Feride Dilan Alca v Kore Support Group Pty Ltd
[2025] FWC 322
•5 FEBRUARY 2025
| [2025] FWC 322 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Unfair dismissal
Feride Dilan Alca
v
Kore Support Group Pty Ltd
(U2024/11985)
| COMMISSIONER YILMAZ | MELBOURNE, 5 FEBRUARY 2025 |
Application for relief from unfair dismissal – whether the Applicant was dismissed – Applicant was an employee and dismissed – dismissal was harsh, unjust or unreasonable – compensation ordered
On 8 October 2024, Ms Feride Dilan Alca (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Kore Support Group Pty Ltd (the Respondent). In its Form F3, the Respondent raised a jurisdictional objection that the Applicant was not dismissed because she worked under her own ABN (the objection). This decision deals with the objection, the merit of the application and remedy.
Ms Alca submits that she commenced employment with the Respondent as a support worker on 20 September 2023 and dismissed on 24 September 2024. Kore Support Group is an NDIS provider. Ms Alca filed and served her outline of argument, statement of evidence and supporting evidence as required by the directions issued to the parties on 4 December 2024. The Respondent did not attend the directions hearing nor did it file or serve any documentation in support of the jurisdictional objection or in response to the merits of the application. Consequently, this decision is based on the Applicant’s evidence before the Commission.
At the hearing on 13 January 2025, the Applicant was self-represented and gave sworn evidence.
The Respondent did not attend the hearing. However, on Friday 10 January after 5pm a call was received from Dr Celik to the Commission, advising that she was unwell and unsure what information was to be submitted. She was informed to contact my chambers directly via email. On the same evening at 9.06pm an email was received advising that due to ill health she would not attend on Monday and offered to provide a letter from the hospital. Minutes later a two-page document was attached to an email which appeared to respond to the dissemination of the digital hearing book on 8 January 2024. This two-page document consisting of dot points repeats the information contained in the Form F3 with some additional information, but none of the information assisted with the jurisdictional objection.
On the morning of 13 January 2025, my Chambers informed the Respondent that the hearing would proceed as scheduled and requested the letter from the hospital. On Friday 17 January at 7.31pm the Respondent sent through two medical certificates which confirm a medical appointment in the hospital on 9 January 2025. No additional material or information was provided. Both certificates are dated 10 January but the first advises that Zara Celik is unfit for work 9–10 January, and the second medical certificate states that she is unfit for work 10–13 January 2025. Neither of the medical certificates explain the absence of the Respondent in the hearing nor provide any support for the failure to submit any evidence in relation to the matter.
Submissions and evidence of the Applicant
The Applicant submits that she commenced employment as a support worker on 20 September 2023 as a part-time employee working variable hours between 35–40 hours per week which included weekends. From 20 September 2023 until April 2024 the Applicant was paid $30 per hour. From April 2024 until dismissal on 24 September she submits that she was paid $35 per hour.
The Applicant gave evidence that she provided support services to clients of the Respondent, of which two clients were regularly serviced by her. She states that she had arranged with her employer to take two days of leave commencing on 24 September 2024.
Ms Alca gave evidence that on 23 September 2024 while working with one of the regular clients (the first client), the client advised that she no longer was going to use Kore Group services but suggested that she pay the Applicant direct. Ms Alca says that she advised the client that she worked for the Respondent and any discussion about utilising Kore Support Group Services required a direct discussion between the client and Dr Celik, and not through her. Ms Alca gave evidence that while she was at the client’s residence, the client had called Dr Celik. After the phone call between the client and Dr Celik, Ms Alca states that the client told her that Dr Celik said that Ms Alca was not going on holiday but had found another job. Ms Alca and the client continued to discuss this when the client stated words to the effect of “I know you are going on a holiday and what Dr Celik said was untrue”.
