1. The Applicant would work on a time-structure basis, three days per week on days to be agreed as needed but expected to be Wednesdays, Thursdays and Fridays.

1. The Applicant would issue invoices for his work, which were to be issued on a fortnightly basis in accordance with the Respondent's pay cycle.

1. Except for the days when the Applicant was working at the Respondent, he could work elsewhere for other clients or work.

1. The parties agree that Applicant would be engaged as a contractor.

1. The Respondent would supply the Applicant for use with a suitable laptop and other photography equipment on agreement.

1. The Respondent would reimburse the Applicant for specific equipment purchases that he would use for his work, as agreed.

• [114] In relation to the term concerning the supply of the computer and other selected equipment, I note that the evidence does not disclose any specific discussion about them. However, as there was an email dated 8 November 2016 to arrange for the laptop, I consider it highly likely that the parties had discussed those matters previously and agreed that it would be supplied. The evidence refers to the Respondent supplying a "DSLR camera". The value of this item is unclear, although I infer it was modest (and possibly around the value of the computer, noting Mr Haswell's complaint that Mr Muller did not use the supplied camera and instead used his own equipment). The Respondent would not have purchased a camera nor would have arranged for such a specific computer to be procured without having considered there was a need for it in the first place. For similar reasons, I consider it also highly likely that the parties discussed at least in general terms the other items of the equipment Mr Muller indicated he would require (as reflected in the invoice dated 18 October 2016), and that prior to Mr Muller purchasing them, he had obtained approval for their reimbursement if purchased.

• [115] I find that the following terms were implied into the Contract. These are terms that I am not satisfied the evidence demonstrates were actually discussed or were expressly agreed upon but I consider necessary for the reasonable or effective operation of the Contract:

1. The hourly rate was the total amount payable to the Applicant by the Respondent and no annual leave, sick leave, superannuation or other amounts would be payable.

1. The Applicant would perform the tasks directed by the Respondent and to the standard expected of the Respondent, as might be advised or directed from time to time.

1. The Applicant would apply his professional skill to the tasks at hand.

1. The Applicant would not delegate his work nor allow another person to perform his contracted obligations without prior permission.

1. The Applicant would notify the Respondent if he was, or was likely to be, absent.

1. The Applicant would supply his own equipment for photography and videography, save for equipment supplied or made available by the Respondent.

1. The Applicant's expenses would be paid, where approved, and any modest expenditure required discussion and agreement before the expense was incurred.

1. The Applicant granted the Respondent a bare licence to use any photographic or video works he created for the purpose that they were created (such as publication on the Respondent's website.).

1. Termination of the Contract would be upon either party giving reasonable notice.

• [116] While I consider the implied terms stated above are mostly uncontroversial, there are potential exceptions. I would make the following brief observations.

• [117] In relation to the term concerning (non) payment of any amount in addition to the hourly rate for matters such as leave, it is unclear on the evidence whether it was specifically discussed or possibly just assumed as an obvious criteria, although given the time that has since elapsed since that initial conversation, this is not levelled as a criticism. It is for this reason I do not consider this term was expressly agreed. It would in any case appear to have been obvious to both parties after the first invoice was issued that, if either party had a different view, it would have been clear from then. Neither party suggested to the contrary.

• [118] In relation to the term regarding the tasks to be performed and the standard at which they were to be undertaken, I am not satisfied the evidence discloses any specific discussion about those matters. That said, there was clearly discussion between the parties as to the needs of the Respondent. Those needs, which I accept were discussed, were content creation for the Respondent's website and marketing, primarily being in relation to the Respondent's business of selling woodworking tools.

• [119] In relation to the term regarding notification for absences, while I am not satisfied such a term was discussed, I consider such a term is necessary where it was contemplated that work would be performed on specific days. The Applicant's evidence asserted he was required to seek "permission" to be absent. As I noted in my findings, I do not accept there was such a requirement and, for completeness, I would not imply a term to that effect. If he did not work, he would not be paid.

