s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - not an employee - independent contractor - jurisdictional objection upheld - application dismissed.

[1] Ms Philippa Whitman has brought an application to the Fair Work Commission seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). Ms Whitman believes she was unfairly dismissed by Jc4 Coaching (Jc4).

[2] Jc4 has objected to the application on the basis that Ms Whitman was not an employee of Jc4 but worked as an independent contractor directly engaged through the National Disability Insurance Scheme (NDIS) fund of Mr Dean Gordon (the Fund). An application for an unfair dismissal remedy can only be made by a person who has been dismissed from employment. Jc4 argue that as Ms Whitman was not their employee, there has been no dismissal, and the application should be dismissed. The issue to be determine therefore is whether an employment relationship existed between Ms Whitman and Jc4.

[3] Directions were issued and a determinative conference was held on 13 February 2026. Both parties were self-represented. Mr Joe Casey spoke and gave evidence on behalf of Jc4, as did:

1. Ms Susan Gordon, NDIS fund recipient on behalf of her son Dean Gordon
2. Mr Dal Chand, Fellow Support Worker
3. Mr Pita Tagituimua, NDIS Coordinator

[4] For the reasons that follow, I have concluded that Ms Whitman was not an employee of Jc4 and not "dismissed" by them, and that the unfair dismissal application should therefore be dismissed.

• [5] At the commencement of the determinative conference, the parties accepted the following as agreed facts:[1]

• Ms Whitman commenced working with Mr Gordon in 2023 as a support worker
• Ms Whitman provided her hours of work each week to Mr Casey, who prepared an invoice on her behalf and sent it to the fund manager, Jakin's Accounting (Fund Manager) for payment
• The fund manager paid the invoices, in full, into Ms Whitman's bank account
• Jc4 did not received any payments from the fund manager with respect to services provided by Ms Whitman
• Neither Jc4 nor the Fund Manager withheld any tax from Ms Whitmans payments
• Neither Jc4 nor the Fund Manager paid any superannuation on behalf of Ms Whitman
• Ms Whitman did not accrue any leave entitlements

[6] Mr Dean Gordon is an NDIS participant in receipt of an NDIS funding package. Mr Gordon's funding package is an "Individual Managed" package, overseen by his mother Ms Gordon. A range of providers are engaged by the fund to provide tailored support to Mr Gordon.

• [7] Mr Tagituimua is the NDIS Coordinator overseeing Mr Gordon's package and care. Mr Tagituimua does not provide direct care to Mr Gordon, rather, as described by Mr Casey, "his job is more like a coach or a policeman in some respects, but he makes sure that everything is working".[2]

• [8] Mr Casey began providing support services to Mr Gordon through his company JC4 Coaching in or around 2021. Mr Casey describes himself as an independent contractor performing services as a Recovery Coach for Mr Gordon. It is Ms Gordon's evidence that as Mr Gordon's need increased,[3] his package has allowed for the engagement of additional providers to ensure Mr Gordon received the range of care and support he requires. The evidence indicates that Mr Casey plays a significant role in organising this care, which he does by arranging the various services Mr Gordon requires. It is the evidence of both Mrs Gordon, Mr Casey, Mr Chand and Mr Tagituimua that all such services including those provided by Ms Whitman, are provided by independent contractors.

[9] Ms Whitman has known Mr Gordon for many years and describes herself as a family friend. Ms Whitman had been unemployed for some time and had been referred by Centrelink to MAX Employment Services, who were acting as her case manager, assisting her with job search activities.

[10] In April 2023, Ms Gordon asked Mr Casey to consider engaging Ms Whitman as a part of Mr Gordon's support team. Ms Whitman commenced providing services to Mr Gordon on 11 April 2023. It was Ms Whitman's evidence that she had no discussions with anyone about her job, job title or her rate of pay, but it was her understanding that she was a support worker.