On 24 September 2024, the Applicant submits that she received 2 text messages while she was on leave. The first contains a forwarded text from the client dated 23 September 2024, where the client states that she does “not want to speak directly with Feride and would like to end this [the service with Kore Support group] professionally”. The message also stated words to the effect that she no longer required the services of Feride and to ensure that the understands not to go to the client’s home anymore.[1] The second text is from Zara Celik, proprietor of Kore Support Services stating that the Applicant “breached privacy and professional conduct”. The text directs the Applicant not to engage with the Respondent or any of its clients. Lastly it states: “All your professional work with Kore Support Group and clients of Kore Support Group terminated due to breech [sic] of privacy, confidentiality and misconduct.”[2] This same text threatens Ms Alca that she will be taken to court for defamation and to expect contact from the Respondent’s legal team.
Ms Alca also gave evidence that the second client sent her a text that he had received from the Respondent, which announced that the Applicant would no longer provide a service because “she has breeched [sic] code of conduct and privacy of her clients and leaked or discussed confidential information with third parties without consent or permission and awareness of her clients.”[3] Ms Alca expressed her concern with this text on the basis it damaged her character with the client and potentially in the community — for this she had expected to receive an apology. She explained that prior to coming to Australia she successfully worked as a molecular biologist and medical technician, therefore she understood clearly the need to maintain ethical standards concerning privacy and maintenance of confidential information. She strongly denied that she breached any code of conduct or ethical standards and was offended by such allegations.[4]
Ms Alca further tendered into evidence a text from her to the Respondent seeking $140 for 4 hours of work performed on 23 September 2024, the response was that she would not be paid as Kore Group was not the provider of the service.[5]
The Respondent submits that the Applicant was not an employee and therefore not entitled to remedy under the unfair dismissal protections under the Act.
Submissions of the Respondent and evidence
There was no evidence from the Respondent to support the statements contained within the Form F3 or the written statement received by the Commission on 10 January 2025, that the Applicant worked under her own ABN, nor that she was engaged for only one month as a casual employee. Dr Celik states in her written communication that Ms Alca started as a casual and worked 20 September 2023 – 22 October 23 and that, after 22 October 2023 Ms Alca did not want tax deducted from her pay and proposed to be paid as if she was engaged through her own ABN. Dr Celik states that no tax was deducted from Ms Alca’s pay after 22 October 2023.[6] However, Ms Alca submitted payslips covering a seven-week period in 2023 which show that there was a payslip tendered for the period until 11 November 2023. Each of the seven payslips show tax deducted and superannuation calculated for contribution to the Applicant’s nominated superannuation fund. The payslips contain the most minimal information, providing no detail on the type of employment. The payslips do not comply with regulations.[7]
Dr Celik submits that the Applicant’s visa status had changed after enrolling in language school, which meant that she was permitted to work fewer hours to retain eligibility to stay in Australia. No details were provided as to when this alleged change occurred. Ms Alca disputed this in oral evidence. An analysis of the payments made to Ms Alca show an increase in pay compared to October 2023, suggesting an increase to hours worked. Student visas often have a limitation of around 20 hours per week. The payments in 2024 show an average of 34 hours per week compared to an average of 26.8 in 2023.[8] The oral evidence of Ms Alca was that she often worked around 35–40 hours per week.
The Respondent submits that she terminated the Applicant’s engagement after she discovered that the Applicant made an offer to the first client that the Applicant would work directly for the client at a rate of $55 per hour instead of the client paying Kore Support Group $65 per hour. The Respondent also submits that she discovered that the Applicant shared information about the second client with the first client, who had reported the conduct. Dr Celik formed the view that the conduct damaged her business, and she terminated the arrangement.
The Respondent submits that her business delivering disability support services is new and the available working hours are dependent on client preference. She adds that casual work is the only reasonable option in these circumstances. She further adds that she engages no regular employees because it is a new business.
Was Ms Alca an employee?
