s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - Jurisdictional objections - Not an employee - Application dismissed

[1] On 22 September 2025, Ms Xiao Yin Lim applied to the Fair Work Commission under section 365 of the Fair Work Act 2009 (Cth) for the Commission to deal with a dispute in which she says that Nutrition Health and Wellbeing (AU) Pty Ltd dismissed her in breach of the general protections' provisions. Nutrition Health terminated Ms Lim's contract on 12 September 2025.

[2] 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 (see Coles Supply Chain v Milford [2020] FCAFC 152 at [67] to [68])

[3] This decision deals only with whether Ms Lim was dismissed by Nutrition Health; it does not deal with the reasons for why Nutrition Health ended the contract. Both Ms Lim and Nutrition Health addressed me on a matters that were ultimately not relevant to whether Ms Lim was an employee of Nutrition Health. To be clear, this decision does not deal with

• Whether Ms Lim exercised workplace rights;
• Whether the termination of her contract was adverse action;
• Whether that termination breached the general protections provisions;
• Whether payments had been made incorrectly or late; and
• Any matters relating to post termination conduct of both parties.

[4] Section 386 provides the meaning of dismissed for the purposes of this type of application.

(1) A person has been dismissed if:

(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.

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

[6] Nutrition Health say that it did not employ Ms Lim, but that she was an independent contractor.

[7] I held a determinative conference on 11 December 2025. Ms Lim gave evidence on her own behalf; Ms Leanne Azzopardi, director, gave evidence on behalf of the respondent. I granted permission for Ms Azzopardi to be represented. While I consider that both Ms Lim and Ms Azzopardi gave evidence intended to assist the Commission and that they believed to be truthful, their evidence contradicted each other and was more in the nature of conclusions and submissions. Both were more focussed on the rights and wrongs of past alleged failings. Ms Lim was particularly focussed on late and incorrect payments. I have had regard to the evidence and the documents provided by both parties.

[8] I am not satisfied that Ms Lim was an employee of Nutrition Health, so it could not dismiss her. This means that Ms Lim is unable to continue with her application under s 365, as when Nutrition Health terminated the contract on 12 September 2025, it was not a dismissal for which Ms Lim could allege that Nutrition Health's reasons for that dismissal was in breach of the general protections' provisions. My reasons follow.

[9] 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:

[10] In ascertaining the ordinary meaning of employee and employer, I must consider the parties' legal rights and obligations, consistent with Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 275 CLR 254, and can have regard to the totality of that relationship (including the multi-factorial test) and how the contract was performed in practise, as required by s 15AA (see summary of approach and relevant principles in Murray v 239 Brunswick Pty Ltd and Raffoul [2025] FWC 978 at [17]- [19]).

[11] Ms Lim's working relationship with Nutrition Health commenced prior to the commencement of amended s 15AA of the Act, but s 116 of Schedule 1 to the Act makes clear that it applies to relationships that were entered into prior to 26 August 2024 and in existence on that date.

[12] The employer's business is to provide dietician consultancy services to medical centres. It receives referrals from doctors and through the NDIS. It operates from multiple clinic locations across Melbourne for online and face-to-face appointments.

[14] Ms Azzopardi said that she engages 10 - 12 dieticians. Ms Azzopardi says that all dieticians are engaged as contractors and that her business provides administrative support to the dieticians. Ms Azzopardi is herself a dietician and also sees clients.

[15] The nature of the work, being a professional, qualified and licensed role, is of a type that could be contractor or employee.

[16] Ms Lim was introduced to Nutrition Health via a friend. In around December 2022, she had an interview with Ms Azzopardi and another person. Ms Lim recalls that payment arrangements were discussed (being that she would be paid a percentage based on the clients she saw), which clinics she would operate from and that she may be required to fill in for other dieticians. Ms Azzopardi says that she discussed that Ms Lim was required to have her own ABN, licences and insurance, and that Nutrition Health would allocat her clients based on her availability. Ms Azzopardi says that the contract provided to Ms Lim was clear, but that she encouraged to seek legal advice.

[17] Nutrition Health provided Ms Lim with a document described as an Independent Contractor Agreement Practitioner, which both parties signed in January 2023. This document was updated in November 2024, and was signed by both parties. The Agreements are materially the same.

[18] The Agreement describes the relationship between Ms Lim and Nutrition Health in clause 8. It expressly disavows an employment relationship (although this is a question of law and the words in the contract are not determinative), does not permit Ms Lim to incur any obligations on behalf of Nutrition Health, and requires Ms Lim to be solely responsible for compliance with professional standards. These matters point away from an employment relationship.

[19] The Agreement provides for a probationary period, includes restraints of trade and obligations relating to maintaining Nutrition Health's confidential information and assigning intellectual property rights over any intellectual property developed during the course of the Agreement. Clause 8 required that Ms Lim comply with the Company Handbook. These matters point towards an employment relationship, but not conclusively so.

