Fair Work Act 2009
s.394—Unfair dismissal

Lainie Chait
v
Church Of Ubuntu
(U2021/9704)

Application for an unfair dismissal remedy – Whether the Applicant is a person protected by unfair dismissal – Whether the Applicant was an employee or independent contractor – Finding that the Applicant was engaged as an employee – Approach to identification of employer where there are two or more possible employers.

Overview

[1] Ms Lainie Chait (the Applicant) applied to the to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Applicant asserted that she was employed by the Church of Ubuntu (Church) from 6 October 2020 until her dismissal on 11 October 2021. The Church objected to the application and contended that the Applicant was engaged as an independent contractor by a separate entity – the Ubuntu Wellness Clinic. The Vice President of the Church, Ms Karen Margaret Burge, is registered as an Individual/Sole Trader and holds a number of business names, including Ubuntu Wellness Clinic (Clinic). Ms Burge is the Owner/Operator of the Clinic.

[2] The Applicant contended that the Clinic is a business name rather than an entity and is controlled by the Church – the proper Respondent to the application. The Applicant also contended that the approach of the Church to contracts, communications and payments was informal and that most communication was carried out by Facebook Messenger, resulting in confusion about her employment. The Applicant reserved her right to pursue a claim against Ms Burge if her the Commission found that she was employed by the Church.

[3] The beliefs of the Church include that receiving a COVID – 19 “inoculation” is contrary to God’s teachings and the Church will not hire anyone as a contractor or volunteer, who has received an injection of “any of the current or future planned injections purported to protect against the COVID – 19/Sars Cov 2 virus”. Ms Burge holds the same view. Although the parties do not agree on the entity which contracted with the Applicant or the nature of the contract, it is common ground that the contract was terminated because the Applicant received a COVID – 19 vaccination.

[4] In a Decision issued on 29 August 2022, I dismissed the objections raised by the Church and found that the Applicant was employed by the Church and that it dismissed her on 11 October 2022. These are my reasons for that Decision. The question of whether the Applicant was unfairly dismissed, will be determined in separate proceedings and is not dealt with in these reasons.

Procedural history

[5] There is some procedural history which it is necessary to recount. Two versions of a Form F2 Application dated 28 October 2021, were filed on behalf of the Applicant on 29 October 2021, by her representative Mr Mark Swivel of Barefoot Law. Both documents nominated the employer of the Applicant and the Respondent to the application, as Karen Margaret Burge and/or Ubuntu Wellness Clinic Newcastle, ABN 61 649 115 200 (Clinic). The first version was filed at 9:35 am and the second version at 1:34 pm. The difference between the two documents was the addition of a letter terminating the Applicant’s contract which was referred to in the first version of the Form F2 but not attached. The second version of the Form F2 was served on Ms Burge on 9 November 2022, by the Commission’s Registry.

[6] A third version of the Form F2 was filed by Mr Swivel on 9 November 2021 and nominated the employer of the Applicant as “Church of Ubuntu ABN 66 886 378 677” (Church) and Mr Barry Futter as the contact person for the application. The third version of the Form F2 was served on the Church on 10 November 2022, by the Commission’s Registry. On the same date, an email was sent to Ms Burge informing her that the Form F2 application had been sent to her inadvertently on 9 November 2022 and that she should disregard and delete the application, and confirm that this had been done.

[7] In the correspondence sent to the Church on 10 November effecting service of the Form F2, the Church was requested to download and complete a Form F3 Employer response to the application, within 7 days in accordance with r 19 of the Fair Work Commission Rules 2013. The Church did not comply with this request. The correspondence also informed the Church that the matter was listed for Conciliation on 2 December 2021. The Commission’s file indicates that the Conciliation did not proceed because representatives of the Church were not available. On 28 January 2022, correspondence was sent to the parties recording that the Church had advised the Commission that it did not wish to participate in conciliation and that the matter would be referred to a Member of the Commission for a formal hearing.

[8] The matter was allocated to me for hearing. Correspondence was sent to the parties advising that a Mention/Directions/Case Management Conference would be conducted on 11 February 2022 and Directing the Church to file and serve a Form F3 Response to the application by no later than 9 February 2022. On 10 February 2022, further correspondence was sent to the Church, addressed to Mr Futter, stating that the Church had not complied with the Direction to file and serve a Form F3 Response and reiterating the Direction that this Form be filed. The correspondence further stated that it was expected that Mr Futter would attend the Conference on 11 February 2022 and that if the matter proceeded to hearing and no appearance was entered by the Church, it could be decided in its absence, adversely to the interests of the Church.

[9] The Church did not file a Form F3 prior to the Conference. Following the Conference, Directions were issued on 11 February 2022, requiring the parties to file and serve outlines of submissions and statements of evidence. A specific direction was also made requiring the Church to file a Form F3 Response to the application and a witness statement made by Mr Futter to outline “the basis on which the Respondent asserts that the Applicant was an Independent Contractor and was not an employee, and the name of the entity the Respondent asserts had a contractual relationship with the Applicant.” The Directions required Mr Futter to annexe copies of any documents that it wished to rely on, such as copies of contracts, invoices or correspondence, supporting its objection to the application. Given that it objected to the application, the Respondent was Directed to file its material first – by 18 February 2022 – and the Applicant was directed to file material in response, by 25 February 2022. The Directions clearly stated that the hearing would deal only with the Church’s jurisdictional objection as a preliminary matter and that the questions for determination would be whether the Applicant was a person protected from unfair dismissal, based on the Church’s contention that the Applicant was not an employee and was engaged by the Clinic as an independent contractor.

[10] Neither party complied with the Directions of 11 February 2022. On 17 February 2022, the Church filed a Form F3 Response to the application as directed. In its Form F3 Response signed by Mr Futter, the Church is described as a religious incorporated association and asserts a jurisdictional objection that the Applicant had been engaged as an independent contractor by the Clinic and had never been an employee of the Church. The Church indicated a further objection to the application based on an assertion that the Applicant was not dismissed because “alternative subcontracting options” were offered to the Applicant which the Applicant declined. No further detail was provided in this regard.

[11] The Church also provided a brief witness statement of Mr Futter dated 17 February 2022, in which Mr Futter asserted that the Clinic, which had engaged the Applicant, is an independent business owned and operated by Ms Burge. Mr Futter appended to his statement a letter from Ms Burge to the Applicant, which is undated but said to have been given to the Applicant on 15 October 2021, and details that the Applicant can no longer be a member of the Church as she has consciously and deliberately received “a COVID – 19/Sars Cov 2 injection”. Mr Futter also made various assertions in the witness statement about the validity of State Government vaccination mandates with reference to the Australian Constitution and foreshadowed other jurisdictional objections if the matter continued. Ms Burge did not, at this point, provide a witness statement asserting that the Clinic engaged the Applicant rather than the Church.

[12] On 25 February 2022, Mr Swivel filed a letter on behalf of the Applicant, said to be in response to the material filed by the Respondent. Notwithstanding that the Directions issued on 11 February 2022 required the filing and service of an outline of submissions and witness statements, no submissions or witness statement by the Applicant or any other witness on her behalf, were filed. Somewhat surprisingly, given that I had already issued Directions for a hearing in relation to the Church’s jurisdictional objection, Mr Swivel requested that a directions hearing be listed for the matter.

[13] Due to the inadequacy of the material filed by all parties, a second Case Management Hearing was listed for 18 March 2022 at 10.00 am. Due to Pastor Burton and Mr Futter being unavailable at that time, by email sent on 15 March 2022, the listing on 18 March was vacated and the parties were informed that I proposed to relist the second Case Management Hearing on 29 March. To avoid further delay in the matter proceeding to hearing, the parties were also given a second opportunity to file material as required by the Directions issued on 11 February 2022. The Applicant was given until 22 March 2022 to file any additional material and the Church until 28 March to file material in response if it wished to do so. These time frames were not complied with. The second Case Management Hearing was conducted on 29 March 2022 and further Directions were issued requiring:

•  the Respondent, by 5 April 2022, to file in the Commission and serve on the Applicant, additional evidence in relation to the assertion that the Church was not the entity which engaged the Applicant and identifying which entity the Church asserted did engage the Applicant, including any relevant documents such as copies of contracts or invoices, annexed to a witness statement identify the documents; and

•  the Applicant, by 12 April 2022, to file in the Commission and serve on the Church, an outline of submissions and a witness statement of the Applicant responding to the material filed by the Church as well as addressing the basis on which the Applicant asserted that she was not engaged as an independent contractor but rather was an employee.

[14] On 31 March 2022, Ms Burge filed an affidavit in which she stated that she had not annexed any supporting documents because it would have taken significant time and expense for her to do so. Ms Burge also expressed the view that the requirement that she provide supporting documents or evidence before the hearing was unfair to her because the proceeding had been brought by the Applicant and the Applicant should bear the onus of proving her case.

[15] On 31 March 2022, I corresponded with the representatives of the Church and pointed out that Respondent also bore an onus of establishing its objections, in circumstances where the Applicant asserted that she was employed by the Church. Mr Futter on behalf of the Church continued to take issue with the proposition that the Church should bear some onus to establish its objections to the application.

[16] On 21 April 2022, the Applicant filed an outline of submissions, and affidavits sworn by the Applicant and Ms Jessica Mountford who stated that she was a former employee of the Church. On 11 May 2022, the Respondent filed an affidavit sworn by Mr Futter. Regardless of whether the Applicant or the Church bears an onus to establish particular facts, both parties had numerous opportunities to place evidence before the Commission in support of their respective contentions.

