1
Fair Work Act 2009
s.365—General protections
Christina Sawyer
v
Wards Accounting Group Pty Ltd
(C2024/5957)
DEPUTY PRESIDENT CROSS SYDNEY, 14 FEBRUARY 2025
Application to deal with contraventions involving dismissal – jurisdictional objections –
whether the Applicant was an employee – whether the Applicant was dismissed at the
Respondents initiative – application dismissed.
[1] On 21 August 2024, Mrs Christina Sawyer (the Applicant) lodged an application (the
Application) in the Fair Work Commission (the Commission) pursuant to s.365 of the Fair
Work Act 2009 (Cth) (the Act), against Wards Accounting Group Pty Ltd (the Respondent).
[2] The Applicant commenced employment with the Respondent on or about 24 November
2008. The Applicant claimed to have been dismissed by the Respondent by way of a forced
resignation on 31 July 2024.
[3] The Respondent raised jurisdictional objections to the Application, being that the
Applicant was not dismissed within the meaning of s.386 of the Act because:
(a) The Applicant was not an employee; and
(b) The Applicant was not dismissed at the Respondent’s initiative.
[4] On 1 October 2024, directions were issued to program the manner in which the
Application was to proceed to hearing (the Directions). In response to the Directions each party
filed materials, and the materials relied upon by the parties at the Hearing were:
(a) For the Applicant, a statement of the Applicant dated 16 October 2024, a statement of the
Applicant in reply dated 28 October 2024;
(b) For the Respondent, a statement of Mr Damian Ward (Mr Ward). A former Director of
the Respondent, a shareholder of the Respondent, and a professional accountant;
(c) Both parties tendered various documents into evidence; and
[2025] FWC 450
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 450
2
(d) The Respondent filed a further written submission on 9 December 2024, to which the
Applicant filed a written reply on 31 January 2025.
Background Facts
[5] There were no significant issues between the parties as to the relevant facts in the matter.
The issues between the parties arise principally from the conclusions that may be drawn from
those facts.
(a) The Engagement or Employment of the Applicant
[6] The Applicant commenced working for the Respondent on or about 24 November 2008.
[7] The Applicant was appointed as a Director of the Respondent on 1 July 2010. The
Applicant’s evidence regarding that time was:1
Now, in July of 2010 you were offered a partnership within the company; is that correct?
--- That’s correct.
And you were offered equal terms with Mr Ward? --- Yes. That’s correct.
An evaluation was undertaken of the company prior to that? --- Yes.
And the sum of $600,000 was determined as an amount that you would pay to become a
partner in the company? --- That’s correct.
Now, you had to borrow that money? --- Yes.
And that money was borrowed from the company? --- From a bank. Yes.
Yes. There was a discussion at the time of vendor finance; is that correct? --- Yes, but
through the bank.
Through the bank; I’m sorry? --- The money came through the bank. Yes.
So the company borrowed the money? --- Through the bank. Yes.
And advanced it to you? --- Yes.
And then you used that advance to purchase the shares? --- Yes. That’s correct.
And at the time you were given a 50 per cent shareholding in the company; is that correct?
--- Yes.
And you were appointed as a director of the company? --- Yes. Correct.
And is it from that time that your name started to appear on the company’s letterhead as
a partner in the business? --- Yes.
[2025] FWC 450
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And it remains there on that letterhead as a partner through until August of this year; is
that correct? --- I’m assuming so. Yes.
[8] On 25 October 2010, Mr Ward signed a letter on the Respondent’s letterhead, describing
him as Managing Director, that stated as follows (referring to the Applicant by her maiden name
of Mavroidis) (the 25 October 2010 Letter):
“This letter is to confirm that Christina Julie Mavroidis as an employee of Wards
Accounting Group Pty Ltd receives a Gross Annual Salary of $150,000 as of the 1st July
2010. This figure is inclusive of Salary Sacrifice of $50,000 per annum for the repayment
of a Westpac Business Loan”.
[9] Mr Ward accepted he signed the 25 October 2010 Letter but stated that the Applicant
prepared the letter and asked Mr Ward to sign it so she could use it in a rental application to
prove her level of income.
[10] Throughout her time with the Respondent, the Applicant’s shareholding varied. A
previous shareholder, Ms Gemma Hill, had acquired a 20% shareholding in mid-2016, but had
subsequently left. Then Mr Ross Cassone and Mr Vivek Tiwari each acquired 20%
shareholdings in the Respondent.2 Mr Tiwari paid $1.2 million for his 20% share.
[11] In December of 2022, the Applicant was in the middle of divorce proceedings. She asked
Mr Ward to hold her shares in the Respondent in trust for her temporarily. Thereafter, Mr Ward
became the 80% shareholder in the Respondent, and then in 2024 he transferred the 40% share
back to the Applicant.
[12] At the time of making her first statement, the Applicant stated that she was a 20%
shareholder in the Respondent, holding 24 of 120 ORD shares issued. Previously she had held
40% or 48 ORD shares however she sold 20% of her shares in the company. The other
shareholders at that time were Mr Ward who held 40% of shares, Mr Cassone who held 20%,
and Mr Tiwari who held 20%. The Applicant still held her shareholding as at the first day of
the hearing of the matter, stating:3
And you still hold that shareholding today, don’t you? --- Correct.
So you’re still a partner in the business as of today; is that correct? --- Yes.
[13] Mr Ward accepted that partners in the Respondent are not partners according to a legal
definition because the firm is incorporated. However, he stated that it is still convention to refer
to the owner/operators of an accounting firm as partners so that is what the Respondent has
done. He stated the role of partner is a strong indication to clients and employees of
independence and ownership that distinguishes a partner from an employee. However, at no
time did the firm have fixed-draw partners or partners that are subject to an employment
agreement. Before 2018, all the agreements that existed with other partners of the firm were
[2025] FWC 450
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oral, but at the request of one of the partners it was decided that a governing document between
the partners would be created.
