Sabarna Mukherjee v Sanden Care Options Pty Ltd

[2024] FWC 588

[2024] FWC 588

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sabarna Mukherjee
v

Sanden Care Options Pty Ltd

(C2023/6619)

DEPUTY PRESIDENT BELL MELBOURNE, 21 MARCH 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant an employee or contractor – whether contract a “sham” - whether applicant dismissed or resigned – applicant an employee and dismissed.

1. Ms Sabarna Mukherjee was an aged care worker engaged with the respondent, Sanden Care Options Pty Ltd (Sanden Care / respondent). It is not in dispute that, on 7 October 2023, that engagement came to an end, although the circumstances in which it ended are contested.

1. Ms Mukherjee has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act) alleging she was dismissed in contravention of the general protection provisions of the Act. The respondent states that Ms Mukherjee was an independent contractor (and not an employee who can be “dismissed”) and in any case verbally resigned. Ms Mukherjee says that the proper characterisation of her contract is one of employment and, in any case, the contract showing an independent contracting arrangement is a “sham”.

1. Each party filed evidence in response to directions issued by me. Ms Mukherjee filed statements for herself, as well as supporting statements by her support person (Ms Starr) and other witnesses. With no disrespect to the applicant’s witnesses other than Ms Mukherjee, their evidence was not relevant to the terms of the contracts nor to the final day of work and I have not described that evidence. For the respondent, a witness statement was filed by Ms Sandercock, director.

Legislation and applicable principles

1. Section 365 of the Act provides that a person can apply to the Commission to deal with a general protections dismissal dispute if the person has been “dismissed”. A jurisdictional condition of that application is that the person was “dismissed”.[1]

1. By s 12 of the Act, the term “dismissed” has a meaning defined by the criteria in s 386 but, relevantly, a person must be an employee for there to be a dismissal. There are exceptions to s 386(1) but none are presently relevant.

1. As to the principles to be applied in characterising whether a particular contract is a contract of employment or an independent contracting arrangement, I consider the starting point for consideration is CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek).

1. Where there is a wholly written contract whose terms are not disputed, there is usually no difficulty identifying those terms for the purpose of undertaking the exercise in characterisation (although the task of characterisation may still be a difficult one).

1. Evidence of post-contractual conduct is generally irrelevant to the question of characterisation, although it may be relevant where the validity of the contract is challenged as a sham or the terms of which otherwise varied, waived or the subject of an estoppel: Personnel Contracting at [43] (Kiefel CJ, Keane and Edelman JJ); [177] (Gordon J).

1. “Sham” in this context was explained in Personnel Contracting at [54] (Kiefel CJ, Keane and Edelman JJ):

“54. …For instance, in responding to a submission of sham in Cam and Sons Pty Ltd v Sargent[2], Dixon J spoke of investigating the "substance" of a written agreement that contained "elaborate provisions expressed in terms appropriate to some other relation", but emphasised that it was the agreement which was to be analysed[3]. Lest there be any doubt, it has been held that this decision is consistent with the focus in Chaplin and Narich upon the terms of the written contract[4]. In Neale v Atlas Products (Vic) Pty Ltd[5], this Court again considered a submission that the terms of a written agreement were a "sham". It was held that the written agreement, which "substantially set forth the conditions upon which each tiler was employed", was  "the real measure of the relationship between the parties" and that "we should not be disposed to ignore it unless it can be said that the evidence establishes quite clearly that the conduct of the parties was inconsistent with it as the basis of their relationship"[6].”

1. Putting aside questions of sham or variation, etc, recourse may be had to external events, where appropriate for the purpose of characterising the contract. As explained by Gordon J in Personnel Contracting at [175] (citations omitted, emphasis added):

“Recourse may be had to events, circumstances and things external to the contract which are objective, which are known to the parties at the time of contracting and which assist in identifying the purpose or object of the contract. The nature of the specific job that the purported employee applied for as well as the nature and extent of the equipment to be supplied by that purported employee for that particular job may well be relevant to the question of characterisation of the contract. Indeed, it is often relevant, but not determinative, to observe that the purported employee must supply some uniform, tools or equipment. But again that observation must be made in context. The context is the nature and extent of what is required to be provided under the contract. In many forms of employment, employees provide their own uniform and bring their own tools to work.”

