1
Fair Work Act 2009
s.365—General protections
Sabarna Mukherjee
v
Sanden Care Options Pty Ltd
(C2023/6619)
DEPUTY PRESIDENT BELL MELBOURNE, 21 MARCH 2024
Application to deal with contraventions involving dismissal – jurisdictional objection – whether
applicant an employee or contractor – whether contract a “sham” - whether applicant
dismissed or resigned – applicant an employee and dismissed.
[1] Ms Sabarna Mukherjee was an aged care worker engaged with the respondent, Sanden
Care Options Pty Ltd (Sanden Care / respondent). It is not in dispute that, on 7 October 2023,
that engagement came to an end, although the circumstances in which it ended are contested.
[2] Ms Mukherjee has made an application under s 365 of the Fair Work Act 2009 (Cth)
(Act) alleging she was dismissed in contravention of the general protection provisions of the
Act. The respondent states that Ms Mukherjee was an independent contractor (and not an
employee who can be “dismissed”) and in any case verbally resigned. Ms Mukherjee says that
the proper characterisation of her contract is one of employment and, in any case, the contract
showing an independent contracting arrangement is a “sham”.
[3] Each party filed evidence in response to directions issued by me. Ms Mukherjee filed
statements for herself, as well as supporting statements by her support person (Ms Starr) and
other witnesses. With no disrespect to the applicant’s witnesses other than Ms Mukherjee, their
evidence was not relevant to the terms of the contracts nor to the final day of work and I have
not described that evidence. For the respondent, a witness statement was filed by Ms
Sandercock, director.
Legislation and applicable principles
[4] Section 365 of the Act provides that a person can apply to the Commission to deal with
a general protections dismissal dispute if the person has been “dismissed”. A jurisdictional
condition of that application is that the person was “dismissed”.1
[5] By s 12 of the Act, the term “dismissed” has a meaning defined by the criteria in s 386
but, relevantly, a person must be an employee for there to be a dismissal. There are exceptions
to s 386(1) but none are presently relevant.
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DECISION
AUSTRALIA FairWork Commission
[2024] FWC 588
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[6] As to the principles to be applied in characterising whether a particular contract is a
contract of employment or an independent contracting arrangement, I consider the starting point
for consideration is CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel
Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek).
[7] 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).
[8] Evidence of post-contractual conduct is generally irrelevant to the question of
characterisation, although it may be relevant where the validity of the contract is challenged as
a sham or the terms of which otherwise varied, waived or the subject of an estoppel: Personnel
Contracting at [43] (Kiefel CJ, Keane and Edelman JJ); [177] (Gordon J).
[9] “Sham” in this context was explained in Personnel Contracting at [54] (Kiefel CJ,
Keane and Edelman JJ):
“54. …For instance, in responding to a submission of sham in Cam and Sons Pty Ltd v
Sargent2, Dixon J spoke of investigating the "substance" of a written agreement that
contained "elaborate provisions expressed in terms appropriate to some other relation",
but emphasised that it was the agreement which was to be analysed3. Lest there be any
doubt, it has been held that this decision is consistent with the focus in Chaplin and
Narich upon the terms of the written contract4. In Neale v Atlas Products (Vic) Pty Ltd5,
this Court again considered a submission that the terms of a written agreement were a
"sham". It was held that the written agreement, which "substantially set forth the
conditions upon which each tiler was employed", was "the real measure of the
relationship between the parties" and that "we should not be disposed to ignore it unless
it can be said that the evidence establishes quite clearly that the conduct of the parties
was inconsistent with it as the basis of their relationship"6.”
[10] Putting aside questions of sham or variation, etc, recourse may be had to external events,
where appropriate for the purpose of characterising the contract. As explained by Gordon J in
Personnel Contracting at [175] (citations omitted, emphasis added):
“Recourse may be had to events, circumstances and things external to the contract which
are objective, which are known to the parties at the time of contracting and which assist
in identifying the purpose or object of the contract. The nature of the specific job that
the purported employee applied for as well as the nature and extent of the equipment to
be supplied by that purported employee for that particular job may well be relevant to
the question of characterisation of the contract. Indeed, it is often relevant, but not
determinative, to observe that the purported employee must supply some uniform, tools
or equipment. But again that observation must be made in context. The context is the
nature and extent of what is required to be provided under the contract. In many forms
of employment, employees provide their own uniform and bring their own tools to
work.”
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[11] As Wigney J recently stated7 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.”
[12] 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”
[13] 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.”
