Mr Shelton Muller v Timbecon Pty Ltd - [2022] FWC 1685

1 

 

 

Fair Work Act 2009  

s.394—Unfair dismissal 

Shelton Muller 

v 

Timbecon Pty Ltd 
(U2022/2774) 

DEPUTY PRESIDENT BELL MELBOURNE, 6 OCTOBER 2022 

Application for an unfair dismissal remedy – whether employee or contractor – not an 
employee – application dismissed. 

 

[1] On 4 March 2022, Mr Shelton Muller (Applicant / Mr Muller) made an application 

(the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal 

under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was unfairly 

dismissed by Timbecon Pty Ltd (Respondent) on 14 February 2022. 

 

[2] The Respondent has raised a jurisdictional objection, contending that Mr Muller was 

not an employee. The Respondent states Mr Muller was subcontracted as an independent 

contractor, and that on 14 February 2022 it notified him that it was terminating the contract 

under which Mr Muller had provided services, with immediate effect. 

 

[3] By way of overview, Mr Muller was a photographer. He was first engaged (to use a 

neutral term) by the Respondent in November 2016, on a three-day a week basis. In January 

2017, this became five days per week. There were no written terms of the contract, as varied. 

The original engagement and the variation were agreed orally between the Applicant and Mr 

Hague Haswell, who was the Managing Director for the Respondent. 

 

[4] It was not in contention if, properly characterised, Mr Muller was found not to be an 

employee then his claim for an unfair dismissal remedy would necessarily fail because he would 

not be an employee who was “dismissed” for the purpose of s.385(a) and 386(1) of the Act. 

 

[5] If, however, the Applicant was found to be an employee then it falls to me to determine 

whether the Applicant was unfairly dismissed. A significant majority of the material filed by 

the parties and time spent at the hearing was directed at the issue of whether the Applicant was 

an employee or a contractor. 

 

[6] It was not otherwise in controversy that the Small Business Fair Dismissal Code did not 

apply (s.385(c)), nor was this a case of genuine redundancy (s.385(d)), nor that the application 

[2022] FWC 1685 [Note: An appeal pursuant to s.604 (2022/7121) was 

lodged against this decision - refer to Full Bench decision date 24 February 

2023 [[2023] FWCFB 42] for result of appeal.] 

DECISION 


AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/decisionssigned/html/2023fwcfb42.htm


[2022] FWC 1685 

 

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was made outside the 21 day period required by s.394(2). The Applicant did not consider that 

reinstatement would be an appropriate remedy and instead sought compensation in lieu of 

reinstatement. 

 

[7] Each of the parties were represented by counsel, with permission to be represented 

having previously been granted. I was significantly assisted by their representation. After 

having consulted with the parties, I determined the matter was more appropriate to proceed by 

way of a hearing: s.399. 

 

[8] Each of Mr Muller and Mr Haswell gave evidence and each was cross-examined. 

 

Background and factual findings 

 

[9] By way of overview, many of the factual matters were not in dispute or not seriously 

challenged (other than for relevance or weight, for which a significant number of matters were 

challenged). I make the following findings. 

 

[10] Prior to his engagement with the Respondent in late 2016, Mr Muller had worked as 

photographer for about 35 years and, relatively more recently, as a videographer. Of that time, 

Mr Muller states he worked “mostly as a contractor”, being a person whom, he agreed, provided 

services and issued invoices for those services. While the Applicant had previously undertaken 

work as an employee, it was for a minority of that time and occurred around 10 years or more 

before his engagement with the Respondent in late 2016. 

 

[11] At least by 2016, it appears that Mr Muller operated through (or perhaps utilised) Living 

in Pictures, ABN 29 053 505 493. This has some relevance, as will become apparent. Living in 

Pictures was not an entity in its own right but appeared to be a trading name for the Applicant’s 

wife and was registered to her as an individual/sole trader. 

 

[12] Throughout his period in the photography profession, the Applicant developed 

considerable professional skill and expertise a photographer. He had a number of his own tools 

of the trade, namely cameras (and, I assume, a number of related parts and components). The 

Applicant agreed that his stock of investment he had made over that time was a very substantial 

investment in those tools of the trade. 

 

[13] By around the start of September 2016, the Applicant was told by a friend that the 

Respondent was seeking a photographer. The potential opportunity had some attraction to the 

Applicant, as it represented the possibility of regular and reliable amounts of paying work. 

 

[14] The business of the Respondent at that time was (and still is) a hardware store selling 

woodworking tools. Mr Haswell explained that most of the products that the Respondent was 

selling were imported, and he describe having a strong online presence. In around September 

and October 2016, the Respondent had around three full-time staff and maybe one or two other 

casual staff members. The Respondent needed high quality photography and videos in its 

marketing work to enable customers to buy its products on the website, as well as for marketing 

through digital marketing channels, in catalogues, and magazines. 

 








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[15] Mr Haswell agreed in his evidence that, at the time (i.e. around September 2016), he 

was initially seeking an employee to fill his business needs. 

 

[16] On 7 September 2016, the Applicant sent an email to the Respondent. In the email, the 

Applicant introduced himself and explained he was writing with regards to photographic work 

he understood the Respondent required. He stated that while he was no longer a full-time 

photographer, he had been in the photographic industry for 35 years and actually began his 

career working for a tools and equipment magazine. 

 

[17] On 14 September 2016, Mr Haswell sent Mr Muller an email. It read: 

 

“Hi Shelton, 

 

Sorry for emailing you about this again but we've had quite a number of people contact 

us about doing this work and probably the most efficient way to go through a few queries 

we have is via email. We've also been talking about it here and we've changed the scope 

of the work we are looking for so we’re not sure if this will suit or not? Anyway, if you 

can get back to me about the below queries that would be great. 

 

1. 

We’ve decided to increase the scope of the work that we’d like done. Rather than doing 

the work on an ad hoc basis we’d prefer to implement a more time-structured 

arrangement that would be part-time, potentially moving to a full-time basis and 

encompassing more marketing tasks. Are you interested in this? If not, then I am not 

sure that this will work out for us as we are definitely looking for someone who is 

probably more interested in a “traditional” job rather than doing contract work we’re 

outsourcing. 

 

2. The job we are looking for would primarily be visual content creation - through both 

photography and videography (YouTube video’s etc.). We need our marketing 

photography done (static product and in-use shots) plus we also need someone who can 

drive the creation of short how-to videos on products (ranging in 30-second - 5 minute 

lengths). 

 

3. The other major component is managing our online marketing - we are currently 

doing social media marketing poorly and need that to be lifted and improved so it works 

for us - which will largely come from the content created as outlined above. We also 

need to work done on the website like how-to articles, updating products etc. Would 

you be willing/able to do this type of work as well? We are looking at outsourcing some 

of this work to a marketing company we work with now so it may be just that you need 

to manage the relationship we have with them than having the necessary experience to 

do it yourself. 

 

If you can have a think through this and come back to me if you are interested in this 

role that would be great. If so, we can talk about it more but I think possibly you and 

some of the other applicants wouldn’t be interested in this sort of thing whereas others 

may be, so I guess the first thing to do is work that out and see if there’s something we 

can do together. 








[2022] FWC 1685 

 

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Many thanks, 

 

Hague.” 

 

[18] On 15 September 2016, Mr Muller sent a further email to Mr Haswell, in which he 

reaffirmed his experience in the area and proposed that the two meet in person to discuss the 

matter further. A meeting ensued. 

 

[19] It is not in dispute that, on 23 September 2016, the parties met. There were discussions 

at the meeting that led to an agreement. According to Mr Muller’s witness statement: 

 

“(a) Mr Haswell stated that he wanted a time structured arrangement that would be part 

time and potentially full time; and 

 

(b) Mr Haswell stated that he wanted someone interested in a “traditional job”; and 

 

(c) I replied that a more structured contractor arrangement worked for me as I wished to 

continue being able to provide photographic services for long time clients and continue 

in the diversity of content creation I had always enjoyed.” 

 

[20] Mr Haswell’s witness statement account is somewhat more detailed. According to Mr 

Haswell, at that meeting: 

 

“(a) I explained that the position would start on a part-time basis but would potentially 

become full-time, and that it would involve broader responsibilities than only 

photography; 

 

(b) The Applicant stated that he did not want to become an employee, but would accept 

the position as an independent contractor; 

 

(c) I explained that the Respondent would prefer that the Applicant be an employee 

because that was the relationship we were familiar with; 

 

(d) The Applicant insisted that he be an independent contractor if he was to accept the 

position, and proposed that he could do so on a time-structured basis. I accepted the 

proposal and offered a position to the [Applicant]: 

 

i. as an independent contractor; 

 

ii. to work for three business days each week and to be paid an hourly rate of 

$39.00 per hour plus GST to be paid by fortnightly invoices. This rate was higher 

than the rate which I would have offered to an employee to reflect that as an 

independent contractor the Applicant would not receive entitlements such as 

paid annual leave; 

 

iii. to perform photography and other marketing tasks; and 

 








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(e) The Applicant accepted this offer (the Contract). The Contract was never reduced 

to writing.” 

 

[21] Mr Haswell agreed in his oral evidence that the discussions he had were solely with Mr 

Muller (and not his wife, for reasons that will become more apparent) nor on behalf of any 

entity other than Mr Muller. Mr Haswell was not otherwise challenged on the above extract 

from his witness statement, although he confirmed there was an agreement that Mr Muller 

would be paid on a fortnightly basis. It was put to Mr Haswell, who agreed, that the tasks Mr 

Haswell was seeking by way of an employee in September 2016 were the tasks and 

contributions made by Mr Muller over the next five years that he worked for the Respondent. 

 

[22] Mr Muller described the initial tasks involved, which he said he had discussed or looked 

into in the lead-up discussions before he started working with the Respondent. Mr Muller said 

his tasks were to provide product photographs for Mr Haswell’s website, which Mr Haswell 

was building. Mr Muller said Mr Haswell required quite a number of product photographs to 

be taken, both in the “Amazon” style of being on white, and also a high level type of commercial 

product images for the website and for advertising material. Mr Muller said there were quite a 

number of products to get done. Initially, Mr Muller said that a secondary part of his tasks was 

to film and edit “how to style” and product-based videos that they would put onto the 

Respondent’s YouTube channel. Mr Muller said that part of his role grew quite proportionately 

over the years, but essentially those were his main tasks. 

 

[23] Some of the further detail described by Mr Haswell is agreed to by Mr Muller, although 

the timing is potentially different. Mr Muller says that following the meeting on 23 September 

2016, he “decided to accept the arrangement set out in the email of 14 September 2016 and 

communicated this in a follow up meeting at the work premises.” 

 

[24] Mr Muller also describes that by around November 2016, during the “interview, 

telephone conversations and email correspondence” around that time that he and Mr Haswell 

had “agreed” the following terms:  

 

“(a) I would perform work as a photographer and videographer for Timbecon; 

 

(b) I would also perform some marketing tasks; 

 

(c) I would work three days per week (usually Wednesdays, Thursdays and Fridays); 

and 

 

(d) I would be paid $39.00 per hour and render a fortnightly invoice according to 

Timbecon’s staff pay cycle.” 

 

[25] Having regard to the evidence of the parties, I find that on 23 September 2016, Mr 

Muller and Mr Haswell (the latter on behalf of the Respondent) had a discussion with a view to 

reaching an agreement. Initially, Mr Haswell was seeking to engage Mr Muller on a part-time 

basis, although he expressed his view that the role might need to become full-time. It was 

discussed that Mr Muller’s work would be primarily as a photographer but also as a 

videographer. It was also mentioned and agreed at that time that the work might include some 








[2022] FWC 1685 

 

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“marketing” tasks, although there is no evidence of whether any specific marketing tasks were 

discussed. 