1. As Wigney J recently stated[7] in JMC Pty Limited v Commissioner of Taxation [2022] FCA 750 (JMC v COT) at [23], the task of characterising the terms of the contract, once properly identified, is often informed by two particular considerations:

“The first consideration is the extent to which the putative employer has the right to control how, where and when the putative employee performs the work: Personnel Contracting at [73]-[74] (Kiefel CJ, Keane and Edelman JJ); [113] (Gageler and Gleeson JJ); see also Brodribb at 24 (Mason J) and 36-37 (Wilson and Dawson JJ). The second is the extent to which the putative employee can be seen to work in his or her own business, as distinct from the business of the putative employer – the so-called “own business/employer’s business” dichotomy: Personnel Contracting at [36]-[39] (Kiefel CJ, Keane and Edelman JJ); [113] (Gageler and Gleeson JJ); cf [180]-[183] (Gordon J). Neither of those considerations are determinative and both involve questions of degree.”

1. In relation to the element of control, as stated by Kiefel CJ, Keane and Edelman JJ in Personnel Contracting at [73] (and see also JMC v COT at [24]):

“ … the existence of a right of control by a putative employer over the activities of the putative employee serves to sensitise one to the subservient and dependent nature of the work of an employee, so as to assist in an assessment of whether a relationship is properly to be regarded as a contract of service rather than a contract for services”

1. As for the “own business/employer’s business” dichotomy, Wigney J summarised the matter thus in JMC v COT at [25] (original emphasis):

“ … it also “usefully focusses attention upon those aspects of the relationship generally defined by the contract which bear more directly upon whether the putative employee’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise”: Personnel Contracting at [39] (Kiefel CJ, Keane and Edelman JJ); cf [180]-[182] (Gordon J). Another way of framing the question, which focusses more directly on the terms of the contract, is whether the person “is contracted to work in the business or enterprise of the purported employer”: Personnel Contracting at [183] (Gordon J) (emphasis in original). One consequence of answering that question in the negative may be that the person is not an employee.”

1. While the elements of control and the own/employer’s business dichotomy are significant matters, it remains appropriate to consider the “totality” of the relationship between the parties albeit – importantly – as framed by the rights and duties established by the parties’ contract. As stated by Kiefel CJ, Keane and Edelman JJ in Personnel Contracting at [61] (citations omitted, emphasis added):

“The foregoing should not be taken to suggest that it is not appropriate, in the characterisation of a relationship as one of employment or of principal and independent contractor, to consider "the totality of the relationship between the parties" by reference to the various indicia of employment that have been identified in the authorities. What must be appreciated, however, is that in a case such as the present, for a matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties' contract, and not simply an aspect of how the parties' relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties.”

1. With the important limitation placed upon recourse to the “various indicia” being established from the terms of the parties’ contract, the indicia described in Stevens at 24 per Mason J remain relevant (citations omitted): [8]

“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:… 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.”

1. To similar effect, Wilson and Dawson JJ said in Stevens at 36 – 37 (emphasis added):

“The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.”

Factual findings

1. Ms Mukherjee’s initial engagement with the respondent began in September 2021 as an aged care support worker. The contract was titled “Contractor Services Agreement” (the First Contract).

1. The First Contract was paid on the basis that Ms Mukherjee was an independent contractor. It is unnecessary for me to express a view about whether that assumption was correct, and I do not do so.

1. In April 2022, Ms Mukherjee’s engagement was converted into an employment relationship. The circumstances that caused that change are set out in a letter dated 1 April 2022. It is unnecessary to set that letter in full but, saliently, it stated (original emphasis):

“Dear Contractors,

As you know we are meeting this week to make individual offers of employment to current contractors who work with our clients.

I understand that not everyone likes a pay cut, however the other things that are on offer are very important too in the scheme of providing positive support services to people with a disability and the elderly.

Our business needs to diversify and provide services with a difference that shine our values, beliefs and commitment to best practice that is enshrined in the United Nations Convention on the Rights of people with a Disability (UNCRPD). Our clients deserve this change and we think it’s time to step up for them.

This change is due to several factors but mainly:
1. The beginning of our new business Sanden@Home- a dedicated support service that
works with Sanden Care Options participants of the NDIS and My Aged Care customers.
We have long held a desire to provide our clients with a support service with a
difference: a support service that has the following core values;

a. Clients can have their known support workers with replacement “friends” available if needed when support worker is on leave or unwell;
b. staff that are supported and trained professionally and valued as much as the
clients they care for;
c. staff are given all the tools they need to provide a professional service and have avenues for mentoring support, reflective practice and project development and planning.