[14] While the elements of control and the own/employer’s business dichotomy are
significant matters, it remains appropriate to consider the “totality” of the relationship between
the parties albeit – importantly – as framed by the rights and duties established by the parties’
contract. As stated by Kiefel CJ, Keane and Edelman JJ in Personnel Contracting at [61]
(citations omitted, emphasis added):
“The foregoing should not be taken to suggest that it is not appropriate, in the
characterisation of a relationship as one of employment or of principal and independent
contractor, to consider "the totality of the relationship between the parties" by reference
to the various indicia of employment that have been identified in the authorities. What
must be appreciated, however, is that in a case such as the present, for a matter to bear
upon the ultimate characterisation of a relationship, it must be concerned with the rights
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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.”
[15] With the important limitation placed upon recourse to the “various indicia” being
established from the terms of the parties’ contract, the indicia described in Stevens at 24 per
Mason J remain relevant (citations omitted): 8
“But the existence of control, whilst significant, is not the sole criterion by which to gauge
whether a relationship is one of employment. The approach of this Court has been to
regard it merely as one of a number of indicia which must be considered in the
determination of that question:… Other relevant matters include, but are not limited to,
the mode of remuneration, the provision and maintenance of equipment, the obligation
to work, the hours of work and provision for holidays, the deduction of income tax and
the delegation of work by the putative employee.”
[16] To similar effect, Wilson and Dawson JJ said in Stevens at 36 – 37 (emphasis added):
“The other indicia of the nature of the relationship have been variously stated and have
been added to from time to time. Those suggesting a contract of service rather than a
contract for services include the right to have a particular person do the work, the right
to suspend or dismiss the person engaged, the right to the exclusive services of the person
engaged and the right to dictate the place of work, hours of work and the like. Those
which indicate a contract for services include work involving a profession, trade or
distinct calling on the part of the person engaged, the provision by him of his own place
of work or of his own equipment, the creation by him of goodwill or saleable assets in
the course of his work, the payment by him from his remuneration of business expenses
of any significant proportion and the payment to him of remuneration without deduction
for income tax. None of these leads to any necessary inference, however, and the actual
terms and terminology of the contract will always be of considerable importance.”
Factual findings
[17] Ms Mukherjee’s initial engagement with the respondent began in September 2021 as an
aged care support worker. The contract was titled “Contractor Services Agreement” (the First
Contract).
[18] The First Contract was paid on the basis that Ms Mukherjee was an independent
contractor. It is unnecessary for me to express a view about whether that assumption was
correct, and I do not do so.
[19] In April 2022, Ms Mukherjee’s engagement was converted into an employment
relationship. The circumstances that caused that change are set out in a letter dated 1 April 2022.
It is unnecessary to set that letter in full but, saliently, it stated (original emphasis):
“Dear Contractors,
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As you know we are meeting this week to make individual offers of employment to
current contractors who work with our clients.
I understand that not everyone likes a pay cut, however the other things that are on offer
are very important too in the scheme of providing positive support services to people
with a disability and the elderly.
Our business needs to diversify and provide services with a difference that shine our
values, beliefs and commitment to best practice that is enshrined in the United Nations
Convention on the Rights of people with a Disability (UNCRPD). Our clients deserve
this change and we think it’s time to step up for them.
This change is due to several factors but mainly:
1. The beginning of our new business Sanden@Home- a dedicated support service that
works with Sanden Care Options participants of the NDIS and My Aged Care
customers.
We have long held a desire to provide our clients with a support service with a
difference: a support service that has the following core values;
a. Clients can have their known support workers with replacement “friends”
available if needed when support worker is on leave or unwell;
b. staff that are supported and trained professionally and valued as much as the
clients they care for;
c. staff are given all the tools they need to provide a professional service and
have avenues for mentoring support, reflective practice and project development
and planning.
2. Secondly, we have had to respond to the changes that will be made to the marketplace
in NDIS for non-registered providers and the Fair Work Commission review of
contractors in the sector.
Currently, the people who work regularly with one or two clients every week for the
same remuneration use their ABN to provide services under contract to Sanden Care
Options. The Fair Work Commission, upheld by the ATO, has determined that these
people are NOT contractors but casual employees and need to be employed as such.