 

[26] Mr Haswell stated that he initially wanted to engage Mr Muller as an employee. This is, 

I note, not controversial as both witnesses gave evidence to that effect, albeit Mr Muller’s 

statement uses the language of a “traditional job”. So far as that difference might be relevant, I 

accept the word “employee” was used, although I also expect that the description of a 

“traditional job” was also used by Mr Haswell, as this is the language he used in an email two 

days’ prior. 

 

[27] More importantly is what else was discussed about this topic, and I find that Mr Muller 

stated that he did not want to be an employee but would accept the position as a “contractor”. 

Mr Muller accepted the proposition put to him in his oral evidence that he expressed the 

preference that he engage with the Respondent “as an independent contractor including by 

issuing invoices for your time”. I doubt that Mr Muller used words so precise, but I accept he 

made it clear he proposed to be engaged as a “contractor”. 

 

[28] Also discussed was that the arrangement would be “time-structured”, which was 

discussed further to mean that work would be performed for three full days on Wednesday, 

Thursday and Friday. 

 

[29] Mr Muller’s witness statement states that an element of the discussion included his wish 

to continue to provide photographic services for long time clients and to continue in the 

diversity of content creation he had always enjoyed. While Mr Haswell does not refer to this 

element of the discussion in those terms, he gives evidence about the Applicant “wanting to be 

an independent contractor … to have the freedom to work for third parties.” I accept Mr 

Muller’s witness statement evidence reflects that it was raised. I also take comfort in this finding 

from the fact that it was likely to be a matter of some importance to Mr Muller and, for that 

reason, something he was likely to have raised. 

 

[30] The remuneration was, unsurprisingly, a matter of discussion. It was not in contention 

that a rate of $39 per hour was discussed and accepted. What is less clear is whether that amount 

was expressly stated to include GST or not. Mr Haswell says it was the rate discussed “plus 

GST”. Mr Muller simply says it was a term that “I would be paid $39.00 per hour” and 

reaffirmed in oral evidence the “particular hourly rate agreed” was “$39”. 

 

[31] The specific question of GST was not put to either witness. I am satisfied, however, that 

the fact of the rates being “plus GST” was discussed, albeit briefly, although for reasons that 

will become apparent, no GST was in fact charged prior to November 2019. Mr Haswell was 

running a retail business where goods were continually bought and sold. Perhaps with very few 

exceptions, those transactions would all attract GST and I consider it likely that Mr Haswell 

would have specifically mentioned it to avoid any misunderstanding. I accept his witness 

statement evidence on that point. At the very least, I am satisfied that the rate agreed to was a 

figure that excluded any GST. 

 

[32] While I prefer Mr Haswell’s evidence on this question, I make it clear that Mr Muller 

gave evidence candidly and honestly. However, in his oral evidence, Mr Muller stated that there 

were some aspects he could no longer recall (and, given that the events in question occurred 








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nearly six years ago, that is not a criticism). Mr Muller also says in his witness statement that 

following the meeting on 23 September 2016, he “decided to accept the arrangement set out in 

the email of 14 September 2016 and communicated this in a follow up meeting at the work 

premises” (my emphasis). With no disrespect to Mr Muller, noting again the passage of time 

between those events and the hearing, that explanation muddles a few matters. I do not consider 

that the email of 14 September 2016 contained an “arrangement” capable of acceptance. It did 

not include rates, the nature of the engagement, which days would be worked, how many days 

would be worked, nor anything about invoicing. For those matters to have been agreed, I 

consider they were all matters discussed at the meeting on 23 September 2016. 

 

[33] A further matter discussed at the meeting – and agreed between the two witnesses – was 

invoicing. Mr Haswell requested invoices to be issued fortnightly, which was said to reflect the 

Respondent’s pay cycle for employees. 

 

[34] Neither witness gave evidence that a matter of discussion concerned Mr Muller’s 

capacity to delegate work or not. It was not discussed. 

 

[35] In oral examination, Mr Muller acknowledged that he had reached an “agreement” with 

Mr Haswell regarding a number of elements. While the fact of an “agreement” is somewhat of 

a conclusionary label (as distinct from what he recalls was said), I do not consider that some of 

those matters were actually discussed at the meeting, despite Mr Muller agreeing to them as 

being part of the “agreement”. In addition to the fact that these matters were not, in terms, 

contained in either witnesses’ written statement, I consider that the following matters better 

reflect Mr Muller’s understanding of the effect of the agreement that had been arrived at, rather 

than matters actually discussed. For example: 

 

• Mr Muller agreed that “the company would have a stream of work where they would 

have in mind a particular kind of work product that they wished to end up with”. 

• Mr Muller agreed he “would apply [his] professional skill and experience to deliver 

the work product of the required kind and quality”.  

• Mr Muller agreed that “the understanding of the agreement that you had when it was 

formed in November 2016, the understanding you had of the agreement was that a 

term of it was that you were to devote your full attention to the needs of Timbecon for 

those hours that you were engaged to work for them and that you had full freedom to 

engage in your profession including by working for other clients outside of those 

days”.  

• Mr Muller agreed that “you would be available to perform work in not less than the 

amount discussed”. And it was an element of the agreement that “Timbecon would 

supply at least enough hours of work to meet your availability for those”.  

 

[36] As to the identity of the contracting parties, the Respondent’s Form F3 and its written 

submissions contend that it had contracted initially with “Living in Pictures”. I find there was 

no discussion to that effect at the meeting on 23 September 2016. In cross-examination, Mr 

Haswell agreed he had no discussion with Mr Muller’s wife and that all discussions were solely 

with Mr Muller. The following proposition was put to Mr Haswell, with which he agreed: 

 








[2022] FWC 1685 

 

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“And no time did you reach agreement with an entity other than Mr Muller; it was Mr 

Muller who was agreeing to the things that were agreed to at the commencement of the 

arrangement?---Yes.” 

 

[37] The evidence does not describe a specific start date for the parties’ arrangement. 

 

[38] I consider that the discussion on 23 September 2016 formed the basis of the terms of the 

agreement entered into between the parties. While the absence of a clear start date perhaps 

suggests that Mr Muller might have gone away to think about what was discussed, it is tolerably 

clear that a start date must have been discussed either then or very soon after. I set out further 

below my findings as to the initial contractual terms as formed by the parties to this point. 

 

[39] By around 18 October 2016, Mr Muller had purchased some specific items for his work 

– totalling $1,380 - with the Respondent and sent a tax invoice to the Respondent on that date 

seeking reimbursement. The equipment included stands and lighting equipment. That invoice 

(which was in the name of ‘Living in Pictures’ photographers) was paid, although it appears 

that the equipment itself remained the property of Mr Muller, given that he purchased it and it 

was not made clear it was purchased on behalf of the Respondent. No separate GST was 

charged. It also appears (most likely by around this date) that the Respondent had agreed to 

supply – and did supply – a camera. 

 

[40] On 8 November 2016, Mr Muller sought a quote from a third-party vendor for either an 

“iMac or Macbook Pro for video editing for a month or so”. Mr Haswell approved (and I 

inferred the Respondent eventually paid for) a quote by the next day for a rental through to 23 

December 2016. 

 

[41] Mr Muller commenced work in “November 2016”, according to the parties. I infer the 

date was around 9 November 2016, as Mr Muller was issued with a ‘timbecon’ email address 

on 9 November 2016 and the Macbook computer, above, appears to have been arranged from 

that date. 

 

[42] The evidence of the exact tasks and responsibilities (and any changes) between 9 

November 2016 and January 2017 (when the arrangement was varied) is somewhat scant. On 

16 December 2016, Mr Muller attended a staff meeting of the Respondent. As previously noted, 

the Respondent was a much smaller business at the time, with around five staff (excluding Mr 

Muller and Mr Haswell). Mr Haswell asked Mr Muller to prepare minutes of the meeting, which 

it appears that he did. The minutes record the meeting ran for about 50 minutes. For Mr Muller, 

the minutes recorded he would need to work with two other staff for the processes involved 

with new products in relation to barcoding, weighing, recording information and placing those 

products onto the website. There was some discussion about uniforms, although the minutes do 

not say whether or not Mr Muller wore a uniform. For roles and responsibilities, the minutes 

recorded: 

 

“Hague wants to drink more beer. Hence the need to confirm the roles and responsibilities 

of each member of staff. 
 
Jason - Shop Manager, Warranties, Spare Parts, Accounts receivable, incoming 

enquiries and general shop sales. 








[2022] FWC 1685 

 

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Jesse - Sales, merchandising, restocking, price tagging, assembly of machinery, display, 

local supplier stocktakes. 
 
John – incoming goods, supply and store, restock, stock retrieval, overseas supplier 

stocktakes, assisting with mail order, product returns, 
 
Trish – her role is self-evident. 
 
Shelton - Media Coordinator and media production, marketing. 
 
Gio – General labouring and odd-job assistance when required.” 

 

[43] Mr Muller witness statement exhibited evidence of the invoices he issued prior to around 

November 2019 in relation to GST. He stated (and I accept) that the invoices for the pre-

November 2019 period did not include an amount for GST. 

 

[44] Mr Muller also says, and it is not in dispute, that at no time was he paid superannuation, 

annual leave, personal leave or public holiday pay during his time with the Respondent. He was 

only paid pursuant to the invoices he issued. 

 

[45] The evidence of the witnesses, largely uncontradicted, was that Mr Muller’s hours were 

from 8:00am to 5:00pm. As Mr Haswell notes (and I accept), extra or different hours were 

sometimes required. But I accept that, prior to January 2017, Mr Muller typically worked from 

8:00am to 5:00pm, unless otherwise directed, for the three days a week he was then working. 

 

[46] Mr Muller’s witness statement stated that “Mr Haswell managed my performance and 

would give me feedback on all work I performed as well as directions as to how he wanted my 

work to change”. Mr Haswell disputed the performance management by him of Mr Muller but 

accepted there were required outcomes expected of Mr Muller’s work. Mr Muller’s evidence 

was presented at a level of generality – e.g. feedback on “all” work - which makes it difficult 

to conclude there was any specific prescription or control exercised (let alone actual examples 

of how, other than by conclusionary statements) in the period prior to January 2017. 

 

[47] Mr Muller says that “I was allowed some creative freedom when performing my duties 

but I understood this to be part of the role I was engaged to perform. However, Mr Haswell and 

then Mr Madden both monitored my performance and gave me feedback.” Mr Muller gives 

later examples and says that the “level of control over my performance was greatest from 2020 

onwards when Mr Madden [a manager who was, by that time, responsible for overseeing Mr 

Muller’s work] would supply documents with exact scripts, timing of videos and other controls 

such as lighting…”. Mr Haswell accepted that often specific scripts were provided to be used. 

I accept Mr Muller’s evidence, as just stated, save that prior to the arrival of Mr Madden (in 

2019, as discussed below), I consider any degree of prescription insisted upon by Mr Haswell 

was primarily outcome-based. While Mr Haswell agreed in cross-examination that he had 

control and direction over what Mr Muller did when at work, I consider the reality is that it was 

qualified by what was described above. 

 

[48] The evidence from both witnesses describing a variation from three days’ work to five 

days’ work was brief and essentially consistent. I accept that in about December 2016, Mr 








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Haswell asked Mr Muller to increase his hours to a full-time equivalent. Mr Muller explains he 

initially pushed back, and he told Mr Haswell he had only agreed to work three days. Mr 

Haswell pressed his request and – I infer sometime not long after – Mr Muller agreed. Mr Muller 

commenced working five days from around January 2017. 

 

[49] In relation to equipment used, I have noted that some equipment was supplied to the 

Applicant by the Respondent and some was reimbursed. However, the Applicant also used his 

own equipment. Mr Haswell’s witness statement said, which I accept, “The Applicant provided 

his own cameras and other specialist equipment which he advised us cost several times the 

value of the equipment which we provided.” Having regard to the 35 years of practice as a 

photographer, so much is unsurprising. 