[14] In mid-2018, a Securityholders’ Deed was drafted, circulated between the Respondent
and shareholders of the Respondent (who at the time were the Applicant, Mr Ward, Ms Hill and
Mr Cassone through a family trust) (the Deed)). The copy of the Deed in evidence was signed
and dated 3 May 2018, by the Applicant, Mr Ward and Mr Cassone, but not signed by Ms Hill
or on behalf of the Respondent. The Deed, however, was dated 9 July 2018.
[15] There was an email sent from a lawyer (Mr Kettle) to Ms Hill on 22 November 2018,
that indicated Ms Hill was at that time still considering changes to the Deed.
[16] The parties to the Deed other than the Respondent were defined as “Initial
Securityholders” and the business was defined as “Accountancy and related professional
services”. Relevant clauses of the Deed are:
2. Board of directors
Appointment and removal of Directors
2.1 Each Key Securityholder will be entitled to appoint one Director to the Board and
may remove/replace that Director at any time.
2.2 If a Key Securityholder that has appointed a Director under clause 2.1 ceases to be a
Key Securityholder, that Key Securityholder must procure that such Director resigns from
the Board as soon as possible after such cessation, unless all of the other Key
Securityholders consent in writing to that Director remaining on the Board.
…
Remuneration and reimbursement of Directors
2.5 No Director will be entitled to receive any remuneration for his services as a Director,
except where such remuneration is approved by the Key Securityholders in accordance
with clause 4. Each Director will, however, be entitled to be reimbursed by the Company
for reasonable out of-pocket expenses incurred in carrying out authorised business of the
Company that was approved in advance by the Board.
…
Counterparts
19.10 This deed may be executed in any number of counterparts, each of which is an
original and which together will have the same effect as if each party had signed the
same document.
…
Schedule 2 – Reserved Matters
[2025] FWC 450
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…
Part 2 - Reserved matters - unanimous approval
1. (Encumbrance) Create an Encumbrance over any of the Company’s assets or
undertaking (other than lien arising in the ordinary course of business or any
charge arising by the operation or purported operation of title retention clauses in
the ordinary course of the Business).
2. (Financial Indebtedness) Incur any new Financial Indebtedness in one
transaction, or a series of connected transactions, having an aggregate value
greater than $ 10,000.00.
3. (Lending) Lend money to any person in one transaction, or a series of connected
transactions, having an aggregate value greater than $10,000.00 ( other than trade
credit that is given in the ordinary course of the Business and which does not involve
any deferred payment of any amount for more than 60 days).
4. (Guarantees and indemnities) Grant an indemnity or give a guarantee except in
the ordinary course of the Business.
5. (Winding up) Make an application for voluntary liquidation or winding up of the
Company.
6. (Board committees and delegation) Form or dissolve any committee of the Board
or delegate (including by way of power of attorney) any power of the Board.
7. (Hiring of employees and consultants) Hiring, or terminating the employment or
engagement of, any employee of, or consultant to, the Company whose remuneration
(by way of the payment of wages, salary or fees, the provision of benefits-in-kind or
otherwise) exceeds $60,000.00 per annum (including superannuation, as
applicable).
8. (Remuneration of employees and consultants) Agree to remunerate (by way of
the payment of wages, salary or fees, the provision of benefits-in-kind or otherwise)
any employee of, or consultant to, the Company at a rate in excess of $60,000.00
per annum (including superannuation, as applicable) or increasing such
remuneration of any such person to a rate that exceeds that amount.
9. (Remuneration of Directors) Determine the remuneration of any Director.
10. (Non-arm’s length transaction) Enter into an arrangement, or incur a liability,
that is not on arm’s length terms.
11. (Bank accounts) Change the security controls for the operation of the
Company’s bank or other investment accounts.
[2025] FWC 450
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[17] On 30 April 2020, Leane Inglis of the Respondent sent an email to Ms Hill that included
the following paragraph:
During your period of parental leave, all employees and partners were issued with an
updated Employment Agreement. We are currently in the process of finalising an updated
Employment Agreement for you and will get that to you for your review and signing as
soon as possible.
[18] No such updated Employment Agreements were produced. Mr Ward did not recollect
any such agreements being issued and noted that Ms Inglis had only just commenced
employment at that time.4
[19] In September 2023, Mr Ward prepared a proposal regarding partners’ remuneration and
benefits, and provided that proposal to the Applicant and Mr Cassone. It is unclear whether that
proposal was implemented. It provided, in part, as follows:
Proposal for Directors/Shareholders Remuneration
Directors with plus 10 years services to Wards Accounting Group
1) Salary $230,000.00
2) Plus standard superannuation on salary
3) Split of salary allowable
a. One payment made to the company loan (if one exists) OR
b. Payment to partner, spouse or sibling
Directors with less than 10 years service to Wards Accounting Group
1) Salary $200,000.00
2) Plus standard superannuation on salary
3) Split of salary allowable
a. One payment to the company loan (if one exists) OR
b. Payment to partner, spouse or sibling
Directors’ additional benefits to be applied EQUALLY (per annum):
1) Taxable Car allowance $25,000.00 per director/shareholder paid in conjunction with
the fortnightly salary
2) Mobile phone – paid directly by company for the director’s phone only
3) Home Internet (this can be paid as a reimbursement or direct by the company)
4) Cleaning expenses – paid directly by the company CAPPED at $xyz (if not used it will
NOT be paid as an additional reimbursement)
5) Technology requirements (laptop, IPAD, upgrade to personal phone) – available upon
request and specific needs
[2025] FWC 450
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6) After hours meals and entertainment – paid by the company HOWEVER CAPPED at
$7,800.00 (directors’ discretion will need to be applied here – however we can at any
time do an audit on the credit card)
7) Directors will accumulate 6 weeks annual leave each financial year.
