Christopher Donnelly v KWB Group Pty Ltd - [2025] FWC 2321

[2025] FWC 2321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Christopher Donnelly
v

KWB Group Pty Ltd

(C2025/5165)

DEPUTY PRESIDENT CROSS

SYDNEY, 13 OCTOBER 2025

Application to deal with contraventions involving dismissal

On 30 May 2025, Mr Christopher Donnelly (the Applicant) lodged an application (the Application) in the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act), against KWB Group Pty Ltd (KWB/the Respondent).

The Respondent raised jurisdictional objections to the Application, being:

(a)That the Applicant was not dismissed within the meaning of s.386 of the Act because:

(i)The Applicant was not an employee; and

(ii)The Applicant was not dismissed.

Directions were issued to program the manner in which the Application was to proceed to hearing. In response to those Directions each party filed materials, and the materials relied upon by the parties at the Hearing were:

(a) The Applicant filed an Outline of Submissions and a Statutory Declaration of Christopher Donnellly dated 7 July 2025;

(b) The Respondent filed an Outline of Submissions dated 21 July 2025, with multiple Annexures, and;

(c) On 28 July 2025, the Applicant filed a Reply Submission.

The Hearing of the Application occurred on 31 July 2025 (the Hearing). Other than various annexures to submissions, the only evidence relied on in the matter was the Statutory Declaration of Christopher Donnellly, and there was no cross-examination of Mr Donnelly regarding his evidence.

Background Facts

(a) The Contractor Agreement

On 13 January 2021, an agreement titled “Independent Contractor Agreement” (the Agreement) was executed between KWB on the one hand, and CMI Joinery Pty Ltd (CMI) on the other. CMI is a company of which the Applicant is the sole director and shareholder.

The Agreement defined CMI as “the Contractor” and Mr Donnelly as “the Nominated Representative”. The Agreement contained a number of important provisions. Those provisions included the following:

(a) Clause 1 “Term” provided:

The engagement of the Contractor by KWB will commence on the Commencement Date set out in Item 1 of Schedule 1 and will continue until the engagement is terminated in accordance with clause 11 of this Agreement (Term). The Contractor can provide KWB with a written request in respect of a period or periods not exceeding 4 weeks in one year, in which it will not provide the Services.
[Emphasis added]

(b) Clause 2 “Provision of Services” defined “Services” as “Wardrobe Installation”, and provided in part:

During the Term, the Contractor will provide the Services set out in Item 2 of Schedule 1 (Services) to KWB through the Nominated Representative (set out in Item 6 of Schedule 1) or any other person, subject to the prior written approval of KWB.
The Contractor and the Nominated Representative do not have authority to act on behalf of or bind KWB. The Contractor is solely responsible for providing the Services and controlling the manner in which the Nominated Representative performs the Services.
The Contractor will provide the Services at the location…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 2321
Decision Date: 13 OCTOBER 2025

CaseChat Overview and Summary

In the Fair Work Commission, Mr. Christopher Donnelly filed an application against KWB Group Pty Ltd, alleging that his dismissal was wrongful. The Respondent raised jurisdictional objections, arguing that the Applicant was not an employee and thus not dismissed within the meaning of the Fair Work Act 2009. The Deputy President examined whether the Applicant was an employee and whether he was dismissed. The Deputy President considered the totality of the relationship between the Applicant and KWB, including the terms of the contract and how it was performed in practice. The evidence demonstrated that KWB exercised significant control over the Applicant's work, including job assignments, schedules, and invoicing. The Applicant was economically dependent on KWB and lacked autonomy in performing his work. The Deputy President found that the relationship was one of employment despite the contractual label. The Applicant was dismissed when KWB terminated his engagement on 6 May 2025. The Deputy President dismissed the Respondent's jurisdictional objections, finding that the Applicant was an employee and was dismissed. The matter was relisted for a conference.

Orders