Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether dismissed - whether an employee

[1] On 5 October 2025, Mr Shaine Mutton applied for an unfair dismissal remedy under section 394 of the Fair Work Act (Cth) (the Act) in relation to work performed for Borderline Plumbing Pty Ltd (Borderline Plumbing). Borderline Plumbing objects to the application on the basis that Mr Mutton was not an employee and cannot have been dismissed within the meaning of s.386 of the Act.

[2] The question is whether Mr Mutton has been dismissed. I find that Mr Mutton has not been dismissed. At all relevant times, Mr Mutton was an employee of his own business, East Coast Safety Consultants Pty Ltd (ECSC). He was not an employee of Borderline Plumbing. The work performed by Mr Mutton for Borderline Plumbing was pursuant to a contract for services between Borderline Plumbing and ECSC.

[4] Mr Mutton established ECSC in 2006 although only commenced operating the business in 2019. He is both a director of the business and its employee. ECSC is a small business that describes itself as 'a leading Australian health and safety company[that] provide[s] a host of consulting services to all workplace industries, including construction, mining, manufacturing, Infrastructure, and transport'. ECSC performs work for clients through Mr Mutton and its other consultants.

[5] On 2 July 2024, ECSC entered into a contract for services with Howard Consulting Pty Ltd to provide project safety management services to Borderline Plumbing. The person nominated to perform the contracted work was Mr Mutton. Mr Mutton commenced work pursuant to the contract from on or about 15 July 2024 until about December 2024 when a snowboarding accident saw the contract come to an end.

[6] On 10 February 2025, Mr Mutton sent Borderline Plumbing a 'Weekly HSE Support Proposal - Memorandum of Agreement (MOA)' on behalf of ECSC. The proposal described ECSC's business, experience and key capabilities, and included 'CV summaries' for its four key personnel in connection with the proposal. The attached MOA nominated those personnel (including but not limited to Mr Mutton) as available to deliver on the scope of proposed works.

[7] The scope of works was to provide 'weekly health, safety and environmental support in maintaining Borderline Plumbing legal compliances'. The MOA contained a fee proposal of $1350 per day (plus GST), with pro rata hourly rates, and travel costs to be reimbursed on a cost plus basis. The fee proposal estimated minimum working hours of between 10 and 20 hours per week, depending on volume and location of work. It provided for 'Company IT and computer' to be provided and for invoices to be issued monthly with 14 day payment terms.

[8] On 16 February 2025, Director of Borderline Plumbing, Mr Thomas Bassett, responded to the proposal to say that he was happy with the document provided and may add some additional content. He indicated that he would come back to Mr Mutton by the end of the week. Mr Mutton responded with 'Cheers mate'.

[9] On 21 February 2025, Mr Bassett wrote again to Mr Mutton to say that he was 'Happy to proceed with this' (referring to the ECSC proposal and MOA). He set out some initial work in contemplation to be carried out under the arrangement.

[10] The acceptance of ECSC's proposal and MOA was followed by the commencement of work on 27 February 2025. On 28 February 2025, ECSC invoiced one day's work to Borderline Plumbing at the agreed rate of $1350 plus GST. From that time until 13 October 2025: ECSC consultants performed work for Borderline Plumbing; ECSC invoiced for Borderline Plumbing in relation to that work (mostly based on hours worked in the previous month); and Borderline Plumbing paid the invoices rendered at the rates set out in the MOA.

[11] The arrangement between ECSC and Borderline Plumbing was contractual in nature. I do not accept that the proposal and MOA was no more than a quotation or that no contract was ever formed. On the facts, there was offer, acceptance, intention to create legal relations, and performance over a period of approximately 7 months. The arrangement between ECSC and Borderline Plumbing was a contract for services.

[12] There is no evidence of any separate contractual relationship between Mr Mutton and Borderline Plumbing directly. All work that Mr Mutton performed for the benefit of Borderline Plumbing was done in his capacity as an employee of ECSC. Mr Mutton did not invoice, nor seek payment personally, for any of this work, and nor was he paid separately for any of the work performed. He was not a 'sole operator'. Although he primarily worked on the contract for Borderline Plumbing, he did so on behalf of ECSC alongside another of its personnel. Other consultants of ECSC continued to provide services to ECSC's handful of clients for the duration of the contract between ECSC and Borderline Plumbing.

[13] The submissions made in relation to whether the relationship between Mr Mutton and Borderline Plumbing was one of employment or contracting, for example, that ECSC was responsible for the insurance, superannuation and PAYG taxation of its employees, or that Mr Mutton was (or was not) under Borderline Plumbing's direction and control, or was provided with a uniform and laptop, job title and signature block and reimbursement of vehicle expenses, are misconceived. Consideration of whether a person is an employee of, or contractor to, another person or entity arises in the context of an established contractual relationship between them. Here, there was no such relationship between Mr Mutton and Borderline Plumbing for the reasons stated above.

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