 

[50] Mr Haswell states that there was no other discussion regarding changes to their 

agreement at this time beyond the change to the hours to be worked. I accept that evidence, 

save to note that there was an additional discussion that appeared to have occurred around that 

time to the effect that Mr Muller would work one of the five days at home. That request was 

made by Mr Muller, which Mr Haswell agreed. The usual day at home was Tuesday. While the 

evidence was not clear as to the exact time this discussion occurred, I infer it most likely took 

place as part of the discussions leading up to the change from three days to five days. 

 

[51] I pause in the narrative to note that the Applicant’s evidence contained significant detail 

about the nature of various tasks and responsibilities he performed throughout the duration of 

his engagement with the Respondent. The Respondent objects to the relevance of this evidence, 

which is a matter I will return to later on. Paragraph 9 of Mr Muller’s first witness statement 

sets out in subparagraphs (a) – (u) – which span approximately two and a half pages - many of 

those tasks. I note, in particular, that paragraph 9 of Mr Muller’s statement is essentially 

forward-looking from January 2017. At paragraph 8 of his statement, Mr Muller states that in 

around January 2017 he had agreed to work full-time. Paragraph 9 then states that “From this 

time forward Timbecon implemented the following work practices: …” (my emphasis). 

 

[52] Other than what I have set out above, it is less clear, however, on the state of the evidence 

of the specific nature of the work that was being undertaken during the period from November 

2016 leading up to the contractual variation in January 2017. For reasons that will become clear, 

I consider it important to identify the tasks that were being performed prior to the (uncontested) 

contractual variation in January 2017, having regard to the Applicant’s reliance on the terms of 

the initial contract or the terms of that contract, as varied, to establish his status as an employee 

either at the commencement of his engagement or at the variation when he began working five 

days a week. The short explanation is that it was largely uncontroversial between the parties 

that I could have regard to events occurring prior to entry into a contract or a contractual 

variation but the parties disagreed as to whether I could have regard to factual matters occurring 

after those points in time. 

 

[53] Notwithstanding the essentially forward-looking nature of Mr Muller’s evidence from 

paragraph 9 of his first witness statement onward, there are some aspects of Mr Muller’s 

evidence from those parts that identify matters occurring during the period from November 

2016 to the contractual variation in January 2017. 

 








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[54] At paragraph 9(d) of Mr Muller’s first statement, he states his work included “marketing 

and miscellaneous tasks”. His evidence was that these included creating and implementing 

weekly promotions and competitions, organising advertising in magazines, writing and editing 

content for mailing lists. Mr Haswell says that Mr Muller’s marketing work was “tangential” 

to his main work and was a “negligible” portion of the total work. Mr Muller’s reply to Mr 

Haswell’s evidence was to the effect that “[i]nitially”, he and Mr Haswell “worked very 

closely” on weekly emails, marketing projects and other matters, and that Mr Muller was 

“considered by the individuals in [external publishing companies] as the contact for Timbecon.” 

Mr Muller says that “I progressively picked up more marketing duties when I became full-

time.” 

 

[55] Mr Haswell was cross-examined about those matters. The effect of his evidence was to 

largely reaffirm his witness statement evidence that Mr Muller’s marketing work was tangential 

and that Mr Muller’s primary work was directly connected to his photography and videography 

work. Mr Haswell was cross-examined on some meeting minutes titled “Marketing meeting – 

actions and responsibilities”.1 The document is undated. No evidence was led to suggest it was 

a meeting that occurred prior to 2017 and I am not satisfied it occurred before then. As best as 

I can discern from the individuals listed in those minutes, a number of whom were not listed in 

the meeting minutes of 16 December 2016, that suggests (given the size of the business at the 

time) that this meeting occurred sometime after – potentially well after – January 2017. 

 

[56] I find that so far as Mr Muller undertook marketing tasks prior to January 2017, they 

were limited in scope and were primarily as an adjunct to his photography and videography 

work. I consider this also reflects what the parties agreed at the commencement of his 

engagement. I accept that Mr Muller was involved in meetings about marketing and the meeting 

minutes of December 2016 describe his role as “Media coordinator and media production, 

marketing”. A key purpose of Mr Muller’s photography and videography work was, however, 

the creation of content that would be used in the Respondent’s marketing and I am not 

persuaded I can read too much more into that brief summation. 

 

[57] Mr Muller says his email signature he used was “Media Creation” for “Timbecon”. I 

find it is likely he created this signature by at least 12 January 2017, when he sent an email with 

that signature. Mr Haswell’s evidence was that he did not give Mr Muller that title. In cross-

examination, Mr Haswell stated he was not specifically aware that Mr Muller used that title 

during his time he worked there. I find that second explanation implausible, given the length of 

time it was in use, but I accept that, prior to January 2017, Mr Haswell did not tell Mr Muller 

to use that title and may well have been unaware of the fact that Mr Muller had created that 

signature at the time. 

 

[58] Less controversially, Mr Muller states he “performed work as a photographer and 

videographer for Timbecon”. Mr Haswell agrees and, while Mr Muller’s evidence was directed 

from January 2017 “forward”, it is also clear that Mr Muller performed that work prior to 

January 2017. 

 

[59] On a related matter, Mr Muller states that at various times he was referred to and 

described as “on staff”, the “official Timbecon photographer”, an “in-house specialist” and “in 

house photographer” both within the Respondent and to external parties. Mr Muller exhibited 

copies of emails containing those terms. The earliest of those emails was 22 March 2017 and 








[2022] FWC 1685 

 

12 

the latest was 6 April 2021. The email of 22 March 2017 was an email by Mr Muller, 

introducing himself to a person who appears to be an external person with experience in 

Youtube videos. I note Mr Muller does not use any of the specific terms he describes in his 

statement, although he did relevantly write “My name is Shelton Muller and I am the media 

creator here at Timbecon in Reservoir. In essence, I am responsible for producing our videos 

and commercial product images to promote the company's services and products.”  

 

[60] The description by Mr Muller in his email of 22 March 2017 of his responsibilities to 

that point is a pithy summation of what he said about that in oral evidence, as set out above. 

 

[61] Mr Muller says he was required to wear a uniform and “generally” did so. It is not clear 

when this practice started, however. Mr Muller attached a staff photograph, which included him 

in a uniform but the photograph appears to have been taken toward the end of 2020. While I am 

not satisfied that a clear practice existed in the first two or three months of work, I consider it 

likely that Mr Muller did wear a uniform during that period. In this respect, I note that uniforms 

were referred to in the meeting minutes of 16 December 2016, which also recorded a preference 

of Mr Haswell for uniforms to look professional and presentable. Mr Haswell says that, to be 

inclusive, uniforms were offered to Mr Muller but he says they were not required for him. Mr 

Muller says he was “directed”. There is no evidence that satisfies me there was any particular 

discussion about whether he was required or directed to wear it or that he might otherwise 

decline a uniform or that a uniform was being offered to be inclusive. I find that Mr Muller did 

wear a uniform of some kind very shortly after starting. I find that Mr Muller was simply offered 

a uniform shortly after starting and he accepted it and wore it. That practice remained largely 

unchanged. 

 

[62] Mr Muller says he was required to attend daily morning meetings with other staff and 

says further that he was reprimanded once for not attending. The date of the reprimand is 

unclear. While Mr Haswell disagrees that Mr Muller was censured, he does agree that it was 

“necessary” for Mr Muller to attend meetings of the marketing team because that related to Mr 

Muller’s work. I accept that Mr Muller attended staff meetings of the Respondent when they 

occurred, most likely from shortly after he commenced in November 2016 (as the minutes of 

the meeting dated 16 December 2016 indicate). I’m not satisfied the evidence shows any 

reprimand until after January 2017. 

 

[63] There are other practices or tasks that I am not satisfied were part of the landscape prior 

to January 2017. 

 

[64] Mr Muller’s statement gave examples of matters directed at showing that Mr Muller 

was “directed by Timbecon on when and how I was to perform work. Indeed, Mr Muller [sic., 

‘Mr Haswell’] had complete control of what specific duties I performed each day and how I 

performed them.” However, many examples were clearly matters well after January 2017. They 

included a COVID policy and cleaning roster (September 2020), an email requiring assistance 

to move business premises (17 January 2017), a direction to work on a particular Saturday (7 

March 2018). 

  

[65] Mr Muller says, and I accept, that he was required to comply with various policies of 

the Respondent. However, the examples given were the COVID policy and cleaning roster 

(September 2020, being the same as the one noted above), directives regarding the purchasing 








[2022] FWC 1685 

 

13 

of stock (November 2017), an annual leave email (September 2017), and an email regarding 

clean workspaces and areas (August 2020). 

 

[66] Mr Muller states he was required to obtain approval from Mr Haswell if he was going 

to be absent from work or running late. Again, however, there is no evidence that satisfied me 

of any example, let alone clear practice prior, to January 2017. The documentary examples 

given were either undated text messages (with one referring to “another great year”, being a 

statement suggestive of not having been sent in the first month or two of their engagement) and 

another with a leave policy was dated 24 January 2022. 

 

[67] Mr Muller says he was placed on a cleaning roster with other staff (including, I note, 

Mr Haswell). The email establishing that roster was sent in November 2017. 

 

[68] Mr Muller gives evidence, which I accept, that he was reimbursed for expenses, 

including expenses such as stationary. The two examples given were from September 2017 

(approximately for $300) and February 2018 (approximately for $100). 

 

[69] In about 2019, the Respondent employed Mr John Madden. Mr Muller describes him as 

the “Marketing Manager” and says Mr Madden “closely supervised and managed my work”, 

which included “the length of videos, look, production, scripting etc.” Mr Haswell says that Mr 

Madden had primary responsibility for managing Mr Muller’s work from 2020, not 2019, 

although given the generalities in dates by each witness, I anticipate any differences are not 

material. 

 

[70] In about November 2019, the parties agree that Mr Muller’s rates increased from $39 

per hour to $43 per hour. The increase was unilaterally offered by Mr Haswell. Mr Muller says 

Mr Haswell did not “offer” the raise, he simply “implemented” it. Prior to the increase, Mr 

Muller charged no GST. Following this increase, Mr Muller’s invoices specifically included 

GST. The change, as described, is somewhat of a curiosity. The increase represents almost 

precisely a ten percent increase, albeit one reflecting GST. I understand that, at the time, the 

threshold for GST registration was about $75,000, so the fact that Mr Muller was not collecting 

GST prior to then might have been explained on that basis. However, neither party sought to 

examine this issue further and neither stated that the increase had any particular significance 

beyond the fact that there was a one-off increase. 

 

[71] Mr Muller says he was “unable” to delegate his work to others and was required to 

perform it personally. His first witness statement says that around mid-2021, he suggested to 

Mr Haswell and Mr Madden that Mr Muller’s wife – also a photographer – could perform some 

work to enable some deadlines to be met. Mr Muller says that Mr Haswell and Mr Madden 

rejected the proposal and told him to perform the work personally. Mr Haswell disputed this 

and said there was never any discussion about those matters and that it did not matter if Mr 

Muller delegated work to outside of the office as long as the work was done on time and 

properly. In cross-examination, Mr Haswell stated it was a conversation he did not specifically 

recall and gave evidence suggesting that any conversation that was had was likely with Mr 

Madden only. I generally accept Mr Muller’s evidence on this matter, although I consider that 

the direction was more likely issued by Mr Madden than Mr Haswell. 