8) If required Directors will be allowed one airfare to India each year to inspect the
Wards Office
9) Directors will have all necessary CPD paid for along with CPA or CA memberships
paid.
(b) The Payment of the Applicant
[20] Both the Applicant and the Respondent relied on a plethora of, at times nonsensical, pay
records to either prove or disprove that the Applicant was an employee. On the material before
the Commission, it could not be said with any certainty, and at any particular time, what the
earnings of the Applicant were and of what they were made up.
[21] In summary, on the available evidence, it is established:
(a) The Applicant received PAYG payment summaries - individual non-business
for the years ending 30 June 2009, 30 June 2011, 30 June 2016, and 30 June 2018;
(b) In 2022, the Applicant was described in a payslip as having a salary of
$100,000.00;
(c) Payslips refer to “employment details”;
(d) In a 14 July 2021 “Payroll Employee Summary”, and a 23 September 2020
“Payroll Activity Details”, the Applicant and other shareholders in the Respondent are
listed, with gross earnings, tax and superannuation;
(e) The Applicant was entitled to dividends;5
(f) The Applicant salary sacrificed, including a $10,000 per annum payment to her
son; and
(g) While the shareholders/directors of the Respondent had in more recent times
listed accrued entitlements to annual leave and long service leave, that was to create an
entitlement to tax benefits on retirement where none existed.6
(c) The Alleged Dismissal of the Applicant
[22] Subject to additional matters raised in oral evidence, the circumstances outlined by the
Applicant in her statement regarding dismissal can be relied upon because in Mr Ward’s
statement he consciously avoided dealing with the issue, stating:7
[2025] FWC 450
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The scope of this statement is intended to deal with the allegation that the Applicant was
an employee of the Respondent and so it does not go into the circumstances in which the
Applicant quit her role as partner and abandoned the firm.
[23] In early 2024 the Australian Taxation Office (the ATO) conducted an audit of the client
files of Mr Ward and the Respondent, which concluded in about April. In June 2024, the Tax
Practitioners Board (the TPB) launched another investigation into the Respondent and Mr Ward
for suspected breaches of the Code of Professional Conduct (the Code of Conduct) in the Tax
Agent Services Act 2009 (Cth) (TASA). There was a real prospect that the TPB would terminate
the registration of the Respondent and Mr Ward. The Applicant stated that she counselled and
cautioned Mr Ward numerous times as a colleague, former director and shareholder.
[24] On Wednesday 10 April 2024, the Applicant had a phone conversation with Mr Ward
regarding the sale of shares in the Respondent and potential draft partnership or shareholders
agreement, which was not signed by all of the directors or finalised.
[25] On about Friday, 12 April 2024, at about 8:22am, the Applicant received a text message
from Mr Ward regarding his directorship and shareholding seeking a meeting that occurred that
day, and where the Applicant and Mr Ward discussed his directorship and shareholding,
including whether he would resign as director and sell his shares. After that meeting Mr Ward
was away until about the end of May 2024.
[26] On about Friday, 31 May 2024 at about 8am, the Applicant attended a breakfast meeting
with Mr Ward regarding the potential purchase of shares in the business by an entity called
Hayes Knight. That meeting was also in regard to whether Mr Tiwari would agree to a sale of
his shares, particularly where a shareholders agreement was not signed by all of the directors
or finalised.
[27] On or around mid-June 2024, Mr Ward and the Applicant had a conversation about
another company called Count, an accounting and wealth services provider, looking to purchase
a percentage of the shares.
[28] On about 26 June 2024, the Applicant had a meeting with a Count representative, and
other attendees including Mr Ward and Mr Cassone. At the meeting an arrangement was
discussed where Count would buy 20% of shares from Mr Ward, 10% from the Applicant, and
10% from Mr Cassone. The meeting concluded with the next step being that the representative
from Count would have a meeting with his business partners to discuss the sale of percentage
of the shares.
[29] On 31 July 2024, Mr Ward asked the Applicant to meet him in the Respondent’s
boardroom to further discuss the sale of shares of the Respondent. When the Applicant arrived,
Mr Cassone was also present. The following conversation occurred.
Mr Ward: “I have had a meeting with Count and we need to make a decision on the sale
of the shares. Count have advised that they only want to buy my 40% shares.”
[2025] FWC 450
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Ms Sawyer: “I thought the agreement was that they were buying 20% your shares, 10%
of mine and 10% of Ross’. Why has it now changed?”
Mr Ward: “In light of the TPB termination they said it was best to buy only my shares
out. They are happy to take over and provide funding for a new business. You will set up
a new company with Count and all the clients will be transferred to this new company.”
Ms Sawyer: “Apart from the purchase of shares, I haven’t been provided any details
regarding the proposal of a new company. When do you propose I meet with Count?”
Mr Ward: “They don’t want to talk to you. They just want to do all the dealings through
me. Don’t worry, I’ve managed to work out a really good deal for all of us.”
Ms Sawyer: “I find it highly unlikely that they want to set up a new company with me but
don’t want to talk to me. Either way, I need to talk to them before I agree to anything. I
need to know what they intend to do with the business as well as your involvement,
particularly due to the TPB investigation? Also what are they going to do with the staff?”
Mr Ward: “That’s not your concern and I can’t be too worried about the staff. I have to
look after myself.
Ms Sawyer: “Are you okay with this Ross? Are you not concerned about this new
arrangement as well as the staff losing their jobs? What about your P.A Mags? Are you
not worried that she could lose her job?
Mr Cassone: “Damien’s looking after it all.”
Ms Sawyer: “Well that’s not good enough for me. I need specifics and I need something
in writing on what they plan to do. And what about Saurabh? The only reason he went
back on his resignation in January is because we offered him a partnership. Shouldn’t he
be involved in all this?