2. Secondly, we have had to respond to the changes that will be made to the marketplace in NDIS for non-registered providers and the Fair Work Commission review of contractors in the sector.

Currently, the people who work regularly with one or two clients every week for the same remuneration use their ABN to provide services under contract to Sanden Care
Options. The Fair Work Commission, upheld by the ATO, has determined that these people are NOT contractors but casual employees and need to be employed as such.
Furthermore, we are now under the ASIC company structure which mandates strict dedication to workplace and commonwealth law by Directors and our accountants, have made us aware of this and we are required to make these changes. …”

1. As the effect of the change evidently involved a reduction in pay, the letter had a section titled “Why would you want to stop your life of independent contracting at the higher rate I hear you say? Here are a couple of really important reasons why!” The letter then provided a range of apparent justifications to the rhetorical question asked. It is unnecessary to comment on those, and it is sufficient to note that, from around that point in time, Ms Mukherjee now continued her work as an employee.

1. A copy of document titled “Employment Contract” (the Second Contract) was signed by the parties on 11 April 2022. Among other matters, the Second Contract stated (noting there is no paragraph 4):

“Job Title and Description

3.The Employee agrees to be employed as casual support worker and the Employee agrees to be employed on the terms and conditions set out in this Agreement. The Employee agrees to be subject to the general supervision of, and act pursuant to, the orders, advice and direction of the Employer.

5. The Employee will perform any and all duties that are reasonable and that are customarily performed by a person holding a similar position In the Disability Services sector and or Aged Care sector or other business of the Employer.

6. The Employer cannot unilaterally and significantly change the Employee's job title or duties. The Employer may make changes to the job title or duties of the Employee where the changes would be considered reasonable for a similar position In the industry or business of the Employer. The Employee's job title or duties may be changed by agreement and with the approval of both the Employee and the Employer.

7.The Employee agrees to devote all efforts, as an employee of the Employer, to the employment duties and obligations as described in this Agreement. To this end the employer may request the employee to assist with other clients and customers outside of their usual hours and locations, during busy times or when other staff are absent on leave or with illness. The Employer will ensure that the Employee is properly remunerated for any mileage costs relating to travel at the ordinary rate set out under the award as well as outgoing costs like road tolls and parking.

…”

1. There was, possibly, a position description for the casual employment role, although it was not included in any material filed by the parties. At the conclusion of the hearing, I requested the parties provide a copy of it. Ms Sandercock, director for the respondent, wrote in correspondence after the hearing that for “casual employees as it is usually attached to the last page of the contract. Ms Mukherjee must have retained it as its not been returned with the contract.” Ms Mukherjee’s copy of the contract did not have any separate “position description” document as such and she referred to the “Job Title and Description” clause of the Second Contract, above.

1. Having ostensibly commenced work as a contractor, and then changed to an employee, Ms Mukherjee’s arrangements were about to change again in March 2023.

1. In March 2023, Ms Sandercock requested that Ms Mukherjee sign a fresh “Contractor Services Agreement”, under which Ms Mukherjee was described as a contractor (not an employee). There is some dispute about the circumstances leading to that request. Ms Mukherjee says she had to sign the fresh agreement if she wanted to keep her job and was told essentially that. Ms Mukherjee was not challenged on that evidence and I accept it. On 23 March 2023, Ms Mukherjee signed the new contract (the Third Contract).

1. Consistent with Ms Mukherjee’s evidence, various “Slack” text messages between Ms Sandercock and Ms Mukherjee sent shortly before the Third Contract was signed, where Ms Sandercock wrote that the “Sanden Home” part of her business would be closing and she “will no longer be paying casual employees”. She then described another employee having resigned and the business almost collapsed. She wrote “I just have to pare down to you and me and see if we can survive this.”

1. Ms Mukherjee also states that, having signed the Third Contract, she continued to do the same work for Sanden Care, for the same clients. She says the only change was how she was paid and that she now sent invoices.

1. Ms Mukherjee’s evidence was not substantively challenged, although Ms Sandercock did state in her oral evidence that there were different professional development requirements for staff meetings, and other duties as required.

1. Ms Sandercock says that the Third Contract had higher rates. She also stated that, before signing it, she and Ms Mukherjee read through a position description for the role.

1. The Third Contract is titled “Contractor Services Agreement”. It commences:

“This agreement outlines the discussion we have had with you about contracting services as an Aged Care Support Worker with Sanden Care Options (the business).”

