s.365 - General protections

Application to deal with contraventions involving dismissal

[1] On 27 November 2025, Ms. Tareena Ruvat Little's engagement with Equal Therapy Pty Ltd (ET) ceased.

[2] On 22 December 2025, Ms. Little made an application alleging she was dismissed from her employment in contravention of Part 3-1 of the Act. General protections applications are required to be made within 21 days of the dismissal taking effect. Her application was 4 days late. Ms. Little made an application under s 366(2) for an extension of time to make an application.

[3] The documents filed in relation to the extension of time raised another jurisdictional issue. It included:

• An email chain between Ms. Little and the director of ET, Mr. Maxwell Ryding entitled "Updated Independent Contractor Agreement". These e-mails concerned a dispute as to who would pay superannuation contributions under a new contract. Ms. Little claims that pursuing this complaint was the active reason for the cessation of her employment with ET; and
• A contract entitled "Independent Contractor Agreement" dated 9 December 2025 signed by Ms. Little and Mr. Ryding ("The Contract").

[4] On 9 February 2026 my Chambers wrote to the parties. I informed them that in order for the Commission to exercise its jurisdiction to deal with a general protections dispute under s 365, the applicant must have been dismissed. The meaning of dismissal under s 387 is predicated on the "person" being an employee rather than an independent contractor. The filed documents suggested Ms. Little may be engaged as an independent contractor. I requested the parties to be prepared to make submissions on the question whether or not Ms. Little had been an employee and was therefore capable of being "dismissed" for the purposes of s 365(a) at the determinative conference.

[5] On 10 February 2026, I conducted the determinative conference. The parties made submissions on the question of whether or not Ms. Little was an independent contractor or an employee as well as submissions on Ms. Little's extension of time application. Ms. Little appeared and represented herself. ET was represented by Mr. Ryding, its director.

• Ms. Little was an independent contractor and was therefore incapable of being dismissed as required by s 365(a).
• The application fails for want of jurisdiction and is dismissed.

• [7] In Graeme Taylor v. Department of Justice and Community Safety[1] the Full Bench decided that, in an unfair dismissal proceeding, it is necessary to determine whether or not a person was dismissed first, before a determination is made as to whether an extension of time should be granted.[2] Given it is also a jurisdictional fact in s 365(a) that a "person is dismissed", I am compelled to follow that order of determination.

• [8] The common shorthand for the effect of the two High Court decisions CFMEU v. Personnel Contracting[3] and ZG Operations Pty Ltd v. Jamsek[4] is that those decisions made the terms of the contract between the putative employee and employer the "King" in the determination of the legal nature of the relationship. The inclusion of s 15AA deposed the terms of the contract as the central determinant of the legal nature of the relationship and placed it as a factor amongst others. Section 15AA says:

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.

[9] The enquiry whether Ms. Little was an employee must be based not only on the terms of her contract but on the real substance, practical reality and true nature of the relationship between ET and herself.

• [10] An examination of the "real substance" of the relationship involves a return to the multi factor approach applied by the High Court in Stevens v. Brodribb Sawmilling Co Pty Ltd [5]and by a Full Bench of Fair Work Australia in Jiang Shen Cai trading as French Accent v. Michael Anthony Do Rozario.[6]

• [11] I will now consider each of the indicia discussed in those cases subject to the note of caution given by the Full Bench in French Accent that the "consideration of the indicia is not a mechanical exercise of running through the items on a check list to see if they are present or absent from a given situation" and that "no list of indicia is to be regarded as exhaustive and the weight to be given to particular indicia will vary according to the circumstances".[7] I also adopt the approach recommended by the Full Bench in French Accent: "The object of the exercise is to paint a picture of the relationship by the accumulation of detail."

[12] Ms. Little was terminated by a "Notice of Termination - Independent Contractor Arrangement 2024". This gave her written notice of a termination which would "take effect on 19 December 2025". The first paragraph stated it was "terminating the Independent Contractor Arrangement between ET and you "signed 10 January 2025".