• [120] In relation to the term for delegation, the Respondent contended that the Applicant was free to delegate work and the Applicant contended the opposite. The matter is resolved by reason of the absence of an express term permitting delegation to (or, perhaps more realistically in the case before me, vicarious performance by) a third person. The law does not permit - without prior agreement - an agent to assign, delegate or to have performed those obligations for which personal skill and competence is required.[5] I consider that the performance of the photography and videography work (being the core functions for the Applicant) required personal performance. There being no prior (express) agreement permitting, it follows that a term permitting that very activity will not be implied.

• [121] In relation to the term regarding the supply by the Applicant of his own equipment, such a term necessarily follows from the fact that while the Respondent supplied some limited equipment it did not appear comprehensive. So far as other equipment was required or the Applicant preferred to use it, he would supply that himself unless specific requests were made.

• [122] In relation to the implied term for reimbursement, the Applicant's written submissions contend there was a term that the Applicant "would be" reimbursed for expenses during his work. I do not consider the evidence reflected that was agreed upon and I do not consider it commercial - let alone necessary - to imply a term that the Applicant "would" be reimbursed for items in the absence of the Respondent first being notified before those costs were incurred.

• [123] In relation to the term for the licensing of works, this follows from the absence of any express term dealing with intellectual property rights. While each party gave evidence that they considered that the Applicant did not retain any "intellectual property rights", this is a conclusion or assumption by those parties and did not reflect any discussion, let alone an express term.

• [124] Any photographs or videos created by Mr Muller are "works" within the meaning of the Copyright Act 1968 (Cth) (Copyright Act). To give a straight-forward example, if Mr Muller took a photograph - even one he was specifically instructed to take - that photograph is, under the Copyright Act, an "artistic work" for which Mr Muller is the "author". As the author, Mr Muller is also the "owner" of the work unless modified by agreement: Copyright Act, s.35(2) - (3). While ss.35(4) - (6) of the Copyright Act allows for, in effect, automatic ownership of copyright by a person who is not the author (e.g. an employer, where there is an employee-employer relationship, or paintings commissioned for private purposes), I do not consider they apply unless the Applicant is an employee. Further, an assignment of copyright is of no effect unless it is in writing and it will not be implied.[6] There was no written assignment. By contrast, a licence need not be in writing and (in the absence of the Applicant being an employee) I consider it necessary for the operation of the Contract that an implied licence exist such that the Respondent can use the artistic works authored and owned by the Applicant for the purpose for which they were created.[7]

• [125] For the term regarding notice upon termination, I consider an implied term of reasonable notice is a necessary term in circumstances where no express term was arrived at.

• [126] There were a number of other terms advanced, primarily by the Applicant in his written submissions, with many that I do not consider were terms of the Contract. They are:

1. The Applicant's miscellaneous duties that he was required to perform included:

(iii) photography duties for other companies for which the Respondent would be paid.

1. the Applicant was required to perform his duties personally and could not delegate tasks;

1. the Applicant was unable to reject a direction to perform duties or a direction on how he should perform those duties;

1. all the intellectual rights to the material created by the Applicant remained with the Respondent;

1. the Applicant was required to present himself as an employee of the Respondent to third parties and other employees of the Respondent by:

(ii) wearing a uniform with the Respondent's branding;

1. the Applicant was required to work exclusively for the Respondent during weekdays;

1. the Applicant was required to comply with the Respondent's policies and procedures;

1. the Applicant's performance would be managed by the Respondent;

1. the Applicant would be provided with the equipment needed for his work by the Respondent; and

1. the Applicant would be reimbursed for expenses incurred during his work.

• [127] I have addressed a number of these matters already. Of the list of terms above, I find that none of them were expressly discussed at the initial meeting(s) - other than as I have set out above - and could not be an express term of the Contract. I have also addressed some of these matters above regarding delegation, intellectual property, equipment supply, reimbursement of expenses, and management of performance (and tasks to be performed) above.

• [128] The "exclusivity" term I consider misplaced - it is not necessary to imply it for the reasonable operation of the agreement and it was not discussed. Having regard to the express terms that the Applicant could perform business elsewhere, I do not consider it appropriate to imply a term inconsistent with an express term. I accept, however, that a consequence of the requirement for the Applicant to work for the Respondent during the periods agreed (initially 8:00am to 5:00pm, for three days in a week and later becoming five days) necessarily meant that the Applicant would not be working for anyone else during those periods. He was contracted to perform work on those days.