 








[2022] FWC 1685 

 

14 

[72] Mr Muller gave evidence that, from time to time, he was asked by Mr Haswell to 

perform for third-parties. He gave examples where Mr Muller’s work was charged by the 

Respondent to third-party businesses. He also gave examples where Mr Muller’s work was 

provided to “friends” of Mr Haswell. Mr Muller says (and I accept), he was not offered the 

opportunity to quote or charge directly for that work. Mr Muller provided emails with two 

examples. One of those examples was from December 2021. It is difficult to understand exactly 

what was involved here, as the initiating email from Mr Haswell refers to the “one” photo that 

had previously been taken for (I infer) the Respondent’s business. 

 

[73] The second email is an email chain from 14-15 November 2016. The email chain 

contains a quote from a business called “malt creative”. The initiating email is from malt 

creative to Mr Haswell. The “Project Brief” in the quotation attached stated “Design and 

Animation of Timbecon Branding Elements including Introduction Panel, Title Panel, Overlay 

Panel and Out Sequence (with Website, Social and CTA)”. A note to the quote stated that the 

supplier “…is able to work with you to assist with alternative methods of delivery including 

phase rollouts or an abridged solution to assist with any budgetary requirements”. 

 

[74] On 15 November 2016, Mr Haswell forwards the email to Mr Muller, with a note “Woah 

nelly!!! Is this what you had in mind?!?!?” Mr Muller’s response was “Hey mate! At THAT 

price? No way!!! I’ll make one myself.” 

 

[75] Mr Muller explains his invoicing practices and various entities he used throughout the 

engagement with the Respondent. As noted above, he initially invoiced in the name of Living 

in Pictures from the commencement of the engagement (and certainly did so in the period to 

January 2017). Invoicing in that name continued to 18 June 2018, after which Mr Muller sent 

invoices from “N. Muller & S. Muller”, which Mr Muller described as a partnership. A 

partnership of N Muller & S Muller was registered with an ABN number different to Living in 

Pictures. Mr Muller says the partnership was created on 17 May 2018 and cancelled on 30 June 

2020. While the partnership was “cancelled” (I infer this to mean either dissolved or its 

registration was cancelled), Mr Muller continued to issue invoices in that entity’s name because 

he forgot to change the invoice name back to Living in Pictures. 

 

[76] In relation to taxation, Mr Muller states that no tax lodgements were ever lodged against 

the partnership as it was largely forgotten. I note in general terms, however, that partnerships 

will ordinarily not pay income tax in any event, as liability for taxation is distributed among the 

partners. Mr Muller says the partnership did not split income among the two partners but, rather, 

it was “just a means for me to receive my salary”. Mr Muller says he lodged individual tax 

returns. Mr Muller was not challenged about these matters. I note that the registration details 

provided by Mr Muller indicate ‘N Muller & S Muller’ was not registered for GST, although 

invoices from this entity later provided for GST as did invoices under the name of that entity 

that were issued after it was “cancelled” on 30 June 2020. It was not explained in the evidence 

how Mr Muller remitted the GST that was being collected after November 2019, although I 

presume it was being done so in his personal name. 

 

[77] In February 2021, Mr Muller was provided with a “Permitted Worker Permit” (for the 

purposes of the various COVID-19 work restrictions that were in force at the time), which stated 

that he was an employee. It was not signed by Mr Haswell. Mr Haswell says that Mr Muller 








[2022] FWC 1685 

 

15 

was initially not issued with such a permit earlier on in 2020 but, as Mr Muller said he was 

uncomfortable signing a permit for himself, a permit was issued for Mr Muller. 

 

[78] There was other evidence given by the witnesses that does not strictly bear on matters 

discussed or raised between the parties. For example, Mr Muller says that once he started 

working five days a week with the Respondent, he made no attempt to seek further work save 

for “sporadic” work on weekends at weddings. I accept that evidence. 

 

[79] Mr Muller also says he “did not retain any intellectual property rights in the 

photographs and videos” he produced for the Respondent. Mr Haswell agrees, although the 

evidence in both witnesses’ case appears to be a legal assumption about those matters, and I am 

not satisfied there was any specific discussion held to that effect. 

 

Applicable principles – employee or contractor 

 

General principles 

 

[80] Unsurprisingly, the parties addressed me on the applicable principles, as recently stated 

by the High Court in its decisions of CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 

1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 

(Jamsek). 

 

[81] The Applicant relied upon – which the Respondent concurred with - the following 

summary recently set out by Deputy President Anderson in Waring v Hage Retail Group Pty 

Ltd [2022] FWC 5402 (footnotes omitted): 

 

“[52] In two judgements delivered on 9 February 2022 the High Court of Australia 

pronounced on the law that applies in determining whether, absent a specific statutory 

rule, a person is an employee or contractor. In doing so, the Court reviewed past 

decisions of the Court (and other courts) and set out afresh relevant legal principles. 

 

[53] In important respects the law as expressed by the High Court in Jamsek and 

Personnel Contracting has modified, if not replaced, former approaches. In particular, 

the past approach of the Commission (itself based on past court authority) as outlined 

in the leading full bench case of French Accent is, with some limited caveats, no longer 

good law. 

 

[54] The High Court, via the combination of judgements in both Jamsek and Personnel 

Contracting, has largely rejected an approach whereby the relationship between parties 

across its life span is examined (including how the relationship operates in practice). 

The Court has stated that contractual terms and not performance, where those terms can 

be ascertained and where the contract is not a sham, will determine the true nature of 

the relationship. However, the Court has observed that the manner in which the 

relationship is worked in practice may be relevant for certain limited purposes, such as 

to find contractual terms where they cannot otherwise be ascertained or to determine the 

nature of any variation to agreed terms. 

 






https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc540.htm


[2022] FWC 1685 

 

16 

[55] Indicia (such as those identified in earlier cases in the Court) may be relevant but 

only insofar as the terms of the contract give voice to them. One approach, to be used 

as a guide, is to look at whether, under the contract, the worker is engaged to work in 

the business of another, though this may not necessarily be useful in all cases. The extent 

of a contractual right to control, as evident from the terms of the contract itself, remains 

a major signifier of an employment relationship. That an arrangement was brought about 

by the superior bargaining power of one party has no bearing on the meaning and effect 

of the contract. 

 

[56] Amongst the caveats expressed by the Court, is that a mere label acting as a 

subterfuge to the true nature of the contractual relationship will not determine the status 

of the parties. In this respect at least, the law remains unchanged by these recent 

decisions.” 

 

[82] As is often the case, the principles were not themselves in controversy, but the 

application of those principles was in issue. In addition to the general question of 

characterisation, there were discrete issues of controversy in the matter before me: the use of 

post-contractual conduct to assist in determining the terms of an oral contract; the use by the 

parties of ‘labels’ to describe the legal character of the arrangement between them; and the 

terms of the contract itself.  

 

Oral contracts 

 

[83] A point of distinction in the matter before me and Personnel Contracting was that the 

contract between the parties in the matter before me contained terms that were wholly oral (and 

to be implied). The parties did not suggest – correctly in my view – that different principles to 

those set out in Personnel Contracting would apply, although there are some particular matters 

concerning post-formation conduct and variation that I will address. 

 

[84] 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). Where the 

contract is not wholly in writing, it is necessary at the threshold level to identify the terms of 

the contract, the parties to it, and when it was formed. Many aspects are often not in dispute but 

in all likelihood, some will be, given the nuance of the characterisation exercise that will derive 

from those terms. Where (as is the case here) a variation occurs, it is also necessary to identify 

the scope of any variation and when it occurred. 

 

[85] The principles applicable to proof of oral contracts was stated by Hammerschlag J in 

John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 4513 at [93]-[94]. 

At [93], Hammerschlag J was referring to when an oral contract could be accepted as being 

made. The making of an agreement is not in dispute in the matter before me. However, I 

consider his Honour’s observations are apposite in identifying the terms of an oral agreement. 

At [94] – [95], his Honour stated: 

 

“94 Where a party seeks to rely upon spoken words as a foundation for a cause of 

action, including a cause of action based on a contract, the conversation must be proved 

to the reasonable satisfaction of the court which means that the court must feel an actual 








[2022] FWC 1685 

 

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persuasion of its occurrence or its existence. Moreover, in the case of contract, the court 

must be persuaded that any consensus reached was capable of forming a binding contract 

and was intended by the parties to be legally binding. In the absence of some reliable 

contemporaneous record or other satisfactory corroboration, a party may face serious 

difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained 

or established independently of the nature and consequences of the fact or facts to be 

proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence 

of a given description, or the gravity of the consequences flowing from a particular 

finding are considerations which must affect the answer to the question of whether the 

issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction 

should not be produced by inexact proofs, indefinite testimony, or indirect inferences: 

see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 

691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 

NSWLR 315 at 319. 

 

95 The sensation of feeling an actual persuasion, after a contest, that an event has 

happened or that something exists is one which is well known and recognised by 

experienced trial judges for what it is.” 

 

[86] As to the implication of terms into an oral contract, I consider the relevant principles are 

those initially advanced by Deane J in in Hawkins v Clayton (1987) 164 CLR 539 at 571 and 

later developed by McHugh J and Gummow J in Byrne v Australian Airlines Ltd (1995) 185 

CLR 410 at 442. In the latter case, their Honours stated (citations omitted, emphasis added):  

 

“In such situations, the first task is to consider the evidence and find the relevant express 

terms. Some terms may be inferred from the evidence of a course of dealing between 

the parties. It may be apparent that the parties have not spelled out all the terms of their 

contract, but have left some or most of them to be inferred or implied. Some terms may 

be implied by established custom or usage, as described above. Other terms may satisfy 

the criterion of being so obvious that they go without saying, in the sense that if the 

subject had been raised the parties to the contract would have replied "of course". If the 

contract has not been reduced to complete written form, the question is whether the 

implication of the particular term is necessary for the reasonable or effective operation 

of the contract in the circumstances of the case; only where this can be seen to be true 

will the term be implied” 

 

[87] As with written contracts, recourse may be had to external events, where appropriate, 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 








[2022] FWC 1685 

 

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of employment, employees provide their own uniform and bring their own tools to 

work.” 

 

Characterisation – traditional indicia 

 

[88] As Wigney J recently stated 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.” 

 

[89] 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” 

 

[90] 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.” 

 

[91] 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): 

 








[2022] FWC 1685 

 

19 

“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.” 

 

[92] 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 v Brodribb 

Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Stevens) at 24 per Mason J remain relevant 

(citations omitted, emphasis added): 4 

 

“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.” 

 

[93] 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.” 

 

Characterisation – the use of “labels” 

 

[94] The Respondent places some importance on the fact that the parties called the 

relationship a contracting relationship. The Applicant’s written submissions state that “the High 

Court has held that the label ascribed by the parties to the engagement is of no consequence”. I 

do not accept the Applicant’s submission that the High Court made such a definitive statement, 

although I accept the parties’ own descriptions cannot be determinative. 

 

[95] Regarding the “label” issue, the Applicant’s written submissions relied upon the 

following paragraphs from Personnel Contracting: per Kiefel CJ, Keane and Edelman JJ at 








[2022] FWC 1685 

 

20 

[58], [63]-[66], [79]: Gageler and Gleeson JJ at [127]; and Gordon J at [184]. At [66], having 

just referred to a statement in Chaplin to the effect that ambiguity in the character of a 

relationship might be removed by a provision whereby the parties agreed on terms descriptive 

of their status or relationship, Kiefel CJ, Keane and Edelman JJ stated (emphasis added): 

 

“As a matter of principle, however, it is difficult to see how the expression by the parties 

of their opinion as to the character of their relationship can assist the court, whose task 

it is to characterise their relationship by reference to their rights and duties. Generally 

speaking, the opinion of the parties on a matter of law is irrelevant. Even if it be accepted 

that there may be cases where descriptive language chosen by the parties can shed light 

on the objective understanding of the operative provisions of their contract, the cases 

where the parties’ description of their status or relationship will be helpful to the court 

in ascertaining their rights and duties will be rare.” 