[13] The first page of the Contract bears the date 9 December 2025. Both Schedules are signed by Ms. Little and dated 10 January 2025. The contract would not have been signed after she was given notice of termination. The 9 December 2025 date must be a typographical error, and I accept she entered into this contract on 10 January 2025.

[14] The terms of the Contract seek to establish an independent contract relationship with ET.

[15] According to its terms of the Contract, Ms. Little agreed:

• Clause 2.1(a) to provide services to ET.
• Clause 2.3 to provide her own equipment and be responsible for all expenses in performing the services.
• Clause 2.4 not to delegate the provision of services without the consent of ET.
• Clause 2.5 she was free to provide services to other parties when she saw fit, provided it did not conflict with commitments under the Contract.

[16] The Contract terms headed "Consideration for Services" in clause 3 contained the following:

• ET would pay her a fee for providing the services on receipt of a tax invoice.
• Payment would be made within 10 business days of receipt of an appropriate tax invoice.
• To be eligible for the payment she was required to have an ABN.
• ET could withhold payment of an invoice or any part of it if services where not provided in accordance with the Contract.
• ET was not liable to pay any fees or to reimburse her for any expense.

[17] The Contract terms in clause 4 headed "No partnership or other relationship term" relevantly state:

4.1 Nothing in this Agreement will or is intended to establish a relationship of partnership, agency or engagement between the Company and the Contractor or any other person engaged by the Contractor to perform the Services, and it is the intention of the parties to this Agreement that any such relationship is expressly denied.

4.2 Without limiting any other clause in this Agreement, the Company will not be liable for any of the following:

(a) workers' compensation, income protection, and accident and health policies of insurance or other like insurances.

(b) wages or salary, overtime, penalty rates, allowances or loadings or the like.

(c) leave entitlements (including but not limited to personal leave, carer's leave, annual leave and long service leave).

(i) PAYG or any other income taxation deductions or withholding.

(ii) fringe benefits taxation, payroll taxation, or any other tax.

(iv) any other charges or benefits required by law under an engagement relationship

regarding the engagement of the Contractor, or the engagement by the Contractor of any person for provision of Services under this Agreement.

[18] The Contract terms in relation to "Insurances" at Clause 11 stated:

11.1 With respect to the Services, the Contractor will, at its sole expense, maintain the following insurances and produce evidence of their currency on demand:

(a) workers compensation insurance covering the Contractor and all workers engaged by it (if applicable).

The degree of control ET had over the work of Ms. Little

• [19] The degree of control a putative employer exercised over the manner in which work is performed, place of work and hours of work is a factor in determining whether a person is an employee. The absence of control or the absence of the right to exercise control is indicative of an independent contractor.[8]

[20] In her oral submissions on the degree of control ET had over her work she stated:

• • "There was an understanding of a level of work required in terms of the clients that were referred to me and the work that was completed or supposed to be completed in relation to equal therapy clients."[9]

• • She was working between Monday to Friday and she chose "specific, certain times". "The clients referred to her have specific work hours that were allocated to me and reports and interventions that I was supposed to complete for them."[10] It was task oriented rather than hours oriented.[11] She had set hours, but she could choose when she worked within it.[12] She had control over the priorities of the tasks completed.[13]

• • She had to comply with Equal Therapy's policies, procedures, reporting administrative tasks for documentation.[14]

[21] In his oral submissions on the degree of control, Mr. Ryding said:

• • "All of our contractors, they have a degree of autonomy to exercise the way they go about their work. So, I don't set hours. Yes, we do provide referrals. However, they choose who they want to work with and when they want to work with the clients that are referred through. They have complete control on the timing."[15]

[22] In relation to the question of the degree of control over the place Ms. Little performed her work Mr. Ryding stated:

• • "We do have a clinic. We do have a clinic that they can choose to work from. It's generally if the clients choose to use the clinic space to save on travel costs. Ms. Little was free to work at the clinic or in the community through in home consults."[16]

• [23] As result of Mr. Ryding's response, I asked Ms. Little whether she could choose where she performed her services to which she responded "Yes."[17] Later in her evidence she also stated that she was free to work from home for the more administrative part of her work.[18]

[24] The evidence on degree of control is more consistent with an independent contractor rather than employment. Ms. Little did not work set hours. She chose her clients from a list provided by ET and could choose when to see them. On her own admission she was free to choose where she performed the services and could do this either at the ET clinic, in home consults or at her own home for the more administrative work.