• [129] For the other terms said to form part of the Contract, I also do not consider them necessary to be implied into the agreement for its reasonable operation, particularly where they were not discussed. On those matters, the Contract was - at least initially - silent.

• [130] I consider now to what extent the contractual terms above were modified or added to between the period of contractual formation and the variation of the Contract in January 2017 (Variation).

• [131] It is uncontroversial, and I find, that the Contract was amended, commencing effective around January 2017, for Mr Muller to work five days instead of three days. These amendments were express, made orally. I accept Mr Haswell's evidence that there was no discussion about any other aspects and I find there were no further express amendments.

• [132] I have considered whether - to adopt the statement of Kiefel CJ, Keane and Edelman JJ at [42] in Personnel Contracting - there was an "imposition" by the Respondent of its "work practices" upon Mr Muller that "manifests the employer's contractual right of control over the work situation" or whether Mr Muller's "acceptance of the exercise of power" may show that the Respondent was "ceded the right to impose such practices".

• [133] This requires consideration of the conduct of the parties between formation of the Contract and its variation.

• [134] I accept there were some work practices suggestive of an increased level of control or power. They included the Applicant's use of an email address and the (likely) wearing of a uniform. The regularity of Mr Muller's hours and the participation by Mr Muller in staff team meetings (c.f. 16 December 2016) are similarly suggestive of an increasing level of control. The meeting minutes of 16 December 2016 describe Mr Muller's role somewhat more broadly to include "Media Coordinator", which was not a task expressly referred to in the Contract (cf. photography, videography and marketing).

• [135] However, when assessed against the evidence as a whole during this period, I do not consider that the evidence of the parties' conduct or work practices during this period rises to such a level that it manifests an assumption of a right of control over Mr Muller by the Respondent that was sufficiently different from the terms of the Contract originally agreed.

• [136] I do not consider that recourse to the post-contractual conduct occurring after the Variation assists, other than I have set out above. In those circumstances, I do not consider those matters appropriate to have regard to in characterisation of the Contract or the Variation.

• [137] The circumstances surrounding the entry into the Contract were relied upon by the parties for different reasons. The Applicant relies upon the fact that Mr Haswell was, in his email dated 14 September 2016, initially seeking to engage an employee, beginning part-time on a "time-structured" basis and most likely moving to full-time. I accept that this factor is suggestive that the relationship being sought by the Respondent was one where the degree of control he would exercise would reflect the degree of control present in an employer/employee relationship.

• [138] For similar reasons, I consider the contractual requirement to work on fixed days for, in substance, fixed times conveys a greater sense of control by the Respondent and an indication that the Applicant was working in the business of the Respondent, rather than his own business. Initially, the number of days was three per week and changed to five.

• [139] In my view, it is these terms which speak most strongly of an employment relationship, as they suggested a foundation where - from the Respondent's perspective - it was paying a person to be available at set times to perform services supplied by the Respondent from time to time. In short, the Respondent was obliged to pay for fixed blocks of the Applicant's time per week at a flat hourly rate, and it would appear improbable that the Respondent would have allowed the Applicant to sit around during idle times without being allocated other incidental work. This suggests that it was likely that in circumstances where the Respondent did not have core work immediately available to perform, or it had some other pressing priority, it might ask the Applicant to perform other tasks, such as taking the minutes of the meeting on 16 December 2016. There were hallmarks of this practice, at least the case by the time of the Variation.