Furthermore, we are now under the ASIC company structure which mandates strict
dedication to workplace and commonwealth law by Directors and our accountants, have
made us aware of this and we are required to make these changes. …”
[20] As the effect of the change evidently involved a reduction in pay, the letter had a section
titled “Why would you want to stop your life of independent contracting at the higher rate I
hear you say? Here are a couple of really important reasons why!” The letter then provided a
range of apparent justifications to the rhetorical question asked. It is unnecessary to comment
on those, and it is sufficient to note that, from around that point in time, Ms Mukherjee now
continued her work as an employee.
[21] A copy of document titled “Employment Contract” (the Second Contract) was signed
by the parties on 11 April 2022. Among other matters, the Second Contract stated (noting there
is no paragraph 4):
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“Job Title and Description
3.The Employee agrees to be employed as casual support worker and the Employee
agrees to be employed on the terms and conditions set out in this Agreement. The
Employee agrees to be subject to the general supervision of, and act pursuant to, the
orders, advice and direction of the Employer.
5. The Employee will perform any and all duties that are reasonable and that are
customarily performed by a person holding a similar position In the Disability Services
sector and or Aged Care sector or other business of the Employer.
6. The Employer cannot unilaterally and significantly change the Employee's job title
or duties. The Employer may make changes to the job title or duties of the Employee
where the changes would be considered reasonable for a similar position In the industry
or business of the Employer. The Employee's job title or duties may be changed by
agreement and with the approval of both the Employee and the Employer.
7.The Employee agrees to devote all efforts, as an employee of the Employer, to the
employment duties and obligations as described in this Agreement. To this end the
employer may request the employee to assist with other clients and customers outside
of their usual hours and locations, during busy times or when other staff are absent on
leave or with illness. The Employer will ensure that the Employee is properly
remunerated for any mileage costs relating to travel at the ordinary rate set out under
the award as well as outgoing costs like road tolls and parking.
…”
[22] There was, possibly, a position description for the casual employment role, although it
was not included in any material filed by the parties. At the conclusion of the hearing, I
requested the parties provide a copy of it. Ms Sandercock, director for the respondent, wrote in
correspondence after the hearing that for “casual employees as it is usually attached to the last
page of the contract. Ms Mukherjee must have retained it as its not been returned with the
contract.” Ms Mukherjee’s copy of the contract did not have any separate “position description”
document as such and she referred to the “Job Title and Description” clause of the Second
Contract, above.
[23] Having ostensibly commenced work as a contractor, and then changed to an employee,
Ms Mukherjee’s arrangements were about to change again in March 2023.
[24] In March 2023, Ms Sandercock requested that Ms Mukherjee sign a fresh “Contractor
Services Agreement”, under which Ms Mukherjee was described as a contractor (not an
employee). There is some dispute about the circumstances leading to that request. Ms
Mukherjee says she had to sign the fresh agreement if she wanted to keep her job and was told
essentially that. Ms Mukherjee was not challenged on that evidence and I accept it. On 23 March
2023, Ms Mukherjee signed the new contract (the Third Contract).
[25] Consistent with Ms Mukherjee’s evidence, various “Slack” text messages between Ms
Sandercock and Ms Mukherjee sent shortly before the Third Contract was signed, where Ms
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Sandercock wrote that the “Sanden Home” part of her business would be closing and she “will
no longer be paying casual employees”. She then described another employee having resigned
and the business almost collapsed. She wrote “I just have to pare down to you and me and see
if we can survive this.”
[26] Ms Mukherjee also states that, having signed the Third Contract, she continued to do
the same work for Sanden Care, for the same clients. She says the only change was how she
was paid and that she now sent invoices.
[27] Ms Mukherjee’s evidence was not substantively challenged, although Ms Sandercock
did state in her oral evidence that there were different professional development requirements
for staff meetings, and other duties as required.
[28] Ms Sandercock says that the Third Contract had higher rates. She also stated that, before
signing it, she and Ms Mukherjee read through a position description for the role.
[29] The Third Contract is titled “Contractor Services Agreement”. It commences:
“This agreement outlines the discussion we have had with you about contracting
services as an Aged Care Support Worker with Sanden Care Options (the business).”
[30] In a table that then follows, it states that the “Type of Employment” is “Contractor”.
That table also contains details for Ms Mukherjee’s Australian Business Number (ABN), the
email address that invoices are to be sent to, and some necessary content of those invoices.
