starting a business together." The WeChat message is in Chinese, and only 2 short messages are translated. There is no context to the message, but it appears to be dated 25 June 2024. In his final submissions, Mr Hu argued that Mr Jin and Mr Dong behaved in a way that led him to reasonably believe that they were directly employed with Optima REA and could contract with him on behalf of Optima REA. Mr Jin says that he was a contractor of Optima REA. Mr Dong is Mrs Jia's husband, and says that he was responsible for administration and IT for Optima REA. It may well be the case that Mr Jin and Mr Dong misled Mr Hu, but my assessment of the evidence is that the individuals were in negotiations about work and how to obtain purchasers from mainland China of investment properties in Australia. There is no clear evidence that someone, on behalf of Optima REA, discussed with Mr Hu how he would be engaged in that work. This ambiguity may have been intentional - so as to avoid obligations - but the desire to avoid a finding of employment is not, of itself, evidence of an employment relationship.

• [42] I have not had regard to the following matters in deciding whether Mr Hu was an employee of Optima REA:

• That Mr Hu repeatedly asked for an employment contract. It is not clear that Mr Hu did repeatedly ask for an employment contract. Even if he had, this is only evidence that he believed the relationship was one of employment; it is not evidence that this was the true character of the relationship.

• That Mr Hu was listed as an employee of Optima REA on Consumer Affairs Victoria's website. Mrs Jia gave evidence that there was only one option for listing buyers agents connected to Optima REA, and that was as employees. I believe her. While there may be implications for Mrs Jia or Optima REA in relation to how they are required to engage individuals under regulations affecting real estate agents, a breach of regulations is not demonstrative of the character of a legal relationship.

• The engagement of other people. Mr Hu made allegations about sham arrangements of other individuals, including some of the witnesses. Mrs Jia also gave evidence of how she interacted with individuals whom she said were her employees. How another person is engaged is not relevant to whether Mr Hu was an employee of Optima REA.

• Alleged threatening conduct after the relationship ended, as it is not relevant to the question of whether the relationship was one of employment. Mr Hu alleged that Mr Jin and Ms Yang threatened him; Mr Jin and Ms Yang alleged the same of Mr Hu. Mr Hu also alleged that Optima REA was attempting to intimidate him by its letter on 14 November 2024.

• Optima REA referred to Mr Hu's LinkedIn page that showed him to have a business which was current in October and November 2024. While this may be a factor pointing to Mr Hu being able to perform work for other people or himself, there was no evidence that the page was current or that Mr Hu performed work through that business.

• [43] I understand why Mr Hu is aggrieved by the situation he found himself in in November 2024. Mr Hu seems to have been busy performing work, and he has not received any remuneration. Unfortunately, it is not clear on what basis he should have been performing that work, and it is not clear that he had any legal relationship with Optima REA or Mrs Jia at all.

• [44] As I have found that Mr Hu was not an employee of Optima REA, it follows that his application must be dismissed.

• [45] I order that the application for the Commission to deal with a general protections' contravention dispute involving dismissal under matter number C2024/8483 filed by Mr Wenpei Hu on 25 November 2024 be dismissed.

[1] See Coles Supply Chain v Milford [2020] FCAFC 152 at [67] to [68]

[2] Section 116 of Schedule 1, Part 17, Division 2 to the Act

[3]CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1

[4] ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2

[5] Stevens v. Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16

[6] Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21

[7] Jiang Shen Cai trading as French Accent v. Do Rozario [2011] FWAFB 8307

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