• [140] Further, the work to be undertaken by the Applicant was also to be performed personally. There was no express right of delegation and, as set out above, such a term cannot be implied. These are also matters suggestive of an employment relationship, although the authorities I referred to regarding the inability to imply a term of delegation were, I note, not matters concerning an employee relationship. Although I note that, in a practical sense, such delegation or performance by a third party was unlikely to happen. I say that because the Applicant was remunerated on what was essentially a fixed-time arrangement. He could only delegate work he was contracted to perform. If he delegated work, or arranged for someone else to perform that work for him, he would not be entitled to charge for additional work at the same time. Any work performed by a third party would, unless paid at a rate less than his own hourly rate, be remuneration that the Applicant would not receive. For completeness, I also consider that this is an answer to the Applicant's evidence about his request in 2019 for his wife to perform work to enable deadlines to be met. In substance, what the Applicant was requesting at that time was for additional work to be undertaken, not simply that the existing work that the Applicant would charge for would be performed by her instead of him.

• [141] Those aspects cannot be considered in isolation, however.

• [142] The Applicant's submissions stated that the work performed was as directed by the Respondent. I consider that proposition is generally correct in what was to be performed and when. However, and relevantly, it was not the case that the Respondent dictated how the work was to be undertaken[8], other than it remained the case that work needed to be performed to a requisite standard.

• [143] The terms of the Contract (unchanged on Variation) required the Applicant to perform specialised photography and videography work. I would make the observation that it is well-known that many photographers can operate as independent contractors or as employees. There is nothing inherent to the nature of photography work that determinately points one way or the other. The engagement of a photographer is certainly capable of - and frequently is - based as an independent contracting relationship but the same can be said of employee photographers. The mutually known background to the parties recorded that Mr Muller had been operating as a photographer for approximately 35 years. A significant majority of that period was as an independent contractor.

• [144] The term of the Contract (unchanged on Variation) that Mr Muller would perform "marketing" tasks is perhaps closer on the spectrum to traditional employment than the more specialised profession of a photographer. However, in the context of the parties at the time, caution needs to be exercised in generalisations. The Respondent at the time was a very small business, with about five employees. As a small business, it is unsurprising that some tasks were outsourced simply because the business did not have the present time or expertise to perform them inhouse. The evidence shows that marketing functions themselves were being outsourced at the time to a third-party entity. The emails between the parties on 14-15 November 2016 reflects their respective comments on the cost of one of those arrangements.

• [145] Notwithstanding that it was Mr Haswell's initial intention to engage a photographer inhouse as an employee, in all the circumstances there is nothing in the terms regarding the photography/videography/marketing work, and the professional skill that Mr Muller would apply to them, that I consider points strongly in one direction or the other for the characterisation task.

• [146] I consider that the issue of equipment points slightly more in favour of an independent contracting arrangement. Ordinarily, I would consider the supply of equipment - particularly high-value, specialist equipment - by the putative employee would be a greater indicator of an independent contracting arrangement. The cost of some other equipment was reimbursed by the Respondent but a number of those items nonetheless appeared to remain the property of the Applicant (albeit, being reimbursed for them). Muting the impact of this factor, however, is that some of that equipment (such as a computer) was supplied by the Respondent. I do not consider that the arrangements for reimbursement of (agreed) cost items points strongly in either direction, given the relatively modest value of those items.

• [147] However, the supply of equipment is not itself inconsistent with an employment relationship. "In many forms of employment, employees provide their own uniform and bring their own tools to work."[9] As noted, the Respondent was initially looking to engage a photographer inhouse and the evidence suggests that the equipment that would have likely been used would be a combination of (lower cost) equipment supplied by the Respondent or, more likely, the employee photographer using his own equipment and being reimbursed for costs from time to time.

• [148] As to the "mode of remuneration"[10], "deduction of income tax"[11], and the term for payment of a flat hourly rate with (any) GST, these features - together with the implied term that no amounts such as annual leave, sick leave and the like were payable - are suggestive of an independent contracting relationship. These matters were unchanged upon the Variation. The amounts received following the issuing of an invoice had no income tax deducted, which is also a factor suggestive of an independent contracting relationship.[12] I do not consider that the requirement for the Applicant to notify the Respondent of his absence points in either direction.

• [149] On the question of intellectual property, the express terms were silent on those matters. A consequence of this is that the Applicant retained ownership in the works he created (subject to the implied licence I have described), which is more strongly suggestive that those works are assets of the Applicant's business. While that may be the legal position, however, in reality neither party expressly turned their mind upon the question in any discussion between them and both appeared to operate on a contrary assumption.