[31] A second table then follows, which is headed “Your Roles”. The first row after that
heading has three columns, which are:
Aged Care Support
Worker
A position description is
attached to this agreement
about the role and the
business expectations
Your payments will be based
on SCHADS award Lvl 1:
PayPoint 2
Reference to your work
experiences part-time for 12
months with no
qualifications
8am-8pm $29.83
8am-12pm $32.83
Saturday $41.84
Sunday $53.80
Phol. $65.75
[32] A heading of the Third Contract dealt with “Terms and Conditions”, although the only
terms or conditions referred to related to providing an ABN and various compliance documents,
a requirement to obtain insurance, maintenance of records and COVID-19 matters.
[33] Under a heading “Working with us”, brief provision was made for giving notice of 24
hours of illness or inability to work. That section recorded that the “relationship between the
parties is NOT an employee/employer relationship” and there were no employee benefits for
superannuation, annual leave, sick leave or parental leave.
[34] The Third Contract made provision for confidentiality and privacy, and more detailed
provision for insurance, which included insurances provided by Sanden Care for the benefit of
contractors. In relation to matters relating to “Privacy and Confidentiality”, the Third Contract
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provided that “Case notes and collection of client personal information will be an essential part
of the services provided and remain the property of the business.”
[35] There was no provision dealing with delegation.
[36] Other than the descriptions set out above, the Third Contract did not elaborate on the
duties and tasks of the putative contractor.
[37] The position description (Position Description) referred to in the Third Contract was in
evidence attached to Ms Sandercock’s evidence. It was a one-page document, signed by Ms
Mukherjee and Ms Sandercock. As preliminary matters, the Position Description:
• stated the “Role” was “Aged Care Support Worker”;
• stated that the position reports to the “Care Manager/ or Director”; and
• identified the “Target” of the Position Description as “Sanden Contractors and
Independent Contractors”.
[38] The “Position Objective” was stated as (original italics):
“You are responsible for the frontline delivery of quality, person centred support
services provided by Sanden Care Options to their My Aged Care (MAC) customers.”
[39] The next part of the Position Description was as follows (original emphasis):
“We expect the following from you every time you work
- Work directly in a person-centred manner with all customers;
- Uphold and promote individual dignity, independence, rights, choice and personal
responsibility;
- Support customers to develop and enhance their skills and broaden their community
networks as well as to enable socially integrated community/family / cultural access;
- Be an appropriate role model, including advocating for, and promoting a positive
self-image for elderly people;
- Maintain and progress activities in line with a focus on outcomes and attaining
desired goals;
- Daily commitment to documentation such as case notes, diary notes, and other
communication as required/requested by the care manager, especially to the teams
communication app, Slack,
- Communicate relevant information/feedback in a timely manner to the Care Manager
or Director, especially in relation to risks to the participant or workers;
- Maintain and promote a workplace free from discrimination, harassment and bullying
of any kind to both customers and contractors;
- Follow organisational grievance procedure in a timely manner to report any instances
of apparent discriminatory, harassing or bullying behaviour, and risk management
issues.”
[40] Under the heading “Key Responsibilities and Duties”, the following matters were listed:
“Key Responsibilities and Duties
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Not all of these tasks are expected of aged care support workers. The role includes tasks
identified by the customer and their family, the care team and other stakeholders, and
shared with workers in a their current support plan. You may be asked to complete all
or some of the following tasks:
- Provide mealtime assistance, preparing food, shopping and cooking with and for the
customer;
- Assisting with communication, accessing technology, enjoyable activities and
creative pursuits;
- Assisting with mobility, transportation, recreational activities, as well as community
access;
- Assisting with domestic/in-home care activities as well as light home duties and/or
garden maintenance;
- Attending to personal care and hygiene needs where the customer requires this
support;
- Develop & maintain competencies in professional emergency support such as First
Aid, including (CPR) and administration of medication (certificated only);
- Participate in relevant Sanden training to maintain and increase professional
competencies;
- Continued commitment to the principles of maintaining participant confidentiality as
well as the privacy policies of the business;
- Comply with all workplace occupational health and safety instructions and
requirements.
- Immediately report to the Director any instances of near misses, injuries, damage to
property, health or safety hazards, as well as risks to workers and participants;
- Commitment to complete incident reports under Sanden policy as and when required
and in a timely manner;
- Providing other support duties as required/and or directed from time to time, with
consideration given to your skills and experience.”
[41] The parties led some evidence about the actual performance of the work after the Third
Contract was signed. For the reasons stated in the case authorities above, that evidence would
ordinarily be irrelevant to the characterisation of the Third Contract. However, in the present
case, the applicant squarely alleges a “sham” contract for the purpose of s 358 of the Act and, I
infer, more generally for the purposes of characterisation (although the submissions of the
applicant perhaps did not appreciate there is a distinction).