The Applicant provided payslips (all of which show PAYG tax deducted and superannuation contributions) for the periods of:
| Pay period | Ordinary hours at $30 per hour | Other than part-time ordinary hours reflected in payslips |
| 23/9/23 – 29/9/23 | 31.4 | |
| 30/9/23 – 7/10/23 | 32.311 | 7.689 overtime hours and the week included Saturday and Sunday rates of $45 and $60 respectively |
| 7/10/23 – 13/10/23 | 36.5 | |
| 14/10/13 – 21/10/23 | 36.5 | |
| 21/10/23 – 28/10/23 | 18.2 | |
| 18/10/23 – 4/11/23 | 15.05 | |
| 4/11/23 – 11/11/23 | 10 | |
| Total average hours | 26.8 |
The Applicant provided bank account deposits of wages for the months of April, May, June, July, August and September 2024 which show the average pay over the 23 weeks was $1191.36 per week. An analysis of the pay does suggest that tax was not deducted. No evidence of earnings was provided for December 2023 to mid-April 2024. An average of known gross income over the combined 30 weeks of wage records is an average of $1093.34 per week.
Ms Alca gave evidence that there was no written contract of employment or other documentation to confirm the agreement that she was employed as a part-time employee with flexible hours of work of between 35-40 hours, other than the payslips. Ms Alca also tendered into evidence extracts from her bank account showing payments made to her from the Respondent. Ms Alca submits that she was paid between $1200 to 1300 net per week. Both the payslips and the bank statement show variability of payments, and the payslips show variability of hours worked.
Ms Alca also tendered into evidence copies of text messages between her and Dr Celik which show a request for personal information for the purpose of paying superannuation and tax. The text asking for the personal information including date of birth, full, name, address and tax file number was received by Ms Alca on 3 November 2023, two months after commencing employment.[9]
Ms Alca had not completed a tax return for the financial year 2023- 2024 and advised that she could not confirm if tax had been deducted from her pay.
Ms Alca confirmed in oral evidence that she had an ABN and has used it for work prior and after her dismissal but maintains that she did not provide her ABN to the Respondent and further that no contractor agreement was entered into.
There was no evidence of a contractor relationship between the Applicant and the Respondent. Given the variability of hours, rather than a part-time arrangement, casual work was more likely to be the category of employment.
Not a contractor but an employee
Part 3-2 of the Act concerns unfair dismissal protections which apply to certain employees. An employee means a national system employee[10] and the Object of the Part concerns employers and employees.[11]
Section 382 of the Act provides that a person is protected from unfair dismissal, if at the time of being dismissed the person met the minimum employment period and an industrial instrument applied or their annual rate of earnings is less than the high-income threshold. Section 382 refers to a person that is dismissed and to whom certain conditions apply. Relevantly, s.385(a) of the Act provides that a person has been unfairly dismissed if, firstly, the person has been dismissed. Therefore, the threshold issue is whether the person was dismissed from their employment pursuant to s.386 of the Act. Therefore, the unfair dismissal protections apply to employees that have been dismissed and do not concern persons that are providing independent contractor services to a principal.
The legal principles relating to whether a person is an employee or independent contractor were considered by the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[12](Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek[13] (Jamsek). Where the rights and duties of the persons (independent contractor and principal) are exclusively in a written contract and the terms have not been varied or challenged as a sham, the written contract is to be the decisive factor.[14] The central premise is that regard must be had to the obligations of the parties under the contract at the time the contract was entered into, and not how the relationship has “come to play out in practice but bearing no necessary connection to the contractual obligations of the parties.”[15] Established principles of contractual interpretation are important[16] and consideration of subsequent conduct is permissible for the purpose of assessing legal rights and obligations under the written contract.[17] Further, the High Court observed the judgement in Stevens v Brodribb Sawmilling Co Pty Ltd (Stevens)[18] that regard must be had to the totality of the relationship., The right of one party to control another was not the only factor to be considered, but any analysis of the totality of the relationship also was not an invitation to broaden the inquiry beyond contractual rights and duties. The Court noted that in Stevens, the relationship was not reduced to writing.[19]
In this matter, there is no evidence, including in writing, that reflects the rights and obligations agreed to between the parties prior to the commencement of the relationship, or during. The Respondent asserts that the Applicant transitioned from a casual employee to a contractor, yet the evidence, considered more closely, demonstrates an employment relationship. There are payslips beyond the period that the Respondent asserts wasthe only period of casual employment (September 2023 – October 2023), and the payments appear to have been made directly to the Applicant with no evidence that it was a payment in satisfaction of services. No evidence of the ABN or any other indicia of a contractor relationship were evident. There is therefore no reasonable basis on which to conclude that a contractor arrangement existed, other than a mere assertion by the Respondent.
