Fay Newson v Brumbycare Pty Ltd - [2025] FWC 1232

[2025] FWC 1232

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Fay Newson
v

Brumbycare Pty Ltd

(U2025/364)

COMMISSIONER SIMPSON

BRISBANE, 2 MAY 2025

Application for an unfair dismissal remedy – jurisdictional objection not employee, contractor – Applicant a contractor – Application dismissed.

On 10 January 2025, Mrs Fay Newson (Ms Newson / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with an unfair dismissal dispute. The Respondent in the matter was named as Brumbycare Pty Ltd (Brumbycare / the Respondent).

The Respondent raised a jurisdictional objection that the Applicant was not an employee, but an independent contractor.

On 28 February 2025, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. A jurisdictional hearing was held on 4 April 2025.

The Applicant provided evidence on her own behalf, and the Respondent submitted statements from the following people:
·   Ms Danielle Lindgren, NDIS Support Coordinator, dated 19 March 2025;
·   Ms Rebekah Emmerson, legal guardian of the NDIS participant relevant to the Applicant’s work, dated 17 March 2025;
·   Ms Cheryl Ward, Key Support Worker of the NDIS participant relevant to the Applicant’s work, dated 19 March 2025;
·   Ms Elvee Brisbane, Bookkeeper, dated 17 March 2025; and
·   Ms Pamela Wharton, biological mother of the NDIS participant relevant to the Applicant’s work, dated 19 March 2025.

Ms Newson represented herself at the hearing and Ms Lindgren, the sole director of Brumbycare, represented the Respondent. Ms Lindgren did not wish to cross examine Ms Newson, and Ms Newson did not wish to cross examine any of those who provided witness statements for the Respondent.

Background

The relevant working relationship involves an NDIS Participant receiving support (the NDIS Participant). The NDIS Participant was previously being supported in a Supported Independent Living (SIL) arrangement with another Participant. However, this arrangement ended in September 2023.

Ms Emmerson’s evidence was that she had approached the Applicant several months prior to the SIL provider giving their cancellation notice, asking if she would be interested in filling some extra 1:1 shifts with the NDIS Participant. She submitted that whilst the Applicant showed interest at the time of their discussion, she did not accept or commence any work with the NDIS Participant at that time.

Ms Emmerson’s evidence was that the Applicant only agreed to start working with the NDIS Participant in early September 2023 and soon after that was arranged, the SIL provider gave formal notice of their withdrawal of services stating they could not work with independent contractors. Due to these circumstances the Applicant could not start until after the current SIL provider's notice period had ended.

On 16 November 2023, a formal meeting was held, attended by Ms Emmerson, Ms Ward, the Applicant, Ms Lindgren, Ms Wharton, and the NDIS Participant.

Ms Lindgren’s evidence was that during…

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 1232
Decision Date: 2 MAY 2025

CaseChat Overview and Summary

The case of Fay Newson v Brumbycare Pty Ltd before Commissioner Simpson of the Fair Work Commission involved a jurisdictional objection by the Respondent, Brumbycare Pty Ltd, to the Applicant's claim of unfair dismissal. The Applicant, Fay Newson, sought to have her dismissal deemed unfair, arguing that she was an employee rather than an independent contractor, as claimed by Brumbycare. The central issue before the court was to determine the true nature of the working relationship between Newson and Brumbycare to decide whether the Commission had jurisdiction over the matter.

The court examined various factors to ascertain the true nature of the working relationship, including the use of an ABN, the submission of invoices, the maintenance of professional indemnity and public liability insurance, and the ability to work for other clients. The evidence presented by both parties revealed that Newson operated under an independent contractor model, managing her own tax and superannuation obligations, and working autonomously without receiving employment benefits such as superannuation or paid leave. The court also considered the lack of an employment contract, the absence of superannuation contributions, and the negotiation of pay rates. The flexibility in scheduling and the ability to work for other clients further supported the independent contractor status. The court concluded that Brumbycare did not exert the level of control consistent with an employer-employee relationship, and thus, Newson was an independent contractor.

Based on this reasoning, the court determined that the Commission did not have jurisdiction over the matter as Newson was not an employee of Brumbycare. Consequently, the application for an unfair dismissal remedy was dismissed. An order to this effect will be issued separately and concurrently with this decision.

Orders