Ms Jessica Dickson v Ms Susan Kovacs, Mr Felipe Cespedes - [2025] FWC 1218

[2025] FWC 1218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Jessica Dickson
v

Ms Susan Kovacs, Mr Felipe Cespedes

(C2024/7717)

DEPUTY PRESIDENT BUTLER

BRISBANE, 2 MAY 2025

Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant dismissed – whether applicant an employee – applicant not an employee – applicant dismissed – objection dismissed – matter to proceed to conciliation

Ms Jessica Dickson has applied for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal. The Respondents, Mr Felipe Cespedes and Ms Susann Kovacs, are a married couple. Mr Cespedes and Ms Kovacs hired Ms Dickson as a nanny for their two children, commencing in late January 2023.[1] The engagement came to an end on 5 October 2024.[2]
Mr Cespedes and Ms Kovacs have objected to the application on the basis that Ms Dickson was not an employee and was therefore not dismissed. This decision determines that objection.[3] For the reasons set out below I have decided to dismiss the objection.

Legislative framework

Part 3-1 of the Fair Work Act 2009 (Cth) (the Fair Work Act) provides general workplace protections, including in relation to workplace rights, freedom of association, and protection from discrimination. Various provisions prohibit a person from taking adverse action against another person for particular reasons,[4] in particular circumstances. The protections are not limited to adverse action taken by employers against employees. They apply in other situations as well, including in relation to some forms of action taken by principals against independent contractors.[5]
The prohibitions are serious, and the relevant subsections are civil remedy provisions.[6] The main compliance mechanism for contraventions of civil remedy provisions is an application to a court for orders.[7] Various persons affected by contraventions have standing to apply to the court. But there is a significant limitation applying specifically to applications about contraventions of the general protections part, where the intended applicant has been dismissed from their employment. Specifically, a person who is entitled to apply under section 365 for the Commission to deal with a dispute must not make a general protections court application in relation to that dispute unless:
·they have applied to the Commission first (other than in circumstances that are not presently relevant);[8]
·the Commission has issued a certificate to the effect that it is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful;[9]
·the court application is made within fourteen days after the certificate was issued (unless the court has granted an extension);[10] and
·the parties have not agreed to the Commission arbitrating the dispute.[11]

In general terms this means that applying to the Commission under s 365 is a precondition that must be met before a dismissed employee can take their matter involving the dismissal to court. There is no equivalent precondition for other general protections applications. For example, an independent contractor who alleges their principal took adverse action against them in contravention of one of the relevant civil remedy provisions can go directly to court without having to obtain a certificate from the Commission first.
Section 365 of the Fair Work Act allows a person to apply for the Commission to deal with a dismissal dispute. The person can do so if, relevantly, they have been dismissed.[12] Section 12, headed “Dictionary”, provides for definitions for words used in the Fair Work Act. In relation to “dismissed”, s 12 refers the reader to s 386. Subsection 386(1) provides that a person has been dismissed if their employment has been terminated on the employer’s initiative or if they were forced to resign from their employment. This means that employment is a prerequisite for dismissal for the purposes of section 365. It follows that if the Applicant was not an employee, the jurisdiction, under that section, is not enlivened.
If the jurisdiction under s 365 is enlivened, the Commission generally deals with the dispute primarily by conciliation. It can arbitrate only with the parties’ consent. On the other hand, a person who is not entitled to apply under s 365 can seek the Commission’s assistance with a general protections dispute under section 372 of the Fair Work Act. Participation in a conference is voluntary under that provision.[13]
Given the matters discussed above and the Respondents’ objection, it is necessary to consider whether the Applicant was dismissed, that is, whether their employment had been terminated at the employer’s initiative or alternatively they had been forced to resign their employment. The Fair Work Act does not define “employment.” Section 335 provides that in the relevant Part of the Act, Part 3-1 – General Protections, “employee” and “employer” have their ordinary meanings.
Determining whether the Applicant was dismissed will therefore turn on whether she was an employee within the ordinary meaning of that term. Deciding this question is not necessarily straight-forward. There is a long history of decisions in this tribunal and the courts in relation to deciding whether a person is an employee.
Section 15AA of the Fair Work Act, which took effect from 26 August 2024, is entitled “Determining the ordinary meanings of employee and employer.” Section 15AA relevantly provides:

15AA 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.