[17] A hearing was conducted on 30 May 2022. The Church was represented by Pastor Paul Burton who states that he is a Minister of Religion, Bard, Paralegal and Human Rights Advocate. Evidence was given in support of the Church’s objections to the application, by Mr Futter and Ms Burge. The Applicant gave evidence on her own behalf and evidence was also given for the Applicant by Ms Jessica Mountford a former employee of the Church and colleague of the Applicant. Permission was granted for the Applicant to be represented by Mr Swivel on the basis that I was satisfied that the matter involved some complexity, including the whether the Applicant was an employee and if so, the entity which employed her, which would be more efficiently dealt with if representation was permitted.

Evidence

The Constitution of the Church

[18] The Constitution of the Church tendered by the Applicant states that it is an incorporated Association pursuant to the Associations Incorporation Act 2009 (NSW) and that the Church of Ubuntu is registered as a business name on the Australian Business Register. The Philosophy/Vision Statement of the Association is set out at 1.3 of Part 2 and relevantly provides:

“We aim to peacefully contest the manipulation of creation for greed or selfish intent, believing this to be a violation of Sacred Lore. To us, all of Creation in its natural form is Sacred. ‘The Earth Is Therefore I am’. (Genesis 1:29) – Then God said, ‘I give you every seed-bearing plant on the face of the whole earth and every tree that has fruit with seed in it. They will be yours for food’.”

[19] The objectives of the Association include, in Part 2 at 1.5: “to combat illness and disadvantage in our communities through establishing self-managed community wellness clinics.” Part 3 deals with membership of the Association and provides for written notification that a nomination for membership has been accepted and for a member to be requested to pay the sum payable under the constitution as entrance fee and annual subscription, within 28 days of receipt by the nominee of the notification of approval of nomination for membership. Appended to the Constitution are membership forms for persons and companies which provide for the signatory to agree to be bound by the Constitution of the Association upon becoming a member.

The Clinic

[20] The Applicant also tendered an ABN lookup extract from the Australian Business Register evidencing the registration of a business name: “Karen Margaret Burge” as an Individual Sole Trader. The extract also indicates that “Ubuntu Wellness Clinic” is one of 7 business names under which the entity operates. Other business names are: Ubuntu Hemp, Canna Nannas, Medicann, Medicann Can, Medicann Australia, and Reality Snaps. Further, the extract evidences that the entity is not registered for GST.

The Applicant

[21] The Applicant stated in her affidavit sworn on 12 April 2022, that she commenced her role with the Church from 6 October 2020 and was dismissed on 11 October 2021. The Applicant said that she first discussed her role with Mr Futter in September 2020 and described Mr Futter as “the boss”. The Applicant said that it was Mr Futter who made the decision to hire her whereas Ms Burge “showed her the ropes” after she was hired. The Applicant was provided with names of people to consult with and only provided services and referrals consistent with the policies of the Church.

[22] The Applicant was responsible for calling clients by phone remotely, who had been booked in for appointments and describes her role as being responsible for contacting clients and conducting consultation appointments to discuss clients’ health circumstances and the use of cannabis as part of a management plan. The Applicant stated that her role also involved taking cannabis orders from clients and dispatching those orders, known as a “care package”, through the Church’s intranet.

[23] The Applicant stated that while she was provided with a work email, email was not used for most communication and instructions were given to her through Facebook messenger. Work was performed by the Applicant under the direction of Mr Futter and Ms Burge and she did not have any discretion as to how to perform her role. The Applicant said that she was provided with names of clients and had to follow the Respondent’s policy in determining whether a service was provided to a client, or a referral was made. In this respect, the Applicant appended a screenshot of what appears to be an email sent to “staff”, though this email contains neither date nor details of the sender or recipients. This email is in the following terms:

“Hi Team,

Following from the meeting last Monday and security issues this week, we are making changes to our process beginning 23^rd August 2021.

All orders are to be sent to dispatch for processing. All staff are not to process or pay their own orders or client orders.

Consultants will need to use their work email address eg: [email protected] for all work associated with The Church of Ubuntu/The Ubuntu Wellness Clinic. Personal email addresses and the [email protected] are not to be used from Monday 23^rd August 2021.

All staff who access documents and spreadsheets in the Church Google Drive will need to advise what documents and spreadsheets they need access to so that may be arranged, please.

If you do not have a google account you will need to create one so that you may still access those documents and spreadsheet, and for staff working reception for access to the gmail account.

The following are your work email addresses:

…

lainie@churchofubuntu.org

…

All new email accounts have the password: [password]

To access your work email account please go to [a website with the name, churchofubuntu] this website is also known as CPanel.

…”

[24] The Applicant’s email address was one of 10 listed in the email, which went on to set out what appears to be a process checklist designed for consultants to follow which includes instructions on how to undertake administrative tasks, such as completing the spreadsheet following a consultation and a step-by-step visual guide on how to use the intranet system for the purposes of placing, dispatching and invoicing cannabis orders for clients. Relevantly, the checklist also included the following information in relation to how consultations are to be conducted, the number of consultations required in a full or half working day, and is in the following terms:

“Consults:

•  Please call on time.

•  If they do not answer then try for 20 mins max and reschedule if still cannot connect by leaving a note in the spreadsheet and their BP file.

•  Please advise the reordering details, and where to find it in the guidelines, to the clients

•  If a cancer guideline please include THC in their protocol unless they personally refuse to take it. CBD has been shown to stop cancer from spreading while THC has been shown to actually kill the cancer cells off.

•  Please discuss dietary/nutritional guidelines and water intake if their intake form shows lack of healthy eating/drinking lifestyle

•  Use the guidelines like a ‘script’ to speak

•  Please book their follow-up either two or three weeks from time of ordering

•  At their follow-up please try and book them in for another follow-up approximately 6 weeks later

Guidelines:

•  All initial consults must have their follow-up consult details entered into their guidelines and copied and pasted into BP

•  Make sure you use an up-to-date guideline template

•  Guidelines are to be emailed to the client using your work email address and saved in their BP file

…

Calendar:

•  As we have at least 5 staff booking in consults and follow-ups it assists greatly in keeping the flow, equity and sustainability across the board for all.

•  A full working day is 7 hours including a break for lunch

•  A half working day is 3.5 hours

•  A full day consists of 4 consults, plus follow-ups before or after the consults

•  A half day consists of 2 consults and follow-ups before or after the consults

•  Maria has worked out a way to set the calendars up so the appointment times are either 15mins time slots for short follow-ups, 2 x 15min time slots for longer follow-ups or 1 hour time slots for consults, that way each week is consistent. It will be up to the consultant to block out days they are either off, sick or away”

[25] The instruction in the email for “Ordering” states that when placing an order, the first thing that is required to be done is to change the provider from “Barry Futter” to “Practice”. This is circled on a screen shot of the form that is to be completed with a drop box on the form showing options for “Practice” and “BJ Futter”. The Applicant explained that she was working 3 to 4 days per week, Monday to Thursday, for a period of some months ending in July 2021. From July 2021, the Applicant worked 3 days a week on a roster set by the Church. The Applicant indicated that she generally completed 4 to 5 new consultations per shift as well as follow-up calls and the average day was 6 hours inclusive of a lunch break. The Applicant was paid $200 a day, later increased to $220 per day, “untaxed, no super, no holiday pays or sick days”. The Applicant expressed an expectation that she would remain in the employ of the Respondent “indefinitely and for at least 3 months”.

[26] The Applicant stated that she first learnt that her employment was terminated from a co-worker, Ms Jessica Mountford because Ms Mountford sent her a voice recording of Mr Futter making a statement on Facebook Messenger that he had heard that “Lainie” had been vaccinated and that “nobody can work for us if he’s vaccinated”. The recording was tendered by the Applicant and was played to Mr Futter during cross-examination. From the recording, the Applicant said that Mr Futter knew that she had become vaccinated and when she later attempted to call Mr Futter to discuss this matter, Mr Futter replied by text message saying: “Hey, if this is about you getting jabbed. I wish well. Talking to you won’t assist atm” (sic) and provided the Applicant with that same voice recording. Following this, the Applicant said in October 2021 she received a letter from Ms Burge which, in the Applicant’s view, was a letter of termination. The letter, issued on the letterhead of Church of Ubuntu, is in the following terms:

“To whom it may concern

Lainie Chait has been a subcontractor with the Ubuntu Wellness Clinic Newcastle since October 2020.

As with all of our consultant subcontractors she was also recognised as a full member of the Church of Ubuntu (COU) Inc for the same period of time.

Lainie has been and continues to be a highly valued and respected subcontractor.

Her dedication to clients and her support and assistance have been exemplary, her knowledge and skills in holistic health and wellbeing have been and continue to be highly appreciated by all those who she has and no doubt will continue to assist.

As of Monday the 11^th of October 2021 due to external contract frustration in regards to the NSW State Governments enforced medical apartheid and what we consider a highly disproportionate response to the Sars Cov 2 virus, the Church of Ubuntu Inc has had to make some significant changes in keeping with our constitution and founding moral and ethical principles.

As a consequence of this and the outcome of an urgent Committee Meeting on the 12th of October 2021 The Church Of Ubuntu has taken a position that no committee members or full members can be accepted if they consciously chose to, and then complete injections, with any of the current or future planned injections purported to protect from the COVID-19/Sars Cov 2 virus.