Was Ms. Little free to perform work for others?

• [25] The right to the exclusive services of a person engaged is characteristic of the employment relationship. On the other hand, working for others suggests an independent contract.[19]

[26] The Contract terms were not exclusive, and it appears the practical reality was consistent with that term. In his evidence Mr. Ryding stated:

"I am very aware that Tareena was also working for a hospital during the period of her contract. She was also working, you know, for a florist during that period. Like, I know that's unrelated to occupational therapy but, you know, we were of an understanding she could work anywhere else as long as it didn't conflict to a degree with the work that she had control over.[20]"

• [27] After initially stating she did not work for others,[21] Ms. Little conceded that she did provide services to a hospital and was also engaged part time as a florist.[22]

[28] The practical reality of the relationship between Ms. Little and ET was she was free and did provide work for others. The freedom to work for others is more consistent with an independent contractor relationship than with an employment relationship.

Did Ms. Little maintain a separate place of work and or advertise her services to the world at large?

[29] The practical reality of this work relationship was that Ms. Little was free to provide occupational therapist services either in the ET clinic, in the community on home visits or to work from home. There is no evidence she had her own rooms to provide occupational therapy services nor is there evidence that she advertised her services to the world at large.

[30] Given that Ms. Little was free to choose where she performed the work, the fact she did not rent her own rooms is somewhat diminished as a factor in favour of an employment relationship. In the circumstances of this case, the fact she did not advertise her services on its own is a weak indicator of an employment relationship.

Did Ms. Little provide and maintain significant tools and equipment?

• [31] In Hollis v. Vabu[23] the plurality of the High Court stated that "where the worker's investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary." The emphasis for the High Court was whether or not the worker provided significant tools and equipment. In that case the bicycle couriers using their own bicycles did not reach the level of s_ignificant_ tools and equipment.

[32] The Contract provided that Ms. Little was required to provide her own tools and equipment. In her evidence Ms. Little stated that ET provided "Laptops, phones and online resources." Mr. Ryding conceded that these things were provided "for ease of transition".

[33] This case is different from Vabu because it is ET providing the tools and equipment rather than the putative employee. The High Court has stressed the importance of the significance of the tools and equipment in an assessment of this indicator. An analogy can be drawn between the relative insignificance of the provision of the bicycle by the putative employees in Vabu, and the relative insignificance of the laptop and mobile provided by ET in this case.

[34] I do not consider the provision of a laptop and a phone by ET reaches the level of significance for this to count either for or against whether Ms. Little was an employee or an independent contractor.

Could Ms. Little's work be delegated or subcontracted?

[35] Clause 2.4 of the Contract prohibited Ms. Little from delegating the provision of services without ETs prior written consent. The ability to delegate the provision of services is a strong indicator that a worker is an independent contractor. In his evidence. Mr. Ryding stated that "it could be delegated under a hand over" but he also agreed that never happened".

[36] In those circumstances this factor is more consistent with employment rather than an independent contract relationship.

[37] Clause 5.1 of the Contract gave ET the right to terminate Ms. Little, and this right was exercised by issuing the notice of termination on 27 November 2025.

• [38] The authorities recognise a distinction between a right to suspend and dismiss an employee and a right to terminate a contract for breach with the former being an indicia of employment and the latter being an indicia of an independent contract relationship.[24]

[39] Clause 5.1 provides a right on either party to terminate the relationship on notice for any reason. Clause 5.2 provides ET a right to terminate for breach in Clause 5.2. The right to terminate for breach includes a right to terminate for "serious misconduct" [clause 5.2(b)] and the "failure to comply with any lawful and reasonable direction" [clause 5.2(c)] which are more in the nature of an employment terms as opposed to an independent contract.