1. In a table that then follows, it states that the “Type of Employment” is “Contractor”. That table also contains details for Ms Mukherjee’s Australian Business Number (ABN), the email address that invoices are to be sent to, and some necessary content of those invoices.

1. A second table then follows, which is headed “Your Roles”. The first row after that heading has three columns, which are:

Aged Care Support Worker
A position description is attached to this agreement about the role and the business expectations Your payments will be based on SCHADS award Lvl 1: PayPoint 2
Reference to your work experiences part-time for 12 months with no qualifications 8am-8pm $29.83
8am-12pm $32.83
Saturday $41.84
Sunday $53.80
Phol. $65.75

1. A heading of the Third Contract dealt with “Terms and Conditions”, although the only terms or conditions referred to related to providing an ABN and various compliance documents, a requirement to obtain insurance, maintenance of records and COVID-19 matters.

1. Under a heading “Working with us”, brief provision was made for giving notice of 24 hours of illness or inability to work. That section recorded that the “relationship between the parties is NOT an employee/employer relationship” and there were no employee benefits for superannuation, annual leave, sick leave or parental leave.

1. The Third Contract made provision for confidentiality and privacy, and more detailed provision for insurance, which included insurances provided by Sanden Care for the benefit of contractors. In relation to matters relating to “Privacy and Confidentiality”, the Third Contract provided that “Case notes and collection of client personal information will be an essential part of the services provided and remain the property of the business.”

1. There was no provision dealing with delegation.

1. Other than the descriptions set out above, the Third Contract did not elaborate on the duties and tasks of the putative contractor.

1. The position description (Position Description) referred to in the Third Contract was in evidence attached to Ms Sandercock’s evidence. It was a one-page document, signed by Ms Mukherjee and Ms Sandercock. As preliminary matters, the Position Description:

   ·  stated the “Role” was “Aged Care Support Worker”;

   ·  stated that the position reports to the “Care Manager/ or Director”; and

   ·  identified the “Target” of the Position Description as “Sanden Contractors and Independent Contractors”.

1. The “Position Objective” was stated as (original italics):

“You are responsible for the frontline delivery of quality, person centred support services provided by Sanden Care Options to their My Aged Care (MAC) customers.”

1. The next part of the Position Description was as follows (original emphasis):

“We expect the following from you every time you work

- Work directly in a person-centred manner with all customers;

- Uphold and promote individual dignity, independence, rights, choice and personal responsibility;
- Support customers to develop and enhance their skills and broaden their community networks as well as to enable socially integrated community/family / cultural access;
 - Be an appropriate role model, including advocating for, and promoting a positive self-image for elderly people;
- Maintain and progress activities in line with a focus on outcomes and attaining desired goals;
- Daily commitment to documentation such as case notes, diary notes, and other communication as required/requested by the care manager, especially to the teams communication app, Slack,
- Communicate relevant information/feedback in a timely manner to the Care Manager or Director, especially in relation to risks to the participant or workers;
- Maintain and promote a workplace free from discrimination, harassment and bullying of any kind to both customers and contractors;

- Follow organisational grievance procedure in a timely manner to report any instances of apparent discriminatory, harassing or bullying behaviour, and risk management issues.”

1. Under the heading “Key Responsibilities and Duties”, the following matters were listed:

“Key Responsibilities and Duties
Not all of these tasks are expected of aged care support workers. The role includes tasks identified by the customer and their family, the care team and other stakeholders, and shared with workers in a their current support plan. You may be asked to complete all or some of the following tasks:
 - Provide mealtime assistance, preparing food, shopping and cooking with and for the customer;
 - Assisting with communication, accessing technology, enjoyable activities and creative pursuits;
 - Assisting with mobility, transportation, recreational activities, as well as community access;
 - Assisting with domestic/in-home care activities as well as light home duties and/or garden maintenance;
 - Attending to personal care and hygiene needs where the customer requires this support;
 - Develop & maintain competencies in professional emergency support such as First Aid, including (CPR) and administration of medication (certificated only);
 - Participate in relevant Sanden training to maintain and increase professional competencies;
 - Continued commitment to the principles of maintaining participant confidentiality as well as the privacy policies of the business;
 - Comply with all workplace occupational health and safety instructions and requirements.
 - Immediately report to the Director any instances of near misses, injuries, damage to property, health or safety hazards, as well as risks to workers and participants;
 - Commitment to complete incident reports under Sanden policy as and when required and in a timely manner;
 - Providing other support duties as required/and or directed from time to time, with consideration given to your skills and experience.”