• [150] At the commencement of the engagement in September 2016, Mr Muller had his own clients and business. This was a key reason why the parties - at Mr Muller's initiation - agreed to describe Mr Muller as a "contractor" and to work initially at three days per week only to ensure that Mr Muller would be able to continue and preserve his business in that respect. In terms of the "own business" dichotomy, I also see no reason why the work of the Applicant for the Respondent, as contemplated by the Contract, would not improve the reputation and goodwill of Mr Muller's existing photography business generally. However, it would appear that the contracted activities of the Applicant were more within the Respondent's business, than the Applicant's business.

• [151] Nonetheless, as stated by Gordon J in Personnel Contracting, it should be recognised that "both employees and contractors can work "for the benefit of" their employers and principals respectively, and so that, "by itself", cannot be a sufficient indication that a person is an employee" (original emphasis).

• [152] While the recent High Court authorities make it clear that recourse to the parties' description or "label" of the arrangement should be approached cautiously - and in many cases not at all - the case before me is a matter where I consider it appropriate to have regard to the parties' own characterisation of the Contract (unchanged upon the Variation). I do so not as a "tie breaker"[13] nor as a determinative factor, but as a factor relevant to the "whole of the contract" [14] and which, in this case, "can shed light on the objective understanding of the operative provisions of their contract".[15]

• [153] Here, the contract is not comprehensive and - indeed - is entirely oral in relation to the limited express terms that were agreed, and the description given by the parties of their relationship in this context is not merely a label or descriptive gloss but, in the bargain struck by the parties before me, states in a short-hand way the very outcome that the parties were seeking to achieve.

• [154] The Respondent was originally recruiting for an employee. However, the bargain of the parties consciously proceeded in a different direction - at the Applicant's behest - where they agreed a "contractor" relationship would ensue. The context for this was that the Applicant was, at that time, working only as a contractor, he had his own existing business and customers, and he wanted to preserve and continue them. I consider that this context helps "assist in identifying the purpose or object of the contract"[16] as it was made (and, other than the Variation, remained unchanged).

• [155] The absence of a formal documented agreement lends significance to the parties' own characterisation of the arrangement between them in these circumstances and reflects the purpose or object of the contract they sought to achieve. That object was for the Applicant to remain a contractor, but while working on fixed days for the Respondent.

• [156] When considering the totality of the relationship between the parties having regard to all the matters above, I conclude that the correct characterisation of the Contract as it was formed in around 23 September 2016 was that of an independent contracting arrangement. The characterisation was not changed by the Variation. Other than the increase of the days to be worked, I am not satisfied there is evidence that the parties expressly sought to alter to or detract from the terms of the Contract by the Variation and I am not satisfied from the evidence that there was a manifestation of control[17] that would other change the character of the Control by those practices, together with the Variation.

• [157] It is for this reason that I find that the Applicant is not an employee and, accordingly, his application must be dismissed.

• [158] With some element of self-interest, I would briefly echo the observations of Logan J in Fair Work Ombudsman v Avert Logistics Pty Ltd [2022] FCA 841[18], which were to the effect that the matter before me was a harder one than the matter in Jamsek (or Personnel Contracting) appeared to be. With that observation, and having regard to the time and effort by the parties in litigating the matter to date, I would state my conclusions briefly in the event that I am wrong in relation to my primary conclusion above.

• [159] Shortly stated, if Mr Muller was an employee then it is uncontroversial that he was "dismissed" for the purposes of s.385(a) and s.386 of the Act.

• [160] The facts set out above were largely directed by the parties to the question of whether Mr Muller was a contractor or an employee.

• [161] Mr Haswell's evidence in chief states that he was the decision-maker in relation to terminating Mr Muller's contract. Mr Haswell states that he did so for the following reasons:

"(a) The Applicant was resistant to requirements from the Respondent to produce works with particular requirements, particularly to requests for photographs with more light to give clear depictions of our products;

(b) The Applicant had repeatedly failed to meet deadlines over an extended period of time; and

(c) Despite attempts by Mr Madden and myself to manage the two issues above, the Applicant was either failing to improve or declining further."