• [11] Mr Casey on the other hand says that upon her commencement, he asked Ms Whitman to provide her ABN, address and bank details and explained that he would create invoices for her, using his invoice template which could then be submitted on her behalf to the Fund Manager for payment. Mr Casey suggested he did this for some of Mr Gordon's other providers as it made it easier for everyone and allowed him to ensure the correct hours were being claimed. Mr Casey says he also advised Ms Whitman that she needed to take out insurance to protect herself as a contractor, and suggested BIZCOVER for this purpose.[4] Ms Whitman's submission maintained that no such discussion took place however, when pressed during the hearing to explain how, if that conversation did not occur, she came to provide her ABN to Mr Casey, Ms Whitman stated:[5]

"That occurred, I can't recall it and I don't know with whom it was. I wouldn't dispute that Mr Casey said that to me as part of my commencement, but that was the extent of it. I just started work.

• [12] On 17 April 2023, Mr Casey sent the following email to Mr Gordon's fund manager:[6]

Please find invoice from new supplier for support to Dean Gordon. Her name is Phillipa Whitman. Details are on the invoice.

Dean Gordon NDIS Support by Phillipa Whitman Inv PW001

• [13] The following invoice was attached to the email:[7]

[14] During the hearing I asked Mr Casey to confirm why the invoice stated "Payable to Jc4 Coaching. Mr Casey responded that this was simply an error, due to his using his template to create the first invoice for Ms Whitman. Mr Casey noted, and I accept, that the invoice correctly required remittance to be paid to Ms Whitman and her personal bank account details were provided for this purpose. It is also noted that the invoice included Ms Whitman's address and ABN number.

[15] Having received the invoice, the Fund Manager processed payment of the full amount directly into Ms Whitman's personal bank account. It is understood that invoices continued to be managed in this way, up until the final invoice was paid in October 2025.

• [16] Much was made by Ms Whitman of the fact that MAX Employment, and subsequently APM Employment Services, had questioned whether or not she was an employee. Mr Casey acknowledges that shortly after Ms Whitman commenced, she was having issues reporting to Centrelink and asked if she could have more hours each week because if she could not prove she was working for the minimum of 15 hours per week, she would need to demonstrate to Centrelink that she was still actively searching for a job. As I understand it, this may have impacted on Ms Whitman's entitlement to continue receiving Centrelink payments. Mr Casey contends the below email demonstrates that Ms Whitman understood she was a self-employed contractor, and was simply having trouble explaining that to Centrelink and MAX:[8]

I have had repeated difficulties with Centrelink and Max Solutions re my engagement / work. Centrelink regards me as not being self employed after having conducted an assessment of my arrangements re Dean. The reporting arrangements working well and my primary focus is to keep things steady with them. Max regards me otherwise . They have been fine but their reporting structure is inconsistent with the direction I have received from Centrelink.

I have been to Centrelink today. I have been granted an exemption for a little under 12 months from reporting requirements with Max. Hallelujah! It has been causing me so much stress and upset - I have not been able to deal with it well.

Centrelink says all will be fine if I consistently do 15 hours a week work. I know you are waiting to review the roster, and I thank you for the extra hours I have been given lately. However I do need 15 consistent hours. If not, Centrelink said it will all go "belly up". And, I imagine, so will I if it does.

If 15 hours isn't possible then I think I will have to try and find employment elsewhere so that I am compliant and not so stressed about potential non compliance. I don't want to do that, as Dean/Duck's and my relationship is so important to us both. I didn't realise this would happen when I became more involved in Duck's life. So I'm a bit snookered.

I'm hoping that these 15 hours can be incorporated in your planning Joe. I truly find it difficult to raise these issues to you or talk directly about them, so please know I appreciate your consideration of me in the plans you make.

• [17] As to the role performed by Ms Whitman, it is her evidence that from the outset, Ms Gordon advised her that she should "act as I knew she would act if she was there and that was ok to do anything concerning Mr Gordon's behaviour that she would do as his mother".[9] This aligns with Ms Whitman's description of her role, which can be summarised as providing general supervision and company for Mr Gordon.