The Church Constitution Philosophy/Vision Statement at 1(3)(4) states:

“(4) We aim to peacefully contest the manipulation of creation for greed or selfish intent, believing this to be a violation of Sacred Lore. To us, all of Creation in its natural form is Sacred. “The Earth Is Therefore I Am” (Genesis 1:29 - Then God said, “I give you every seed-bearing plant on the face of the whole earth and every tree that has fruit with seed in it. They will be yours for food.”)”

It is the position of the COU that to receive the COVID-19/Sars Cov 2 injection consciously and deliberately with intent is in contradiction with our Constitution and contrary to our position on what is required of us by our Lord God and Creator.

As a consequence Lainie can no longer be a full member of the COU. She can however in keeping with the Ubuntu Philosophy still remain as an associate member if she chooses.

The COU is currently making arrangements to assist Lainie by offering her alternative work arrangements as a subcontractor through our affiliates.

If you would require any further information please feel free to contact me any reasonable time on 04XX XXX XXX or by email at [email address].

Kindest Regards & God Bless

Karen Burge

Vice President Church of Ubuntu and

Owner Operator/Manager

The Ubuntu Wellness Clinic.”

[27] Prior to receiving Mr Futter’s voice recording and the above letter, the Applicant maintained that she had never been told by anyone associated with the Church or the Clinic that being unvaccinated against COVID – 19 was a condition of her employment. The Applicant maintained that the Church’s constitution is silent on the issue of vaccination and that in any event, she was never a member of the Church and was never asked to accept the Church’s constitution.

[28] In terms of the extent to which the Church and the Clinic operate separately and independently of each other, the Applicant described the Church’s approach to contracts, payments and communications as “very informal and confusing” and stated that most communication occurred through conversation or Facebook messenger with nothing sent to the Applicant or signed. The Applicant stated that this exacerbated her confusion as to identifying whether her actual employer was the Church or the Clinic.

[29] As previously noted, the Applicant tendered an ABN search for the Ubuntu Wellness Clinic under the ABN number 61 649 115 200, which shows that Ubuntu Wellness Clinic is a business name registered to Ms Karen Margaret Burge as individual/sole trader. Further, bank records between October and December 2020 were provided by the Applicant which show a pattern of weekly deposits of either $500 or $600 made under the references of either “Ubuntu Lainie Ubuntu Lainie” or “Karen Margaret Burge T/as Ubuntu Wellness Clinic”.

[30] The Applicant contended that the Church and the Clinic operated together and that the Church controlled the Clinic. In support of this contention, the Applicant tendered an undated letter Sent by Mr Futter to the Westpac Bank, requesting reconsideration of the Bank’s decision to close the accounts of the Church. The letter relevantly includes the following statement:

“We run and operate a Church and a Wellness Clinic, we have many volunteers and some subcontractors, we help many people through a small and dedicated group of consultants. We operate from a number of different locations. We currently have two other bank relationships that of course are lawful, upright, righteous and well respected, and as Committee we would ask Westpac to review our situation and to consider reopening our two business accounts with them.” (emphasis added)

[31] In further oral evidence at the hearing, the Applicant accepted that she had worked for an entity known as Greenlight Health between May and June 2021 but said that this was to obtain more information about the work that she was doing for the Church and was complementary with her work for the Church. In response to a question under cross-examination, the Applicant said that she did not believe in God. In response to a question as to why she sought to work for a Church, the Applicant said she did not seek to work for a Church but rather, sought a job to help people with their mental health issues.

[32] The Applicant said that she was paid an average of $600 per week. In response to questions about other income being transferred into her bank account, the Applicant said that this was from another of her accounts and was money that she had saved and transferred from another of her bank accounts, to assist with living expenses. The Applicant also said that on occasions she worked 3.5 days per week instead of her usual three days and was paid additional amounts for that work. The Applicant agreed that most payments came from Ms Karen Burge trading as Ubuntu Wellness Clinic, but maintained they were made on behalf of the Church, as Ms Burge worked for the Church. The Applicant accepted that she was paid additional amounts of money when she did not work but maintained that this amounted to two weeks pay at a time she was in hospital and that Ms Burge gifted her an additional weeks’ pay at another time.

[33] The Applicant agreed under cross-examination that she was offered an opportunity to work for another organisation called theportal.life, at the time her contract ended, and that she declined that offer because she felt disrespected on the basis that neither Mr Futter nor Ms Burge spoke to her about this, and it came through a third party. The Applicant also said that she did not want to make money for the Church, through working for theportal.life, in circumstances where she had been disrespected. In this regard the Applicant said that The Portal Life is a business of the Church. In re-examination, the Applicant clarified her evidence on this point and said that while theportal.life is a completely separate organisation from the Clinic and the Church, she would have had to pay to be part of theportal.life and would have been using products held and made by the Church.

[34] It was also put to the Applicant in cross-examination that the letter from Mr Futter to the Westpac Bank tendered by her, was sent eight months before the Applicant commenced working for the Wellness Clinic. The Applicant said that she tendered the document because it established that the Church had employed her.

[35] Ms Burge was also given an opportunity to cross-examine the Applicant and confined herself to simply asserting that the Applicant was a contractor. The Applicant and I had the following exchange, which also involved Ms Burge:

“THE DEPUTY PRESIDENT: Do you say you had a discussion with Ms Chait in which you said, 'You'll be a subcontractor?'

MS BURGE: Yes, yes. ON

THE DEPUTY PRESIDENT: Ms Chait, what do you want to say about that? I want to say that what was spoken about originally kind of changes along the way, you know, and it was a verbal agreement, so, you know - - -

What was your understanding of the verbal agreement at the time you started employment – when you started this alleged employment? That I was commencing employment. I mean, yes, that I was working for them, so – with them, for them, amongst them, so - - -

MS BURGE: As a subcontractor. We tell everyone that comes in that they are a subcontractor and they are responsible for their own tax. It's my understanding that everyone that starts here understands that and believes that, before progressing into working in our community – serving in our community.

THE DEPUTY PRESIDENT: Ms Chait, do you want to respond to that? No.

Well, do you agree or disagree that Ms Burge said to you, ‘You're a subcontractor and you’ll be responsible for your own tax’? I agree that's what we spoke about, yes, but I also agree that things changed along the way and that the – yes, and because there was no – you know, I never – because there was nothing written and I just was doing more work for them and - you know, I just believed that I was an employee. That's what I believe, so what was started in a verbal arrangement, you know – there was no end date to it. Subcontractors only work for a specific amount of time, you know, and then they go, as far as I was aware, so – yes, I just – it was very loose, Deputy President, you know, like, it's not a clear cut thing.

You can agree or disagree with this: at some point when you started working for whoever you started working for, Ms Burge discussed with you that you would be a subcontractor and you would be responsible for your own tax? Well, the tax was never discussed, but, yes, I heard that statement at the very beginning, subcontractor, yes, I did.

Okay. Anything arising from my question, Ms Burge?

MS BURGE: No, I'm comfortable with that. Thank you.” 1

Ms Jessica Mountford

[36] Ms Mountford gave evidence on behalf of the Applicant. Ms Mountford is a former employee of the Church of Ubuntu. Ms Mountford explained that she met Mr Futter when she first became involved as a volunteer with the Happy Herb Shop in Newcastle about 8 years ago. Ms Mountford responded to a Facebook post regarding the establishment of a Wellness Clinic to provide preventative health assistance to people living with chronic illnesses. A Clinic known as the Natural Lore Wellness Clinic was established and Ms Mountford volunteered there one or two days a week for a couple of years, providing administrative support to Mr Futter and Ms Nikki Freeburn who now owns and operates theportal.life. Ms Mountford stated that “a transition then occurred and the Church of Ubuntu and the Ubuntu Wellness Clinic were started, both were highly interconnected in how they operated”.

[37] Ms Mountford’s evidence is that she initially received payments from Mr Futter for a few months for delivering services for the Church until she began receiving payments from the Clinic. Ms Mountford said that throughout 8 years of her services, her role merged between the Church and the Clinic, performing various duties across the two entities. Ms Mountford said that during this time, it was never stated or mentioned that she was not to be inoculated.

[38] Ms Mountford stated that prior to 2017, she had not been provided with a written contract to sign and Mr Futter explained to her that “this is a completely different paradigm” and that Ms Mountford should not expect one. In 2017, Ms Mountford began her role as a Public Officer and was provided with a written contract which she signed. Ms Mountford described this document as a “kind of contract” and explained that the reason for the contract was that the Church required 3 executive committee members to maintain its status as an incorporated association. It was Ms Mountford’s understanding that no other staff members signed any documents with the Church or the Clinic. Ms Mountford also noted that communication between staff and the Church or the Clinic was often confusing.

[39] Ms Mountford received her first dose of COVID – 19 vaccination on 22 September 2021 and requested some time off due to adverse side effects from which she has since completely recovered. According to Ms Mountford, Mr Futter subsequently put a voice recording on the Church Facebook group chat stating that he had become aware of the Applicant becoming vaccinated and that anyone who had the vaccination could no longer be a representative of the Church. Mr Futter also said: “I don’t know what you are going to do but you can’t work for us.” Ms Mountford stated that she was shocked that the decision was “handed down by one single person, Barry John Futter, the President of the Church of Ubuntu” and was not discussed by the Executive Committee.