1. The parties led some evidence about the actual performance of the work after the Third Contract was signed. For the reasons stated in the case authorities above, that evidence would ordinarily be irrelevant to the characterisation of the Third Contract. However, in the present case, the applicant squarely alleges a “sham” contract for the purpose of s 358 of the Act and, I infer, more generally for the purposes of characterisation (although the submissions of the applicant perhaps did not appreciate there is a distinction).

1. Section 358 of the Act appears within Division 6 of Part 3-1 of the Act. Division 6 is titled “Sham arrangements”, although s 358 does not itself use that term. Section 358 provides:

“358  Dismissing to engage as independent contractor

An employer must not dismiss, or threaten to dismiss, an individual who:

(a) is an employee of the employer; and

(b) performs particular work for the employer;

in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.”

1. Whether there has been a contravention of s 358 is not a matter I had jurisdiction to determine and, for avoidance of doubt, I do not do so. The issue of “sham” referred to in the authorities is not determined by application of s 358, although no doubt there may be some overlap in particular cases.

1. The next events concern the circumstances surrounding the ending of the Third Contract and Ms Mukherjee’s engagement with Sanden Care.

1. Beginning in late September 2023, Ms Sandercock had passed on a pay increase to Ms Mukherjee and told Ms Mukherjee, via the messaging platform “Slack”, she wanted to meet to update the Third Contract.

1. On Saturday, 7 October 2023, Ms Mukherjee was asked to go to Ms Sandercock’s home (and, I infer, office). On that day in the morning, Ms Sandercock sent a copy of the proposed new contract. The witnesses are in dispute about the meeting.

1. According to Ms Sandercock’s statement:

“During this meeting [Ms Mukherjee] refused to sign the updated agreement, verbally resigned, left the premises and I did not hear from her again. On or around 12.15pm I called her phone, and she did not answer. I had no further conversation with [her] and I believed she no longer wished to work with us.

I sent a text message to her that terminated her agreement with [Sanden Care] as I believed her recent behaviour had breached our contractual arrangements.”

1. Ms Mukherjee’s evidence was that when she arrived at the home, she asked Ms Sandercock to let her take the proposed contract home to review it. She says Ms Sandercock got angry, demanding that it be signed immediately and asked “do you want a job or not” before being told to leave the house.

1. In cross examination, Ms Sandercock gave varying further descriptions. The closest any came to evincing an actual resignation was Ms Sandercock’s evidence about a dispute concerning Ms Mukherjee requesting time to read the proposed contract. According to Ms Sandercock:

“[Ms Mukherjee] said, 'Well, if I can't read it I'll quit then', and she left, and she didn't contact me again.”

1. Other versions that Ms Sandercock gave of that same exchange were “She yelled 'I quit.'  'Will I quit then' she said”.

1. The “text message” referred to was in evidence. It stated (original spelling and grammar):

“I'm sorry but due to your increasing hostility towards me and my business I have to let you go . Your behaviour last week was deplorable and cost me a client .
You now
Come here not will ING to sign THE SAME document you signed 3 times already BUT with  a Pay rise ????? You don't know how good you have had it . Go find yourself another employer who will put up with your behaviour.
Effective immediately .”

Consideration

1. I find that, properly characterised, Ms Mukherjee’s contractual relationship under the Third Contract was a contract of service by employment, not a contract for services by an independent contracting arrangement.

1. Based on the terms of that contract, including the Position Description, it is clear that the “own business/employer’s business” dichotomy is a matter falling in favour of an employment relationship. The “clients” referred to in the Third Contract are clearly clients of Sanden Care, not the Aged Care Support Worker provider.

1. As the contract stated, “Case notes and collection of client personal information will be an essential part of the services provided and remain the property of the business.” There were good reasons for such a clause – it is difficult to envisage how Sanden Care could provide services to clients without strict measures about client information in order to conduct its business. However, it is also tolerably clear that the business Ms Mukherjee was engaged in was Sanden Care’s business, not her own and this is a factor that points to existence of an employment relationship. There was no payment from the clients to Ms Mukherjee. Ms Mukherjee’s only remuneration was from Sanden Care. There was no evidence of goodwill being generated by Ms Mukherjee for her own business to suggest a different conclusion, although the presence or absence of identifiable goodwill is not necessarily determinative.