Based on the evidence before me, I find that the applicant was an employee, her work was covered by an industrial instrument,[20] and she was employed for a period of just over 12 months — satisfying the minimum employment period for a small business employer. In addition, the Applicant was dismissed based on the clear text message submitted into evidence dated 24 September 2024, which states:
“All your professional work with Kore Support Group and clients of Kore support Group terminated due to breech (sic) of privacy, confidentiality and misconduct”.[21]
Therefore, I find that the Applicant was a person protected from unfair dismissal pursuant to s.382 of the Act.
As the Applicant was an employee who was protected from unfair dismissal, s.387 of the Act now requires that I consider whether the dismissal was harsh unjust or unreasonable.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether I am satisfied that a dismissal was harsh, unjust or unreasonable, I must take into account:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[22]
Consideration
Whether there was a valid reason
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well-founded.”[23] Further it is the role of the Commission to consider the employer’s reasoning to determine whether that reasoning is valid.[24]
The Respondent submits there was a breach of privacy and professional conduct, but no evidence tendered to substantiate the reason for the dismissal. The Applicant was questioned in regard to whether she shared information about the clients to other clients, which she strongly denied under oath. As there was no evidence to shed light on the reason for dismissal, I cannot find that there was a valid reason.
Whether the person was notified of that reason
The Respondent did not notify the Applicant of its concerns relating to the reason for dismissal prior to the text received on 24 September 2024.
I am satisfied there is no reliable evidence that the Applicant had prior knowledge of any allegations of poor performance or conduct and I note that the dismissal was immediate. This consideration does not weigh in favour of procedural fairness.
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
The Applicant was not given an opportunity to respond to the allegations against her. In fact, she was threatened with legal action without any detail of the alleged legal cause of action. The text makes a number of assertions without explaining whether they form the basis for legal action or are the basis of the dismissal. It appears that the proposed legal action is for defamation, but the termination of employment was possibly due to breach of privacy, professional conduct or misconduct, none of which are defined. In any event, the text message is clear that the termination is effective on 24 September 2024. The text in its entirety reads:
“You have breeched Privacy and professional conduct
We will be taking you to court for Defaming Kore Support Group and also DR Zara
We have obtained our evidence and our legal team will be in touch with you
You are not to engage any contact with clients of Kore Support Group
This is a formal written notice
As per today 24th of September 2024
All your professional work with Kore Support Group and clients of Kore Support Group terminated due to breech of privacy, confidentiality and misconduct”.[25]
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
There was no opportunity for the Applicant to call a support person as the dismissal was over text and immediate. Regardless, this consideration is neutral as there was no refusal by the employer to allow Ms Alca to have a support person.
If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
There was no evidence of prior warnings concerning performance nor conduct. In any event, it appears that the Respondent does not assert dismissal for performance.
The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal and the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
The Applicant states that the business is small and there was no evidence of either the size or level of HR support available to it. Nevertheless, a dismissal for misconduct alleging breach of privacy and professional conduct would require at the least the allegations against the Applicant to be put to her for her response before the dismissal. This is a requirement regardless of the fact that the Respondent asserts, and I accept, that it is a small employer and potentially has no access to HR resources.