[40] Under cross-examination, Ms Mountford maintained that she bounced around between the Church and the Clinic, and that at different points in time, she was paid separately by both entities. Ms Mountford agreed that initially no-one spoke to her about being an employee, paying PAYE tax, leave loading or workers compensation. Ms Mountford also said that early on no-one spoke to her about having an ABN but that it was mentioned in the first few years that she should have one. Ms Mountford agreed that she did her own tax during the period she performed work for the Church and/or the Clinic and that she worked for other organisations during that time.

[41] In relation to the composition of the chat group Ms Mountford said that it included people working in despatch and for the Church and the Clinic but not all members were in the chat group. In response to the proposition that the whole Committee met on 12 October 2021 – the day after a Government decision to the effect that people who had not received the COVID – 19 vaccination were subject to restrictions, Ms Mountford said that she was not a part of that meeting. Pastor Burton put the following proposition to Ms Mountford in cross-examination (which was inexplicably objected to by Mr Swivel given it assisted his case) evidencing the connection between the Church and the Clinic:

“All right.  Just for your personal information – this is not a question, Jess, but there was a meeting straight after this event occurred because it became obviously imperative that both the church and the wellness clinic have quite a lengthy discussion about how to manage this affair, and it was decided that those people that were inoculated could work for the.portal.life and be shifted across to at least continue some kind of employment.  That was the decision made by that committee and also two tiers of members for the church; a full membership and an associate membership.  So just for your information, that did happen after this event.  In your affidavit - - -” 2

Mr Barry John Futter

[42] Mr Futter is the President of the Church and a Community Services Worker. The Church is an incorporated association and was registered with the Department of Fair Trading on 25 March 2015. According to Mr Futter, the Clinic is an independent business owned and operated by Ms Burge and the Applicant’s grievance has nothing to do with the Church because the Applicant was an independent contractor engaged solely by the Clinic. Mr Futter also explained that all volunteers and subcontractors of the Clinic are full members of the Church and must accept the Church’s Constitution and as a result none of them is to be inoculated against COVID – 19.

[43] Mr Futter stated that as a result of the Pandemic in early 2020, many activities of the Church and the Clinic were significantly curtailed. The Church operated in a limited capacity by providing support to its members through direct communication, online meetings, group chats and in relation to receiving new memberships and occasional donations. At the same time, the Clinic was required to close its public shop and move its consultations online. Mr Futter said it was during this time that Ms Burge hired a small number of independent contractors who worked remotely as consultants at different times.

[44] Mr Futter stated in his affidavit that engaging the Applicant as a consultant was “an informal oral arrangement” that occurred after he spoke with Ms Burge and arranged for the Applicant to assist in the Clinic as a consultant and later to train on a new system The Portal Life. Mr Futter said that he did this as a favour to help the Applicant as he had known her for many years and the Applicant asked for his help.

[45] Mr Futter said that the Applicant’s claim that she was an employee of the Church or of the Clinic was untrue because the Applicant was fully aware that she was engaged as an independent contractor by the Clinic and all contractors must take care of their own tax responsibilities.

[46] Mr Futter contended that the Applicant’s bank records demonstrate that the Applicant was operating as an independent contractor because she was paid by the Clinic and direct bank transfers were made predominantly to the Applicant’s account by Ms Burge under the reference, “Karen Margaret Burge T/as Ubuntu Wellness Clinic”. Mr Futter also stated that between January 2020 and September 2021 the Church did not have a bank account following a decision by Westpac to close the Church’s bank account. At the hearing, when it was put to Mr Futter in cross-examination that the actual employer of the Applicant was the Church and that Ms Burge’s account was only used for convenience because the Church lacked a bank account of its own, Mr Futter responded:

“…In certain terms that's correct, yes, but the church is – well, primarily the people or the organisation that produces product and the consultants in the clinic do what they do, and that's consult and assist people, two different entities basically. One account at the time would have been two accounts. When we had the church account with the Westpac there were two accounts in there; one being the petty cash, which was the clinic, and the other being the church.”

[47] In the text of his affidavit, Mr Futter included links to the Church’s website and said that either the Clinic or the Church can be accessed through that website. Mr Futter said that the Clinic does not have its own website, but any member of the public can become a client of the Clinic through the “Church website wellness clinic intake” tab. In relation to the work email address provided to the Applicant, Mr Futter stated that all consultant contractors are given an email address, @churchofubuntu.org and delegated access to a Gmail account of the Clinic where documentation is stored on the shared drive, because they are full members of the Church and not because they are employees of the Church.

[48] In response to the Applicant’s statements about her role involving cannabis and her assumption that the work was lawful because she was working for the Church, Mr Futter contended that if the Applicant is now alleging that she was an employee of an operation and performed work which may be unlawful, it would render any contract of employment (which the Church denies existed) void for illegality and the Commission would have no jurisdiction in respect of the alleged illegal activities.

[49] Mr Futter made further statements on of issues in relation to COVID – 19 vaccination which may be succinctly summarised as follows:

•  The public health directions issued by the NSW state government created a type of ‘medical apartheid’;

•  Vaccine mandates by the government are contrary to s.51(xxiiiA) of the Australian Constitution on the basis that they created a type of medical civil conscription

•  Vaccine mandates by the state and federal government breached s.44(i) of the Australian Constitution as ‘their allegiance and obedience is to foreign powers’;

•  Vaccine mandates were introduced without a referendum and therefore unlawfully ‘removed constitutional rights’ from the people; and

•  Vaccination against COVID – 19 is contrary to the religious beliefs held by the Church and the Clinic.

[50] Mr Futter confirmed that the Church’s opposition to the COVID – 19 vaccination is based on its views about the restrictions placed on unvaccinated persons by Government and other entities and a belief about the nature of the vaccination itself. In this regard the Church maintains that the vaccination is not effective as such, has significant health implications and is foreign to the human body and molecular structure. Mr Futter’s affidavit contained the following statement in relation to the position of the Church and the Clinic with respect to the hiring of contractors and volunteers:

“Both The Church and Wellness Clinic do not believe they should hire anyone as either a subcontractor or a volunteer who has received the COVID-19 inoculations because we believe it is contrary to God's teachings, it is evil and demonic in its construct, a small number of people profit enormously from it, and more and more indisputable evidence is coming to light that it harms people.

With so many reports of adverse reactions including death from the COVID-19 inoculations we cannot take the risk of hiring anyone (either through the Church or The Wellness Clinic) who has knowingly received the inoculation, we mean no disrespect, but we do not know how it may impact them and their health and possibly even the health of others”.

[51] While Mr Futter was being cross-examined, the voice recording referred to and tendered by the Applicant, was played in the proceedings, and he agreed that he was the person speaking in the recording. The text of the recording is as follows:

“I thought I made it quite clear recently, guys, in a discussion, a verbal discussion on your message from me that I wanted people, I needed people to tell me if they want to get vaccinated. Hmm…Jessica was the one that had done it and brought up the subject. I’ve just been told that Lainie has been vaccinated. Ah…nobody can work for us if he’s vaccinated. It’s that simple. So I don’t know how you guys are gonna work that out but nobody can work for the Church of Ubuntu and it…what it stands for that has been vaccinated. See you guys later.”

[52] When Mr Futter was asked about the recording in cross-examination, he said:

“Absolutely. I gave that recording. I put the message out at the time. I'm quite shocked that people would – maybe we should hear the recording from a week before, but, anyway, that people would go ahead and do this. When I refer to her as working for the Church of Ubuntu, she's a member of the Church of Ubuntu and anybody that's a member of the Church of Ubuntu is not to be inoculated was my intention, okay? That was my meaning. The fact that she was basically disregarding my request, as well, was part of the – you know, it's probably the incorrect wording on the day, but the fact that she was a member of what it is we do here and what we represent is more important than the fact that she was paid by the clinic, not by me.” 3

[53] The proposition was also put to Mr Futter that in the moment he made the recording, Mr Futter assumed responsibility for the termination of the Applicant’s contract. Mr Futter’s response was as follows:

“My intention with that message was to let people know that they wouldn't be able to function if they were to be jabbed, okay?  Okay, there's no blueprint around this thing.  It has never been done before, so if I have not totally correctly by legal terms proceeded exactly the way I was supposed to so I can exactly terminate her in the exact way I'm supposed to do it when this has never been addressed before - and we're all walking on rocky ground except for good scripture and follow that, then - I'm not going to apologise.  I'm just going to admit that I probably would not have done things absolutely – cross every dot – dot every ‘i’ and cross every ‘t’ correctly, but my intention was to let the staff and people who were associated with us to know that this is our stance.