• [162] The performance concerns, other than as expressed at the level of generality just stated, were not articulated. In relation to "lighting" issues regarding Mr Muller's photography, Mr Muller denies there were issues with his work. As to the issue of meeting deadlines, Mr Muller states that the deadlines "forced on me by Mr Madden were not reasonable or achievable."

• [163] In cross-examination, Mr Haswell acknowledged that none of the performance issues were documented in writing, to his knowledge, and he was not sure whether there was anything in writing, such as an email, with Mr Madden. Neither party drew my attention to any matter being raised in writing with Mr Muller.

• [164] As noted above, at least by 2020, Mr Muller's work was being managed by Mr Madden. Mr Haswell accepted that "most" performance issues occurring in the twelve months prior to the termination of Mr Muller's engagement would have been managed by Mr Madden.

• [165] Mr Muller gave evidence that he was being "bullied" at work by Mr Madden. That evidence was also expressed at a level of generality, and referred to Mr Madden "overloading" him with work and making unreasonable demands for work to be completed at the same time as being overly prescriptive in what was required. Mr Muller said Mr Madden was "sabotaging" his work and was "isolating" him by removing him away from others.

• [166] Mr Muller stated that Mr Madden was "haranguing" him in front of staff "on more than one occasion". While Mr Muller's evidence was expressed at a level of generality, he gave three specific instances of conduct: the first two were alleged instances of (in effect) disparaging comments about Mr Muller's religion, made on 13 September 2021 and 31 November 2021. The third was being "bawled out" in front of staff about his Christmas plans (which Mr Muller had previously told Mr Madden) on 24 December 2021.

• [167] Mr Madden was not called to give evidence and Mr Muller's counsel invited me to infer that his evidence would not have assisted the Respondent on these matters. I accept that submission.

• [168] Mr Haswell said in cross-examination that there was a "specific instance" where he noted there were problems around "partly performance but also partly demeanour with Mr Muller". As a result of that, Mr Haswell says he had an informal meeting with Mr Muller - possibly late October 2021 or early November 2021 - where he says he brought up the issues around his "performance" and also around his "demeanour" to try and find out if there were any kind of issues that needed to be resolved. While Mr Haswell made the point that Mr Muller did not bring up the bullying issues in that conversation, Mr Haswell did not explain what "performance" issues were discussed. It was put to Mr Haswell that no performance issues were discussed. While Mr Haswell denied that proposition, so far as there were any issues discussed I can make no findings about their content (such as they were discussed beyond the highest level), noting that these were matters not contained in Mr Haswell's evidence in chief and being stated for the first time in cross-examination.

• [169] Mr Haswell states that he was the sole decision maker for the Respondent in deciding whether to termination Mr Muller's contract. While I accept that, I consider it was not a decision he would have made without having first consulted with Mr Madden.

• [170] Mr Haswell also gave evidence, which I accept, that he had decided to terminate Mr Muller's engagement in December 2021. Mr Haswell's evidence contained an advertisement he posted "to fill the Applicant's role" after the contract would be terminated. In fact, a contract was signed with a new employee to that effect on 24 January 2022 before Mr Muller's engagement was terminated. Mr Muller says, and I accept, he was unaware of any of those matters at those times. Mr Haswell states that he did not, at the time, tell Mr Muller about those matters because Mr Muller was away from work for substantial parts of December 2021 and January 2022 for reasons relating to Mr Muller's personal circumstances. Mr Haswell perceived those circumstances would be exacerbated if he told Mr Muller that his contract was about to be terminated. I accept those matters. Mr Haswell also says, and I accept, that he was not aware of the bullying allegations prior to making his decision and those matters did not form a part of his decision.

• [171] As indicated, Mr Muller was away from work for various periods, including personal reasons later in January 2022. He returned to work on 9 February 2022, working from home.

• [172] On 14 February 2022, he met with Mr Haswell by video conference. The witnesses' evidence of that meeting is broadly consistent, and Mr Muller was told that a person had been found to replace Mr Muller's position. Mr Haswell said that the reasons for the termination was that Mr Muller had a particular style of shooting photography and the Respondent wanted to change; he was also told that he had been slow in providing social media work.