[40] I therefore consider this term supports an argument for an employment relationship.

Did ET present Ms. Little to the world at large as an emanation of its business?

• [41] In French Accent, the Full Bench noted "this will arise because the worker is required to wear the livery of the putative employer."[25] Ms. Little was not required to wear clothing with a ET logo on it, however, in her evidence Ms. Little noted she was "branded" in the sense that her e-mails contained the ET logo and her e-mail address was "@equaltherapy.com.au"

[42] In the practical reality of this relationship there was a degree of integration into the business of ET, however, given Ms. Little was free to choose where she worked and did not wear a uniform, this is a fairly weak indicator of employment.

Was income tax deducted from Ms. Little's remuneration?

[43] The Contract provided that ET would not be liable for the payment of "PAYG or other tax deductions". No income tax was deducted from Ms. Little's remuneration during the course of this relationship. This factor counts against an employment relationship.

Was Ms. Little remunerated by periodic wage or salary or by reference to completion of tasks?

[44] The Contract provided that ET would not be responsible for payment of "wages or salary". It also provided she was paid for the provision of services on the provision of an appropriate tax invoice. This was the method of remuneration for the entire period of the relationship.

[45] This method of payment is indicative of an independent contractor relationship.

Was Ms. Little provided with paid holidays or sick leave?

[46] The Contract provided that ET would not be liable for leave entitlements including personal leave or annual leave. For the entire period of the relationship Ms. Little was not provided paid holidays or sick leave. This is more consistent with an independent contractor relationship.

Does Ms. Little's work involve a profession, trade or distinct calling?

• [47] In French Accent, the Bench states "such persons tend to be engaged as an independent contractor rather than employees."[26] There is no doubt that an occupational therapist is involved in a profession. I am not convinced; however, its professional nature is indicative of whether she would be an employee or an independent contractor.

Did Ms. Little's work create good will or saleable assets for herself or for ET?

• [48] If Ms. Little created goodwill or saleable assets for ET, then that is more consistent with an employment contract. If it created goodwill or saleable assets for her own business then that is more in the nature of an independent contract.[27]

[49] When I put these indicia to Ms. Little in the Conference she replied:

I am of the understanding that I brought in a significant amount of work for Equal Therapy and the services that I provided - you know, continuous referrals for Equal Therapy.[28]

Tareena is a what was - well, she is a great occupational therapist, and she has a good reputation. However, a lot of referrals given to her upon initiation of contracted term, they were handed to her from us with those relationships already formed. To add to that, we have also signed a waiver to allow her to take clients with her to see privately, as she indicated that's what she would like to explore in the New Year.

[51] The Contract contains a post engagement restraint of trade in clause 9 which Mr. Ryding indicated had been waived. The practical reality of this relationship is that Ms. Little can take clients with her for her own business. This builds her own business and reduces the business of ET. This is more consistent with an independent contract relationship.

Did Ms. Little spend a significant portion of her remuneration on her business?

[52] Ms. Little paid her own registration fees, completed her own registration compliance requirements, paid her own public indemnity insurance, paid her own travel related costs, car expenses and expenses related to working from home.[29] This is consistent with the terms of clause 3.5 of the Contract by which Ms. Little agreed that ET is not liable to pay any fees or to reimburse her for any expense. Ms. Little conceded this is more consistent with an independent contract relationship.

[53] The fact that she paid all her own professional fees, costs and expenses is more consistent with an independent contract relationship.

CONSIDERATION OF THE NATURE OF THE RELATIONSHIP

[54] I must now consider what the real substance, practical reality and true nature of the relationship between Ms. Little and ET.

• [55] The terms of the contract are relevant to the assessment of the real substance, practical reality and true nature of the relationship.[30] It is clear from the Contract terms that in January 2025, Ms. Little agreed to establish an independent contract relationship with ET.