Mr Ward: “We can’t keep worrying about everyone else. They’ve offered me good money
to buy my shares and a salary of $300k to manage the work of the new company. It’s a
good deal for me and I have to protect myself.”
Ms Sawyer: “You can’t keep working as a tax agent. The TPB will find out, and I am not
willing to work with you if the TPB determines you cannot be involved in tax services, or
get in trouble, or put my career or reputation on the line.”
Mr Ward: “No, they’ll never find out.”
Mr Cassone: “I agree with Damien, they won’t find out.”
Ms Sawyer: “I’m not comfortable with that at all. All it will take is one unhappy client to
dob you in and you will be under investigation again. I will not be a part of that
arrangement.”
[2025] FWC 450
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Mr Ward: “No that will never happen.”
Ms Sawyer: “Well, I don’t agree and I cannot take that risk, particularly where it might
impact my professional reputation.”
[30] The Applicant claimed that after she continued to refuse to be involved in such an
arrangement, Mr Ward changed the subject of the meeting and started asking her questions
about possible financial irregularities, which had been raised previously with her between April
and July 2024.8 In one email dated 18 June 2024, Mr Ward advised the Applicant (in part):
I have always trusted in you, and I will continue to do so. I hope you share the same
feelings.
Fairness is paramount, open discussions are vital, and communication of information is
necessary, we have had this relationship since 2006. There is no reason why things should
change.
In writing – the reason I reviewed the bank accounts (and I have never felt the need to
ever question what has occurred inside Wards Accounting) resulted from with the recent
“cashflow” reports that you have been sending and the recent cry’s you have been
making for the cutting of expenses, well this simply lead me into, viewing one credit card
transaction and the lead to the next etc…..it was always my intention to question the
expenses (as I do have a right to do this), it was never my intention to accuse. If you
believe that my intention was to accuse you – please, try hard to remove this thought
process from your thinking.
Yes, I saw expenses leaving the account that looked abnormal, however I have not seen
the corresponding dividends payments and the reconciliation spreadsheets you have kept
to accounted for your reduced dividend payment you have made to yourself. If you have
prepared these documents, then please share than with me.
[31] The meeting of 31 July 2024 then continued as follows:
Mr Ward: “Okay then, but you know I’ve been looking at these financials to give to Count
and there are some discrepancies.”
Ms Sawyer: “What discrepancies?”
Mr Ward: “You’re only declaring your wages at $80K and you and I are on the
same wage of around $180K”
Ms Sawyer: “What are you talking about? I’ve declared the same amount as you.” “Ross,
where are the Payment Summary Reports that show what we have declared?”
Mr Cassone: “I didn’t print those off.”
Ms Sawyer: “Well go and print them out now.”
[2025] FWC 450
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Mr Ward: “No we don’t need to print them out. We believe you, but what about the phone
bills for your kids that are getting paid?”
Ms Sawyer: “No Damien, that’s your kids phone bills and Ross’s wife’s phone that’s
getting paid. My kids are grown and pay their own phone bills.”
Mr Ward: “Ok don’t worry about that then, but the figures on these 2024 financials aren’t
adding up.”
Ms Sawyer: “Which figures in the financials are you talking about?”
Mr Ward: “I can’t recall but there was some money that came out of the bank account 3
or 4 years ago.”
Ms Sawyer: “What amounts? Where is the paperwork so I can see what you’re talking
about? These documents are for 2024?”
Mr Ward: “I haven’t got them, it’s just something I saw. You should know what it’s for.”
Ms Sawyer: “How am I supposed to answer that if you can’t tell me when or how much
and don’t even have the right year for me to look at?”
Mr Ward: “You just need to tell us what it’s for?”
Ms Sawyer: “This is absolute bulls**t. I don’t want anything to do with any of this. Throw
whatever you want at me but I am NOT going to agree to what you want. I don’t want to
know and I won’t be involved.”
[32] The Applicant stated she then got off her chair and headed towards the boardroom door,
but Mr Ward also got up and stood in front of the door, with his arms folded in an aggressive
manner, and stated:
Mr Ward: “You’re not going anywhere. We need to sort this out. We’ve had a vote and
you’ve been outvoted. There is no other option. You need to agree to this.”
Ms Sawyer: “You can outvote me as much as you like, but you can’t force me to do
something I have clearly said no to. Now move out of my way.”
Mr Ward: “Sit back down. We need to sort this out.”
[33] The Applicant then said:
Ms Sawyer: “Damien, you need to move. I am done with your accusations. I’m leaving
and I won’t be back, especially after your behaviour today.”
[34] The Applicant stated she was extremely distressed and feared for her safety, particularly
as Mr Ward was refusing to move from the door, and she was left with no option but to push
past him to get out of the Boardroom. Mr Ward denied blocking the door.9
[2025] FWC 450
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[35] At paragraph [1] of her statement, the Applicant provides a summary of her
circumstance, stating:
“On 31 July 2024, after being an employee of the Respondent for approximately 16 years,
I was forced to resign after refusing to participate in a scheme to avoid any “potential
fallout from an adverse TPB finding” against the Respondent and its director, Damien
Ward.”
[36] In cross-examination, the Applicant’s evidence was as follows:
I will put the question to you this way. There is no statement made by Mr Ward in that
conversation where he was pressing you to resign? --- I feel their whole - that whole
conversation and the whole comments that I’ve written here led to that. That wasn’t the
intention on the day for me to resign, but I believe what occurred on that day, and by
blocking me into that room and refusing me to leave, was enough for me to make that call
at the time.
You made the call voluntarily? --- Yes, based on what - how I was treated, yes.
Mr Ward was asking you to participate in the making of a decision? --- Mr Ward was
standing at the door and blocking my exit and refusing to let me leave, and that is what
triggered my resignation, or the outburst that I’m leaving.