• [173] There was no letter of termination.

• [174] At the meeting on 14 February 2022, Mr Haswell's evidence was that he said he offered to pay Mr Muller an "additional two weeks of pay as notice" if Mr Muller completed certain work in progress.

• [175] Shortly before the hearing, the Applicant filed a 'Note on Remedy', which set out further information about his case on remedy. I note at the outset that reinstatement was not sought, only compensation. Mr Muller observes he successfully mitigated his loss from 30 March 2022 and expects to remain in his employment with his current employer. Mr Muller pressed for compensation for income lost between the period 14 February 2022 and 29 March 2022, which he quantified at $9,804 gross. There was no substantive challenge to that calculation.

• [176] Turning to the factors in s.387 of the Act, I make the following findings.

• [177] The reason advanced for the dismissal related to performance concerns, and alleged failure to meet deadlines. As I have noted above, the performance concerns, other than as expressed at the level of generality stated in Mr Haswell's witness statement, were not articulated in the evidence before me. Moreover, Mr Haswell accepted that "most" performance issues occurring in the twelve months prior to the termination of Mr Muller's engagement would have been managed by Mr Madden.

• [178] Mr Madden was not called as a witness. It appears that many of the views held by Mr Haswell were necessarily informed by reports and updates provided to him over time from Mr Madden. While I accept that the views expressed by Mr Haswell were genuinely held and those views formed the basis for the dismissal, the evidentiary material before me falls a long way short of establishing a valid reason was made out.

• [179] The Applicant was informed on 14 February 2022 that his engagement was to be terminated. The evidence of the reasons provided was also at a high level of generality and it was not suggested that any specific instances of performance relating to the reasons for dismissal were discussed.

• [180] So far as the reasons concerned the capacity of the Applicant (they did not appear to relate to conduct), there was no meaningful opportunity to respond. In order to respond, the Applicant would have needed to have been given at least some specific examples of his performance or lateness of work that underpinned the putative reasons. That detail was not provided. In addition, the discussion that occurred reflected a decision that had been made considerably earlier (and had been delayed due to Mr Haswell's views about Mr Muller's personal circumstances at the time).

• [181] I would observe that this situation also reflected Mr Haswell's belief as to the nature of the legal arrangements between the parties - that of independent contracting parties - which further explains that Mr Muller was being notified of the termination and it was not going to be a matter for further discussion. At the time the termination was notified, the position for a replacement had been advertised, interviewed and appointed. There was no meaningful opportunity to respond.

• [182] There was no request for, nor refusal of, a support person. I treat this factor neutrally.

• [183] The evidentiary material falls considerably short of establishing that Mr Muller was given adequate warnings about his performance.

• [184] The employer was, at the time of the termination, no longer the small business it was in 2016, although it was not a large enterprise with (as best as I could discern), any specialist human resources managers or expertise. At the time of termination, there were approximately 35 employees. I treat these factors neutrally.

• [185] The Applicant invited me to consider the personal and economic impact on the Applicant by the dismissal, as well as that he had had more than five years of continuous service with no prior warnings for performance or conduct. I have had regard to those matters.

• [186] I have made findings in relation to each matter specified in section 387 as relevant.

• [187] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[19]

• [188] Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable. In short, I am not satisfied there was a valid reason, there was inadequate procedural fairness involved and I do not consider that there were any other matters that would dictate a different overall conclusion.

• [189] On the basis that I am incorrect about the Applicant not being an employee, I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act.

• [190] In relation to remedy, the Applicant does not press for reinstatement. At the time of the hearing, he had secured alternative work and I am satisfied in all of the circumstances that reinstatement would not be an appropriate remedy.

• [191] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, "[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one ... ."[20]

• [192] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[21]

• [193] The Applicant was dismissed on 14 February 2022. In a 'Note on Remedy' filed by the Applicant, that document sets out that he successfully mitigated his loss from 30 March 2022, which he commenced permanent full-time employment elsewhere on a comparable salary to what he earned with the Respondent. I accept those matters.

