1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Brendan Morrissey
v
Peninsula Community Physiotherapy Pty Ltd
(U2024/6636)
COMMISSIONER TRAN MELBOURNE, 20 DECEMBER 2024
Application for an unfair dismissal remedy - Applicant not an employee - Application
dismissed
[1] Mr Brendan Morrissey (the applicant) applied to the Fair Work Commission for an
unfair dismissal remedy under s 394 of the Fair Work Act 2009 in relation to the termination
of his employment with Peninsula Community Physiotherapy Pty Ltd (the respondent) on
Saturday 25 May 2024.
[2] The application made on Tuesday 11 June 2024 was within the statutory time period
under s 394(2).
[3] Peninsula objected to the application on the grounds that Mr Morrissey was not an
employee. Peninsula is a physiotherapy practice, which was initially a sole practice of Ms
Chantelle Morrissey, Mr Morrissey’s wife. In March 2021, the practice incorporated. Ms
Morrissey says that Mr Morrissey was a shareholder of Peninsula via family trust.
[4] Around May 2024, Ms Morrissey obtained a Family Violence Interim Intervention
Order against Mr Morrissey. This order was varied on 4 June 2024. I was provided with a
copy of the varied order only. At the time of the determinative conference, the Interim
Intervention Order had not yet had its final hearing date, due to adjournments. I took the
conditions of the Interim Intervention Order into account in relation to my conduct of the
matter.
[5] I conducted a determinative conference on 16 October 2024 via Microsoft Teams.
[6] After hearing from and considering the evidence of the parties, I have formed the view
that Mr Morrissey was not an employee of the respondent. So, his claim for an unfair
dismissal remedy cannot proceed as he cannot be person who was dismissed for the purpose
of s 385(a) and 386(1) of the Act. My reasons follow.
Background
[2024] FWC 3556
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3556
2
[7] Mr Morrissey says that he is not certain when he started employment with the
respondent.
[8] He says that he worked occasionally in the practice prior to January 2023. In March
2021, Ms Morrissey’s sole physiotherapy practice incorporated as the respondent, Peninsula
Community Physiotherapy. At the time, Mr Morrissey had full-time employment at MLC Life
Insurance, as well as conducting a first aid and sports training business. He says that he
undertook unpaid duties for the respondent that included accounting, human resources tasks
and administration. Mr Morrissey says that in early 2022, he took on support worker duties.
He says that this role was eventually designated as Allied Health Assistant towards the end of
2022.
[9] Ms Morrissey says that Mr Morrissey had been conducting a first aid business that he
billed himself. After the respondent incorporated, Mr Morrissey’s first aid business was taken
on as part of the respondent’s business. Ms Morrissey says the work for Mr Morrissey’s first
aid business was intermittent because Mr Morrissey had other full-time work, but the hours
increased after he stopped working with MLC.
[10] After January 2023, Mr Morrissey says he was employed on a permanent full-time
basis, however he never worked full-time hours. At the end of 2022 and beginning of 2023,
Mr Morrissey’s employment with MLC was ending due to redundancy. Around the same
time, an employee of the respondent, Mr Damien Barnett (who held the role of Allied Health
Assistant) was completing his qualifications and work-placements to take on the role of
Occupational Therapist.
[11] The parties gave evidence that around this time, there were discussions about the
business and Mr Morrissey’s role with the respondent. There was no clear evidence that they
discussed employment. Ms Morrissey agreed with Mr Morrissey that he would take on Mr
Barnett’s Allied Health Assistant duties as he transitioned out of his employment with MLC
and Mr Barnett gained his qualifications as an Occupational Therapist.
[12] In March 2023, Mr Morrissey’s employment with MLC ended. Both Mr Morrissey
and Ms Morrissey agreed that Mr Morrissey’s hours increased from around this time but that
they never increased to full-time hours.
[13] In relation to leave, Mr Morrissey gave evidence of time off that he took which he said
he requested for various reasons, including to look after his mental health.
[14] In contrast, Ms Morrissey said that Mr Morrissey had control of his own hours of
work, including how he spent his time as between the business and their family life and when
he took leave. In relation to attendance at work, Mr Morrissey was never required to
participate in staff meetings although he occasionally joined them.