ET had limited control over time and place of work

[56] Ms. Little had control over which clients she saw, when she saw them, and whether she saw them at the ET clinic or in the home of a client. She was free to work from home doing the administrative tasks related to her Contract.

Ms. Little was entitled to and did perform work for others

[57] She was free to, and did, work as an occupational therapist for ET as well as for an unnamed hospital. She also maintained a part time job as a florist.

Ms. Little did not pay income tax and was paid for services rendered on receipt of a tax invoice rather than in the form of a wage or salary

[58] No income tax was deducted from her renumeration. She did not receive a wage but was paid for the provision of services on the receipt of an appropriate tax invoice.

Ms. Little was not provided public holidays or sick leave

[59] She was not provided with public holidays or sick leave. Superannuation was paid by ET but that is a neutral consideration in that some independent contractors are entitled to superannuation.

Ms. Little was permitted to take clients with her from her practice at ET despite her Contract

[60] Despite the restraint of trade in her contract, this was waived by ET, and she was permitted to take clients she had seen during the period she worked for ET.

[61] All expenses and fees related to her work were paid by Ms. Little and not by ET consistent with the Contract

[62] All these indicia point to a finding that the real substance and practical reality and true nature of the relationship was an independent contract.

[63] There were other factors which were more consistent with an employment relationship:

• Ms. Little was not permitted to delegate or subcontract the work to others,
• The terms of the termination clause in the Contract had aspects more consistent with an employment contract. There were also aspects which could be regarded as standard in an independent contract.
• Ms. Little did not provide her own rooms or advertise.
• Ms. Little was not required to work in an ET uniform, but her e-mails were branded with the ET logo which suggested some integration into that business.
• She was provided with a laptop and a mobile phone but that cannot be regarded as "significant tools and equipment" and in the workplace of today it may be seen as a neutral consideration in relation to the question of legal status.

[64] The real substance, practical reality and true nature of the relationship was consistent with the form agreed by Ms. Little in the Contract. The majority of the indicia relevant to the determination support a finding that she was an independent contractor.

[65] In the face of the limited control ET had over her work, that she in fact did work for others, the manner in which she was remunerated, the fact she was free to take some of her clients with her and that she paid her own expenses and professional fees far outweigh the significance of some of ET's termination rights being more consistent an employment contract, that her e-mail were branded by ET, that she did not advertise or have her own rooms or that she was provided with a phone and a laptop.

[66] True it is the Contract prohibition on delegating or subcontracting her work is an indicator of employment but in all the circumstances it does not displace the weight of the other indicia which support the existence of an independent contract relationship.

[67] I therefore find, consistent with what she agreed in January 2024, the real substance, practical reality and true nature of the relationship with ET was as an independent contractor.

[68] It is a jurisdictional fact in the terms of s 365(a) that "a person has been dismissed". For the purposes of s 365, the meaning of "dismissed" is taken from s 386(1)(a) which states "a person is dismissed if the person's employment with ... her employer has been terminated on the employer's initiative."

[69] It follows an applicant under s 365 must establish that she was terminated from an employment relationship. Ms. Little's relationship with ET was that of an independent contractor providing services to ET and not an employment relationship.

[70] As Ms. Little was not an employee, this application fails for want of jurisdiction and her application is dismissed.

[1] [2025] FWCFB 173.

[3] [2022] HCA 1; (2022) 96 ALJR 89.

[4] [2022] HCA 2.

[5] (1986) 160 CLR 16.

[6] [2011] FWAFB 8307.

[19] [2011] FWAFB 8307, [30].

[23] [2001] HCA 44; 207 CLR 21 at p 41-2, [47].

[24] Abdulla v. Viewdaze [2003] 21 IR 215 at 230, a decision of the Full Bench of the Australian Industrial Relations Commission.

[25] [2011] FWAFB 8307, [30].

[27] Brodribb, the joint decision of Wilson and Dawson JJ at p 37.

Printed by authority of the Commonwealth Government Printer