Thank you, Mr Futter?---I will add to that that the understanding of the people not then functioning and working for the church – in Lainie's case there was an ability for her to work with an associate with us who she had been training with for some time and she even turned that down.  I mean, at the end of the day we didn't actually kick her out into the street.  There was something that was there for her and she would have been moving into that organisation, anyway, so – you know, this all very weird, anyway. 4”

[54] Mr Futter was also cross-examined about his assertion that the Applicant was a full member of the Church in her position as a subcontractor. Mr Futter said that as far as he was concerned the Applicant was a member of the Church. when asked to clarify how it was that the Applicant became a member, Mr Futter said that it is part of the Church’s Constitution that people who work for the Church understand: “how we operate and what we do, and our belief structures”. 5 In response to the proposition that the Constitution of the Church requires that a member of the Church must apply or consent to becoming a member, Mr Futter said that it was his belief that the Applicant was a member at the time and he did not know that the Applicant did not want to be a member of the Church.6 Mr Futter then had the following exchange with Mr Swivel:

“Okay, well, I'll give you one last opportunity to explain the membership application process to the Commission bearing in mind that, as I say, a member of an organisation needs to apply to become a member as an ordinary course of business?---I don't fully agree with a person having to apply.  There is a set of circumstances that we have that are very different to most people's and they are very out there, and they're very controversial.  Everybody that wishes to be associated with us should understand what it is they’re doing and what is we stand for.  Therefore, if they were to be – you know, if they were going to go and play rugby for New South Wales but they were sitting on the sideline deciding whether they were going to do something else, then they're not actually – they shouldn't actually be there, so they either commit to the situation that the body of people were doing or they just become a – you know, not taking on the ethics and the morals and the principles by which we do what we do.  The red tape around this can be argued until kingdom come, on the legalities of wording and who and whatever, but when we are such an out there organisation, anybody who has a position with us should actually understand that they’re part of that.  I mean, that's ‘lay down misère’ in my concern – in my understanding.  It's not red tape stuff, it's just the moral ethics in your head and your conscience.” 7

[55] In response to the further proposition that the statement he made on the group chat was intended to end the working relationship with the Applicant, Mr Futter said:

“I will bring to the court’s attention a message a week before on that same chat when Jessica had let us know that she had the vaccination and I put it very clearly that I wanted everybody in the organisation to please – and an organisation meaning church members and also subcontractors for the Ubuntu Wellness Clinic – have a chat with me if they wanted to get vaccinated.  Lainie went straight behind my back.  She said nothing, didn't ask me, didn't talk to me, didn’t do anything and proceeded to ask some of my associates in the committee to not tell me.  Come on, this is an up-front, truthful organisation that has morals, ethics and standards and within a few days of me just putting a simple request, ‘Just have a chat to me, please,’ she goes behind my back and does all the stuff.  I’m sorry, that doesn’t wash with me and, yes, that message that you have put up then might be a red tape on committing me to actual wording and whatever that I’ve said in there, but at the end of the day I think I’ve made myself clear on the subject right now.” 8

[56] Mr Futter confirmed under cross-examination that the request was put to the Applicant to discuss the question of inoculation or vaccination with him, just before she was terminated and that he had wanted people to discuss the issue with him. In response to a question as to why the Applicant would speak to Mr Futter about this issue if she was employed by the Clinic, Mr Futter had the following exchange with Mr Swivel:

“Why, if Ms Chait was employed by the wellness clinic, should she speak to you?---Because I’m the one that has the say, I suppose, when it comes to the morals and ethics and the principles and the faith that we work under and what we do as part of – yes.

Thank you, Mr Futter.  I think that has become clear and I put it to you that you were then the boss, the controlling mind, at all times in this scenario and that effectively you did have the authority and you exercised that authority to terminate Ms Chait, and that as a result the Church of Ubuntu Incorporated ought to be regarded by the Commission as the proper respondent in these proceedings?---Would you like me to respond to that?

Yes?---Was that a question or a statement?

I was putting it to you, Mr Futter, that for present purposes you were the controlling mind in terms of the decision to terminate the contract for Ms Chait and that you were the controlling mind on behalf of the church who really had the relevant authority for the working relationship with Ms Chait?---It wasn’t a personal thing, only mine.  Other committee members agreed.  Does that alleviate the problem?

I think that confirms the picture that it was in fact the church and its committee which controlled this situation, and the church ultimately terminated the contract with Ms Chait.  Thank you for that clarification?---No, I don’t see that, but, yes, okay.” 9

[57] In response to a question as to whether he assumes direct responsibility for decisions related to work at the Clinic, as evidenced by the statement he made, Mr Futter said: “You’re asking me whether I assume authority in the statement I make. If it’s coming out of my mouth, I’m issuing that authority, am I not?” Mr Futter agreed with the proposition put by me that the answer to that question is “yes”. 10 In response to a question about where the Constitution of the Church or its teaching or rules, mentions vaccination, Mr Futter said that the COVID – 19 injections are not vaccinations because “they do not stop you from getting something”. While the Church was not against vaccinations of the kind that have been going on for decades, this is a different situation.11

[58] Mr Futter confirmed under cross-examination, that for the entire period the Applicant performed work for the Clinic, the Church’s bank accounts were frozen. 12 In relation to the Church’s banking arrangements, Mr Futter had the following exchange with Mr Swivel:

“I put it to you that the only reason this is in evidence in these proceedings is that the proper respondent here and the actual employer of Ms Chait was the church, and that the account of Ms Burge was only used for convenience because the church lacked for the relevant period its own bank account?---In certain terms that’s correct, yes, but the church is – well, primarily the people or the organisation that produces product and the consultants in the clinic do what they do, and that’s consult and assist people, two different entities basically.  One account at the time would have been two accounts.  When we had the church account with the Westpac there were two accounts in there; one being the petty cash, which was the clinic, and the other being the church.

Thank you, Mr Futter.  Can you see how at the very least this is an exceptionally confusing situation?---Not at all.  It's confusing because of what has gone on around us, yes, closing of bank accounts and COVID, and people not listening to simple requests.  That’s the confusing part.”  13

Ms Karen Margaret Burge

[59] Ms Burge is a Minister of Religion, Vice President and Sister of the Church, and Manager, Owner and Operator of the Clinic. Ms Burge said that “we” provide support to thousands of sick and disadvantaged individuals and their families throughout Australia and the disadvantaged and homeless in Newcastle. Ms Burge described her job as providing support and meals for local families and the overall running and management of the Clinic, support groups and palliative care support for community members. Ms Burge is also co-founder of the Church and has served in this volunteer position for some seven years. Ms Burge shares the views expressed by Mr Futter about COVID – 19 vaccinations and essentially contends that they are not effective, are poison and that anyone who condones them and uses any kind of force or coercion to make individuals receive them, is engaged in criminal activities and should be treated as such.

[60] Ms Burge said she met the Applicant around 5 years ago because the Applicant was a friend of Mr Futter and the Applicant had expressed an interest in assisting the Clinic. Ms Burge states that she engaged the Applicant as a contractor for the Clinic through an oral arrangement in October 2020. At the time, the Church had no operational bank account as it was in dispute with the Westpac Bank and had complained to the Australian Financial Complaints Authority (AFCA) about the closure of its accounts. During that time, Ms Burge agreed to take care of the business responsibilities with her business until the ACFA matter was settled and the Church’s accounts were re-established with a more reputable bank, as the Church had some moral and ethical concerns about Westpac, based on media reports.

[61] Because the Church had no business activities during the period while the Applicant was engaged as a contractor, Ms Burge stated that both she and Mr Futter are of the view that the unfair dismissal remedy sought by the Applicant is in fact a matter for the Clinic and not for the Church.

[62] According to Ms Burge, the terms of the oral arrangement with the Applicant was for the Applicant to work no more than 3 days per week at $200 per day as a remote consultant. Ms Burge confirmed that on average she paid the Applicant around $600 per week from her NAB sole trader account under the reference “Karen Burge T/as The Ubuntu Wellness Clinic”. Ms Burge said that she also paid the Applicant, as a gesture of goodwill, for 5 to 6 weeks whilst the Applicant was recovering from a medical procedure, despite being under no obligation to do so.

[63] Ms Burge recounted that the oral contract with the Applicant later included an agreement for the Applicant to receive further training to work with an affiliate organisation, theportal.life. Ms Burge said this was arranged by Mr Futter and Ms Nikki Freeburn, who owns and operates theportal.life. It is Ms Burge’s understanding that the training was valued at $3,000 and was paid for personally by Mr Futter and Ms Freeburn.

[64] Ms Burge also said that her accountant takes care of all the Clinic’s accounting needs and tax responsibilities so that “currently”, all contractors and volunteers are her responsibility and all accounts are reconciled through her accountant. Further, Ms Burge said that the Church re-established a bank account from October 2021 and is in the process of arranging its finances and accounting to again engage subcontractors and volunteers from July 2022. Further, Ms Burge said that she had not annexed additional supporting documents to her affidavit but would do so if necessary – “i.e. we go to a hearing.” At this point, Ms Burge believed it to be unfair that she should have to do all the work when the Applicant has taken the action at law and should be required to prove her case with evidence to the Commission and for Ms Burge to respond to that evidence. Ms Burge said that she is not aware that she is identified as a party to the case and at this time she has received no documents or evidence from the Applicant in relation to this matter, other than being requested to prepare an affidavit by Pastor Burton.

[65] Ms Burge was informed in September 2021 that Ms Mountford had been vaccinated against COVID – 19. Following this, all contractors and volunteers were informed of the Church’s position that its full members must not be inoculated, and that the Clinic would also only engage unvaccinated volunteers and contractors. Ms Burge said that this was communicated by Mr Futter to all contractors and volunteers via a private Ubuntu messenger chat group. Ms Burge confirmed that as of October 2021, all full members of the Church are not inoculated and that all contractors and volunteers of the Clinic are full members of the Church and thus not inoculated.

