s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - whether employee - whether dismissed - labour hire - application dismissed

• [1] On 25 March 2025, Ms Bhavana Goel made a general protections application to the Fair Work Commission under section 365 of the Fair Work Act 2009. Ms Goel alleges that she was dismissed by Stanwell Corporation Limited (Stanwell/First Respondent) and Ms Angela Sheehy (Ms Sheehy/Second Respondent) on 4 March 2025 in contravention of her workplace rights.

• [2] Stanwell opposed the application, by way of raising two jurisdictional objections on the grounds that Ms Goel was not an employee and as such, was not dismissed. Specifically, they argue that Ms Goel was engaged through a labour hire agreement with Davidson Technology (Aust) Pty Ltd (Davidson), who they say were at all times, her employer. It then follows, they say, that Ms Goel could not have been dismissed at their initiative.

• [3] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the Act before the Commission can exercise powers conferred by section 368.[1] It is therefore necessary to determine the jurisdictional issue raised by Stanwell before Ms Goel's application can proceed.

• [4] For the reasons outlined below, I find that Ms Goel was not an employee of Stanwell, and consequently not dismissed on the employer's initiative, and as such the application is dismissed.

• [5] On 29 April 2025, my Chambers emailed the parties noting the jurisdictional objections raised by Stanwell and that, based on the material provided, there appeared to be a labour hire type relationship between the parties, with Davidson as the labour hire agency/employer and Stanwell as the client/host firm. Attached to the email was a link to specific information relating to labour hire workers on the Commission's website. Ms Goel was subsequently invited to provide her preliminary response to the jurisdictional objection and asked to confirm whether she wished to proceed with her application.

• [6] On 30 April 2025, Ms Goel responded confirming she wished to proceed with her application hearing, also stating:[2]

"• I was engaged at Stanwell from 22nd Nov 2022, approximately 2.4 years, working on a regular and systematic basis under the Electrical Power Industry Award, as outlined in the contract attached with the original application.

• Although employed through Davidson Pty Ltd, all aspects of my work were directly controlled by Stanwell (including hours, duties, performance management, contract extensions, leave). This high degree of control supports the fact that Stanwell functioned as a de facto employer and can therefore be held accountable under the general protections provisions." (emphasis added)

• [7] I issued directions on 9 May 2025, for the parties to file their material.

• [8] The question of whether Ms Goel was dismissed was dealt with at a hearing on 15 July 2025. Materials in support were filed by both parties. Ms Goel represented herself and Ms Kris-Anne Birch represented Stanwell and Ms Sheehy. Both parties filed written submissions and witness statements. Ms Goel gave evidence in support of her application. Ms Mandeep Kaur, Talent Acquisition Specialist, gave evidence on behalf of Stanwell.

• [9] Stanwell state that whilst their workforce is comprised of directly employed permanent employees, they regularly have need to supplement their workforce with labour hire workers. Stanwell have entered into a Preferred Supplier Agreement (PSA) with Davidson for the provision of such workers when and as necessary.[3] It was through this arrangement that Davidson supplied Ms Goel's services to Stanwell. This is consistent with Ms Goel's evidence that she was engaged through Davidson, to provide Business Analyst services to Stanwell.[4]

• [10] The relevant arrangements were communicated to Ms Goel via an email she received from Davidson. An undated "snippet" of this email was tended into evidence. The portion of the email provided indicated that it is to be "read in conjunction with your Confirmation of Engagement letter", which was not tendered into evidence. The email congratulates Ms Goel on securing an assignment with Stanwell. The email read as follows:[5]

• [11] It is not in dispute that Ms Goel was paid an all-inclusive casual daily rate of $849.70 and that her position was aligned to Level 8 of the Electrical Power Industry Award. It is relevant to note that Stanwell's workforce is covered by the Stanwell Corporation Limited Corporate Offices Enterprise Agreement 2025, and previously the Stanwell Corporation Limited Corporate Offices Enterprise Agreement 2021. Stanwell contend Ms Goel was not paid in accordance with either Agreement as it only applies to their employees.

• [12] The initial engagement, which was set to expire on 24 May 2024 was subsequently extended on two occasions, with the recent extension until 27 June 2025. On each of these occasions, the extensions were formalised though an exchange of emails between Stanwell and Davidson.[6]

• [13] Whilst Ms Goel was non-committal during cross examination, it is clear on the evidence that during her assignment with Stanwell, Ms Goel was paid by Davidson. Davidson were responsible for withholding all taxation, paid all associated superannuation contributions, and Workers Compensation premiums,

• [14] It is common ground that Ms Goel worked on multiple projects and that her day-to-day work was under the direction of Stanwell. Ms Goel reported to Stanwell personnel, used Stanwell systems, and was embedded in Stanwell's ICT team.

• [15] Whilst Ms Goel rejected the suggestion that she was free to accept work with other employers whilst providing services to Stanwell, it is agreed that Ms Goel did not engage in any work other than the work the subject of this decision.

• [16] Davidson issued invoices to Stanwell for the services provided by Ms Goel, these invoices were based on an agreed charge rate, which incorporated Ms Goel's wages, her on-costs, and Davidson's margin. These invoices were paid by Stanwell to Davidson. To be clear, Stanwell made no payment to or on behalf of Ms Goel during her assignment with them.

• [17] It is Ms Goel's evidence that in July 2024, the role she was performing for Stanwell (Business Analyst) was transitioned to a permanent position with Stanwell. Ms Goel however, made the decision not to accept this role, instead deciding to remain as a contractor on a continued basis due to "financial considerations".[7]

• [18] Whilst not instructive to the questions at hand, for completeness I note that Ms Goel's submissions refer to a range of interactions in the workplace that occurred from July 2024 through to February 2025 that she says led to the work environment becoming "increasingly hostile" and culminated in her filing a complaint about Ms Sheehy's conduct.[8]

• [19] On 4 March 2025 Ms Goel was informed by Ms Sheehy that Stanwell had decided to end her contract.[9] Shortly after, the process of "Demobilisation" commenced. It is Ms Goel's evidence that she called Mr Andrew Smith of Davidson to advise him that she had been "terminated".[10] At 3:35pm Mr Smith sent Ms Goel a text message seeking that she send him her updated resume. He also asks Ms Goel if she would "consider a role at CleanCo?".[11]

• [20] Ms Goel only has capacity to make a claim if she is "a person who has been dismissed" in accordance with s.365(a). "Dismissed" is defined in s.12 of the Act by reference to s.386. Section 386 is in the following terms:

(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."

• [21] Much of the material filed by Ms Goel focuses on matters that are not instructive when considering whether she was an employee of Stanwell and/or that she was dismissed within the meaning of s.386 of the Act. Whilst I acknowledge the significance of all the material filed, particularly as it relates to alleged breaches of the general protections provisions, only material that relates to whether Ms Goel was an employee and/or that she was dismissed, has been traversed in this decision.

• [22] In short summary, whilst Ms Goel refers to Stanwell as her "host firm"[12] she argues that because all of her duties were performed for them, under their direction and using their equipment and infrastructure, it follows that she was their employee. Ms Goel submits that her contract provisions illustrate Stanwell's control over her, which she submits is a key factor in her employment status, referring to s.15AA of the Act, noting the practical reality of the relationship is crucial. Ms Goel suggests that this high degree of control over her work supports a finding that Stanwell functioned as a "de facto employer" and is therefore accountable under the General Protections provisions.

• [23] To further support her argument, Ms Goel notes that she never attended or visited a Davidson's office, that her only contact with Davidson was via a quick phone call with Mr Smith once every four to five months and that it was Stanwell who terminated her contract on 4 March 2025, not Davidson.

• [24] Ms Goel has referred to CFMMEU v BHP Coal Pty Ltd [2023] FWC 2347 and Mining and Energy Union v BHP Coal Pty Ltd [2024] FWC 262, noting that in this matter, the Commission emphasised the obligations of host employers in managing employment relationships under enterprise agreements, including dispute resolution.

• [25] Reference was also made by Ms Goel to Mr Ian Birchley v Downer EDI Mining Pty Ltd [2019] FWC 6336 (Downer) noting Stanwell's involvement in that matter, in which the Commission found that despite the casual employment label, the nature of the engagement and the employer's conduct led to a finding of unfair dismissal.

• [26] Having reviewed these cases, I find they are distinguishable from this matter, noting that the first of these cases, was a s.739 dispute application and the latter, a s.394 unfair dismissal application, not a s.365 general protections application. I further note that the facts in those matters are sufficiently distinguishable from this matter, noting Stanwell were not the Respondent in Downer, but that Downer EDI Mining Pty Ltd, who provided contract mining services to Stanwell, was the Respondent in that matter.

• [27] Ms Goel concludes her written submissions stating that the Commission has jurisdiction under s.365 as her engagement was terminated at the initiative of Stanwell, who exercised practical control and treated her as an employee.

• [28] Stanwell submit that Ms Goel does not have jurisdiction to make the application because:

(c) as Ms Goel was not an employee of Stanwell, even if she was dismissed by her employer (which is denied), Stanwell was unable to dismiss her within the defined meaning of "dismissal".

• [29] When considering the key question of who was Ms Goel's employer, Stanwell submit that as Ms Goel's engagement commenced prior to the commencement of s.15AA, the nature of the relationship between the parties is to be determined by the legal rights and obligations contained in the relevant contract. In this regard, my attention is drawn to CFMEU v Personnel Contracting, which they say relevantly provides:[13]

"Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties' rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute [112], there is no occasion to seek to determine the character of the parties' relationship by a wide‑ranging review of the entire history of the parties' dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties' rights and obligations, not to form a view as to what a fair adjustment of the parties' rights might require [113]."

• [30] With reference to the definitions of "employer" and "employee", they say it is clear that Ms Goel was Davidson's employee and Davidson was the Employer because:[14]

(a) Stanwell contracted directly with Davidson, including when offering

(b) Davidson was responsible for paying wages and other entitlements to the Applicant; and

(c) Davidson bore the responsibility of ensuring that it complied with relevant industrial

instructions and legislation while it employed the Applicant.

• [31] Stanwell submit that their contractual relationship was with Davison, who were a recruitment agency that occasionally supplies labour to them via an established labour hire arrangement. Stanwell note that Ms Goel concedes in her application that she was providing services to Stanwell as a contractor,[15] and that she made a conscious decision to remain a contractor despite being offered an opportunity to apply for direct employment with Stanwell in July 2024.

• [32] Stanwell submits that Davidson was Ms Goel's employer at all times she provided services to Stanwell as a labour hire contractor. The engagement of Ms Goel's services by Stanwell was facilitated through Davidson, not between Ms Goel and Stanwell.

• [33] Given Ms Goel's own concession and the evidence in this matter, Stanwell submit it cannot seriously be argued that she was their employee. As such, it follows that it is impossible for them to have dismissed Ms Goel within the meaning of "dismissed" because Stanwell was not her employer.

• [34] It is further submitted that Ms Goel's application is one that deals directly with Item 1 of the table in s 342(1) of the Act, which makes it clear that the alleged adverse action of "dismissal" can only be taken by the employer against an employee and as such, could not have been taken by either Stanwell or Ms Sheehy.

• [35] It is submitted that as Stanwell was not Ms Goel's employer, it follows that Stanwell's conduct in demobilising her cannot amount to a dismissal. That is because the term "dismissed" has a clearly defined meaning within the Act. A dismissal, whether constructive or otherwise, requires direct action by Ms Goel's employer, which in this case is Davidson. Stanwell is legally unable to dismiss Ms Goel within the defined meaning of "dismissed".

• [36] It is Ms Goel's own admission that she was employed through Davidson to provide services to Stanwell, who she has acknowledged as the "host firm".[16] Additionally, Ms Goel's documents and evidence confirmed that Davidson had emailed her to congratulate her on securing an assignment with Stanwell and provided an outline of the assignment, which made reference to Stanwell as the "Client/Company".[17] Furthermore, her most recent assignment extension was communicated to her by Davidson, specifically the email stated:[18]

Congratulations on the extension of your assignment with Stanwell Corporation.

Your assignment in the position of Business Analyst has been extended to 27/6/2025 unless varied by agreement.

All other aspects of the assignment remain the same.

If there is anything further I can assist you with, please do not hesitate to contact me."

• [37] Much was made by Ms Goel regarding the time she spent working for Stanwell, in particular that she worked on a regular and systematic basis. Further, that all aspects of her work were directly controlled by Stanwell (including hours, duties, performance management, contract extensions, leave). It is not uncommon for the host company to exercise this level of control with a labour hire contractor, noting that the outline of the assignment's stated duties would be conducted as per the job description and as instructed by Stanwell.[19]

• [38] I do not accept Ms Goel's contention that these points meant that Stanwell functioned as a "de facto employer" and can therefore be held accountable with respect to this application. Whilst these factors may be instructive when considering the distinction between a contractor and an employee, they are not relevant in this situation. Whilst Ms Goal was employed on a fixed term contract, and her services were provided to Stanwell via the PSA, she was not herself a contractor. She did not issue any invoices for her services, rather she was paid wages and received all of the relevant entitlements of an employee. In this situation, Ms Goel is clearly an employee. The relevant question in this matter is whose employee was she?

• [39] Having considered the evidence, I find that Ms Goel's employment with Davidson commenced on 22 November 2022 when she agreed to terms of her employment as a casual Business Analyst. Ms Goel was then assigned by her employer (Davidson) to provide services to their client (Stanwell) through a PSA for the provision of labour hire services.

• [40] I have not been persuaded that the relationship between the parties in this matter is in any way distinguishable from the common three-way labour hire relationship. As such, I find that Ms Goel was at all times an employee of Davidson, and Stanwell was the host employer.[20]

• [41] The authorities with respect to the three-way labour hire relationship are well established. The interposition of a labour hire company between the agency's client and the workers the agency hires out to them, does not result in an employee-employer relationship between the client and the worker. In such arguments the dismissal of a worker can only be affected by the hiring agency.

• [42] Further, I accept Stanwell's submission that Ms Goel's application is one that deals directly with Item 1 of the table in s 342(1) of the Act which makes it clear that the alleged adverse action of dismissal can only be taken by an employer against an employee.

• [43] Davidson would have been the relevant Respondent with respect to this application. However, as they were not a party to this application, Ms Goel's employment status with them is unclear. Again, whilst not instructive in this matter for completeness, I note that the cessation of Ms Goel's contract with Stanwell would not have automatically ended her ongoing employment relationship with Davidson. The employment relationship with Davidson would only have come to an end once either party made it clear to the other party that there would be no further engagements.[21]

• [44] I have found that Ms Goel was not an employee of Stanwell, and therefore could not have been dismissed from her employment with them, the application is therefore dismissed. An order to that effect will be issued separately.

[1] [2020] FCAFC 152.

[2] P.15 of DHB - Response to Jurisdictional Objection.

[3] P..55 of DHB - Witness Statement of Mandeep Kaur.

[4] P. 10 and P.21 of DHB - Start of Employment Screenshot and Witness Statement of Bhavana Goel.

[5] P. 10 of DHB- Start of Employment Screenshot.

[6] P.60 to 62 of DHB - Annexure MK1-1, MK-2, and MK-3 of Mandeep Kaur Witness Statement.

[7] P.12 of DHB - Submissions regarding Workplace Rights.

[8] P.13 of DHB - Submissions regarding Workplace Rights.

[9] P.16 of DHB - Response to Jurisdictional Objection.

[10] P.19 of DHB - Applicant Submissions.

[11] P.63 of DHB - Annexure MK-4 of Mandeep Kaur Witness Statement.

[12] P.21 of DHB - Witness Statement of Bhavana Goel.

[13] [2022] HCA 1; (2022) 275 CLR 165.

[14] P.51 to 52 of the DHB - Respondent Submissions.

[15] P.12 of DHB - Submissions regarding Workplace Rights.

[16] P.17 of DHB - Applicant Submissions.

[17] P.10 of DHB - Start of Employment Screenshot.

[18] P.9 of DHB - Employment Extension Screenshot.

[19] P.10 of DHB - Start of Employment Screenshot.

[20] Damevski v Giudice [2003] FCAFC 252 at paras 173-174, [(2003) 133 FCR 438]

[21] Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709 at [13].

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