 

[96] Hence, while Kiefel CJ, Keane and Edelman JJ stated that recourse to the parties’ own 

descriptions would be “rare”, Gordon J, with whom Steward J agreed on this matter, stated the 

matter with some difference in emphasis. It is clear that Gordon J considered that any recourse 

to the parties’ own descriptions should not be given excessive weight – let alone being 

determinative - and that the whole of the contract is to be construed, including whatever labels 

the parties have used. Gordon J stated at [184] (citations omitted, emphasis added): 

 

“This Court has previously cautioned against ascribing too much weight to "labels" used 

by parties to describe their relationship. The whole of the contract is to be construed 

including whatever labels the parties have used to describe their relationship, but those 

labels are not determinative: "parties cannot deem the relationship between themselves 

to be something it is not". Adopting and adapting what was said by Gleeson CJ, 

Gummow, Kirby, Hayne and Crennan JJ in Bluebottle UK Ltd v Deputy Commissioner 

of Taxation in relation to a clause of deeds of assignment headed "Equitable and Legal 

Assignments": the classification adopted by the parties in the contract is not 

determinative. The classification turns upon the identification of the nature and content 

of the rights created by the contract and the identity of those parties which enjoyed those 

rights. The contract can have no greater efficacy than that given by the rights which 

provided its subject matter.” 

 

[97] I consider that the principle enunciated by Gordon J regarding labels is similarly 

reflected by the joint judgment of Gageler and Gleeson JJ, who state at [127] (citations omitted, 

emphasis added): 

 

“The third of those principles, although stated by means of a quotation from an earlier 

English decision, was entirely in accordance with the common law as then understood 

in Australia. Legal characterisation of a relationship into which parties have entered 

under a written contract has never been thought to be controlled by the contractual 

language chosen to describe the relationship. The characterisation must turn on the 

substantial relations between the parties, which might be informed but cannot be altered 

by the presence in the contract of "elaborate provisions expressed in terms appropriate 

to some other relation". Michael Black QC pithily encapsulated that understanding in an 

employment context in the submission that "the parties cannot create something which 








[2022] FWC 1685 

 

21 

has every feature of a rooster, but call it a duck and insist that everybody else recognise 

it as a duck".” 

 

Characterisation - evidence of post-contractual conduct 

 

[98] The second matter relates to whether evidence of conduct occurring after the formation 

of the contract might be had regard to in characterising the contractual relationship. I consider 

the judgments of Kiefel CJ, Keane and Edelman JJ at [45], and Gordon J (Steward J concurring) 

at [176] make it clear that such conduct cannot, as a general rule, be admitted for the purpose 

of construing the contract as made. 

 

[99] There are exceptions to the admission of post-contractual evidence, although I consider 

them confined. In the case before me, the terms of the contract between the Applicant and 

Respondent were constituted wholly by oral terms (and terms that might be implied). Perhaps 

with an eye to those matters, the Applicant relied upon the following proposition from 

Personnel Contracting (a case concerning a wholly written contract) by Kiefel CJ, Keane and 

Edelman JJ at [42] (footnotes omitted): 

 

“A contract of employment may be partly oral and partly in writing, or there may be cases 

where subsequent agreement or conduct effects a variation to the terms of the original 

contract or gives rise to an estoppel or waiver. In such cases, it may be that the imposition 

by a putative employer of its work practices upon the putative employee manifests the 

employer's contractual right of control over the work situation; or a putative employee's 

acceptance of the exercise of power may show that the putative employer has been ceded 

the right to impose such practices.” 

 

[100] Similarly, reliance was placed by the Applicant on statements by Gordon J at [177] and 

at [183]. Paragraph [177] of her Honour’s judgment is as follows (citations omitted, original 

emphasis): 

 

“Of course, the general principle against the use of subsequent conduct in construing a 

contract wholly in writing says nothing against the admissibility of conduct for purposes 

unrelated to construction, including in relation to: (1) formation – to establish whether 

a contract was actually formed and when it was formed; (2) contractual terms – where 

a contract is not wholly in writing, to establish the existence of a contractual term or 

terms; (3) discharge or variation – to demonstrate that a subsequent agreement has been 

made varying one or more terms of the original contract; (4) sham – to show that the 

contract was a "sham" in that it was brought into existence as "a mere piece of 

machinery" to serve some purpose other than that of constituting the whole of the 

arrangement; and (5) other – to reveal "probative evidence of facts relevant to 

rectification, estoppel or any other legal, equitable or statutory rights or remedies that 

may impinge on an otherwise concluded, construed and interpreted contract". The 

relevance of subsequent conduct for the purposes of a particular statutory provision, 

legislative instrument or award was not in issue in this appeal.” 

 

[101] The relevant part of paragraph [183] of her Honour’s judgment relied upon by the 

Applicant was (footnotes omitted): 

 








[2022] FWC 1685 

 

22 

“ … That does not detract from the fact that where the contract is oral, or partly oral and 

partly in writing, subsequent conduct may be admissible in specific circumstances for 

specific purposes – to objectively determine the point at which the contract was formed, 

the contractual terms that were agreed or whether the contract has been varied or 

discharged.” 

 

Consideration 

 

[102] Before setting out my conclusions about the terms of the contract between the parties 

(as varied), it is necessary to make some observations regarding the case before me, having 

regard to the High Court’s statements on recourse to post-contractual conduct. 

 

[103] The Applicant’s case relied upon the contract initially formed between the parties in 

September 2016, as it was varied in about January 2017 when the days to be worked were 

changed from three days to five days. It was a matter specifically confirmed for the Applicant 

in closing address. 

 

[104] What follows from this is that I consider that conduct occurring after those points in 

time cannot be relied upon to establish the terms of the contract, as varied, except to demonstrate 

that there was a particular term at either of those points in time. Taking the five matters listed 

by Gordon J in paragraph [177] of Personnel Contracting, it was not suggested that there was 

doubt about “formation” (although the identity of the parties to the contract that was formed 

was initially in dispute), nor was a “sham” asserted and nor was rectification or estoppel in issue 

(c.f. Personnel Contracting at [177]). 

 

[105] As to post-contractual conduct to prove a contractual “variation”, it was agreed between 

the parties that, in about January 2017, the days required to be worked changed from three days 

to five days. It is not necessary to have recourse to post-contractual conduct for proof of that 

variation. I accept that does potentially leave available post-contractual conduct to assist in 

determining if there were other variations to the contract that occurred between September 2016 

and January 2017 and I set out my findings on those matters below. 

 

[106] I also accept that post-contractual conduct in the matter before me is potentially capable 

of resolving a dispute where that dispute concerns the “existence” (and, I consider it follows 

where an oral term is concerned, the “scope”) of a particular term in the initial contract or that 

contract as varied. 

 

[107] But with those exceptions aside, I do not consider that the terms of the contract, as varied 

in January 2017, might be added to or subtracted from by reason of post-contractual conduct 

occurring after those events unless I consider that conduct was factually reflective of the 

statements and conduct occurring at the time the contract was originally agreed and upon 

variation. Put another way, the fact that certain practices might have been occurring in 

November 2021 is not determinative of them having been in place in November 2016. 

 

The contract – formation and parties 

 

[108] I now set out my findings as to the terms of the contract. I refer to my findings of fact 

set out above.  








[2022] FWC 1685 

 

23 

 

[109] I find that the initial contract was formed during, or shortly following, the discussion 

held between Mr Muller and Mr Haswell on 23 September 2016. As Mr Muller had begun 

purchasing equipment by 18 October 2016, I am satisfied it occurred by then. It is improbable 

that Mr Muller would have been purchasing equipment and sending an invoice for 

reimbursement if, by that point, he and Mr Haswell had not struck a deal. 

 

[110] In the material that was initially filed, there was a level of dispute regarding the identity 

of the contracting parties. The Respondent’s material states that there was an “interposition” of 

third-parties between the Applicant and Respondent, namely “Living in Pictures” until April 

2018 and then the partnership “N. Muller & S. Muller” from then on. The Respondent also 

asserted that the Applicant ought be estopped from now denying that the Respondent was 

contracting with the partnership of N. Muller & S. Muller. 

 

[111] As to the identity of the contracting parties, I find that the contract was between the 

Respondent and Mr Muller. While the Respondent’s submissions contend that there were 

interposed entities – initially Living in Pictures – none of those entities were discussed on 23 

September 2016 or beforehand. There is no evidence of that entity being referred to earlier than 

the invoice dated 18 October 2016 and, as stated, I find that a contract had already been arrived 

at by then. 

 

[112] The Respondent’s written submissions contend, in substance, an estoppel by 

representation to the effect that the contracting parties are (or, more accurately, were altered to 

become) Living in Pictures and, later, the partnership of N. Muller & S. Muller. While the 

argument was not pressed by counsel for the Respondent, lest there be confusion about the 

matter not being addressed, I am not satisfied that any estoppel arises. At its highest, the 

contention relies on the delivery of invoices (initially in the name of Living in Pictures) as 

constituting a ‘representation’ of the contracting party. Even were that the case (and in the 

matter before me, I doubt this) there would need to be detrimental reliance. I consider that the 

relevant state of mind for reliance is Mr Haswell’s. It is sufficient to note that he gave no clear 

evidence indicating such a reliance. To the contrary, Mr Haswell’s witness statement exhibits 

an email exchange between himself and Mr Madden in November 2021. The substance of that 

exchange was a failure of a hard-drive controlled by Mr Muller for his work (and the absence 

of back-up systems and the request by Mr Muller for the Respondent to “assist” Mr Muller’s 

efforts for that material to be recovered). In the email exchange, Mr Haswell described 

“Shelton” as a contractor. While that part of the email was not written in formal terms, there 

was nonetheless no reference to any other contracting entity. 

 

The contract – express terms 

 

[113] I find from the evidence there were express terms of a contract (Contract) as follows: 

 

a. The Applicant would primarily perform photography, as well as videography and other 

marketing tasks, as supplied by the Respondent. 

 

b. The Applicant would be paid at an hourly rate of $39 per hour, plus any GST. 

 








[2022] FWC 1685 

 

24 

c. The Applicant would work on a time-structure basis, three days per week on days to be 

agreed as needed but expected to be Wednesdays, Thursdays and Fridays. 

 

d. The Applicant would issue invoices for his work, which were to be issued on a 

fortnightly basis in accordance with the Respondent’s pay cycle. 

 

e. Except for the days when the Applicant was working at the Respondent, he could work 

elsewhere for other clients or work. 

 

f. The parties agree that Applicant would be engaged as a contractor. 

 

g. The Respondent would supply the Applicant for use with a suitable laptop and other 

photography equipment on agreement. 

 

h. The Respondent would reimburse the Applicant for specific equipment purchases that 

he would use for his work, as agreed. 

 

[114] In relation to the term concerning the supply of the computer and other selected 

equipment, I note that the evidence does not disclose any specific discussion about them. 

However, as there was an email dated 8 November 2016 to arrange for the laptop, I consider it 

highly likely that the parties had discussed those matters previously and agreed that it would be 

supplied. The evidence refers to the Respondent supplying a “DSLR camera”. The value of this 

item is unclear, although I infer it was modest (and possibly around the value of the computer, 

noting Mr Haswell’s complaint that Mr Muller did not use the supplied camera and instead used 

his own equipment). The Respondent would not have purchased a camera nor would have 

arranged for such a specific computer to be procured without having considered there was a 

need for it in the first place. For similar reasons, I consider it also highly likely that the parties 

discussed at least in general terms the other items of the equipment Mr Muller indicated he 

would require (as reflected in the invoice dated 18 October 2016), and that prior to Mr Muller 

purchasing them, he had obtained approval for their reimbursement if purchased. 