…

The new s 15AA applies even if the relationship between the parties commenced before 26 August 2024.[14] Also, if a person has an accrued right or obligation from before that date, it is not extinguished by the amendment of the Fair Work Act to insert s 15AA.[15]
Having made those observations about the legislative framework I now turn to the application in these proceedings.

This application

The Applicant filed her application in the Commission on 25 October 2024. She claims she was employed by, and dismissed by, the Respondents.
The Respondents filed an employer response on 11 November 2024. They opposed the application and objected on the ground that the Applicant was not an employee and was not dismissed within the meaning of that term for the purposes of s 365 of the Fair Work Act.
The Respondents filed written submissions on 17 December 2024. The Applicant filed written submissions on 9 January 2025. The Respondent filed amended written submissions on 21 January 2025.
A hearing to decide the Respondents’ objections was held on 22 January 2025. Each party was legally represented, with permission. Mr Cespedes and Ms Kovacs gave evidence for themselves, and Ms Dickson gave evidence for herself.
Mr Cespedes and Ms Kovacs were forthright in their testimony and under cross-examination. Ms Dickson was argumentative and I have treated her evidence with care.
At the hearing the Respondents conceded that if Ms Dickson was an employee, then the employment came to an end at their initiative. Accordingly, the only jurisdictional objection to be determined was the objection on the ground that Ms Dickson was not an employee.
I have considered all of the parties’ evidence and submissions, and I have referred to the evidence and submissions as I have considered appropriate. Some of the evidence and submissions went to matters that would be in dispute in substantive proceedings brought under the general protections provisions, including the reasons for the termination of the engagement. It has not been necessary for me to deal with those matters as this decision relates only to the jurisdictional objection that Ms Dickson was not an employee.

Consideration

The Respondents made submissions about whether Ms Dickson had been an employee throughout her engagement with their family, and the application of the law as it stood both prior to and since s 15AA of the Fair Work Act came into operation. The Applicant relied on s 15AA of the Fair Work Act.[16]
In determining whether the Commission’s jurisdiction has been enlivened for the purposes of s 365, the question is whether Ms Dickson was an employee on the date the engagement came to an end, and therefore was susceptible to being dismissed on that date. This requires consideration of the meaning of “employee” as affected by s 15AA of the Fair Work Act 2009 as in force at the time the engagement ended in October 2024. In Murray v 239 Brunswick Pty Ltd,[17] Roberts DP was faced with a similar task, and stated:[18]
[17] Section 15AA(2) requires a consideration of the totality of the relationship which involves in turn a consideration of, amongst other things, the terms of the contract between the parties and an assessment as to how the contract is performed in practice. The approach to a consideration of the totality of the relationship under s.15AA is guided by the common law principles established by cases such as Stevens v Brodribb Sawmilling Co Pty Ltd[19] and Hollis v Vabu Pty Ltd[20] and involves a reversion to the multifactorial test that was well known and widely applied prior to the High Court decisions in CFMMEU v Personnel Contracting[21] and ZG Operations v Jamsek.[22]

[18] The common law approach has been set out in numerous decisions of the courts and in decisions of this Commission. In Jiang Shen Cai trading as French Accent v Do Rozario[23] the Full Bench summarised the approach to the determination of the employee/contractor issue including whether the worker is the servant of another in that other’s business or whether the worker carries on a trade or business of his or her own behalf, the nature of the work performed and the manner of its performance, the identification and application of the relevant indicia to the circumstances, and the terms of the contract between the parties.[24]

[19] In the same decision, the Full Bench identified the various indicia that are ordinarily considered in an assessment as to the nature of the relationship. They include the actual exercise, or the right to exercise, control over the putative employee, whether the worker performs work for others, or provides tools and equipment, whether the work can be delegated, whether the worker is remunerated by periodic wages or salary or by reference to completion of tasks and whether the worker is presented to the world at large as an emanation of the putative employer’s business.[25] The Bench also cautioned that “no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances.”