[42] Section 358 of the Act appears within Division 6 of Part 3-1 of the Act. Division 6 is
titled “Sham arrangements”, although s 358 does not itself use that term. Section 358 provides:
“358 Dismissing to engage as independent contractor
An employer must not dismiss, or threaten to dismiss, an individual who:
(a) is an employee of the employer; and
(b) performs particular work for the employer;
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in order to engage the individual as an independent contractor to perform the same, or
substantially the same, work under a contract for services.”
[43] Whether there has been a contravention of s 358 is not a matter I had jurisdiction to
determine and, for avoidance of doubt, I do not do so. The issue of “sham” referred to in the
authorities is not determined by application of s 358, although no doubt there may be some
overlap in particular cases.
[44] The next events concern the circumstances surrounding the ending of the Third Contract
and Ms Mukherjee’s engagement with Sanden Care.
[45] Beginning in late September 2023, Ms Sandercock had passed on a pay increase to Ms
Mukherjee and told Ms Mukherjee, via the messaging platform “Slack”, she wanted to meet to
update the Third Contract.
[46] On Saturday, 7 October 2023, Ms Mukherjee was asked to go to Ms Sandercock’s home
(and, I infer, office). On that day in the morning, Ms Sandercock sent a copy of the proposed
new contract. The witnesses are in dispute about the meeting.
[47] According to Ms Sandercock’s statement:
“During this meeting [Ms Mukherjee] refused to sign the updated agreement, verbally
resigned, left the premises and I did not hear from her again. On or around 12.15pm I
called her phone, and she did not answer. I had no further conversation with [her] and I
believed she no longer wished to work with us.
I sent a text message to her that terminated her agreement with [Sanden Care] as I
believed her recent behaviour had breached our contractual arrangements.”
[48] Ms Mukherjee’s evidence was that when she arrived at the home, she asked Ms
Sandercock to let her take the proposed contract home to review it. She says Ms Sandercock
got angry, demanding that it be signed immediately and asked “do you want a job or not” before
being told to leave the house.
[49] In cross examination, Ms Sandercock gave varying further descriptions. The closest any
came to evincing an actual resignation was Ms Sandercock’s evidence about a dispute
concerning Ms Mukherjee requesting time to read the proposed contract. According to Ms
Sandercock:
“[Ms Mukherjee] said, 'Well, if I can't read it I'll quit then', and she left, and she didn't
contact me again.”
[50] Other versions that Ms Sandercock gave of that same exchange were “She yelled 'I
quit.' 'Will I quit then' she said”.
[51] The “text message” referred to was in evidence. It stated (original spelling and
grammar):
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“I'm sorry but due to your increasing hostility towards me and my business I have to let
you go . Your behaviour last week was deplorable and cost me a client .
You now
Come here not will ING to sign THE SAME document you signed 3 times already BUT
with a Pay rise ????? You don't know how good you have had it . Go find yourself
another employer who will put up with your behaviour.
Effective immediately .”
Consideration
[52] I find that, properly characterised, Ms Mukherjee’s contractual relationship under the
Third Contract was a contract of service by employment, not a contract for services by an
independent contracting arrangement.
[53] Based on the terms of that contract, including the Position Description, it is clear that
the “own business/employer’s business” dichotomy is a matter falling in favour of an
employment relationship. The “clients” referred to in the Third Contract are clearly clients of
Sanden Care, not the Aged Care Support Worker provider.
[54] As the contract stated, “Case notes and collection of client personal information will be
an essential part of the services provided and remain the property of the business.” There were
good reasons for such a clause – it is difficult to envisage how Sanden Care could provide
services to clients without strict measures about client information in order to conduct its
business. However, it is also tolerably clear that the business Ms Mukherjee was engaged in
was Sanden Care’s business, not her own and this is a factor that points to existence of an
employment relationship. There was no payment from the clients to Ms Mukherjee. Ms
Mukherjee’s only remuneration was from Sanden Care. There was no evidence of goodwill
being generated by Ms Mukherjee for her own business to suggest a different conclusion,
although the presence or absence of identifiable goodwill is not necessarily determinative.
[55] In terms of the question of “control”, the terms of the Third Contract provides relatively
little in the actual role beyond it being an “Aged Care Support Worker”. This is indicative that
the contractual terms reserve to the principal a broad reservation of rights to provide directions
as to how the role of “Aged Care Support Worker” was to be performed from time to time.