[15] Ms Morrissey provided evidence of Mr Morrissey’s billings on behalf of the
respondent from January 2023 until his employment ended in May 2024. The billings varied
significantly throughout this period, although they were never zero.
[2024] FWC 3556
3
[16] Ms Morrissey also provided records of payments made to Mr Morrissey. The
payments were generally fortnightly payments.
• From 6 February 2023 until 10 July 2023, the fortnightly payments were $881.85,
with some higher payments (on 6 March and 3 April). All payments were referred to
as ‘Payroll PCP.’
• From 24 July 2023 until 27 November 2023, most payments were approximately
$2,000, and most were referred to as ‘loan’, rather than Payroll PCP (payments made
on 24 July, 30 October and 27 November).
• From 11 December 2024 until 13 May 2024, all payments were for $1,627.08 and
referred to as ‘Payroll PCP.’
• On 27 May 2024, there were 3 payments, referred to as Final Pay ($5,653.83),
Reimbursement ($186.96) and Payroll PCP ($2,654,15) were made.
[17] Mr Morrissey agreed that his billings did not correlate to his payments but that he did
not pay significant attention to his payments.
[18] Ms Morrissey gave evidence that she had little ability to direct or discipline Mr
Morrissey if he did not perform tasks, such as completing clinical notes within a required
period of time.
Was Mr Morrissey an employee of Peninsula Community Physiotherapy?
[19] Section 382 of the Act provides that a person who is protected from unfair dismissal
must be an employee. In determining whether a person is an employee of another person, two
recent decisions of the High Court of Australia are relevant: CFMMEU v Personnel
Contracting Pty Ltd1 and ZG Operations v Jamsek.2
[20] I note that the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024
inserted s 15AA to the Act, which provides the ordinary meaning of employee and employer
is to be determined by ascertaining the real substance, practical reality and true nature of the
relationship and was inserted as a response to the High Court decisions in Personnel
Contracting and Jamsek. However, this provision does not apply to this matter as it was
commenced before 26 August 2024.3 I must determine the question of whether Peninsula
Community Physiotherapy employed Mr Morrissey by considering the parties’ legal rights
and obligations, rather than the history of the relationship and the manner of its performance,
in accordance with the common law predating the insertion of s 15AA.
[21] There was no written agreement between Mr Morrissey and Peninsula Community
Physiotherapy that “comprehensively committed the terms of their relationship.”4 So I must
consider the legal rights and obligations, although there is greater scope for considering
conduct during the contract to identify terms agreed between the parties.5
[2024] FWC 3556
4
[22] The decision of the Full Federal Court in EFEX Group Pty Ltd v Bennett6 provides the
principles for ascertaining whether there is an employment relationship when there is no
written agreement. The Court reiterated that the fundamental task is to ascertain the parties’
contractual rights and obligations, but that ascertaining the contractual terms may be inferred
from the circumstances, including in whole or in part from the parties’ conduct, course of
dealing or implied where necessary for business efficacy.
[23] There was no employment contract. Ms Morrissey gave evidence that Mr Morrissey
was responsible for preparing contractual documents for employees of the respondent, and
never prepared one for himself. Mr Morrissey’s evidence concurs with this, in that he says he
held various roles in the business, including HR and contracts.
[24] This matter is further complicated by the fact that the purported employee (Mr
Morrissey) and the owner/director of the purported employer (Ms Morrissey) are in a marital
relationship that has ended. The parties agree that Mr Morrissey had a shareholding in the
respondent by way of a trust. But the parties did not provide me with any documentation
about the shareholding, family trust or any documents relating to the business.
[25] My decision is based predominantly on the oral evidence of the parties with limited
documentary evidence. The parties’ evidence is coloured by their views about the ending of
the professional and personal relationships. Further, the ending of the personal relationship is
acrimonious and difficult. Both parties accused the other of control and lack of trust. Ms
Morrissey has obtained an Interim Intervention Order against Mr Morrissey.
[26] Ms Morrissey gave her evidence clearly and without attempting to provide the
conclusion in her evidence. She also gave evidence that could have been against her interests.
Mr Morrissey gave evidence directed towards the conclusion that he was an employee.