 

The contract – implied terms 

 

[115] I find that the following terms were implied into the Contract. These are terms that I am 

not satisfied the evidence demonstrates were actually discussed or were expressly agreed upon 

but I consider necessary for the reasonable or effective operation of the Contract: 

 

a. The hourly rate was the total amount payable to the Applicant by the Respondent and 

no annual leave, sick leave, superannuation or other amounts would be payable. 

 

b. The Applicant would perform the tasks directed by the Respondent and to the standard 

expected of the Respondent, as might be advised or directed from time to time. 

 

c. The Applicant would apply his professional skill to the tasks at hand. 

 

d. The Applicant would not delegate his work nor allow another person to perform his 

contracted obligations without prior permission. 

 








[2022] FWC 1685 

 

25 

e. The Applicant would notify the Respondent if he was, or was likely to be, absent. 

 

f. The Applicant would supply his own equipment for photography and videography, save 

for equipment supplied or made available by the Respondent. 

 

g. The Applicant’s expenses would be paid, where approved, and any modest expenditure 

required discussion and agreement before the expense was incurred. 

 

h. The Applicant granted the Respondent a bare licence to use any photographic or video 

works he created for the purpose that they were created (such as publication on the 

Respondent’s website.). 

 

i. Termination of the Contract would be upon either party giving reasonable notice. 

 

[116] While I consider the implied terms stated above are mostly uncontroversial, there are 

potential exceptions. I would make the following brief observations. 

 

[117] In relation to the term concerning (non) payment of any amount in addition to the hourly 

rate for matters such as leave, it is unclear on the evidence whether it was specifically discussed 

or possibly just assumed as an obvious criteria, although given the time that has since elapsed 

since that initial conversation, this is not levelled as a criticism. It is for this reason I do not 

consider this term was expressly agreed. It would in any case appear to have been obvious to 

both parties after the first invoice was issued that, if either party had a different view, it would 

have been clear from then. Neither party suggested to the contrary. 

 

[118] In relation to the term regarding the tasks to be performed and the standard at which 

they were to be undertaken, I am not satisfied the evidence discloses any specific discussion 

about those matters. That said, there was clearly discussion between the parties as to the needs 

of the Respondent. Those needs, which I accept were discussed, were content creation for the 

Respondent’s website and marketing, primarily being in relation to the Respondent’s business 

of selling woodworking tools. 

 

[119] In relation to the term regarding notification for absences, while I am not satisfied such 

a term was discussed, I consider such a term is necessary where it was contemplated that work 

would be performed on specific days. The Applicant’s evidence asserted he was required to 

seek “permission” to be absent. As I noted in my findings, I do not accept there was such a 

requirement and, for completeness, I would not imply a term to that effect. If he did not work, 

he would not be paid. 

 

[120] In relation to the term for delegation, the Respondent contended that the Applicant was 

free to delegate work and the Applicant contended the opposite. The matter is resolved by 

reason of the absence of an express term permitting delegation to (or, perhaps more realistically 

in the case before me, vicarious performance by) a third person. The law does not permit – 

without prior agreement - an agent to assign, delegate or to have performed those obligations 

for which personal skill and competence is required.5 I consider that the performance of the 

photography and videography work (being the core functions for the Applicant) required 

personal performance. There being no prior (express) agreement permitting, it follows that a 

term permitting that very activity will not be implied. 








[2022] FWC 1685 

 

26 

 

[121] In relation to the term regarding the supply by the Applicant of his own equipment, such 

a term necessarily follows from the fact that while the Respondent supplied some limited 

equipment it did not appear comprehensive. So far as other equipment was required or the 

Applicant preferred to use it, he would supply that himself unless specific requests were made. 

 

[122] In relation to the implied term for reimbursement, the Applicant’s written submissions 

contend there was a term that the Applicant “would be” reimbursed for expenses during his 

work. I do not consider the evidence reflected that was agreed upon and I do not consider it 

commercial – let alone necessary - to imply a term that the Applicant “would” be reimbursed 

for items in the absence of the Respondent first being notified before those costs were incurred.  

 

[123] In relation to the term for the licensing of works, this follows from the absence of any 

express term dealing with intellectual property rights. While each party gave evidence that they 

considered that the Applicant did not retain any “intellectual property rights”, this is a 

conclusion or assumption by those parties and did not reflect any discussion, let alone an 

express term. 

 

[124] Any photographs or videos created by Mr Muller are “works” within the meaning of the 

Copyright Act 1968 (Cth) (Copyright Act). To give a straight-forward example, if Mr Muller 

took a photograph – even one he was specifically instructed to take – that photograph is, under 

the Copyright Act, an “artistic work” for which Mr Muller is the “author”. As the author, Mr 

Muller is also the “owner” of the work unless modified by agreement: Copyright Act, s.35(2) 

– (3). While ss.35(4) – (6) of the Copyright Act allows for, in effect, automatic ownership of 

copyright by a person who is not the author (e.g. an employer, where there is an employee-

employer relationship, or paintings commissioned for private purposes), I do not consider they 

apply unless the Applicant is an employee. Further, an assignment of copyright is of no effect 

unless it is in writing and it will not be implied.6 There was no written assignment. By contrast, 

a licence need not be in writing and (in the absence of the Applicant being an employee) I 

consider it necessary for the operation of the Contract that an implied licence exist such that the 

Respondent can use the artistic works authored and owned by the Applicant for the purpose for 

which they were created.7 

 

[125] For the term regarding notice upon termination, I consider an implied term of reasonable 

notice is a necessary term in circumstances where no express term was arrived at. 

 

The contract – terms not included 

 

[126] There were a number of other terms advanced, primarily by the Applicant in his written 

submissions, with many that I do not consider were terms of the Contract. They are:  

 

a. The Applicant’s miscellaneous duties that he was required to perform included: 

 

(i) cleaning duties pursuant to a roster; 

(ii) managing company meetings; 

(iii) photography duties for other companies for which the Respondent would be paid. 

 

b. the Applicant was required to perform his duties personally and could not delegate tasks; 








[2022] FWC 1685 

 

27 

 

c. the Applicant was unable to reject a direction to perform duties or a direction on how 

he should perform those duties; 

 

d. all the intellectual rights to the material created by the Applicant remained with the 

Respondent; 

 

e. the Applicant was required to present himself as an employee of the Respondent to third 

parties and other employees of the Respondent by: 

 

(i) using a company email address and signature; 

(ii) wearing a uniform with the Respondent’s branding; 

(iii) bring referred as “staff”. 

 

f. the Applicant was required to work exclusively for the Respondent during weekdays; 

 

g. the Applicant was required to comply with the Respondent’s policies and procedures; 

 

h. the Applicant’s performance would be managed by the Respondent; 

 

i. the Applicant would be provided with the equipment needed for his work by the 

Respondent; and 

 

j. the Applicant would be reimbursed for expenses incurred during his work. 

 

[127] I have addressed a number of these matters already. Of the list of terms above, I find 

that none of them were expressly discussed at the initial meeting(s) – other than as I have set 

out above – and could not be an express term of the Contract. I have also addressed some of 

these matters above regarding delegation, intellectual property, equipment supply, 

reimbursement of expenses, and management of performance (and tasks to be performed) 

above. 

 

[128] The “exclusivity” term I consider misplaced – it is not necessary to imply it for the 

reasonable operation of the agreement and it was not discussed. Having regard to the express 

terms that the Applicant could perform business elsewhere, I do not consider it appropriate to 

imply a term inconsistent with an express term. I accept, however, that a consequence of the 

requirement for the Applicant to work for the Respondent during the periods agreed (initially 

8:00am to 5:00pm, for three days in a week and later becoming five days) necessarily meant 

that the Applicant would not be working for anyone else during those periods. He was 

contracted to perform work on those days. 

 

[129] For the other terms said to form part of the Contract, I also do not consider them 

necessary to be implied into the agreement for its reasonable operation, particularly where they 

were not discussed. On those matters, the Contract was – at least initially – silent. 

 

The contractual variation 

 








[2022] FWC 1685 

 

28 

[130] I consider now to what extent the contractual terms above were modified or added to 

between the period of contractual formation and the variation of the Contract in January 2017 

(Variation). 

 

[131] It is uncontroversial, and I find, that the Contract was amended, commencing effective 

around January 2017, for Mr Muller to work five days instead of three days. These amendments 

were express, made orally. I accept Mr Haswell’s evidence that there was no discussion about 

any other aspects and I find there were no further express amendments. 

 

[132] I have considered whether - to adopt the statement of Kiefel CJ, Keane and Edelman JJ 

at [42] in Personnel Contracting – there was an “imposition” by the Respondent of its “work 

practices” upon Mr Muller that “manifests the employer’s contractual right of control over the 

work situation” or whether Mr Muller’s “acceptance of the exercise of power” may show that 

the Respondent was “ceded the right to impose such practices”. 

 

[133] This requires consideration of the conduct of the parties between formation of the 

Contract and its variation. 

 

[134] I accept there were some work practices suggestive of an increased level of control or 

power. They included the Applicant’s use of an email address and the (likely) wearing of a 

uniform. The regularity of Mr Muller’s hours and the participation by Mr Muller in staff team 

meetings (c.f. 16 December 2016) are similarly suggestive of an increasing level of control. 

The meeting minutes of 16 December 2016 describe Mr Muller’s role somewhat more broadly 

to include “Media Coordinator”, which was not a task expressly referred to in the Contract (cf. 

photography, videography and marketing). 

 

[135] However, when assessed against the evidence as a whole during this period, I do not 

consider that the evidence of the parties’ conduct or work practices during this period rises to 

such a level that it manifests an assumption of a right of control over Mr Muller by the 

Respondent that was sufficiently different from the terms of the Contract originally agreed. 

 

[136] I do not consider that recourse to the post-contractual conduct occurring after the 

Variation assists, other than I have set out above. In those circumstances, I do not consider those 

matters appropriate to have regard to in characterisation of the Contract or the Variation. 

 

Characterisation of the contract 

 

[137] The circumstances surrounding the entry into the Contract were relied upon by the 

parties for different reasons. The Applicant relies upon the fact that Mr Haswell was, in his 

email dated 14 September 2016, initially seeking to engage an employee, beginning part-time 

on a “time-structured” basis and most likely moving to full-time. I accept that this factor is 

suggestive that the relationship being sought by the Respondent was one where the degree of 

control he would exercise would reflect the degree of control present in an employer/employee 

relationship. 

 

[138] For similar reasons, I consider the contractual requirement to work on fixed days for, in 

substance, fixed times conveys a greater sense of control by the Respondent and an indication 








[2022] FWC 1685 

 

29 

that the Applicant was working in the business of the Respondent, rather than his own business. 

Initially, the number of days was three per week and changed to five. 

 

[139] In my view, it is these terms which speak most strongly of an employment relationship, 

as they suggested a foundation where – from the Respondent’s perspective – it was paying a 

person to be available at set times to perform services supplied by the Respondent from time to 

time. In short, the Respondent was obliged to pay for fixed blocks of the Applicant’s time per 

week at a flat hourly rate, and it would appear improbable that the Respondent would have 

allowed the Applicant to sit around during idle times without being allocated other incidental 

work. This suggests that it was likely that in circumstances where the Respondent did not have 

core work immediately available to perform, or it had some other pressing priority, it might ask 

the Applicant to perform other tasks, such as taking the minutes of the meeting on 16 December 

2016. There were hallmarks of this practice, at least the case by the time of the Variation. 

 

[140] Further, the work to be undertaken by the Applicant was also to be performed 

personally. There was no express right of delegation and, as set out above, such a term cannot 

be implied. These are also matters suggestive of an employment relationship, although the 

authorities I referred to regarding the inability to imply a term of delegation were, I note, not 

matters concerning an employee relationship. Although I note that, in a practical sense, such 

delegation or performance by a third party was unlikely to happen. I say that because the 

Applicant was remunerated on what was essentially a fixed-time arrangement. He could only 

delegate work he was contracted to perform. If he delegated work, or arranged for someone else 

to perform that work for him, he would not be entitled to charge for additional work at the same 

time. Any work performed by a third party would, unless paid at a rate less than his own hourly 

rate, be remuneration that the Applicant would not receive. For completeness, I also consider 

that this is an answer to the Applicant’s evidence about his request in 2019 for his wife to 

perform work to enable deadlines to be met. In substance, what the Applicant was requesting 

at that time was for additional work to be undertaken, not simply that the existing work that the 

Applicant would charge for would be performed by her instead of him. 

