TERMINATION OF EMPLOYMENT – contractor or employee – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – jurisdictional objection on basis that applicant was not respondent’s employee – Commission considered indicia in Brodribb Sawmilling to determine whether applicant was employee or independent contractor – respondent controlled manner in which work was performed, location and hours – applicant worked solely for respondent and did not have separate workplace – applicant did not advertise and respondent provided tools and equipment – respondent approved who covered a shift and paid them – applicant could not sub-contract work without respondent’s consent – acted as respondent’s representative by wearing respondent’s uniform – paid a salary by respondent – created goodwill and did not spend remuneration on business expenses – Commission concluded applicant’s contract with respondent was not terminated after applicant signed an ’employment application form’ which only seemed to provide payroll data – as a practical matter applicant was not conducting own business – while terms of applicant’s agreement with employer purported to be an independent contractor relationship, parties could not alter true nature of their relationship by putting a different label on it and deeming their relationship to be something it was not – indicia contradicted terms of agreement and showed that in substance there was an employment relationship between applicant and respondent – jurisdictional application dismissed – reasons for termination were mixed – reasonable attempts to discuss roster not a valid reason – sleeping on the job was a valid reason but there were mitigating circumstances – having regard to those circumstances, absence of procedural fairness, and all other matters, Commission found termination was harsh, unjust or unreasonable – parties given opportunity to put submissions regarding compensation – matters then to be determined on the papers unless hearing requested. Saeed v Allied Security
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