With respect, I adopt the Deputy President’s summary of the approach to be taken.
The terms of the contract are difficult to identify because they were not reduced to writing, and the discussions between the parties were not wholly specific or clear.
The Respondents submitted the contract was both oral and in writing. They submitted that insofar as it was in writing, the terms appeared in text messages between Ms Dickson and Mr Cespedes. They said the following terms arose from those text messages:[26]
·Ms Dickson would charge $35 per hour;
·Ms Dickson would be paid $50 per week for superannuation;
·Ms Dickson would administer her own superannuation;
·Ms Dickson would be paid via bank transfer (also called cash in hand);
·Ms Dickson would be a contractor and not an employee.

The Applicant submits that there was no agreement that the applicant would be a contractor, and argues the Respondents have mischaracterised the text message exchange they rely upon to make that assertion.[27] She also said under cross-examination that she had thought, when she first started, that they would take care of all of the paperwork and that she had given the Respondents a copy of all her qualifications, her superannuation details, and her tax file number, at their request. This had not been raised prior to her cross-examination and had not been put to the Respondents during theirs. It is also not easy to reconcile with her text message of 10 January 2023 stating “I’ll charge $35hr plus $50 a week for super that I can put in myself.”[28]
I accept that the hourly rate, the amount for superannuation and the agreement that Ms Dickson would administer her own superannuation, and payment by bank transfer, were among the agreed terms.[29] The present proceedings are not proceedings to enforce the contract so the question of whether any of the terms set out above – such as the term for payment of cash in hand – would be enforceable does not arise, and it is not necessary to consider the lawfulness of such terms.
I consider that it was also a term that Ms Dickson would provide care for the two children, predominantly in their own home.
As to whether the parties agreed that Ms Dickson would be a contractor, the parties’ label is not determinative of the relationship. In any event I do not accept it was agreed that Ms Dickson would be a contractor and not an employee. In making this assertion the Respondents rely on the following exchange:[30]
Tuesday, January 10, 2023, 12:12 pm, from Ms Dickson:

Morning/afternoon
OK that sounds good
So basically I’d be giving up my other job I’m 3 months away from getting my long service leave but I must work 1 day a quarter to qualify. So that means I’ll need 2 days off this year but we can sort that out.
I’m earning $37.50 an hour currently plus super and tax. I typically work 40hrs a week.
I’ll charge $35hr plus $50 a week for super that I can put in myself.
I can send you my bank details if that works better for you than cash.

Tuesday, January 10, 2023, 2:00 pm, from Mr Cespedes:

Hey Jess, well I am keen to not impact your long service leave, so no issues there. I’ll take some days off so you can tick that box.
When you’ve done this before, have you done this as a contractor or under an employment agreement?

Tuesday, January 10, 2023, 3:03pm, from Ms Dickson:

Contractor just cash in hand for parents that I have met at work
I became the nanny over time and now those kids are all grown up