Yes. Now, if you could turn your mind to my question. He was asking you to participate
in making a decision, wasn’t he? --- Yes.
[37] In re-examination, when asked “What was it that triggered you to say that you were
resigning?”, the Applicant responded:10
The biggest trigger on the day for me was that once again - once again the plan or the
scheme was changed to benefit Damien and only Damien, and I did not want any part of
it at all, and I had said that to him on so many times that I did not want to be a part of it.
And I was happy for Count, I was happy for Hayes Knight to buy 100 per cent. That was
the original plan. I was happy for Count to buy my 10 per cent. That was the second
plan. But then the final plan was that he was basically dropping a bombshell looking
after himself and walking out and leaving the shit for me to deal with. Excuse my
language.
[38] While the above meeting occurred between 1.00 and 1.30pm, the Applicant remained
in the Respondent’s office until about 5.00pm, and then possibly sent some emails from home.11
That night the Respondent blocked the Applicant’s computer and email access as a security
measure.12
[39] At 7.53pm on 31 July 2024, an email was sent to the Applicant from Leane Inglis of the
Respondent that provided:
Hi Christina,
[2025] FWC 450
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As requested, your leave accrual balances (to end of current pay period 7th August, 2024)
are as follows :
Annual Leave – 1245.7122 hours
Long Service Leave – 383 hours
I’m not sure what is going on as yet, but I’m hoping whatever it is gets worked out.
I haven’t provided you with a termination payout estimate as this will depend on whether
you are proceeding with terminating your employment without providing the required
notice and if so the deductions that may be enforceable in lieu of such notice under your
contract. Sorry, I’ll have to come back to you with this once I know more.
Take care
[40] The following day, on 1 August 2024, The Applicant and Mr Ward spoke at around
7.00am. The Applicant’s evidence regarding that discussion was:13
At no stage during those discussions did you say to him that you were wanting to
backtrack on your resignation? --- It didn’t actually come up. Damien asked me to come
into the office to have a meeting and I refused to come back into the office to meet with
them.
[41] Mr Ward, Mr Cassone and Mr Tiwari each signed a letter on the Respondent’s
letterhead, and describing themselves as Directors, that was sent to the Applicant at 9.00am on
1 August 2024,14 and that stated as follows (the 1 August 2024 Letter):
Dear Christina,
We hereby confirm your resignation effective close of business 31st July, 2024. As you
have terminated your employment can you please return your office keys, account logins
and password details for any company accounts/subscriptions, company credit cards,
banking access toggles, client files, and any other property owned by Wards Accounting
Group Pty Ltd in your possession by 5pm Friday 2nd August, 2024.
[42] The Applicant ceased being a director of the Respondent on 9 July 2024.
Consideration
[43] The Respondent raised jurisdictional objections to the Application, being that the
Applicant was not dismissed within the meaning of s.386 of the Act because:
1. The Applicant was not an employee; and
2. The Applicant was not dismissed at the initiative of the Respondent.
[2025] FWC 450
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(a) Employee?
[44] Section 15AA(1) and (2) of the Act, titled “Determining the ordinary meanings of
employee and employer”, provides:
Determining the ordinary meanings of employee and employer
(1) For the purposes of this Act, whether an individual is an employee of a person within
the ordinary meaning of that expression, or whether a person is an employer of an
individual within the ordinary meaning of that expression, is to be determined by
ascertaining the real substance, practical reality and true nature of the relationship
between the individual and the person.
(2) For the purposes of ascertaining the real substance, practical reality and true nature
of the relationship between the individual and the person:
(a) the totality of the relationship between the individual and the person must be
considered; and
(b) in considering the totality of the relationship between the individual and the
person, regard must be had not only to the terms of the contract governing the
relationship, but also to other factors relating to the totality of the relationship
including, but not limited to, how the contract is performed in practice.
Note: This section was enacted as a response to the decisions of the High Court of
Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG
Operations Australia Pty Ltd v Jamsek [2022] HCA 2.
[45] The Note to s.15AA(2) makes clear that the enactment of that provision was in response
to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd
[2022] HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022]
HCA 2 (Jamsek). Those decisions focused upon the written terms of the contract and excluded
consideration of post-contractual conduct when assessing the legal status of the worker.
Assessment of post-contractual conduct had long been part of the interpretation of the law in
this area with the application of the multiple factors/indicia test.15
[46] S.15AA, however, commenced on 26 August 2024, and Clause 119 of the Explanatory
Memorandum to the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024
provides:
119 Old Act applies to proceedings on foot as at commencement:
(1) Despite the amendment made by item 237 of Part 15 of Schedule 1 to the
amending Act, the old Act continues to apply, on and after commencement, as if
that amendment had not been made, in relation to the following:
(a) an application made, or proceedings on foot, as at commencement,
other than an application or proceedings prescribed by the regulations;
[2025] FWC 450
15
(b) an application for review of, or an appeal relating to, an application
or proceedings referred to in paragraph (a) (whether the application for
review was made, or the appeal proceedings were brought, before, before,
on or after commencement).
[47] The Application was commenced on 21 August 2024, and so was a proceeding on foot
at the commencement of the Fair Work Legislation Amendment (Closing Loopholes No.2) Act
2024. As a result, I am required to apply the judgments of the High Court in Personnel
Contracting and Jamsek.
[48] The Applicant submitted that she was an employee, and referred in support to:
(a) The letter of 25 November 2010, that confirmed she was an employee after she had
become a shareholder and director;
(b) The various Payroll Employee Summaries, Payroll Activity Details, Income
Statements and Payslips that were indicative of employment;
(c) The Applicant’s stated entitlement to long service leave;
(d) The 31 July 2024 email referring to whether the Applicant was proceeding with
terminating her employment;
(e) The 1 August 2024 letter referring to termination of employment; and
(f) That the Deed had not been signed by Ms Hill and so was unfinalized.
[49] The Respondent submitted the applicant was, at all material times since 2010, a director
and shareholder of the Respondent, and did not fall within the statutory definition of an
employee. The Respondent particularly relied upon:
(a) The Applicant’s purchase of 50% of the shares in the respondent for $600,000
in 2010;
(b) The Applicant’s remuneration as director and partner of $150,000 per annum
plus superannuation, being equal to Mr Ward (with the Applicant’s remuneration to be
reduced by $50,000 per year to pay off the vendor finance and the bank loan supporting
it);
(c) The applicant being put forward to staff and clients alike as a partner in the
company, with degree of control and a vested interest in the company that is not
characteristic of an employer-employee relationship; and
(d) The entry into the Deed in mid-2018, which Respondent contended exhaustively
recorded the agreement reached between the parties as shareholders, with the
Respondent submitting that the Corporations Act 2001 (Cth) prescribes the duties and
rights of directors and shareholders.
[2025] FWC 450
16
[50] In JMC Pty Limited v Commissioner of Taxation,16 Justice Wigney noted that, after the
trial in that matter concluded and while judgment was reserved, the High Court granted special
leave and subsequently allowed appeals in Personnel Contracting and Jamsek. His Honour
observed the judgments of the majority of the justices in those two cases “moved the goalposts,
or, as all but two of the justices (Gageler and Gleeson JJ) would have it, affirmed where the
goalposts had always been, or should always have been seen to have been”. Justice Wigney
held:17
16. The fundamental principles established by the judgments of the majority of the
justices in Personnel Contracting and Jamsek may be shortly summarised as follows.
17. First, where the rights and duties of the parties are comprehensively committed
to a written contract, the legal rights and obligations established by the contract are
decisive of the character of the relationship provided that the validity of the contract has
not been challenged as a sham, or that the terms of the contract have not been varied,
waived or are subject to an estoppel. The task is to construe and characterise the contract
made between the parties at the time it was entered into.
18. Second, in order to ascertain the relevant legal rights and obligations, the
contract of employment must be construed in accordance with the established principles
of contractual interpretation. In that respect, regard may be had to the circumstances
surrounding the making of the contract, as well as to events and circumstances external
to the contract which are objective, 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 putative employee applied for and the nature and extent of any tools or
equipment they have to supply for that job may also be relevant. It is, however, generally
not legitimate to use in aid of the construction of a contract anything which the parties
said or did after it was made.
19. Third, and flowing from the first two principles, the characterisation of the
relationship between the parties is not affected by circumstances, facts or occurrences
arising between the parties that have no bearing on their legal rights. A “wide-ranging
review of the entire history of the parties’ dealings” is neither necessary nor appropriate.
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.
20. It follows that the fact that the parties’ subsequent conduct may not have
precisely aligned with their contractual rights and obligations, or the fact that a
particular contractual right may have never been exercised or utilised, will generally be
irrelevant when it comes to characterising the relationship. That is so unless the manner
in which the parties conducted themselves after entering into the contract was such as to
establish that the contract was a sham, or that the contract had been varied, or that
certain rights under the contract were subject to an estoppel.
[2025] FWC 450
17
21. Fourth, the contractual provisions that may be relevant in determining the
nature of the relationship include, but are not limited to, those that deal with the mode of
remuneration, the provision and maintenance of equipment, the obligation to work, the
hours of work, the provision for holidays, the deduction of income tax, the delegation of
work and the right to exercise direction and control.
22. In Brodribb, Wilson and Dawson JJ said (at 36-37) that the indicia which
suggested an employment relationship included “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”, whereas those that suggested a contract for services included “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”. Their Honours were, however,
careful to note (at 37) that “any attempt to list the relevant matters, however
incompletely, may mislead because they can be no more than a guide to the existence of
the relationship of master and servant”. It should also be emphasised that the list of
possible indicia must now be approached on the basis that the focus is on the parties’
contractual rights and obligations relevant to those matters, at least where the contract
is wholly in writing, not on the way in which the work was actually carried out.
23. Fifth, the characterisation of the relationship as one of service or employment
involving an employer and employee, as opposed to a relationship involving an
independent contractor providing services to a principal, often hinges on two
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. 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. Neither of those considerations are
determinative and both involve questions of degree.
24. As for the element of control, “the existence of a right of control by a putative
employer over the activities of a 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.
25. As for the “own business/employer’s business” dichotomy, 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. 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”.
One consequence of answering that question in the negative may be that the person is not
an employee.
[2025] FWC 450
18
26. Sixth, a “label” which the parties may have chosen to describe their relationship
is not determinative of the nature of the relationship and will rarely assist the court in
characterising the relationship by reference to the contractual rights and duties of the
parties. The parties’ “legitimate freedom to agree upon the rights and duties which
constitute their relationship” does not “extend to attaching a ‘label’ to describe their
relationship which is inconsistent with the rights and duties otherwise set forth” – to
permit otherwise would elevate the freedom to “a power to alter the operation of statute
law to suit ... the interests of the party with the greater bargaining power.
27. The characterisation of a relationship as being either one of employer and
employee, or one involving the engagement of an independent contractor, is ultimately
an evaluative judgment that takes into account the totality of the parties’ contractual
rights and obligations. The exercise may not necessarily be straightforward because, in
some cases at least, the parties’ contractual rights and obligations may point in different
directions. The evaluative exercise also should not be approached on the basis that there
is some checklist against which ticks and crosses may be placed so as to produce the right
answer. Some degree of uncertainty is unavoidable, particularly in the case of many
modern-day work or service contracts.
[Footnotes omitted]
[51] In Chiodo v Silk Contract Logistics (Chiodo),18 Justice Kennett dealt with an entirely
oral contract. In Chiodo, Kennett J explained the manner in which the conduct of the parties
should be considered as follows):
Where there is not a written contract, the identification of the parties’ contractual rights
must proceed somewhat differently but the fundamental task is the same: the parties’
contractual rights and obligations are to be ascertained and characterised. The question
remains what the parties’ legal rights and obligations were, rather than how they behaved
in the performance of their contract. However, that distinction obviously becomes more
complicated where the contract is not written and its terms are to be inferred in whole or
in part from the parties’ conduct. The terms of an oral contract may not be limited to
express terms; terms may be inferred from the circumstances, including a course of
dealing between the parties, or implied where necessary for business efficacy.
Where there is no written contract and no evidence of a particular conversation in which
a contract was formed orally, evidence of the parties’ conduct must necessarily be
considered in order to draw inferences as to whether the meeting of minds necessary to
create a contract has occurred and what obligations they have thereby undertaken (see
Personnel Contracting at [177] (Gordon J, Steward J agreeing)).
[Footnotes omitted]
[52] The Respondent submitted that the Deed dealt exhaustively with the agreement between
the parties, while the Applicant submitted the Deed had no application as it had not been
executed by all parties. I consider that the Deed was an attempt to formalise the directorships
[2025] FWC 450
19
and shareholdings of the Respondent. There is no suggestion that any terms of the Deed are
inconsistent with the legal rights and obligations of the parties.
[53] The absence of Ms Hill’s signature is not determinative, particularly where the Deed
provides for execution by counterparts. Additionally, while Ms Hill corresponded with Mr
Kettle about changing the Deed, the expression “change” could equally apply to varying a
concluded agreement. This is not a case where there was an expectation that the parties would
not be bound until all parties have executed the document.19
[54] While generally irrelevant to characterising the relationship, I note the parties prior and
subsequent conduct generally aligned with their contractual rights and obligations in the Deed.
In particular, at least up to the first day of the hearing of the matter, the Applicant remained a
20% shareholder in the Respondent, and a Partner of the Respondent.
[55] The Applicant’s focus on labels used in the letter of 25 November 2010, the 31 July
2024 email, the 1 August 2024 letter, and the various Payroll Employee Summaries, Payroll
Activity Details, Income Statements and Payslips is misplaced, and as Justice Wigney found,
will rarely assist in characterising the relationship.
[56] As to the ‘entitlement’ to long service leave, the evidence established that rather than
being a calculation pursuant to same established formula, the identified ‘entitlements’ the
figures expressed were recorded to create an entitlement to tax benefits on retirement where
none existed.20
[57] In EFEX Group Pty Ltd,21Justices Katzmann and Bromwich held:
13. Once the contours of the legal relationship are identified, its characterisation as one
of employment or not often hinges on two considerations identified in Personnel
Contracting, in particular by Kiefel CJ, Keane and Edelman JJ at [36]-[39], each of
which may involve questions of degree, namely:
(a) the extent to which the putative employer has the right to control how, when
and where the putative employee performs the work; and
(b) the extent to which the putative employee can be seen to be working in their
own business as distinct from the putative employer’s business.
[58] The issue of control weighs heavily against a finding that the Applicant is an employee.
While the partners of the Respondent are not partners according to a legal definition because
the firm is incorporated, those partners have an independence and ownership that differs from
an employee. They have complete control over their clients and are not subject to direction in
the performance of their work. They report only to their other partners as a group. The partners
of the Respondent draw dividends.22
[59] The Applicant’s evidence regarding control generally within the Respondent and
specifically regarding Directors was as follows:23
[2025] FWC 450
20
And who were they responsible to in the performance of those indicators? --- Well, they
were responsible to the directors and/or partners, and in our management meetings, that
we then started to have regular management meetings, we - the budgets that were
prepared by Ross for each of the senior accountants, including each of the partners, had
their own budget. They were all discussed in the meeting in regards to the performance.
And that’s between yourselves, is it, as the directors of the business at the time? --- And
the other managers of the firm.
All right? --- They manage. So we had general managers, practice managers, the HR
manager.
And they reported to you as the directors? --- Yes.
And the staff reported to you as directors in relation to the performance, their
performance within the practice? ---- Yes.
All right, and the only people that you reported to, in relation to your performance in the
practice, was the body comprised of yourself and the other directors? --- Yes.
[60] A further factor that weighs against the Applicant being considered an employee, and
which highlights that the dispute between the Applicant, the Respondent and the other
shareholders is truly a shareholders dispute, is the fact that, were liability eventually found, the
Applicant would be 20% liable to herself.
[61] I find that the Applicant was not an employee of the Respondent at any relevant time.
(b) Dismissal
[62] Having found that the Applicant was not an employee of the Respondent at any relevant
time it is unnecessary for me to consider whether the Applicant was dismissed. For
completeness, however, I find that even if the Applicant was an employee of the Respondent,
she was not dismissed.
[63] Section 12 of the Act defines the word “dismissed” by reference to s 386 of the Act.
Sub-section (1) of s.386 relevantly provides:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the
employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her employer.
[2025] FWC 450
21
[64] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Tavassoli),24 the Full Bench
of the Commission conducted a detailed analysis of authorities relating to whether particular
resignations constituted dismissal pursuant to various legislative schemes. After that analysis,
the Full Bench provided the following distillation:
[47] Having regard to the above authorities and the bifurcation in the definition of
“dismissal” established in s.386(1) of the FW Act, we consider that the position under
the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a)
where, although the employee has given an ostensible communication of a
resignation, the resignation is not legally effective because it was expressed in
the “heat of the moment” or when the employee was in a state of emotional
stress or mental confusion such that the employee could not reasonably be
understood to be conveying a real intention to resign. Although “jostling” by
the employer may contribute to the resignation being legally ineffective,
employer conduct is not a necessary element. In this situation if the employer
simply treats the ostensible resignation as terminating the employment rather
than clarifying or confirming with the employee after a reasonable time that the
employee genuinely intended to resign, this may be characterised as a termination of
the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of
the employer will be a dismissal within the second limb of the definition in
s.386(1)(b). The test to be applied here is whether the employer engaged in the
conduct with the intention of bringing the employment to an end or whether
termination of the employment was the probably result of the employer’s
conduct such that the employee had no effective or real choice but to resign.