 

[141] Those aspects cannot be considered in isolation, however. 

 

[142] The Applicant’s submissions stated that the work performed was as directed by the 

Respondent. I consider that proposition is generally correct in what was to be performed and 

when. However, and relevantly, it was not the case that the Respondent dictated how the work 

was to be undertaken8, other than it remained the case that work needed to be performed to a 

requisite standard. 

 

[143] The terms of the Contract (unchanged on Variation) required the Applicant to perform 

specialised photography and videography work. I would make the observation that it is well-

known that many photographers can operate as independent contractors or as employees. There 

is nothing inherent to the nature of photography work that determinately points one way or the 

other. The engagement of a photographer is certainly capable of – and frequently is – based as 

an independent contracting relationship but the same can be said of employee photographers. 

The mutually known background to the parties recorded that Mr Muller had been operating as 

a photographer for approximately 35 years. A significant majority of that period was as an 

independent contractor. 

 








[2022] FWC 1685 

 

30 

[144] The term of the Contract (unchanged on Variation) that Mr Muller would perform 

“marketing” tasks is perhaps closer on the spectrum to traditional employment than the more 

specialised profession of a photographer. However, in the context of the parties at the time, 

caution needs to be exercised in generalisations. The Respondent at the time was a very small 

business, with about five employees. As a small business, it is unsurprising that some tasks 

were outsourced simply because the business did not have the present time or expertise to 

perform them inhouse. The evidence shows that marketing functions themselves were being 

outsourced at the time to a third-party entity. The emails between the parties on 14-15 

November 2016 reflects their respective comments on the cost of one of those arrangements. 

 

[145] Notwithstanding that it was Mr Haswell’s initial intention to engage a photographer 

inhouse as an employee, in all the circumstances there is nothing in the terms regarding the 

photography/videography/marketing work, and the professional skill that Mr Muller would 

apply to them, that I consider points strongly in one direction or the other for the characterisation 

task. 

 

[146] I consider that the issue of equipment points slightly more in favour of an independent 

contracting arrangement. Ordinarily, I would consider the supply of equipment – particularly 

high-value, specialist equipment – by the putative employee would be a greater indicator of an 

independent contracting arrangement. The cost of some other equipment was reimbursed by the 

Respondent but a number of those items nonetheless appeared to remain the property of the 

Applicant (albeit, being reimbursed for them). Muting the impact of this factor, however, is that 

some of that equipment (such as a computer) was supplied by the Respondent. I do not consider 

that the arrangements for reimbursement of (agreed) cost items points strongly in either 

direction, given the relatively modest value of those items. 

 

[147] However, the supply of equipment is not itself inconsistent with an employment 

relationship. “In many forms of employment, employees provide their own uniform and bring 

their own tools to work.”9 As noted, the Respondent was initially looking to engage a 

photographer inhouse and the evidence suggests that the equipment that would have likely been 

used would be a combination of (lower cost) equipment supplied by the Respondent or, more 

likely, the employee photographer using his own equipment and being reimbursed for costs 

from time to time. 

 

[148] As to the “mode of remuneration”10, “deduction of income tax”11, and the term for 

payment of a flat hourly rate with (any) GST, these features - together with the implied term 

that no amounts such as annual leave, sick leave and the like were payable - are suggestive of 

an independent contracting relationship. These matters were unchanged upon the Variation. 

The amounts received following the issuing of an invoice had no income tax deducted, which 

is also a factor suggestive of an independent contracting relationship.12 I do not consider that 

the requirement for the Applicant to notify the Respondent of his absence points in either 

direction. 

 

[149] On the question of intellectual property, the express terms were silent on those matters. 

A consequence of this is that the Applicant retained ownership in the works he created (subject 

to the implied licence I have described), which is more strongly suggestive that those works are 

assets of the Applicant’s business. While that may be the legal position, however, in reality 








[2022] FWC 1685 

 

31 

neither party expressly turned their mind upon the question in any discussion between them and 

both appeared to operate on a contrary assumption. 

 

[150] At the commencement of the engagement in September 2016, Mr Muller had his own 

clients and business. This was a key reason why the parties – at Mr Muller’s initiation – agreed 

to describe Mr Muller as a “contractor” and to work initially at three days per week only to 

ensure that Mr Muller would be able to continue and preserve his business in that respect. In 

terms of the “own business” dichotomy, I also see no reason why the work of the Applicant for 

the Respondent, as contemplated by the Contract, would not improve the reputation and 

goodwill of Mr Muller’s existing photography business generally. However, it would appear 

that the contracted activities of the Applicant were more within the Respondent’s business, than 

the Applicant’s business. 

 

[151] Nonetheless, as stated by Gordon J in Personnel Contracting, it should be recognised 

that “both employees and contractors can work “for the benefit of” their employers and 

principals respectively, and so that, “by itself”, cannot be a sufficient indication that a person is 

an employee” (original emphasis). 

 

[152] While the recent High Court authorities make it clear that recourse to the parties’ 

description or “label” of the arrangement should be approached cautiously – and in many cases 

not at all – the case before me is a matter where I consider it appropriate to have regard to the 

parties’ own characterisation of the Contract (unchanged upon the Variation). I do so not as a 

“tie breaker”13 nor as a determinative factor, but as a factor relevant to the “whole of the 

contract” 14 and which, in this case, “can shed light on the objective understanding of the 

operative provisions of their contract”.15 

 

[153] Here, the contract is not comprehensive and – indeed – is entirely oral in relation to the 

limited express terms that were agreed, and the description given by the parties of their 

relationship in this context is not merely a label or descriptive gloss but, in the bargain struck 

by the parties before me, states in a short-hand way the very outcome that the parties were 

seeking to achieve. 

 

[154] The Respondent was originally recruiting for an employee. However, the bargain of the 

parties consciously proceeded in a different direction – at the Applicant’s behest – where they 

agreed a “contractor” relationship would ensue. The context for this was that the Applicant was, 

at that time, working only as a contractor, he had his own existing business and customers, and 

he wanted to preserve and continue them. I consider that this context helps “assist in identifying 

the purpose or object of the contract”16 as it was made (and, other than the Variation, remained 

unchanged). 

 

[155] The absence of a formal documented agreement lends significance to the parties’ own 

characterisation of the arrangement between them in these circumstances and reflects the 

purpose or object of the contract they sought to achieve. That object was for the Applicant to 

remain a contractor, but while working on fixed days for the Respondent. 

 

[156] When considering the totality of the relationship between the parties having regard to 

all the matters above, I conclude that the correct characterisation of the Contract as it was 

formed in around 23 September 2016 was that of an independent contracting arrangement. The 








[2022] FWC 1685 

 

32 

characterisation was not changed by the Variation. Other than the increase of the days to be 

worked, I am not satisfied there is evidence that the parties expressly sought to alter to or detract 

from the terms of the Contract by the Variation and I am not satisfied from the evidence that 

there was a manifestation of control17 that would other change the character of the Control by 

those practices, together with the Variation. 

 

[157] It is for this reason that I find that the Applicant is not an employee and, accordingly, 

his application must be dismissed. 

 

If the Applicant was an employee 

 

[158] With some element of self-interest, I would briefly echo the observations of Logan J in 

Fair Work Ombudsman v Avert Logistics Pty Ltd [2022] FCA 84118, which were to the effect 

that the matter before me was a harder one than the matter in Jamsek (or Personnel Contracting) 

appeared to be. With that observation, and having regard to the time and effort by the parties in 

litigating the matter to date, I would state my conclusions briefly in the event that I am wrong 

in relation to my primary conclusion above. 

 

[159] Shortly stated, if Mr Muller was an employee then it is uncontroversial that he was 

“dismissed” for the purposes of s.385(a) and s.386 of the Act. 

 

Factual findings regarding the termination 

 

[160] The facts set out above were largely directed by the parties to the question of whether 

Mr Muller was a contractor or an employee. 

 

[161] Mr Haswell’s evidence in chief states that he was the decision-maker in relation to 

terminating Mr Muller’s contract. Mr Haswell states that he did so for the following reasons: 

 

“(a) The Applicant was resistant to requirements from the Respondent to produce works 

with particular requirements, particularly to requests for photographs with more light to 

give clear depictions of our products; 

 

(b) The Applicant had repeatedly failed to meet deadlines over an extended period of 

time; and 

 

(c) Despite attempts by Mr Madden and myself to manage the two issues above, the 

Applicant was either failing to improve or declining further.” 

 

[162] The performance concerns, other than as expressed at the level of generality just stated, 

were not articulated. In relation to “lighting” issues regarding Mr Muller’s photography, Mr 

Muller denies there were issues with his work. As to the issue of meeting deadlines, Mr Muller 

states that the deadlines “forced on me by Mr Madden were not reasonable or achievable.” 

 

[163] In cross-examination, Mr Haswell acknowledged that none of the performance issues 

were documented in writing, to his knowledge, and he was not sure whether there was anything 

in writing, such as an email, with Mr Madden. Neither party drew my attention to any matter 

being raised in writing with Mr Muller. 








[2022] FWC 1685 

 

33 

 

[164] As noted above, at least by 2020, Mr Muller’s work was being managed by Mr Madden. 

Mr Haswell accepted that “most” performance issues occurring in the twelve months prior to 

the termination of Mr Muller’s engagement would have been managed by Mr Madden. 

 

[165] Mr Muller gave evidence that he was being “bullied” at work by Mr Madden. That 

evidence was also expressed at a level of generality, and referred to Mr Madden “overloading” 

him with work and making unreasonable demands for work to be completed at the same time 

as being overly prescriptive in what was required. Mr Muller said Mr Madden was “sabotaging” 

his work and was “isolating” him by removing him away from others. 

 

[166] Mr Muller stated that Mr Madden was “haranguing” him in front of staff “on more than 

one occasion”. While Mr Muller’s evidence was expressed at a level of generality, he gave three 

specific instances of conduct: the first two were alleged instances of (in effect) disparaging 

comments about Mr Muller’s religion, made on 13 September 2021 and 31 November 2021. 

The third was being “bawled out” in front of staff about his Christmas plans (which Mr Muller 

had previously told Mr Madden) on 24 December 2021. 

 

[167] Mr Madden was not called to give evidence and Mr Muller’s counsel invited me to infer 

that his evidence would not have assisted the Respondent on these matters. I accept that 

submission. 

 

[168] Mr Haswell said in cross-examination that there was a “specific instance” where he 

noted there were problems around “partly performance but also partly demeanour with Mr 

Muller”. As a result of that, Mr Haswell says he had an informal meeting with Mr Muller – 

possibly late October 2021 or early November 2021 – where he says he brought up the issues 

around his “performance” and also around his “demeanour” to try and find out if there were 

any kind of issues that needed to be resolved. While Mr Haswell made the point that Mr Muller 

did not bring up the bullying issues in that conversation, Mr Haswell did not explain what 

“performance” issues were discussed. It was put to Mr Haswell that no performance issues were 

discussed. While Mr Haswell denied that proposition, so far as there were any issues discussed 

I can make no findings about their content (such as they were discussed beyond the highest 

level), noting that these were matters not contained in Mr Haswell’s evidence in chief and being 

stated for the first time in cross-examination. 