Any other matters that the FWC considers relevant
The Applicant gave evidence that she was not paid for the four hours of work on 23 September 2024, nor paid any notice period nor any superannuation contributions made. It was unclear even on the oral evidence of the Applicant whether taxation was deducted and paid to the ATO. At the time of the hearing no tax return had been completed by the Applicant. The only evidence tendered in relation to these allegations was a text that shows that the Respondent denied an entitlement to the four hours of pay for work performed on 23 September 2024.
Conclusion – whether harsh, unjust or unreasonable?
I have considered each matter specified in s.387 against the evidence before me and do find that Ms Alca was unfairly dismissed. I do find that the dismissal was absent of valid reason and procedural fairness, taking into consideration the relevant criteria concerning harshness in s.387 of the Act. For each of the relevant criteria, the Respondent’s behaviour has fallen short of procedural fairness. I am not satisfied that Ms Alca was notified of the reason for the dismissal prior to receipt of the text advising her of her dismissal on 24 September 2024. The process of bringing the dismissal to an end was a surprise text message and lacked any detail that would have enabled the Applicant to understand what she had been accused of.
I have found that the Respondent had no valid reason for the dismissal and that the dismissal was unfair within the meaning of s.385. I am satisfied that an assessment of the evidence, or the lack thereof, against the criteria in s.387 weighs in favour of finding that the dismissal was harsh, unjust or unreasonable.
As I find the dismissal was unfair, I am required to consider whether to award a remedy.
Remedy
On being satisfied that the application was made under s.394 of the Act, and because I have found that Ms Alca was unfairly dismissed, I may order a remedy under s.390 of the Act. Ms Alca submits that compensation is appropriate under the circumstances, and I consider that an order for compensation is appropriate.
Is an order for payment of compensation appropriate in all the circumstances of the case?
It does not automatically follow from a finding of unfair dismissal that a payment for compensation is appropriate. As noted by a Full Bench of the Commission, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”[26]
The Applicant submits that payment of compensation is appropriate in the circumstances as reinstatement is not appropriate following the threats, allegations, and difficulty associated with the harshness of the dismissal and of being unemployed.[27]
Based on the evidence before me that led to the finding that the dismissal was unfair, an order for compensation is justified.
Compensation – what must be taken into account in determining an amount?
Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement, including:
(a)the effect of the order on the viability of the Respondent’s enterprise;
(b)the length of the Applicant’s service;
(c)the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d)the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e)the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f)the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g)any other matter that the Commission considers relevant.
I consider all the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise
There is no evidence regarding the viability of the Respondent’s business. Therefore, I am not satisfied that an order for compensation would have an effect on the viability of the employer’s enterprise.
Length of the Applicant’s service
The Applicant’s length of service was just over 12 months. This is not a long period, but there was no evidence of performance or conduct issues to suggest possible termination of employment in the near future. The working hours were variable and most likely the Applicant was engaged as a casual employee.
The maximum compensation under the Act is 26 weeks, and Ms Alca proposes 11 or 12 weeks, which is the period of her unemployment until she successfully found new employment. Ms Alca tendered no evidence of the period of unemployment or the employment obtained.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
As stated by a majority of the Full Court of the Federal Court,
“[i]n determining the remuneration that the Applicant would have received or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[28]
Ms Alca calculates compensation at $15,000 based on an average weekly pay of $1300 over the 12 weeks of unemployment. She also states that she was not paid for her four hours of work on 23 September 2024 and expects payment for the outstanding wages.[29] During the hearing the Applicant admitted to finding work sporadically until her current, more regular casual engagement with an aged care home. She stated she was out of work for some 11 weeks. Much of this oral evidence was imprecise and no supporting evidence tendered.
