TERMINATION OF EMPLOYMENT – contractor or employee – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent objected to application on the basis that the applicant was an independent contractor and not an employee – respondent asserted it was a small business employer and dismissal was consistent with small business fair dismissal code and alternatively applicant not employee within meaning of s.380 of FW Act – Abdalla considered – Commission satisfied respondent had little day to day oversight of the applicant’s work – no impediment to the applicant working for others subject that work not being in competition with ANZ mortgage products – respondent provided key tools or pieces of equipment required to perform the role – applicant’s capacity to delegate or subcontract his work constrained by requirement for mobile lenders to be licensed – no material before the Commission to suggest that the respondent presented applicant as an emanation of its business – no income tax deducted by the respondent – applicant not entitled to paid holidays or sick leave – applicant’s work did not involve a profession, trade or distinct calling however applicant did draw on his experience in finance sector and required him to be licensed – Commission found majority of indicia supported applicant being independent contractor – found applicant does not come within the scope of s.382 – application dismissed. D’Ambrosio v Jakroas Financial Services P/L t/a ANZ Mobile Lending Belconnen/Gungahlin ACT
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