On its face, this obviously falls short of an agreement that Ms Dickson would be engaged as a contractor and not an employee. The subsequent messages, which were on the following day, do not address this issue further, but instead deal with frequency of payment, and payment directly into a bank account.
The Applicant also points to a text message of July 2024 in which the Respondents refer to Ms Dickson as “more than an employee.”[31] Again, the characterisation is not determinative. She refers also to documents created by the Respondents for provision to a real estate agent. I have dealt with these below.
In this matter the worker was engaged not in a business or enterprise but in a household, as a nanny. As the Respondents pointed out in their written submission, in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[32] Kiefel CJ, Keane and Edelman JJ observed that this “dichotomy may not be perfect so as to be of universal application for the reason that not all contractors are entrepreneurs.”[33] It is equally the case that not all principals are businesses or enterprises. Some are households. It is commonplace for households to engage contractors to do everything from gardening to installing solar panels. Nonetheless the dichotomy is useful because it focuses attention on whether the relationship between the parties is one where the worker’s activities are subordinate to those of the employer or principal as the case may be.[34]
In the case of households and domestic workers, by analogy, the question is not whether a person worked as a servant of another’s business or carried out a business of her own, but whether they worked as a servant of the household or carried out a business of their own, of which the heads of the household were clients.
Nannies may perform work under a direct arrangement with the family. Alternatively, they may do so as an employee or sub-contractor of their own corporate entity, or an agency.
In this particular case, Ms Dickson does not appear to have been running her own business. There is no suggestion she was providing nannying, childcare, or other personal care services to other households on her own account. She took on another job at a childcare centre, that is, in someone else’s business. She did not render invoices, provide an ABN, arrange to be engaged through an incorporated entity,[35] or file quarterly reports with the Australian Taxation Office.
I accept Ms Dickson was not, in nannying for the Cespedes/Kovacs household, generating goodwill for herself.[36]
The two payslips referred to below indicated Ms Kovacs was employed by The Trustee for C&F Investment Trust, and gave an ABN.[37] That does not assist in ascertaining whether the relationship with Ms Dickson was one of employer or contract principal, for two reasons. The first is the payslips were fake, for the reasons set out below. The second is that the issue of whether the engagement was by a corporate entity or natural persons, or by a person on their or its own behalf or in trust for others, does not assist in ascertaining whether the engaged individual was an employee or contractor.
I now turn to the question of whether Mr Cespedes and Ms Kovacs had the right to exercise control over Ms Dickson, or, put another way, to require her to comply with their lawful and reasonable directions, if any. In Stevens v Brodribb Sawmilling Co Pty Ltd,[38] Mason J said:[39]
9. The first question to determine is whether the relationship between Brodribb and Gray was one of employer and employee or one of principal and independent contractor. It will also be convenient at this point to consider whether Stevens was an employee of Brodribb or an independent contractor, for, although not directly relevant to the matter presently under consideration, both issues arise from a common factual foundation. A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it (Zuijs v. Wirth Brothers Pty Ltd (1955) 93 CLR 561, at p 571; Federal Commissioner of Taxation v. Barrett (1973) 129 CLR 395, at p 402; Humberstone v. Northern Timber Mills (1949) 79 CLR 389). In the last-mentioned case Dixon J. said (at p 404):

"The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions."

But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question (Queensland Stations Pty Ltd v. Federal Commissioner of Taxation (1945) 70 CLR 539, at p 552; Zuijs' Case; Federal Commissioner of Taxation v. Barrett, at p 401; Marshall v. Whittaker's Building Supply Co. (1963) 109 CLR 210, at p 218). Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.