[27] A person can be an employee and a director, shareholder or partner in a business. Both
parties acknowledged that Mr Morrissey was a shareholder of the respondent; the question is
whether he was also an employee. Two key considerations for whether the relationship is one
of employment are (1) the extent to which the purported employer has the right to control
how, when and where the employee performs work and (2) the extent to which the purported
employee can be seen to be working in their own business as distinct from the employer’s
business. Contractual terms relating to remuneration, obligation to work, hours or work, tools
and equipment for work, provision for holidays and direction and control are all relevant.7
[28] I find that there was very little right of control that the respondent exercised in relation
to Mr Morrissey’s performance of work. In relation to hours of work, any agreement reached
when forming the contract related to how Mr Morrissey would become increasingly involved
as his employment with MLC ended. In terms of performance, Mr Morrissey appeared to
dictate his hours of work. Mr Morrissey made submissions about how this was reflective of
flexible work arrangements. However, there was no evidence that Mr Morrissey had sought or
agreed any flexible work arrangements with Ms Morrissey. He had control over his hours of
work, and how he balanced this with his family life was also within his control.
[29] In terms of remuneration, this did not correlate to Mr Morrissey’s performance of
work. Payments were consistent with Ms Morrissey’s evidence of discussions with the
[2024] FWC 3556
5
business’ accountant about how payments from the business would be distributed to each of
them. There was no evidence of payment for leave (whether sick, carer’s or annual) when it
was taken, excepting for final payments. There was also no evidence of any employer
withholding of tax, but that may have been because payments were designed so that tax was
minimal.
[30] I accept Ms Morrissey’s evidence that final payments and the letter of termination
were provided for reasons relating to the end of the marital relationship, rather than to
formalise the end of an employment relationship. In any event, this evidence goes more to the
performance of the contract, rather than assisting to infer what may have been the terms of the
contract.
[31] The second key consideration is whether Mr Morrissey was working in his own
business or working in the business of the purported employer. However, this consideration is
challenging in this circumstance because the business of the purported employer is, on Mr
Morrisey’s own evidence, also his own business. The extent of the evidence that I have about
contract formation (rather than performance) relates to decisions around how profit from the
business would be distributed to each of Mr Morrissey and Ms Morrissey. Similar to EFEX, I
find that this feature was an essential reflection of the contractual relationship and a key
design feature of that relationship, which points distinctly away from employment.
[32] I find that Mr Morrissey was not an employee of the respondent. The respondent did
not have direction or control over the performance of his work; Mr Morrissey’s participation
in the respondent related to his assistance with the conduct of a business of which he was a
part owner. Payments made to him are consistent with this and not with employment.
[33] As I have found that Mr Morrissey was not an employee of the respondent, it follows
that his application must be dismissed.
Order
[34] For the above reasons, I order that the application for an unfair dismissal remedy
under matter number U2024/6636 filed by Mr Brendan Morrissey on 11 June 2024 be
dismissed.
COMMISSIONER
Appearances:
MISSION THE SEAL OF THE WORK COM! OF THE FAIR WORK
[2024] FWC 3556
6
Mr Brendan Morrissey for himself
Ms Chantelle Morrissey for Respondent
Hearing details:
Wednesday
16 October 2024
Via Microsoft Teams
Printed by authority of the Commonwealth Government Printer
PR782711
1 CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1
2 ZG Operations v Jamsek [2022] HCA 2
3 See Schedule 1, s 119 to the Act, which provides that the old Act applies to proceedings that are on foot as at the
commencement of the amended Act.
4 Personnel Contracting at [59]
5 Secretary, Attorney General’s Department v. O’Dwyer at [2022] FCA 1183 at [31], as referred to in Meltser v Toppa Sports
Pty Ltd [2024] FWCFB 229 at [19]-[20]; see also Muller v Timbecon Pty Ltd [2023] FWCFB 42 at [40]
6 EFEX Group Pty Ltd v Bennett [2024] FCAFC 35 at [7]-[10]; see also summary of principles in Kia v Nickan Pty Ltd
[2024] FWC 512 at [57].
7 See Mav Yan Massage Wynnum West Pty Ltd [2024] FWCFB 419 at [26]
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb229.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb42.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc512.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb419.pdf