• [18] It is Ms Whitman's evidence that she discussed all matters relating to Mr Gordon's general wellbeing, and behaviour with Ms Gordon, but she did not discuss financial or employment matters with her.[10] It was Ms Whitman's understanding that Mr Casey was "the Coordinator".[11] Ms Whitman says that under the NDIS guidelines a support coordinator: supports participants to understand and implement supports included in their plan and link participants to providers and other community government services.[12] Ms Whitman contends that Mr Casey performed all of these roles and as such she regarded him as her supervisor.[13] Mr Casey on the other hand says that Ms Whitman was at all times self-employed, could decline work when offered and was in control of when she was available to perform work. Mr Casey says that when Ms Whitman was unable to perform work, the work was undertaken by another self-employed provider.[14]

• [19] Ms Whitman says that Mr Casey had control over the manner in which her work was performed and the hours she worked. Mr Casey on the other hand, describes the relationship as follows:[15]

"With the NDIS system, funding is provided to the recipient with certain limitations and expectations. Some expectations are that the service provided are in line with the NDIS Client's goals, and the NDIS guidelines. In consultation with Susan Gordon, Dean Gordon, myself and the NDIS Coordinator, a programme that suits the client's needs and goals was planned and implemented. In providing her service, Philippa Whitman was expected to follow and respect these guidelines. That is what she was offered hours to do. She was not engaged to change plans without permission and approval."

• [20] Ms Whitman did not sign a contract of service upon her commencement in 2023. It is Mr Casey's evidence however, that in early 2024, as a part of his role organising Mr Gordon's care, he prepared a draft Service Agreement (the Agreement) to apply to Mr Gordon (the NDIS participant) and his support workers (service providers).[16] Mr Casey said he did this to assist everyone capture their arrangements. Ms Whitman chose not to use the Agreement. As such, it was never signed by either Ms Whitman or Mr Gordon.[17]

[21] Importantly, the draft Agreement noted that it was a legal agreement about the supports to be provided by Ms Whitman, the cost, and terms of delivery. The Agreement clearly indicated that Ms Whitman was engaged by Mr Gordon, through his self-managed fund, to provide "Skill development and Training "services. The Agreement noted the fund had a budget for her services of 15 hours per week at the rate of $40 per hour. The Agreement further outlined payment arrangements, noting that the Provider (Ms Whitman) would seek payment under this Service Agreement for their provision of supports, and the Participant will pay these invoices within 7 days if the date of the invoice.

• [22] During the hearing Ms Whitman suggested that she had not signed the agreement because it recorded her "contrary to the way Centrelink had seen me. I didn't' sign it because it was inconsistent with everything I'd said and what Centrelink had said and I made no further reference to it, neither did Mr Casey".[18]

[23] Whilst I accept Ms Whitman may have had her reasons for choosing not to use the agreement to capture her arrangement with the Fund, it is clear that the Agreement was drafted to reflect the arrangement that had been in place up to that point and which continued unchanged even though Ms Whitman chose not to use it. I have seen no evidence to suggest that Ms Whitman sought to dispute the terns of the Agreement, nor of her having of raised any questions regarding the way in which the arrangement had been characterised. Importantly, there is no mention of Jc4 in the Agreement. The only "stakeholders" mentioned are Ms Whitman, Mr Gordon and the Account Manager. I consider the existence of the agreement clearly demonstrates Mr Casey's understanding that the contractual relationship existed between Ms Whitman and Mr Gordon/the Fund, not Jc4. Further, I consider Ms Whitman's failure to contest that understanding, her failure to address any perceived misunderstanding and her willingness to continue to issue invoices to and receive payment from the Fund telling as to the true nature of the relationship.

Section 1.01 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.

[25] The method by which the ordinary meaning of the terms 'employer' and 'employee' is to be ascertained for the purposes of the Act is 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). That amendment commenced operation on 26 August 2024. Section 15AA applies to a relationship entered into before that commencement date that is in existence as at that date2 which is the case here. Section 15AA provides as follows:

Section 1.02 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.

[26] 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,_3 and _Hollis v Vabu Pty Ltd._4 The assessment 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_5 and _ZG Operations v. Jamsek._6

• [27] There is no single exhaustive list of factors to be considered and the considerations and the weight to be attached to them are likely to vary depending on the facts and circumstances of each case. It is broadly accepted that the task of assessing the relationship is not carried out by simply ticking off indicia on a checklist and adding up the results. The exercise involves an evaluative judgment. The terms of the contract between the parties remains an important consideration. Where, as was the case here, there was no written contract, the identification of the parties' contractual rights 'must proceed somewhat differently but the fundamental task is the same: the parties contractual rights are to be ascertained and characterised.[19] Contractual rights are important but the totality of the relationship must be assessed to determine the real substance, practical reality and true nature of the relationship.[20]

[28] One indicator of an employment relationship is the right to control the work of a person, The substance of the right to control was described by Wilson and Dawson JJ in _Stevens v. Brodribb_9 as whether the contractual arrangement "subjects the person engaged to the command of the person engaging" not just as to what shall be done, but how it shall be done.10 In this case the evidence does not establish that Jc4 had the contractual right to control Ms Whitman's work. I do not accept Ms Whitman's suggestion that Mr Casey was Mr Gordon's Coordinator, as this role was clearly undertaken by Mr Tagituimua. As to the level of control Mr Casey had over Ms Whitman's work, whilst I accept that Mr Casey plays an important role in organising and scheduling the various providers required to ensure Mr Gordon receives the best possible care, I have not been convinced that Mr Casey's role extends to controlling Ms Whitman's work. Further, the evidence as to the oral terms entered into at the commencement of the contract clearly suggest an understanding was reached between Ms Gordon and Ms Whitman regarding the work to be performed. It was Ms Gordon who made the final decisions regarding Mr Gordon's care and who made all decisions regarding his wellbeing. In short, I find that whilst Mr Casey organised, scheduled and planned the work to be done, he did not control how it should be done - this was Ms Gordon's role.

[29] The incident that led to the ending of the relationship between the parties is a useful example of the way in which the relationship operated. The evidence indicates that Mr Chad had observed that Mr Gordon was upset about an interaction with Ms Whitman the previous evening and contacted Mr Casey to discuss the situation. I accept Mr Casey's evidence that upon receiving this call, he immediately contacted Ms Gordon to discuss the situation. During this discussion, Mr Casey advised Ms Gordon that should Ms Whitman's conduct represent a breach of the NDIS Code of Conduct, no further work could be offered to Ms Whitman. Ms Gordon agreed with Mr Casey's advice and gave Mr Casey permission to undertake further investigations on her behalf and, if necessary to inform Ms Whitman that no further work would be offered if necessary.

[30] I accept that Mr Casey expressed dissatisfaction with Ms Whitman's conduct and raised concerns with Ms Gordon, however, on the evidence I consider the decision to no longer offer Ms Whitman work was made by Ms Gordon, not Mr Casey. Mr Casey was simply carrying out the instructions of his client and performing his established role of organising and planning Mr Gordon's care.

[31] The evidence does not establish that Jc4 had a contractual right to control Ms Whitman's work either via the verbal contract entered into upon her commencement or during her engagement. I have also considered how the contract was performed in practice and have not been convinced that Jc4 had or exercised a right to control the work of Ms Whitman. The absence of a right to control and the exercise of control as a matter of practice supports a conclusion that Ms Whitman was an independent contractor, providing services to the Fund as contended by Jc4.

[32] Although not determinative, an analysis of whether someone is conducting their own independent business as opposed to serving in the business of another can be a useful framework to guide the characterisation of the relationship 11 In this matter, it is clear that Ms Whitman was not running a business, nor was she undertaking any other work, however this, in my view is not demonstrative of the relationship between the parties and is, rather, a reflection of Ms Whitman's preference to only work within the bounds of the requirements set by Centrelink so not to disturb her entitlement to Job Seeker benefits. There was no contractual right for Jc4 to require MS Whitman to work at any particular times, and no evidence was provided to suggest that Jc4 asserted such a right in practice.

[33] The payment arrangements were, from the outset, consistent with an independent contractor arrangement. Most significantly, there is no evidence to suggest that Jc4 made any payment whatsoever to Ms Whitman. I accept that Mr Casey played a role in processing invoices on behalf of Ms Whitman, however neither Mr Casey or Jc4 made any payment to Ms Whitman, nor did they receive any payments from the Fund with respect to Ms Whitman's work such that might indicate a subcontracting arrangement between the Fund, Jc4 and Ms Whitman.

[34] I accept Mr Casey and Ms Gordon's submissions that Mr Casey was an independent contractor, providing services to Mr Gordon that were paid for by the Fund. I further accept that one of the services Mr Casey provided was the organising and scheduling of other service providers. I consider the performing of this service on behalf of Ms Gordon to be the extent of the relationship between Mr Gordon and Ms Whitman and as such, no contractual relationship, either written or implied has been established between Ms Whitman and Jc4. In the absence of any contractual arrangement between the parties, an employment relationship simply cannot exist.

[35] For completeness, to the extent that it may be argued that Ms Whitman had a contractual relationship with Ms Gordon, or the Fund, on the evidence before me, I find that:

1. the parties set out to create an independent contracting arrangement.
2. the arrangement was offered and accepted on that basis and reference was made to the use of the ABN.
3. there was no evidence of any discussion of any terms that would be consistent with an employment relationship.
4. the invoicing for the work that was carried out at a fixed rate for specific services was consistent with the notion that the parties were conducting themselves on the basis of a relationship of principal and independent contractor.

[36] In conclusion, I have found no evidence of a contractual relationship between Jc4 and Ms Whitman on which an employment relationship could be based. This is supported by the fact that I consider it most likely that a contractual relationship existed between Ms Whitman and the Fund. For completeness, having considered the totality of the relationship between Ms Whitman and the Fund, including how the contract was performed in practice, I am of the view that the real substance, practical reality and true nature of that relationship was one of principal and independent contractor.

[37] I have weighed the totality of the evidence as described above and conclude that Ms Whitman was an independent contractor, engaged to perform work for the Fund and was not an employee of Jc4. Ms Whitman was therefore not dismissed by Jc4. It follows that Jc4's objection to the application is upheld and the application is dismissed. I order accordingly.

[1] Audio recording of Hearing at 10:59.

[2] Audio recording of Hearing at 21:10.

[3] Audio recording of Hearing at 14:52.

[4] P.146 - Witness Statement of Mr Joe Casey.

[5] Audio recording of Hearing at 43.07.

[6] P.158 of the DHB - Attachment to Respondent's Submissions.

[7] P.136 of the DHB - Attachment to Respondent's Submissions.

[8] P.161 of the DHB - Attachment to Respondent's Submissions.

[9] P.60 of the DHB - Applicant's Outline of Submissions.

[14] P.81 of the DHB - Respondent's Submissions.

[15] P.82 of the DHB - Respondent's Submissions.

[16] P.146 of the DHB - Witness Statement of Mr Joe Casey.

[18] Audio recording of Hearing at 27:07.

[19] Chiodo v. Silk Contract Logistics [2023] FCA 1047 at [8]- [9], referred to in EFEX Group Pty Ltd v. Bennett [2024].

[20] Mr Michael Savovski v Chulo Enterprises Pty Ltd & Heidelberg Materials Australia Pty Ltd [2026] FWC 270.

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