I accept that in the provision of NDIS services, often employment is casual because the work is dependent on the participant’s decision as to who provides the services and when. The employer has little control over the longevity and regularity of the work. In such circumstances the period of 11 weeks is reasonable as the starting point, however, I do not have precise evidence of the period of unemployment.
Based on the Applicant’s evidence as to her earnings while employed by the Respondent, it is appropriate to average the weekly rate over the 30 weeks of records. This means the weekly rate is an average of $1093.34. Eleven weeks of wages at that rate is $12,026.74.
Efforts of the Applicant to mitigate the loss suffered because of the dismissal and amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[30] What is reasonable depends on the circumstances of the case.[31]
The Applicant gave evidence that she had applied for positions with NDIS and Aged Care facilities and has secured employment with an aged care facility. However, no corroborating evidence of earnings or employment for the period from dismissal was provided. Therefore, I will discount the starting point of 11 weeks to 9.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation
The Applicant provided no evidence of likely income from the date of the dismissal until the order for payment of compensation. I treat this as a neutral consideration.
Other relevant matters
The Respondent submits that the Applicant was responsible for the payment of tax as a contractor and the Applicant contended that she provided her tax file number for the purpose of deduction of tax as an employee. The payslips show a deduction of tax, yet no evidence on the payment of tax on income earned in 2024 was available. In respect to the order in this matter, the parties are on notice that tax is to be deducted from the 9 weeks, and it is recommended that both the Applicant and Respondent address any outstanding tax liabilities should there be any.
The order of compensation
An order of 9 weeks’ pay is awarded and this figure is $9840.06 gross to be taxed according to law. The Respondent is ordered to make the payment of compensation to the Applicant within 14 days of the order. The applicable tax is to be forwarded to the ATO.
I am satisfied that the amount of compensation is appropriate to the circumstances of this case and the criteria for deciding compensation under s.392(2). Misconduct is irrelevant,[32] the figure does not include an amount for shock, distress etc,[33] and the compensation does not exceed the cap.[34]
An order will be issued for the payment of the net sum ($9,840.06 less tax) within 14 days of this decision into Ms Alca’s bank account. Superannuation on this compensation is also payable directly into Ms Alca’s nominated superannuation fund in accordance with the Superannuation Guarantee requirements.
COMMISSIONER
Appearances
F Dilan Alca, Applicant
Hearing details
2025.
Melbourne.
January 13.
[1] Text Message, Digital Hearing Book p 36 and 38.
[2] Text Message, Digital Hearing Book p 35.
[3] Text Message, Digital Hearing Book p 37.
[4] Witness evidence of the Applicant.
[5] Text Messages, Digital Hearing Book p 38.
[6] Respondent’s additional submission received on 10 January 2025.
[7] Fair Work Regulations 2009 (Cth) reg 3.46.
[8] As shown in the averaging of hours over the 7 weeks for which payslips were provided.
[9] Text Message, Digital Hearing Book p 34.
[10] S.380.
[11] S.381.
[12] [2022] HCA 1 (Personnel Contracting).
[13] [2022] HCA 2.
[14] Personnel Contracting at [43].
[15] Ibid at [61] and [174].
[16] Ibid at [60].
[17] Ibid at [52]–[55].
[18] (1986) 160 CLR 16.
[19] Personnel Contracting at [56].
[20] Social, Community, Home Care and Disability Services Industry Award 2020 [MA000100].
[21] Text Messages, Digital Hearing Book, p 35 and 38.
[22] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd [2002] AIRC 317, [69].
[23] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[24] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[25] Text Messages, Digital Hearing Book, p 35 and p38.
[26] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[27] Applicant’s Outline of Argument: Merits at [7a] and [7b].
[28] He v Lewin [2004] FCAFC 161, [58].
[29] Applicant’s Outline of Argument, Merits, at [7c].
[30] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] (‘Biviano’) citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[31] Biviano, [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[32] S.392(3).
[33] S.392(4).
[34] S.392(5).
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