Ms Dickson’s evidence was that the Respondents set the timing and location of the children’s appointments, including for occupational therapy, physiotherapy, speech therapy and dance classes.[40] Ms Kovacs agreed Ms Dickson did not set the times for the appointments.
The parties were in dispute as to whether the Respondents conveyed directions to Ms Dickson via a whiteboard in the home.[41] Ms Kovacs says the family used the whiteboard and a calendar to list the family’s tasks and appointments, and that Ms Dickson also used the whiteboard to communicate with them about how much sleep one of the children had had, what they had eaten, what activities they had undertaken, and the administration of medicine.[42] She says Ms Dickson’s hours were stated on the whiteboard from time to time, but after they had already been agreed, not as a direction.[43] Under cross-examination Ms Dickson said there were many reasons for the whiteboard including to communicate to both the Respondents. There was a photograph of the whiteboard[44] though Ms Kovacs agreed it was not representative of how the whiteboard usually looked because they were packing for a trip. There was also a photograph of the calendar.[45] It is entirely plausible that the family required organisational tools for their own use in managing their domestic life. Whether these were used for communication between the parents or the nanny, but not to convey directions from the parents to the nanny, seems to be a minor point given the Respondents’ concessions about their requirements of Ms Dickson.
Mr Dickson says she was directed to perform tasks including mowing, cleaning the car, doing dishes, vacuuming, folding washing, emptying nappy bins, walking dogs, cooking, getting the children ready for school and getting groceries and other shopping.[46] Ms Kovacs says she would have undertaken each of those activities at some point, but rarely. Ms Kovacs also says Ms Dickson was not directed to do these things, with the exception of getting the children ready for school, but did them at her own initiative.[47] She said Ms Dickson’s role was to look after the children. Under cross-examination she agreed that she had asked Ms Dickson to get groceries online. She agreed that early on in the engagement she had asked Ms Dickson to empty the nappy bin, and had showed her how it was done.
Ms Dickson says she was required to attend the children’s appointments with them.[48] Ms Kovacs agreed she asked Ms Dickson to take the children to appointments if she or her husband could not do so. Ms Dickson also says she was also directed to perform daily exercise sessions with their daughter on the recommendation of a physiotherapist, and she performed these three times a day.[49] Under cross-examination Ms Kovacs acknowledged Ms Dickson was directed to do some exercise daily with their child, though she says she did not direct her as to how many times the exercises had to be done in the day. Ms Kovacs agreed that in an NDIS application the Respondents had stated that Ms Dickson had provided one-on-one care for their daughter’s exercises, attended her physio, OT and speech sessions, and had taught their daughter’s home program.
Nannies employed in private residences are inherently subject to significant control, in the sense of direction or command. They are self-evidently expected to fulfil parents’ directions as to the care of their children. Counsel for the respondents cautioned that this view would mean that nannies would rarely be independent contractors. Control is a significant factor but is not the only factor assessed. It is easy to imagine a situation where one nanny is a sole proprietor operating their own business, providing care to a different family each day or for different parts of a week, or for short periods. Such a person could conceivably be an independent contractor despite being under a high degree of control in each different household. Similarly, a person might be engaged through an agency as an employee or sub-contractor of that agency, but still under significant control from that agency’s clients, the parents.
Ms Kovacs agreed she had communicated the children’s needs to Ms Dickson.
Having regard to the evidence I accept that the parents had the right to direct Ms Dickson in the performance of her duties as a nanny.
The Respondents submitted that Ms Dickson’s hours were agreed week to week, and that this was indicative that they had limited control. They said she could choose to work, or not. They said she had “more than once” cared for the children in her own home, rather than theirs. The Respondents submitted that while Ms Dickson “no doubt, felt some obligation to work the hours that would fit in with” Ms Kovacs’ work hours, “there was nothing mandatory about it,” and also submitted that providing nanny services to work-in with Ms Kovacs’ hours was, effectively, the essence of the role.[50] Their evidence was that Ms Dickson and Ms Kovacs generally negotiated Ms Dickson’s hours for the week on the last working day of the week before, in discussion or by text message.[51] Ms Kovacs did this more frequently as the family’s care needs were usually tied to her work hours.[52] Ms Kovacs’ work arrangements changed over time as she changed roles, and her work hours became inconsistent, which meant the arrangement with Ms Dickson was ad hoc.[53] Ms Dickson was initially hired to work five days a week. In July 2023, after she and Mr Cespedes discovered one of their children had disabilities, Ms Kovacs agreed with her employer to reduce her work hours so she could spend more time with the children.[54] By January 2024 Ms Dickson was providing care two days a week.[55] Ms Dickson’s evidence was also that her hours were fixed week to week and could be changed according to the Respondents’ needs.[56] Ms Kovacs accepted Ms Dickson was not dictating her own hours. She also accepted that as Ms Dickson’s hours with the Cespedes/Kovacs household reduced, Ms Dickson took up more work with a childcare centre.
Ms Dickson could call in sick, and as indicated elsewhere in these reasons did not receive paid sick leave. The fact that she was not required to work when sick does not indicate she was at liberty to set her own hours. She took a brief holiday at short notice. Her evidence was that this occurred on days when she was not rostered on to work.[57]
I find that Ms Dickson’s working hours changed and were changeable, and that she could not set her own hours. They were negotiated.
It could not seriously be argued that Ms Dickson could choose to care for the children at any place of her choosing, just because she had been allowed to care for them at her own home occasionally. Mr Cespedes and Ms Kovacs had the right to direct Ms Dickson in relation to where she cared for their children.
The parties explored whether Ms Dickson could have delegated the nannying work. This had not arisen during the course of the engagement. There was no express contractual term, in writing or oral, identified in relation to delegation. Under cross-examination Ms Kovacs agreed Ms Dickson could not have simply sent someone else in her place without discussing it with them first, and without them first vetting the person. She said:
If it had been discussed, and if the person was vetted, in the same way that we vetted her, and they were on the same website where we had found [Ms Dickson], then I wouldn’t have been against that.

But it’s not something you would do, like, yeah, there’s discussions around that, obviously, when we’re talking about children.