[20] Dieticians are allocated appointments using a calendar program called Cliniko. The program is also the respondent's communication tool.

[21] Ms Lim says that she was required to be available for all clinic hours and that she could not control the times that she worked. Ms Azzopardi said that Ms Lim was free to say when she was available on the calendar program, and based on that availability, she would be allocated patients.

[22] I find that Ms Lim was required to be available for clinic hours, but also that she was able to set her availability. That she felt she may have been unable to, or that she had to be available for all hours is not evidence that the respondent required this of her. Ms Lim provided me with screenshots that she says demonstrates the employer's control of her hours; I disagree that they demonstrate that. At the highest, they demonstrate that there was communication about when patients were available or needed to be rescheduled.

[23] The key probative evidence I received was in relation to payment arrangements.

[24] The Agreement provided that Ms Lim was to invoice Nutrition Health fortnightly, and that she would be paid a percentage of what she charged each client. The Agreement required that Ms Lim was responsible for all expenses, tax, insurance and included a clause in which Ms Lim indemnified Nutrition Health in relation to any tax liability and any loss or damage. Other than a fee, the Agreement placed all the risk with Ms Lim.

[25] Nutrition Health used the Cliniko program to produce a report every 2 weeks which was provided to each dietician. The dietician then prepared an invoice to receive payment for their work based on a percentage of the income they have generated for the number of patients they have seen and the service provided to that client.

[26] Ms Lim confirmed that she invoiced the respondent regularly.

[27] There are 2 key related disputes about payments in that Ms Lim says (1) that if the respondent did not open or close patient invoices, those payments would not appear on the report that she received and from which she generated her invoice for payment and (2) that she was often paid late.

[28] In relation to the first, Ms Lim says that this demonstrates the respondent exercised control in the nature of an employment relationship. I am not satisfied that the issues relating to invoicing and payment demonstrate an employment relationship. Rather, the manner of the payments (via invoices) and what they were for (percentage of clients seen, rather than hours worked) point more to a contractor relationship.

[29] Ms Lim says that Ms Azzopardi instructed her in the performance of her work and provided one example when Ms Azzopardi questioned her clinical judgement in relation to a specific client. This was not an example of day-to-day control of Ms Lim's clinical judgement, nor instruction in her work. I am not satisfied based on the evidence before me that Ms Azzopardi instructed Ms Lim in how she was to perform her work.

[30] The other examples that Ms Lim provided of control of her work related to scheduling of clients and client appointments. I am not satisfied that this demonstrates control or instruction in the manner of performing her work. It is instead consistent with the administrative service provided by Nutrition Health.

[31] Ms Lim says that she was required to provide her services exclusively to Nutrition Health. The Agreement allowed for Ms Lim to perform "other forms of work other than for the Company." Ms Lim said that, in practice, it did not. Her evidence for this was a text message from Ms Azzopardi that said,

Is this your other part time job (smiling emoji) Looks like you lol.

Haha and not working as a model for sure (laughing emoji)

[33] There may have been an image with Ms Azzopardi's message. It was not included in materials provided to me.

[34] I am not satisfied that the above exchange demonstrates that Ms Lim was required to provide her services exclusively to Nutrition Health.

[35] In considering the totality of the relationship, and having regard to the contract and evidence before me about how it was performed in practice, I am not satisfied that Ms Lim was an employee of Nutrition Health. While some aspects pointed towards an employment relationship (probation, requirement to comply with company policies, restraints of trade, confidentiality and assignment of intellectual property rights) these matters may be equally appropriate protection of the business being conducted by Nutrition Health. The evidence before me related predominantly to issues with payment arrangements, which Ms Lim was clearly not satisfied with. The payment arrangements themselves (payment by invoice, based on fees charged to clients, rather than hours of work) is consistent with a contractor relationship. In relation to control, I accept that Ms Lim had issues with how Nutrition Health scheduled her clients; she otherwise had the ability to nominate when she was available or block out when she was unavailable, within the confines of Nutrition Health's operating hours in the various locations from which it operated. There is no evidence that Nutrition Health required Ms Lim to work set hours each day or week, or minimum hours or indeed at all. There was no evidence that Nutrition Health controlled the way in which Ms Lim was required to perform her work.

Nutrition Health terminated Ms Lim's engagement

[36] For completeness, although I have found that the applicant was not an employee of the respondent and could not be dismissed within the meaning of s 386 of the Act, there is no dispute that the respondent terminated Ms Lim's engagement, at their initiative, by letter dated 12 September 2025.

[37] I order that Ms Xiao Yin Lim's application for the Commission to deal with a general protections dispute involving dismissal under FWC Matter C2025/9579 made on 22 September 2025 be dismissed.

Mr G Benson, of Gareth Benson Lawyers & Associates, with permission, on behalf of the Respondent.

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