1. In terms of the question of “control”, the terms of the Third Contract provides relatively little in the actual role beyond it being an “Aged Care Support Worker”. This is indicative that the contractual terms reserve to the principal a broad reservation of rights to provide directions as to how the role of “Aged Care Support Worker” was to be performed from time to time. While the contract refers to a position description, it states that the position description is “about” the role and the “business expectations”. The Position Description is arguably not even incorporated as contractual terms to the Third Contract, although it perhaps establishes an obligation on the putative contractor to comply with the “business expectations” stated in it.

1. Even if the Position Description were incorporated, that document itself establishes a broad reservation of contractual control to the principal. For example, it provides:

·  Ms Mukherjee was “responsible for the frontline delivery” of services provided “by” Sanden Care Options.

·  It provided a list of what Sanden Care did “expect” “every time” Ms Mukherjee worked.

·  It provided an indicative list of “Responsibilities and Duties” but, importantly, those responsibilities and duties generally “include[d] tasks identified by … the care team”. Here, the “care team” are from Sanden Care, noting that the Aged Care Support Work reports to the “Care Manager/Director”.

1. The contractual terms, and the Position Description, clearly contemplate that the services provided by the putative contractor were to be provided by Ms Mukherjee personally. Her pay structure was expressly linked to the Social, Community, Home Care and Disability Services Industry Award, being an instrument applicable for employees, payable on an hourly basis akin to a casual employee.

1. The only significant clauses supporting the Third Contract being a contract for services were for insurance, taxation, the absence of superannuation, annual leave, sick leave or parental leave and the statement that Ms Mukherjee was not an employee.

1. However, considering the “totality” of the arrangement as embodied by the contract terms, I am readily satisfied that the true nature of the relationship between the parties was that of employer and employee. It is unnecessary for me to deal with the allegation of “sham” in the circumstances.

1. The remaining issue for consideration is whether Ms Mukherjee resigned. Little needs to be said on this issue. I am satisfied on the evidence that it is clear that Ms Mukherjee was dismissed at the initiative of the employer. There was no resignation, forced or otherwise.

1. The only evidence initially led by Sanden Care was that Ms Mukherjee “verbally resigned”. No evidence was given about what was allegedly said, nor was Ms Mukherjee challenged about her contrary evidence. Some further evidence, itself not consistent with other versions also given, was given about saying “I quit” but only “if” she had no chance to look at the contract. To the extent of differences between the witnesses, I prefer Ms Mukherjee’s account.

1. Moreover, the text message sent almost immediately after the meeting is simply inconsistent with any statement being made that was objectively or subjectively understood by Ms Sandercock as having just received a verbal resignation. The text message makes no reference to a resignation at all but instead begins “I have to let you go”. All it referred to was a refusal to sign a new contract – that is very different from having made a verbal resignation of Ms Mukherjee’s existing contract. The text message also made reference to unsubstantiated allegations from the week before but, regardless of their merits, none are supportive of a resignation and they are better viewed as showing Ms Sandercock having lost her temper and terminating the Third Contract on the spot.

1. Nothing turns on Ms Mukherjee not having answered Ms Sandercock’s subsequent telephone call. If Ms Sandercock wished to have retracted her termination to “let you go”, she should have done so in writing. She did not do so and Ms Mukherjee was plainly justified to believe that Ms Sandercock meant what she wrote, which was the termination was “effective immediately”.

1. For the above reasons, each of Sanden Care’s jurisdictional objections are dismissed.

1. In accordance with s 368 of the Act, the Commission must now deal with the dispute by way of a conference. The parties will be contacted in due course for the conduct of that conference.

DEPUTY PRESIDENT

Appearances:

M. Starr for the Applicant
M. Sandercock from the Respondent

Hearing details:

2023.
Melbourne (by Microsoft Teams):
December 20.

[1] Coles Supply Chain Pty Ltd v Milford and Another (2020) 279 FCR 591.

[2] (1940) 14 ALJ 162 at 163.

[3] See also Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 571, "the terms of the engagement fixed the character of the act"; Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 215, the requirements of the contract "by its terms".

[4] TransAdelaide v Leddy (1997) 76 IR 341 at 348‑349. Not doubted on appeal on this point: TransAdelaide v Leddy (1998) 71 SASR 413.

[5] (1955) 94 CLR 419 at 422.

[6] (1955) 94 CLR 419 at 428.

[7] While the decision was overturned on appeal, his Honour’s statement of the principles described above was accepted as correct: see JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76 at [9].

[8] See also Personnel Contracting, [174] (Gordon J).

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