The Cespedes/Kovacs household hired Ms Dickson to personally care for their children. If parents hired a nanny, and that nanny suggested they provide a substitute nanny for some reason, any parent would want to be assured that the substitute had the necessary skills, knowledge, qualifications, and personal attributes to care for their children. Whether or not Ms Kovacs might have been open to considering alternative carers, it could not sensibly be suggested, and was not suggested, that a nanny would have unlimited authority to delegate the care of the children, or even substantial freedom to do so.
Ms Dickson was paid for hours worked, not on a task or piecework basis. The Respondents did not withhold taxation or report the payments to the ATO.[58] The applicant did not report her income to the ATO, charge GST, or supply an Australian Business Number. She says she asked for a PAYG payment summary in July 2024, but did not receive one.[59] The Respondents put on evidence from Ms Kovacs saying she did not believe this request occurred, and saying she has no knowledge of how PAYG works.[60] Ms Kovacs’ evidence was also that Mr Cespedes handled the payments for Ms Dickson’s engagement.[61] The Respondents did not put on evidence from Mr Cespedes denying the request was received. Ms Dickson does not claim to have asked for a PAYG summary in July 2023. In any event this point is not of great significance. The (lack of) taxation arrangements do not assist in assessing whether the relationship was one of employee or contractor but instead tend to indicate that the parties had for some time been operating without much if any regard for taxation obligations.
The payment of an amount said to be for superannuation also does not assist. Putting aside that this amount was not paid to a superannuation fund, and was a notional amount not calculated by reference to ordinary time earnings or time worked generally,[62] the expanded definition of employee under superannuation legislation encompasses independent contractors, and domestic workers’ superannuation entitlements turn on the number of hours worked per week, not the nature of the relationship.[63]
The Respondents did not provide Ms Dickson with any paid leave.[64]
The Respondents generally did not provide payslips to Ms Dickson. On 9 September 2024 at 2.42pm Ms Dickson messaged Mr Cespedes as follows:
Hey
Been hectic busy
Hope everything is good with you
Will you be a fucken legend and creat two payslips for me as I’m applying for a new place and I don’t have proof of income as my other job isn’t enough to prove I can afford it

Mr Cespedes subsequently created two payslips.[65] Those two payslips purported to show withheld tax, and payments to Ms Dickson’s superannuation fund. Ms Dickson provided her superannuation account details for the purpose of the creation of these payslips. She provided an email address for the real estate agent. Mr Cespedes sent the payslips to the real estate agent via that email address.[66]
Mr Cespedes says that in the course of dealing with Ms Dickson’s request for these payslips, on the evening of 9 September, he spoke to her. He says during that conversation he “reminded her” that she was not an employee, that he had offered to engage her formally, and that she had declined that offer. He says they discussed, in that conversation, that the payslips would not be legitimate, and that Ms Dickson said she understood and the sole purpose was to demonstrate her income to a landlord.[67] He says he was aware of some issues Ms Dickson had been having with a different landlord and a former romantic partner, and that he had created the payslips against his better judgment out of sympathy for her.[68]
Ms Dickson disputes the Respondents’ assertions that the payslips were not legitimate, and denies Mr Cespedes told her during discussions regarding them that she was not an employee.[69]
It is clear the payslips were fake. They therefore do not provide much assistance in ascertaining whether Ms Dickson was an employee, save that they indicate that Mr Cespedes was willing to present Ms Dickson as an employee to the outside world.
Ms Dickson says the Respondents also provided her with a reference in relation to the same rental property application.[70] This also shows them representing her as an employee.
Otherwise, given the domestic nature of the work, the question of how Ms Dickson was presented to the outside world is of limited application.
Mr Cespedes and Ms Kovacs provided supplies for their own children. It was common ground that they reimbursed Ms Dickson when she purchased things for the children. Ms Dickson used their car and her own car.[71] For Ms Dickson’s use of her own car, Mr Cespedes and Ms Kovacs provided child safety car seats.[72] Ms Dickson was not generally reimbursed for her fuel costs.[73]
Having taken the foregoing into account, and considering the real substance, practical reality and true nature of the relationship, I find that Ms Dickson was an employee capable of being dismissed on 5 October 2024.
As stated above, at the hearing the Respondents conceded that if Ms Dickson was an employee, then the employment came to an end at their initiative. Accordingly, it was not in dispute, and I find, that Ms Dickson was dismissed.

Conclusion

I have found that the Applicant was an employee of the Respondents and was dismissed, within the meaning of that term for the purposes of section 365 of the Fair Work Act.
The Respondents’ jurisdictional objections are dismissed.
The matter will be listed for conciliation.