Unlike the situation in (1), the requisite employer conduct is the essential
element.
[48] It is necessary for an applicant for an unfair dismissal remedy whose employment
has terminated because the employer has acted on a communication of resignation on the
part of the employee to articulate whether they contend they were dismissed in the first
or the second scenario above (although it may be possible for both scenarios to arise in
a particular factual situation). Where the applicant is self-represented or inadequately
represented, it may be necessary for the member of the Commission hearing the matter
to clarify with the applicant the precise basis upon which it is contended that the applicant
was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.
[65] The Applicant seemed to contend she was dismissed in both the first and the second
scenarios in Tavassoli. The Applicant submitted that:
(a) None of the “policies and procedures” for disciplinary meetings were
followed, and the Applicant was not given appropriate notice, the opportunity to bring
a support person or address the discrepancies;
[2025] FWC 450
22
(b) The Respondent did not allow a reasonable time to pass until formalising the
termination, and moved quickly to close off the Applicant’s access to her computer; and
(c) The Applicant was forced to resign after she refused to participate in a scheme
to avoid any fallout from another adverse finding against the Respondent and Mr Ward.
[66] The Respondent submitted that it was the Applicant who elected to walk away from the
Respondent during the meeting on 31 July 2024. The Applicant was clearly upset in that
meeting that her integrity was being questioned about the financial management of the
company, however she was also upset about the possibility of a change in the arrangements
being negotiated with the purchasing entity, Count. While Mr Ward was actually seeking to be
inclusive in raising the issues relating to the Count sale with her and with Mr Cassone, the
Applicant said:
I don’t want anything to do with any of this. Throw whatever you want at me but I am
NOT going to agree to what you want. I don’t want to know and I won’t be involved
And:
You can out vote me as much as you like, but you can’t force me to do something I have
clearly said no to. Now move out of my way.
[67] I do not consider the conduct of the Respondent was conduct intending to bring the
Applicant’s employment to an end. On the contrary, I find that the Respondent raised issues of
the restructure of the Respondent, and existing issues regarding expenses, dividends payments
and the reconciliation spreadsheets. As the Applicant accepted,25 Mr Ward was in fact asking
the Applicant to participate in making a decision.
[68] As the Applicant described in re-examination, the trigger for her resigning was a dispute
over the structure and shareholding of the Respondent going forward. The Applicant said:
… once again the plan or the scheme was changed to benefit Damien and only Damien,
and I did not want any part of it at all, and I had said that to him on so many times that I
did not want to be a part of it. And I was happy for Count, I was happy for Hayes Knight
to buy 100 per cent. That was the original plan. I was happy for Count to buy my 10 per
cent. That was the second plan. But then the final plan was that he was basically
dropping a bombshell looking after himself and walking out and leaving the shit for me
to deal with. Excuse my language.
[69] The Respondent did not engage in conduct with the intention of bringing the relationship
to an end. The sole intention was for whatever relationship to continue, albeit with a different
structure and shareholding. The Applicant had an effective and real choice as to whether to
resign.
[70] While, in the circumstances of the meeting of 31 July 2024, there is some initial
attraction to the submission that the Applicant was in a state of emotional stress or mental
confusion such that she could not reasonably be understood to be conveying a real intention to
resign, I ultimately reject that submission because, while that meeting occurred between 1.00
[2025] FWC 450
23
and 1.30pm, the Applicant remained in the Respondent’s office until about 5.00pm, and the
following day refused to meet with the Respondent and Mr Ward. I accept that the Respondent
stopped the Applicant’s computer and email access as a security measure.
[71] The Applicant took no steps to seek to withdraw her resignation, notwithstanding
receiving the 31 July 2024 email (at 7.53pm), and the 1 August 2024 Letter (at 9.00am).
Conclusion
[72] For the reasons set out above, I am satisfied that the Applicant was not an employee of
the Respondent and was not dismissed by the Respondent.
[73] As the Applicant was not dismissed, she could not apply for relief under Sub-division
A of Part 3-1 of the Act. The Application must be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Attoh, on behalf of the Applicant.
Mr Rose of Counsel, on behalf of the Respondent.
Hearing details:
29 October 2024.
27 November 2024.
In-person.
Sydney.
Printed by authority of the Commonwealth Government Printer
PR784379
OF THE WORK THE SEAS NOISSINNE
[2025] FWC 450
24
1 Transcript PN 290 to 304.
2 Transcript PN 364 to 368.
3 Transcript PN 347 and 348.
4 Transcript PN 1386.
5 Transcript PN 1009 and 1410.
6 Transcript PN 1897 and 1898.
7 Ward Statement at [56].
8 Transcript PN517 to 529.
9 Transcript PN 1652 to 1654.
10 Transcript PN 790 to 794.
11 Transcript PN 674 and 675.
12 Transcript PN 1670 to 1673.
13 Transcript PN 646.
14 Transcript PN 684.
15 Hollis v Vabu (2001) CLR 21.
16 [ 2022] FCA 750 (29 June 2022)
17 Ibid at [16] to [27].
18 [2023] FCA 1047, at [8] and [9].
19 Contrary to the facts in Hopcroft & Anor. v Edmunds & Ors. (No.2) [2012] SASC 94
20 Transcript PN 1897 and 1898.
21 [2024] FCA 508, at [13].
22 Transcript PN 935 and 1410
23 Transcript PN 439 to 444.
24 [2017] FWCFB 3941.
25 Transcript PN 644
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