[66] Ms Burge said that after becoming aware of Ms Mountford’s vaccination status, a discussion was held between Ms Mountford, the Clinic and the Church. Ms Mountford was offered the opportunity to “subcontract with our affiliate theportal.life”, an opportunity that was also later offered to the Applicant. Ms Burge stated that the Applicant declined to become a contractor with theportal.life but was nevertheless paid 2 weeks of subcontracting.

[67] According to Ms Burge the Applicant was fully aware of the position of the Church and the Clinic on vaccination against COVID – 19, but the Applicant chose to be vaccinated. Ms Burge said that notwithstanding that the Applicant was engaged as a contractor, she was concerned that the Applicant’s vaccination may expose her to the risk of liability were the Applicant to get very sick or die while Ms Burge hired her. Ms Burge also said she could not risk having vaccinated contractors because there could be adverse health issues that could have negative ramifications for her clients.

[68] Under cross-examination, Ms Burge agreed that she did not enter into a written contract with the Applicant but rejected the proposition that the Applicant’s contract was not with her, but instead, was with the Church. Ms Burge also agreed that there is no entity other than her, and that the Ubuntu Wellness Clinic is actually a business name. Ms Burge was also cross-examined about the letter she sent to the Applicant terminating her contract, and agreed that the letter was written and signed by her and is on the Church’s letter head. Ms Burge said that she understood why the Applicant would think that she was employed by the Church and not Ms Burge personally but disputed that the letter created an impression that the contract was terminated by the Church. 14 Ms Burge also maintained that despite the use of Church letterhead, the termination letter was from the Clinic. In response to a question as to why the beliefs or rules of the Church were important if the contract was between Ms Burge and the Applicant, Ms Burge said that all members of the Church and all staff follow the same Constitution and are encouraged to do so because “that is why they’re here”.15 Ms Burge also maintained that s. 4 of the Church’s Constitution deals with vaccination and inoculation.

[69] In re-examination, Ms Burge said that she paid the Applicant around $200 per week and that her accountant had recently confirmed that the Applicant was a subcontractor and had been paid some $19,000 for that year.

[70] It is convenient to first consider whether the Applicant was an employee or an independent contractor before determining the entity which employed or engaged the Applicant.

Consideration

Whether the Applicant was an employee or a contractor

Legislation

[71] Section 382 provides that a person is protected from unfair dismissal in the following circumstances:

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[72] Section 13 provides the definition of a ‘national system employee’ as follows:

“13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.”

Approach to determining whether a person is an employee or an independent contractor

[73] The principles to be applied in distinguishing between employees and independent contractors were recently summarised in the decision of a Full Bench of the Commission in Hempel v Northern Territory Air Services Pty Ltd 16 (Hempel) as follows:

“The principles applicable to the determination of whether a person is an employee or an independent contractor have been well established in various court decisions, of which the High Court decisions in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Hollis v Vabu (2001) 207 CLR 21 are of principal significance. The elements of the multi-factorial test which is articulated in those authorities were usefully summarised in the Full Bench decision in Jiang Shen Cai trading as French Accent v Rozario [2011] FWAFB 8307 and need not be recited here. It is sufficient to characterise the task in applying the multi-factorial test as “a matter of obtaining the overall picture from the accumulation of detail”, which requires an “assessment and evaluation of evidence for the purpose of identification and isolating factors or indicia which are capable of pointing in one direction or the other, and then weighing or balancing those factors in accordance with established principles, none of which is conclusive, in order to reach a conclusion”. 17

[74] The multi-factorial test was recently considered by the High Court in CFMMEU v Personnel Contracting Pty Ltd 18 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek19 (Jamsek). In those decisions, the High Court considered the relevance and applicability of the multi-factorial test in circumstances where an employer and a putative employee have comprehensively committed the terms of their relationship to a written contract and the validity of the contract is not challenged. The plurality in Personnel Contracting held that:

“Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties’ rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties’ relationship by a wide ranging review of the entire history of the parties’ dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties’ rights and obligations, not to form a view as to what a fair adjustment of the parties' rights might require.” 20

[75] However, as the Full Bench in Hempel observed, it remains the case that where the parties have not committed the terms of the relationship into a written contract comprehensively, or where the validity of the contract is challenged as a sham or otherwise ineffective, the multi-factorial test is relevant to the characterisation of the relationship to determining whether it was employment or an independent contract. This is apparent in the dicta of the plurality in Personnel Contracting where it was stated that:

“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. 21

[76] To ascertain the proper characterisation of the relationship, the different factors that may be applied in a multi-factorial test were comprehensively summarised in the decision of a Full Bench of the Commission in Jian Shen Cai trading as French Accent v Michael Anthony Do Rozario 22 as follows:

“(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.

(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.

(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract24.

(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities:

•  Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like.

Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract. While control of this sort is a significant factor it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee.

“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.” “[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.”

•  Whether the worker performs work for others (or has a genuine and practical entitlement to do so).

The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.

•  Whether the worker has a separate place of work and or advertises his or her services to the world at large.

•  Whether the worker provides and maintains significant tools or equipment.

Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.

•  Whether the work can be delegated or subcontracted.

If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.

•  Whether the putative employer has the right to suspend or dismiss the person engaged.

•  Whether the putative employer presents the worker to the world at large as an emanation of the business.

Typically, this will arise because the worker is required to wear the livery of the putative employer.

•  Whether income tax is deducted from remuneration paid to the worker.

•  Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.

Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.

•  Whether the worker is provided with paid holidays or sick leave.

•  Whether the work involves a profession, trade or distinct calling on the part of the person engaged.

Such persons tend to be engaged as independent contractors rather than as employees.

•  Whether the worker creates goodwill or saleable assets in the course of his or her work.

•  Whether the worker spends a significant portion of his remuneration on business expenses.

It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.

(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other 46.

(6) If the result is still uncertain then the determination should be guided by “matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” including the “notions” referred to in paragraphs [41] and [42] of Hollis v Vabu (citations omitted)”

[77] In Abdallah v Viewdaze Pty Ltd 23, a Full Bench of the Commission found that the starting point for determining whether a relationship is one of employment or independent contract, is an analysis of its totality including the nature of the work performed, the manner in which it is performed and the terms and terminology of the contract. While it is necessary to consider what have variously been referred to as principles, criteria, tests or indicia of the relationship in question, not all indicia will be relevant, and it is necessary to weigh or balance them, with some to be given more weight than others based on the nature of the work and the manner in which it is to be performed. The Full Bench in Abdallah also said that the list is not exhaustive and that features of a relationship that do not appear in the list may be relevant to the determination of the ultimate question.

[78] If, after weighing these indicia, the result is still uncertain, the Full Bench was of the view that the determination should be guided by the notions referred to in the judgment of the majority in Hollis v Vabu including the statement that the distinction between an employer and an independent contractor “is rooted fundamentally” in the difference between a person who serves his or her employer in the employer’s business with little or no independence in the conduct of operations as distinct from a person who carries on his or her own trade or business.

[79] The Following table taken from the Fair Work Commission’s Unfair Dismissal Benchbook, usefully summarises and sets out indicia of employment and contractor relationships derived from the Full Bench decision in Abdallah v Viewdaze Pty Ltd and updated in Jian Shen Cai trading as French Accent v Do Rozario.

*Generally referring to full-time employment – some employees may choose to work additional jobs.

The table above is not exhaustive and whether a worker is an employee or contractor may be determined by a factor other than those listed above.

[80] A significant aspect of applying the multi-factorial approach is the principle that the description applied to a relationship by one or other of the parties, is not determinative of the actual relationship, and that the totality of the relationship must be considered. The fact that the Church/Clinic describes the Applicant as a contractor, does not make it so. Neither do Mr Futter’s assertions that the Church is “an out there organisation” remove it from the operation of well-established principles as to how a relationship involving the performance of work, will be viewed at law. As Justice Gray famously put this proposition: “The parties cannot create something which has every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck.” 24 I turn now to consider the application of the indicia of employment and contractor relationships to the present case.

Application of indicia in the present case

[81] There was no written contract between the Applicant and the Church/Clinic, and it is common ground that whether the Applicant was an employee or an independent contractor, the contract was oral. It is therefore necessary to analyse the totality of the relationship pursuant to which the Applicant performed her work, based on the evidence in relation to the nature of the work, the way it was performed and the terms and terminology of the contract. It is also necessary to identify the indicia which are relevant to the relationship and to weigh and balance them, to reach a conclusion about whether it was an employment relationship or relationship of contractor and principal.

[82] The evidence establishes that Applicant had no control over how her work was performed. The Applicant’s uncontested evidence, supported by the email tendered by her as Annexure A to her affidavit makes it clear that the Applicant was working rostered shifts of a set duration. The Applicant did not pursue or generate her own client base and clients the Applicant contacted were allocated to her by other “staff”. The Applicant was free to communicate with clients in a way that she determined but was required to follow detailed instructions in relation to how she conducted consultations and was provided with guidelines to be used “like a script”. The Applicant was also required to follow detailed instructions for recording consultations and providing information to a despatch area so that products could be sent to clients.

[83] Shift lengths, including meal breaks were prescribed by the Church/Clinic. The Applicant was paid according to the length of her shifts and was expected to undertake a certain number of consultations or follow-ups during the shift. Even if the Applicant had been paid by reference to the number of consultations or follow-ups she performed during a shift, this is not inconsistent with an employment relationship. There is no indication that the Applicant had any control over how the work was performed or that she could elect to change the script or undertake fewer or more consultations or follow-ups during her shift than the prescribed and allocated number.