DEPUTY PRESIDENT

Appearances:

S.G. Ogden of counsel for the Respondents
S. Wescott of WWC Lawyers for the Applicant

Hearing details:

22 January 2025
Brisbane

[1] Exhibit 3, [15].

[2] Exhibit 3, [35], and exhibit FAC1 to exhibit 3, 32.

[3] as required following Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

[4] Including those in Fair Work Act 2009 (Cth) ss 341, 347 and 351.

[5] Fair Work Act 2009 (Cth) subs 342(1) item 3.

[6] Including Fair Work Act 2009 (Cth) subss 340(1), 346(1), and 351(1); “civil remedy provision” is defined in subs 539(1).

[7] Fair Work Act 2009 (Cth) pt 4-1 div 2.

[8] Fair Work Act 2009 (Cth) s 370.

[9] Fair Work Act 2009 (Cth) subs 368(3) and s 370.

[10] Fair Work Act 2009 (Cth) s 370(a)(ii).

[11] Fair Work Act 2009 (Cth) s 370 Note 1; ss 369, 727 and 728.

[12] Fair Work Act 2009 (Cth) s 365(a).

[13] Fair Work Act 2009 (Cth) s 374.

[14] Fair Work Act 2009 (Cth) sch 1 subcl 116(1).

[15] Fair Work Act 2009 (Cth) s 40A and sch 1 subcl 116(2) and Acts Interpretation Act 1901 (Cth) s 7.

[16] Applicant’s outline of submissions filed 9 January 2025, [5].

[17] [2025] FWC 978.

[18] Ibid, [17]-[19].

[19] (1986) 160 CLR 16.

[20] (2001) 207 CLR 21.

[21] [2022] HCA 1.

[22] [2022] HCA 2.

[23] [2011] FWAFB 8307.

[24] Ibid at [30].

[25] Ibid.

[26] Respondents’ amended submissions filed 21 January 2025, [17]-[18].

[27] Applicant’s submissions filed 9 January 2025, [7].

[28] Exhibit 4, exhibit FC1, 41.

[29] Exhibit 3, [13.2].

[30] Exhibit 3, [13], and exhibit FAC1 to exhibit 3, 17.

[31] Exhibit 4, [23] and annexure JD1-1.

[32] [2022] HCA 1; 275 CLR 165.

[33] Ibid, [39].

[34] Ibid.

[35] Exhibit 7, [12].

[36] Applicant’s submissions filed 9 January 2025, [9(c)].

[37] Exhibit 7, [26].

[38] [1986] HCA 1; 160 CLR 16.

[39] Ibid, [9].

[40] Exhibit 4, [18].

[41] Exhibit 4, [17]; Exhibit 2, [6.3].

[42] Exhibit 2, [6.4].

[43] Exhibit 2, [6.5].

[44] Exhibit 2, exhibit SMK2, 14.

[45] Exhibit 2, exhibit SMK2, 15.

[46] Exhibit 4, [17].

[47] Exhibit 2, [6].

[48] Exhibit 4, [18].

[49] Exhibit 4, [17]-[18].

[50] Respondents’ amended submissions filed 21 January 2025, [19].

[51] Exhibit 1, [12]; Exhibit 3, [20].

[52] Exhibit 1, [12].

[53] Exhibit 1, [14].

[54] Exhibit 1, [15].

[55] Exhibit 1, [17].

[56] Exhibit 4, [8]-[9].

[57] Exhibit 4, [11].

[58] Exhibit 3, [40].

[59] Exhibit 4, [28].

[60] Exhibit 2, [7].

[61] Exhibit 1, [13].

[62] Ibid.

[63] Superannuation Guarantee (Administration) Act 1992 (Cth) s 12.

[64] Exhibit 3, [38].

[65] Exhibit 4, annexure JD1-3.

[66] Exhibit 3, [29], and exhibit FAC1 to exhibit 3, 28.

[67] Exhibit 3, [29.2].

[68] Exhibit 3, [29.3].

[69] Exhibit 4, [11]; Applicant’s submissions of 9 January 2025, [11].

[70] Exhibit 4, [25], and annexure JD1-2.

[71] Exhibit 2, [5].

[72] Exhibit 3, [39].

[73] Exhibit 2, [5].

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