While the contract refers to a position description, it states that the position description is
“about” the role and the “business expectations”. The Position Description is arguably not even
incorporated as contractual terms to the Third Contract, although it perhaps establishes an
obligation on the putative contractor to comply with the “business expectations” stated in it.
[56] Even if the Position Description were incorporated, that document itself establishes a
broad reservation of contractual control to the principal. For example, it provides:
• Ms Mukherjee was “responsible for the frontline delivery” of services provided “by”
Sanden Care Options.
• It provided a list of what Sanden Care did “expect” “every time” Ms Mukherjee
worked.
• It provided an indicative list of “Responsibilities and Duties” but, importantly, those
responsibilities and duties generally “include[d] tasks identified by … the care
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team”. Here, the “care team” are from Sanden Care, noting that the Aged Care
Support Work reports to the “Care Manager/Director”.
[57] The contractual terms, and the Position Description, clearly contemplate that the
services provided by the putative contractor were to be provided by Ms Mukherjee personally.
Her pay structure was expressly linked to the Social, Community, Home Care and Disability
Services Industry Award, being an instrument applicable for employees, payable on an hourly
basis akin to a casual employee.
[58] The only significant clauses supporting the Third Contract being a contract for services
were for insurance, taxation, the absence of superannuation, annual leave, sick leave or parental
leave and the statement that Ms Mukherjee was not an employee.
[59] However, considering the “totality” of the arrangement as embodied by the contract
terms, I am readily satisfied that the true nature of the relationship between the parties was that
of employer and employee. It is unnecessary for me to deal with the allegation of “sham” in the
circumstances.
[60] The remaining issue for consideration is whether Ms Mukherjee resigned. Little needs
to be said on this issue. I am satisfied on the evidence that it is clear that Ms Mukherjee was
dismissed at the initiative of the employer. There was no resignation, forced or otherwise.
[61] The only evidence initially led by Sanden Care was that Ms Mukherjee “verbally
resigned”. No evidence was given about what was allegedly said, nor was Ms Mukherjee
challenged about her contrary evidence. Some further evidence, itself not consistent with other
versions also given, was given about saying “I quit” but only “if” she had no chance to look at
the contract. To the extent of differences between the witnesses, I prefer Ms Mukherjee’s
account.
[62] Moreover, the text message sent almost immediately after the meeting is simply
inconsistent with any statement being made that was objectively or subjectively understood by
Ms Sandercock as having just received a verbal resignation. The text message makes no
reference to a resignation at all but instead begins “I have to let you go”. All it referred to was
a refusal to sign a new contract – that is very different from having made a verbal resignation
of Ms Mukherjee’s existing contract. The text message also made reference to unsubstantiated
allegations from the week before but, regardless of their merits, none are supportive of a
resignation and they are better viewed as showing Ms Sandercock having lost her temper and
terminating the Third Contract on the spot.
[63] Nothing turns on Ms Mukherjee not having answered Ms Sandercock’s subsequent
telephone call. If Ms Sandercock wished to have retracted her termination to “let you go”, she
should have done so in writing. She did not do so and Ms Mukherjee was plainly justified to
believe that Ms Sandercock meant what she wrote, which was the termination was “effective
immediately”.
[64] For the above reasons, each of Sanden Care’s jurisdictional objections are dismissed.
[2024] FWC 588
13
[65] In accordance with s 368 of the Act, the Commission must now deal with the dispute by
way of a conference. The parties will be contacted in due course for the conduct of that
conference.
DEPUTY PRESIDENT
Appearances:
M. Starr for the Applicant
M. Sandercock from the Respondent
Hearing details:
2023.
Melbourne (by Microsoft Teams):
December 20.
Printed by authority of the Commonwealth Government Printer
PR772073
1 Coles Supply Chain Pty Ltd v Milford and Another (2020) 279 FCR 591.
2 (1940) 14 ALJ 162 at 163.
3 See also Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 571, "the terms of the engagement fixed the character of the
act"; Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 215, the requirements of the contract "by its terms".
4 TransAdelaide v Leddy (1997) 76 IR 341 at 348-349. Not doubted on appeal on this point: TransAdelaide v Leddy (1998) 71
SASR 413.
5 (1955) 94 CLR 419 at 422.
6 (1955) 94 CLR 419 at 428.
7 While the decision was overturned on appeal, his Honour’s statement of the principles described above was accepted as
correct: see JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76 at [9].
8 See also Personnel Contracting, [174] (Gordon J).
OF THE WORK C MMISSION THE SEAL