[84] Rather than working independently, it is clear from the process instructions that the Applicant was working with a group or team of other persons undertaking the same work and that consultations were booked for them by “staff” engaged for that purpose and allocated consistently between the Applicant and others performing the same role with a view to equity and sustainability as between those persons undertaking consultations. These matters are also indicative of employment, whereby the Applicant worked as part of a team, organised and managed by the Church/Clinic. The fact that the Applicant’s hours of work and the days on which she worked may have fluctuated, is also not inconsistent with employment and any fluctuations were minor. There is no evidence as to where the Applicant was located to perform her work, however I assume that she worked from the premises of the Church/
Clinic, albeit this is not determinative in light of the other incidents of control over the manner and times at which the work was performed.

[85] I am also of the view that the purported requirement that the Applicant be a member of the Church and comply with its belief systems, is further evidence of control. These matters indicate that the Church/Clinic exercised control over the manner in which the Applicant performed her work and there is no evidence the Applicant had any control in respect of these matters.

[86] I accept that the Applicant undertook a short period of work for another entity – theportal.life – during the period she performed work for the Church/Clinic. However, the evidence establishes that there is a relationship between theportal.life and the Church/Clinic. Ms Burge’s evidence was that the owner/operator of theportal.life is known to Mr Futter and that they jointly arranged for the Applicant to undergo training that would have enabled her to work for that entity. However, the Applicant’s uncontested evidence was that she undertook that training to assist her with the work she was performing for the Church/Clinic. The Applicant also gave evidence, which was not contested, that theportal.life used products that were made by the Church/Clinic and that when she worked for theportal.life it was to further her knowledge relevant to the work she was performing for the Church/Clinic. Further, it was apparent from the evidence of Mr Futter and Ms Burge, that they had the ability to place persons who could no longer work for the Church/Clinic due to having received the COVID – 19 vaccination, with theportal.life.

[87] I accept that there was no evidence of any barrier being placed on the Applicant performing work for other entities including affiliates of the Church, and that she was trained to do so. It is also the case that the Applicant worked on a less than full-time basis for the Church/Clinic, and may have had available time to work for another entity which was not affiliated with the Church/Clinic. However, given the degree of control exercised over the manner and the times at which the Applicant performed work for the Church/Clinic, the fact that she may have been able and entitled to work for other entities, is not inconsistent with the Applicant having been an employee rather than an independent contractor. This is also indicative of an employment relationship.

[88] The Church/Clinic advertises the goods and services it provides. There is no evidence that the Applicant had a separate place of work, or that she advertised her services to the world at large. There is also no evidence that the Applicant provided any tools or equipment necessary to perform the work, much less significant tools or equipment. The Applicant used the intranet of the Church/Clinic to undertake her work and was allocated work by staff of the Church/Clinic. The evidence of the Applicant and Ms Mountford establishes that the products were made by the Church and Ms Burge confirmed this in her evidence. There is no evidence that the Applicant had the right to delegate or subcontract her work to others. To the contrary, the beliefs of Mr Futter and Ms Burge, and by extension the Church and the Clinic, are such that it would be highly improbable that the Applicant could have delegated or subcontracted her work. The Church/Clinic terminated the contract for breach and operated on the basis of a belief that there was a right to so terminate. All these indicia point to an employment relationship rather than a relationship between contractor and principal.

[89] The Applicant was neither provided with nor required to wear a uniform and did not wear her own uniform. This is not a relevant consideration and does not point in either direction. In relation to responsibility for taxation affairs, the following observations may be made. The Church/Clinic did not deduct income tax from the remuneration paid to the Applicant. There was no written contract between the parties stipulating that responsibility for conducting taxation affairs lay with the Applicant. The evidence of Mr Futter, taken at its highest, is that the Applicant knew that she was a contractor. Essentially, Mr Futter’s views on this point are based on his understanding of what Ms Burge told the Applicant when she was engaged to undertake work. Ms Burge gave no direct evidence about the oral arrangement she entered into with the Applicant. The Applicant accepted that the fact that she was a contractor responsible for her own taxation was spoken about at the time she was engaged, but that in her view this situation changed.

[90] The evidence in relation to the Applicant’s responsibility for her tax affairs, taken at its highest, is indicative only of the intention on the part of the Church/Clinic to engage her as a contractor. That evidence does not establish that this is what occurred. The fact that a person is informed that he or she is engaged as a contractor with responsibility for his or her own taxation arrangements, is not, of itself, sufficient to make it so, and the totality of the relationship must be considered where one or other of the parties disputes its true nature. The Applicant did not receive paid holidays or sick leave, other than an ex gratia payment that was made to her by Ms Burge when she was absent from work due to a requirement to have surgery. While this is an indication of the Applicant being an independent contractor it is equally an indication of casual employment. Alternatively, it may be that the Church/Clinic did not provide the Applicant with NES entitlements. This is an indicator that is also not determinative of the true nature of the Applicant’s relationship with the Church/Clinic.

[91] The Applicant did not provide invoices after the completion of tasks and was paid periodically based on time worked which may have included a notional number of consultations she was required to undertake in each working period. This is more closely aligned to the Applicant being paid by periodic wage or salary than it is of the Applicant being paid to complete tasks upon the provision of invoices. The Applicant’s work for the Church/Clinic did not involve a profession, trade or distinct calling. Other than some previous experience derived from working at an establishment that provided similar products and services and being trained by the owner of such an establishment, there is no evidence that the Applicant brought any particular qualification to the arrangement with the Church/Clinic. The detailed instructions and script the Applicant was required to follow to undertake her work are also an indicator in this respect. The Applicant created no goodwill or saleable assets for her own business and any such results benefited only the Church/Clinic. There is no evidence that the Applicant spent any of here remuneration on business expenses associated with any business or undertaking that she was running.

[92] All these indicia point directly to the Applicant being in an employment relationship rather than in a relationship as a contractor with a principal.

Conclusion in relation to whether the Applicant was an employee or an independent contractor

[93] When all of the indicia relevant to determining whether the Applicant was an employee or an independent contract are considered, they weigh overwhelmingly in favour of a finding that the Applicant was an employee of the Church or the Clinic. A finding that the Applicant was carrying on her own business is counter-intuitive and would be contrary to the established principles by which the question of whether a person is an employee or an independent contractor are determined.

[94] Accordingly, I find that the Applicant was in an employment relationship and I turn now to consider which of the two putative employers – the Church or the Clinic – was the other party to that relationship.

Whether the Applicant was employed by the Church or the Clinic

Approach to determining employer from two or more possible employers

[95] The principles that may be applied to identify an employer of a person from two or more possibilities or from a group of companies were summarised by Edmonds J in the decision of Gothard v Davey [2010] FCA 1163. His Honour undertook a review of the existing case authorities and observed that while some general principles may be discerned, those authorities were nevertheless of limited assistance because cases on this subject largely turned on their own facts. His Honour went on to observe that:

“[52] …The courts have adopted the position that in undertaking this exercise, they are entitled to take a wide view of the putative relationship, beyond the terms of the contractual documentation, to examine how the parties conducted themselves in practice and whether, where there is contractual documentation, the reality of the situation accords with the terms of that documentation or whether it points to another entity being the employer.

…

[54] In In the matter of C&T Grinter Transport Services Pty Ltd (In Liquidation) & Grinter Transport Pty Ltd (In Liquidation) (Controller Appointed) [2004] FCA 1148, Finn J at [20] said:

[20] The principles to be applied in the identification of the employer of an employee where there are two or more possible employers, are reasonably well settled. For present purposes I would note the following:

(1) A contract of service cannot be transferred by one employer to another or novated as between them without the employee’s consent: Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014; Re Coogi Nominees Pty Ltd (Administrators appointed); McCluskey v Karagiosis (2002) 120 IR 147. Questions of estoppel apart: Smith v Blandford Gee Cementation Co Ltd [1970] 3 All ER 154; the employee’s consent must be a real one whether express or implied and is “not to be raised by operation of law”: Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 at 443.

(2) The totality of the circumstances surrounding the relationships of the various parties including conduct subsequent to the creation of an alleged employment relationship is relevant to the assessment to be made: Romero v Auty (2001) 19 AGLC 206 at [10] and [42]-[44].

(3) Documentation created by one or more of the parties describing or evidencing an apparent employment relationship will be relevant to, but not necessarily determinative of, the true character of that relationship: Pitcher v Langford (1991) 23 NSWLR 142; Marrs Fabrics Pty Ltd & Nathan Wholesale Fabrics Pty Ltd v Whipps (1991) 33 AILR 167. In determining the identity of a disputed employer, the Court is entitled to consider “the reality of purported contractual arrangements”: Dalgety Farmers Ltd t/a Grazcos v Bruce, NSWCA, 3 August 1995. The documentation may have been brought into existence for other purposes, for example, tax minimisation or the reduction of insurance premiums, without reflecting the reality of the parties’ relationship: ibid; Pitcher v Langford, at 149; Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454.

(4) Conversations and conduct at the time of the alleged engagement of the employee is of considerable significance: Romero, at [9]. The beliefs of the employees as to the identity of their employer is admissible and is entitled to weight: Pitcher v Langford.

(5) In cases of the engagement of new employees to work in a business in which a number of separate corporate entities participate otherwise than as partners:

“… it was open to those controlling the business to select which company should be the employer provided that the selection was consistent with the financial and administrative organisation of the business and was not otherwise a sham.”

See Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd, FCA, Ryan J, 19 November 1998.’

[55] The majority of the NSW Court of Appeal (Basten JA dissenting) made the following observation in Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 at [59] regarding the court’s earlier decision in Pitcher v Langford (1991) 23 NSWLR 142:

The result in Pitcher v Langford turned on its own facts, and on the need for error in point of law. There is no doubt, however, that without going so far as to find a sham the “reality of purported contractual arrangements” (per Handley JA) can be considered, and the case illustrates that it can extend to the identity of a contracting party and that it can be found that a purported contracting party was not in reality party to the contract even where a written contract gives it as the party.’

[56] The majority further noted (at [61] – [62]) that determination of the entity that entered into a contract is based upon an objective assessment of the state of affairs between the parties.

[57] In Dalgety Farmers Ltd (t/as Grazcos) v Bruce (1995) 12 NSWCCR 36, Kirby ACJ (with whom Clarke and Cole JJA agreed) made the following observations:

Disputes concerning the employment of shearers are not uncommon. Specifically, disputes have quite frequently arisen out of “paper” arrangements designed to settle the assignment of employment to a particular organisation ... There is no alternative in such cases but to examine the detailed evidence.

…

In disputes concerning the existence of employment-type arrangements, and the characterisation of those arrangements, the proof of paper documentation, although relevant, will not necessarily be determinative ... Priestley JA and Handley JA in Pitcher ... made it plain that, in determining the identity of a disputed employer, the Court is entitled to consider the reality of the purported contractual arrangements …

[T]he paper arrangements [are] not irrelevant, and should not be ignored ... In determining whether a contract of service has been entered, and if so with whom, it is necessary to look to the circumstances of the engagement and to ascertain who it was that offered employment, and whether the worker accepted that offer. To determine whether what then ensued was indeed employment (in the sense of a contract of service) it is necessary to look to the whole of the relationship.... Thus the search which is on is for the essence of the relationship, not the simple touchstone of actual control, or the right of control.

[58] In Pitcher, at 150, the NSW Court of Appeal observed that establishment of an employment relationship, where in dispute, will often take a court into a detailed examination of the features of the relationship between the parties. This case was recently followed in Sturesteps v McGrath [2010] NSWSC 169, a case involving the identification of the employer in a corporate group.

[59] It is open to persons controlling a business in which a group of companies is involved to select an entity within the corporate group to be the employer. However, as Ryan J pointed out in Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd [1998] FCA 1465, if such a selection is to be made, the arrangement must be consistent with the financial and administrative organisation of the business in order to be effective.

[60] Aspects of the practical realities of the relationship which have been considered relevant in the cases referred to above, include a consideration of the entity which:

(a) had practical and legal control and direction of the employees;

(b) made decisions about hiring;

(c) made decisions about disciplinary issues;

(d) made decisions about the level of remuneration;

(e) actually paid remuneration;

(f) communicated with employees about leave;

(g) made decisions about termination of employment.”

Application of principles in the present case

[96] I have set out the evidence about the operations of the Church and the Clinic at some length. Even making allowances for the fact that none of the persons who were involved in the hearing for the Church or the Clinic are legally qualified, the evidence of Mr Futter and Ms Burge establishes that the Clinic is part of and controlled by the Church. It follows from my finding that the Applicant was an employee, that her employer was the Church.

[97] Mr Futter embedded a hyperlink to the Church’s website in his witness statement. If one clicks on the hyperlink one is taken to a website home page upon which the following appears: “Church of Ubuntu & Ubuntu Wellness Clinic”. The term “Ubuntu Hemp” also appears on the home page, which is the product made by the Church and distributed by the Clinic. The menu has links to allow persons to join the Church or the Clinic.

[98] It is clear from the evidence that the Church manufactures products and the Clinic prescribes and despatches them to clients via consults undertaken by persons such as the Applicant. The email addresses of all persons working under the auspices of the clinic are designated “@churchofubuntu.org. Persons who work for the Clinic are said by Mr Futter to be full members of the Church. According to Mr Futter, such membership is a requirement for persons working for the Clinic. I accept that while the Applicant was not a member of the Church, Mr Futter believed that she was a member or that she shared the views of the Church. It is not necessary to resolve this issue for present purposes but only to note that this requirement is an indicator that the Church and the Clinic are a single entity or inextricably intertwined so that the Church was the Applicant’s employer.

[99] This conclusion is also consistent with the fact that Mr Futter has actual authority in relation to persons who will or will not be employed or engaged by the Clinic either as contractors or volunteers. Indeed, the recording of Mr Futter could not be clearer and establishes that persons who work for the Clinic are working for the Church and that they cannot work for “us” if they are vaccinated. Whether “us” refers to the Church and the Clinic or the Church only, there is no doubt about Mr Futter’s control of the Clinic’s operations and that “us” is constituted by both the Church and the Clinic. Mr Futter is the President of the Church and it is clear that Mr Futter, in that capacity, controlled who could or could not work for the clinic. This is also consistent with the Applicant’s uncontested evidence, that she was effectively employed by Mr Futter, and that he made the decision to hire her.

[100] Taken at its highest, Ms Burge’s evidence establishes no more than that in her operation as a sole trader, Ms Burge owns the business name – Ubuntu Wellness Clinic – and that in her capacity as a sole trader, Ms Burge paid the Applicant’s wages. Balanced against that evidence is the lack of any evidence from Ms Burge as to whether she owns any assets used to conduct the business of the Clinic. As previously noted, the clinic supplies products made by the Church. Staff of the Clinic use the Church’s computer systems to carry out their work and in particular, to communicate with persons who despatch the product. There is no evidence as to whether those despatch persons are engaged or employed by the Clinic or the Church.

[101] The fact that Ms Burge paid the Applicant’s wages is not determinative of Ms Burge employing the Applicant. Neither is it relevant that Ms Burge had been paying wages of clinic personnel since before the Applicant was employed. The evidence is that at the time the Applicant was employed the Church did not have an operating bank account and Ms Burge used her business account to pay persons working for the Church. Mr Futter’s letter to the Westpac Bank, tendered by the Applicant, is on Church letter head and states that “We run and operate a Church and a Wellness Clinic.” In response to a proposition under cross-examination that the Church used Ms Burge’s bank account for convenience because it did not have a bank account, Mr Futter said that this was correct and that when the Church had a bank account it comprised two accounts – one for the Church and one for the Clinic.

[102] Ms Burge also made it clear in her evidence that the Church had previously engaged persons to do work of the kind being undertaken by the Applicant and that it would do so again once its banking difficulties were resolved. In this regard, Ms Burge said that the Church will engage consultants again from July 2022. It is also the case that the fact of Ms Burge’s Vice Presidency of the Church, and her position as co-founder, is a further indicator that the Clinic is no more than an arm of the Church and does not operate independently.

[103] Finally, and most significantly, it is Mr Futter who ended the Applicant’s employment. This is clear from his voice message and the text message he sent the Applicant. It is completely incongruous that on the one hand, Mr Futter in his capacity as a co-founder and President of the Church, exercises such a degree of control that he can hire and fire employees and engage or engage and terminate contractors, and on the other hand, that Mr Futter does not control the Clinic.

Conclusion in relation the identity of the Applicant’s employer

[104] In terms of the entity that employed the Applicant, the evidence points one way – to the Church.

Conclusion and next steps

[105] For these reasons I concluded that the Applicant was an employee of the Church and was dismissed by the Church, represented by Mr Futter, on 15 April 2022. In reaching this conclusion, I do not find that Mr Futter or Mr Burge were dishonest in their evidence to the Commission. In my view neither Mr Futter nor Mr Burge fully appreciate the legal complexities associated with whether a person is an employee or an independent contractor and how critical a written contract is to such arrangements. While the Church may have sought to engage the Applicant as an independent contractor, this is not what occurred in fact. Accordingly, I dismissed the objections to the Applicant’s unfair dismissal application. While Mr Futter and Ms Burge and other members of the Church are entitled to their religious beliefs, and the Church is entitled to operate in accordance with those beliefs, the Church is also required to operate in a manner that is consistent with its legal obligations as an employer.

[106] The matter will now proceed to hearing on merits to determine whether the Applicant’s dismissal was unfair, having regard to the matters in s. 386 of the FW Act. Those matters include whether there was a valid reason for dismissal and whether the dismissal was procedurally fair.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR747678>

Appearances:

M Swivel of Barefoot Law for the Applicant.
P Burton for the Respondent.

Hearing details:

2022.
Brisbane (by video):
30 May 2022.

 1   Transcript PN467 – 475.

 2   Transcript PN573.

 3   Transcript PN120.

 4   Transcript PN154.

 5   Transcript PN128.

 6   Transcript PN129.

 7   Transcript PN131.

 8   Transcript PN132.

 9   Transcript PN 166 – 170.

 10   Transcript PN134 – 136.

 11   Transcript PN144.

 12   Transcript PN162.

 13   Transcript PN163.

 14   Transcript PN243 – 246.

 15   Transcript PN250.

 16   [2021] FWCFB 3707

 17   Ibid at [28].

 18   [2022] HCA 1.

 19   [2022] HCA 2.

 20   Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1, at [59].

 21   Op. cit. at [61].

 22   [2011] FWAFB 8307.

 23   (2003) AIRC 504.

 24   Re Porter (1989) 34 IR at 179.