 

[169] Mr Haswell states that he was the sole decision maker for the Respondent in deciding 

whether to termination Mr Muller’s contract. While I accept that, I consider it was not a decision 

he would have made without having first consulted with Mr Madden. 

 

[170] Mr Haswell also gave evidence, which I accept, that he had decided to terminate Mr 

Muller’s engagement in December 2021. Mr Haswell’s evidence contained an advertisement 

he posted “to fill the Applicant’s role” after the contract would be terminated. In fact, a contract 

was signed with a new employee to that effect on 24 January 2022 before Mr Muller’s 

engagement was terminated. Mr Muller says, and I accept, he was unaware of any of those 

matters at those times. Mr Haswell states that he did not, at the time, tell Mr Muller about those 

matters because Mr Muller was away from work for substantial parts of December 2021 and 

January 2022 for reasons relating to Mr Muller’s personal circumstances. Mr Haswell perceived 

those circumstances would be exacerbated if he told Mr Muller that his contract was about to 








[2022] FWC 1685 

 

34 

be terminated. I accept those matters. Mr Haswell also says, and I accept, that he was not aware 

of the bullying allegations prior to making his decision and those matters did not form a part of 

his decision. 

 

[171] As indicated, Mr Muller was away from work for various periods, including personal 

reasons later in January 2022. He returned to work on 9 February 2022, working from home. 

 

[172] On 14 February 2022, he met with Mr Haswell by video conference. The witnesses’ 

evidence of that meeting is broadly consistent, and Mr Muller was told that a person had been 

found to replace Mr Muller’s position. Mr Haswell said that the reasons for the termination was 

that Mr Muller had a particular style of shooting photography and the Respondent wanted to 

change; he was also told that he had been slow in providing social media work. 

 

[173] There was no letter of termination. 

 

[174] At the meeting on 14 February 2022, Mr Haswell’s evidence was that he said he offered 

to pay Mr Muller an “additional two weeks of pay as notice” if Mr Muller completed certain 

work in progress. 

 

[175] Shortly before the hearing, the Applicant filed a ‘Note on Remedy’, which set out further 

information about his case on remedy. I note at the outset that reinstatement was not sought, 

only compensation. Mr Muller observes he successfully mitigated his loss from 30 March 2022 

and expects to remain in his employment with his current employer. Mr Muller pressed for 

compensation for income lost between the period 14 February 2022 and 29 March 2022, which 

he quantified at $9,804 gross. There was no substantive challenge to that calculation. 

 

[176] Turning to the factors in s.387 of the Act, I make the following findings. 

 

Valid reason – s.387(a) 

 

[177] The reason advanced for the dismissal related to performance concerns, and alleged 

failure to meet deadlines. As I have noted above, the performance concerns, other than as 

expressed at the level of generality stated in Mr Haswell’s witness statement, were not 

articulated in the evidence before me. Moreover, Mr Haswell accepted that “most” performance 

issues occurring in the twelve months prior to the termination of Mr Muller’s engagement 

would have been managed by Mr Madden. 

 

[178] Mr Madden was not called as a witness. It appears that many of the views held by Mr 

Haswell were necessarily informed by reports and updates provided to him over time from Mr 

Madden. While I accept that the views expressed by Mr Haswell were genuinely held and those 

views formed the basis for the dismissal, the evidentiary material before me falls a long way 

short of establishing a valid reason was made out. 

 








[2022] FWC 1685 

 

35 

Notification – s. 387(b) 

 

[179] The Applicant was informed on 14 February 2022 that his engagement was to be 

terminated. The evidence of the reasons provided was also at a high level of generality and it 

was not suggested that any specific instances of performance relating to the reasons for 

dismissal were discussed. 

 

Opportunity to respond – s. 387(c) 

 

[180] So far as the reasons concerned the capacity of the Applicant (they did not appear to 

relate to conduct), there was no meaningful opportunity to respond. In order to respond, the 

Applicant would have needed to have been given at least some specific examples of his 

performance or lateness of work that underpinned the putative reasons. That detail was not 

provided. In addition, the discussion that occurred reflected a decision that had been made 

considerably earlier (and had been delayed due to Mr Haswell’s views about Mr Muller’s 

personal circumstances at the time). 

 

[181] I would observe that this situation also reflected Mr Haswell’s belief as to the nature of 

the legal arrangements between the parties – that of independent contracting parties – which 

further explains that Mr Muller was being notified of the termination and it was not going to be 

a matter for further discussion. At the time the termination was notified, the position for a 

replacement had been advertised, interviewed and appointed. There was no meaningful 

opportunity to respond. 

 

Support person – s.387(d) 

 

[182] There was no request for, nor refusal of, a support person. I treat this factor neutrally. 

 

Warning for performance – s.387(e) 

 

[183] The evidentiary material falls considerably short of establishing that Mr Muller was 

given adequate warnings about his performance. 

 

Size of the employer – s.387(f) & (g) 

 

[184] The employer was, at the time of the termination, no longer the small business it was in 

2016, although it was not a large enterprise with (as best as I could discern), any specialist 

human resources managers or expertise. At the time of termination, there were approximately 

35 employees. I treat these factors neutrally. 

 

Other matters – s.387(h) 

 

[185] The Applicant invited me to consider the personal and economic impact on the 

Applicant by the dismissal, as well as that he had had more than five years of continuous service 

with no prior warnings for performance or conduct. I have had regard to those matters. 

 

Conclusion – whether dismissal unfair 

 








[2022] FWC 1685 

 

36 

[186] I have made findings in relation to each matter specified in section 387 as relevant. 

 

[187] I must consider and give due weight to each as a fundamental element in determining 

whether the termination was harsh, unjust or unreasonable.19 

 

[188] Having considered each of the matters specified in section 387 of the Act, I am satisfied 

that the dismissal of the Applicant was harsh, unjust and unreasonable. In short, I am not 

satisfied there was a valid reason, there was inadequate procedural fairness involved and I do 

not consider that there were any other matters that would dictate a different overall conclusion. 

 

[189] On the basis that I am incorrect about the Applicant not being an employee, I am 

therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 

of the Act. 

 

[190] In relation to remedy, the Applicant does not press for reinstatement. At the time of the 

hearing, he had secured alternative work and I am satisfied in all of the circumstances that 

reinstatement would not be an appropriate remedy. 

 

[191] Having found that reinstatement is inappropriate, it does not automatically follow that a 

payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether 

to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary 

one … .”20 

 

[192] Where an applicant has suffered financial loss as a result of the dismissal, this may be a 

relevant consideration in the exercise of this discretion.21 

 

[193] The Applicant was dismissed on 14 February 2022. In a ‘Note on Remedy’ filed by the 

Applicant, that document sets out that he successfully mitigated his loss from 30 March 2022, 

which he commenced permanent full-time employment elsewhere on a comparable salary to 

what he earned with the Respondent. I accept those matters. 

 

[194] The Applicant further submits, and I accept, that he expects to remain employed with 

his new employer.  

 

[195] The Applicant was not given notice (despite my conclusion that he was, contractually, 

entitled to “reasonable notice”). He therefore claims by way of compensation 6 weeks’ pay, 

based on the period up to 30 March 2022. The Applicant quantified that amount as totalling 

$9,804 gross. 

 

[196] There was not any serious challenge to the Applicant’s calculations, just stated, and I 

accept them. Were it not for the termination of his engagement, if the requirements of s.387 

were to be complied with, I consider it likely that the Applicant would have continued to work 

for the Respondent for at least a further 12 weeks. In reaching this conclusion, I have had regard 

to (on the Applicant’s evidence) the strained relationship between him and Mr Madden and, on 

the Respondent’s account, its concerns.  

 

[197] I am satisfied that the Applicant would have worked, or been entitled to be paid, for the 

full six weeks that followed his dismissal on 14 February 2022. 








[2022] FWC 1685 

 

37 

 

[198] Save for the matter of the Respondent’s offer of further work, which I consider 

separately below, I do not consider there is any reason to discount the above amounts further. 

There was no misconduct and therefore no reason to discount on account of that factor. I note 

also that, as an employee, he would have been entitled to 5 weeks’ notice under s.119 of the 

Act given his service and age (the latter being above 45 years). 

 

[199] On the question of mitigation, the Respondent contends that the Applicant was offered 

what was, in effect, two weeks’ paid work to complete various jobs. The Applicant did not 

accept that work. I have considered whether the amount of six weeks pay, described above, 

should be further discounted. I am not satisfied that it should. The two weeks’ work was not a 

notice period. The Applicant’s engagement had, at that stage, been terminated. The two weeks’ 

work on offer was, in substance, a stand-alone two week engagement. Taking that offer would 

have involved some distraction from the Applicant’s more important focus of securing 

permanent work. The Applicant, to his credit, did so effectively from 30 March 2022, and I 

infer he was necessarily taking active steps prior to then. While these matters are always a 

question of degree, I am satisfied it was not unreasonable for the Applicant to refuse a short-

term engagement with the entity that had just ended unhappily for him while he ought to have 

been (and, I infer, was) focussing on securing permanent alternative work. 

 

[200] If the Applicant was an employee, then I would order, pursuant to s.392(1) of the Act 

that the Respondent is to pay to the Applicant $9,804 for the remuneration lost, taxed according 

to law. 

 

[201] An order22 giving effect to my decision dismissing the application will be issued 

separately. 

 
DEPUTY PRESIDENT 
 
Appearances: 
 

G Lake of Counsel for the Applicant 

T Borgeest of Counsel for the Respondent 
 
Hearing details: 
 

2022. 

Melbourne (by video link via Microsoft Teams): 

June 30. 
 

Printed by authority of the Commonwealth Government Printer 
 

PR743250 


OF THE WORK C MMISSION THE SEAL




 



[2022] FWC 1685 

 

38 

 
1 Exhibit SM-2 to Mr Muller’s first statement. 

2 Cited approvingly by the Full Bench in Mohammad Amin (Darius) Souraki Azad v Hammond Park Family Practice Pty Ltd 

T/A Jupiter Health Warnbro [2022] FWCFB 66 (Catanzariti VP, Easton DP, McKinnon C). 

3 Cited with approval by Ward CJ in Eq (as her Honour then was) in Anthony v Morton [2018] NSWSC 1884 at [398]. 

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

5 Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660 at 669 (Collins MR); John McCann & 

Co (a firm) v Pow [1975] 1 All ER 129 at 131-132 (Lord Denning MR). Pacific Brands Sport & Leisure Pty Ltd v 

Underworks Pty Ltd (2006) 149 FCR 395 at [32] (Finn and Sundberg JJ). 

6 Copyright Act, s.196(3). 

7 Concrete Pty Ltd v Paramatta Design & Developments Pty Ltd (2006) 299 CLR 577. 

8 Jamsek, [69] (Kiefel CJ, Keane and Edelman JJ), and [105] (Gordon and Steward JJ). 

9 Personnel Contracting, [175] (Gordon J). 

10 Personnel Contracting, [174] (Gordon J), [113] (Gageler and Gleeson JJ); Stevens, at 24 (Mason J). 

11 Personnel Contracting, [113] (Gageler and Gleeson JJ); Stevens, at 24 (Mason J) and also at 36-37 (Wilson and Dawson 

JJ). 

12 Cf, Stevens, op cit, per Mason J at 24 and Wilson and Dawson JJ at 36-37. 

13 Cf, Personnel Contracting, [79]. 

14 Personnel Contracting, [184]. 

15 Personnel Contracting, [66]. 

16 Personnel Contracting, [175] (emphasis added). 

17 Personnel Contracting, [42]. 

18 At [34]. 

19 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon 

Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice 

[1999] FCA 1836, [6]–[7]. 

20 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] 

FWCFB 7198, [9]. 

21 Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].  

22 PR746447 






https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb7198.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb7198.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb550.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4171.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr746447.htm

Cases cited by this decision: