• [14] On Thursday 19th June, Ms Ulloa accepts she removed Ms Romanha's access to jobs on the company's booking application on the basis that it was clear she would not be providing any further services.[8]

• [15] The determination of the question of whether Ms Romanha was an employee or independent contractor for the Respondent is not a straightforward task. It involves a detailed examination and overall assessment of the relationship between the parties and the application of the provisions in s.15AA of the Act. These provisions necessitate a detailed consideration of a range of different factors to determine the real substance, practical reality and true nature of the relationship. The totality of the relationship must be considered.

• [16] In the present case, both the Applicant and the Respondent agree the terms of the agreement between them were not committed to writing. Ms Romanha makes an arguable case that the relationship was one of employment, identifying a variety of factors in support of this position set out above at [9]. On the other hand, Ms Ulloa identifies a series of factors that point to a conclusion Ms Romanha was engaged as an independent contractor, including that she had the freedom to pick and choose when and how much she worked and was paid by invoicing for her work through an ABN.

• [17] The difficulty of attempting to arrive at a concluded view in this case is highlighted by that fact neither party have provided any independent evidence to support their respective positions. Both parties presented a large volume of material, supported by oral evidence and submissions. Much of this material overlaps in the form of emails and text messages exchanged between the parties that are selectively interpreted to support opposing positions.

• [18] On the other hand, the evidence relating to the question of whether there was dismissal as a matter of fact is relatively confined. While contested, this evidence is much less subjective and can be more objectively assessed. It is not disputed that on Thursday, 19 June Ms Romanha sent Ms Ulloa the following message on WhatsApp: "Monday onwards I wont work for you anymore". [9]

• [19] Ms Romanha argues she sent this message because she had no choice to do so and was therefore dismissed within the meaning of s.386(1)(b). Ms Ulloa disputes this is the case. Her position is it was clear to her from these communications that Ms Romanha resigned from her position and would no longer be performing any work for Domestic Bliss.

• [20] For the purposes of this decision, I propose to assume in the Applicant's favour and without determining the matter, that the relationship between the parties was that of employee and employer and that Ms Romanha was capable of being dismissed from her "employment" with the Respondent. This being so, I now consider whether, objectively viewed, this in fact was the case.

• [21] Ms Romanha argues that she has been forced to resign by the Respondent. In support of this submission, she identifies she was on a working visa that was soon to expire, that she had entered an arrangement with Ms Ulloa for the use of a car and to perform work for her cleaning business. She was concerned she was not getting all she was entitled to for her work and that the arrangements regarding the car were unbalanced. She wanted to reach a fairer deal with Ms Ulloa and made efforts to do so. Ms Ulloa was either not contactable or agreeable to renegotiate terms. With her visa soon to expire, Ms Romanha says she needed to get things sorted out before she had to leave the country. She identifies she was owed over $5000 and in early June sought to put pressure on Ms Ulloa to reach an agreement by indicating she wouldn't work for her anymore. But ultimately, that she never really wanted to stop working for Domestic Bliss.

• [22] Ms Ulloa's position it that the arrangements regarding the car are separate matters to those relating to Ms Romanha's work for her company. Her position is that she understood Ms Romanha was on a visa and may have had to leave the country. She accepts she was busy and hard to contact, but she understood from Ms Romanha's multiple communications that she was resigning and would no longer be working for her from 19th June. She then removed Ms Romanha from the business application on this basis.

• [23] Previous decisions of the Commission have considered what is required for an employee to establish they have been forced to resign. In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Bupa),[10] a Full Bench of the Commission examined the relevant authorities at great length and summarised the definition of dismissed under s.386(1) as follows:

"(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably (sic) result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element."

• [24] This question was further considered by the Full Court of the Industrial Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd,[11] where it said:

"a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly and important feature is the act of the employer results directly or consequently in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."

• [25] In O'Meara v Stanley Works Pty Ltd,[12] the Full Bench of the Australian Industrial Relations Commission expanded on Mohazab, and stated:

"In our view the full statement of the reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of the Full Benches of this Commission in Pawel and ABB Engineering require that there be some action on the part of the employer which is either intended to bring the employment relationship to an end or has the probable result of bringing the employment relationship to an end.

It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment. Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab.

In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign." (emphasis added)

• [26] I have considered the evidence and submissions provided by the Applicant which she indicates makes clear she was forced to resign in light of these authorities.

• [27] I am not persuaded that any act or omission of the Respondent forced her resign. I accept Ms Romanha may have wanted to get Ms Ulloa's attention, and that she felt like she was being ignored and not getting a fair deal. This may well be the case.

• [28] However, at no stage does the evidence presented point to the Respondent engaging in conduct or a course of conduct with the intention of bringing the employment relationship to an end. Nor does it lead me to conclude that the end of the relationship was the probable result of the employer's conduct such that Ms Romanha had no real or effective choice but to resign.

• [29] On the basis of the evidence before me, I conclude it was Ms Romanha who decided to bring the employment relationship to an end of her own volition and that she communicated this clearly to the Respondent.

• [30] Therefore, concluding that even when assuming Ms Romanha was in an employment relationship, she was not dismissed for the purposes of s.386. It follows that the application is not validly made and must be dismissed.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591.

[2] See Grass v Chinese Tennis Association Inc [2021] FWCFB 3443 at [11].

[7] Respondent's Submissions, Court Book p.228.

[9] Image 84, Court Book p.361, Transcript PN67.

[10] [2017] FWCFB 3941.

[11] [1995] IRCA 625; (1995) 62 IR 200.

[12] PR973462.

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