• [194] The Applicant further submits, and I accept, that he expects to remain employed with his new employer.

• [195] The Applicant was not given notice (despite my conclusion that he was, contractually, entitled to "reasonable notice"). He therefore claims by way of compensation 6 weeks' pay, based on the period up to 30 March 2022. The Applicant quantified that amount as totalling $9,804 gross.

• [196] There was not any serious challenge to the Applicant's calculations, just stated, and I accept them. Were it not for the termination of his engagement, if the requirements of s.387 were to be complied with, I consider it likely that the Applicant would have continued to work for the Respondent for at least a further 12 weeks. In reaching this conclusion, I have had regard to (on the Applicant's evidence) the strained relationship between him and Mr Madden and, on the Respondent's account, its concerns.

• [197] I am satisfied that the Applicant would have worked, or been entitled to be paid, for the full six weeks that followed his dismissal on 14 February 2022.

• [198] Save for the matter of the Respondent's offer of further work, which I consider separately below, I do not consider there is any reason to discount the above amounts further. There was no misconduct and therefore no reason to discount on account of that factor. I note also that, as an employee, he would have been entitled to 5 weeks' notice under s.119 of the Act given his service and age (the latter being above 45 years).

• [199] On the question of mitigation, the Respondent contends that the Applicant was offered what was, in effect, two weeks' paid work to complete various jobs. The Applicant did not accept that work. I have considered whether the amount of six weeks pay, described above, should be further discounted. I am not satisfied that it should. The two weeks' work was not a notice period. The Applicant's engagement had, at that stage, been terminated. The two weeks' work on offer was, in substance, a stand-alone two week engagement. Taking that offer would have involved some distraction from the Applicant's more important focus of securing permanent work. The Applicant, to his credit, did so effectively from 30 March 2022, and I infer he was necessarily taking active steps prior to then. While these matters are always a question of degree, I am satisfied it was not unreasonable for the Applicant to refuse a short-term engagement with the entity that had just ended unhappily for him while he ought to have been (and, I infer, was) focussing on securing permanent alternative work.

• [200] If the Applicant was an employee, then I would order, pursuant to s.392(1) of the Act that the Respondent is to pay to the Applicant $9,804 for the remuneration lost, taxed according to law.

• [201] An order[22] giving effect to my decision dismissing the application will be issued separately.

[1] Exhibit SM-2 to Mr Muller's first statement.

[2] Cited approvingly by the Full Bench in Mohammad Amin (Darius) Souraki Azad v Hammond Park Family Practice Pty Ltd T/A Jupiter Health Warnbro [2022] FWCFB 66 (Catanzariti VP, Easton DP, McKinnon C).

[3] Cited with approval by Ward CJ in Eq (as her Honour then was) in Anthony v Morton [2018] NSWSC 1884 at [398].

[4] See also Personnel Contracting, [174] (Gordon J).

[5] Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1903] UKLawRpAC 45; [1902] 2 KB 660 at 669 (Collins MR); John McCann & Co (a firm) v Pow [1975] 1 All ER 129 at 131-132 (Lord Denning MR). Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40; (2006) 149 FCR 395 at [32] (Finn and Sundberg JJ).

[6] Copyright Act, s.196(3).

[7] Concrete Pty Ltd v Paramatta Design & Developments Pty Ltd (2006) 299 CLR 577.

[8] Jamsek, [69] (Kiefel CJ, Keane and Edelman JJ), and [105] (Gordon and Steward JJ).

[9] Personnel Contracting, [175] (Gordon J).

[10] Personnel Contracting, [174] (Gordon J), [113] (Gageler and Gleeson JJ); Stevens, at 24 (Mason J).

[11] Personnel Contracting, [113] (Gageler and Gleeson JJ); Stevens, at 24 (Mason J) and also at 36-37 (Wilson and Dawson JJ).

[12] Cf, Stevens, op cit, per Mason J at 24 and Wilson and Dawson JJ at 36-37.

[13] Cf, Personnel Contracting, [79].

[16] Personnel Contracting, [175] (emphasis added).

[19] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

[20] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].

[21] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].

[22] PR746447

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