TERMINATION OF EMPLOYMENT – contractor or employee – identity of employer – s.394 Fair Work Act 2009 – applicant made unfair dismissal application – applicant asserted that she was employed by respondent (Church of Ubuntu) – respondent raised jurisdictional objection that applicant was an independent contractor engaged by Ubuntu Wellness Clinic (Clinic), a separate entity – Vice President of respondent Church is registered as an individual/sole trader and holds a number of business names, including Ubuntu Wellness Clinic – Vice President is owner/operator of Clinic – on 29 August 2022, Commission dismissed respondent’s objection and found that applicant was employed by respondent and that it dismissed her – on 7 November 2022, Commission issued its reasons for its decision of 29 August – beliefs of respondent Church are that receiving a COVID-19 ‘inoculation’ is contrary to God’s teachings and respondent will not hire anyone as contractor or volunteer who has received an inoculation – it is common ground between the parties that applicant’s contract was terminated because she received a COVID-19 vaccination – principles to be applied in distinguishing between employees and independent contractors involve a multi-factorial test [Hempel] – High Court in Personnel Contracting and Jamsek considered multi-factorial test – where parties have comprehensively committed the terms of their relationship to a written contract and validity of contract is not in dispute, their relationship is characterised by reference to contract, rather than by reviewing the history of their dealings [Personnel Contracting] – but where there is no comprehensive written contract or the validity of the contract is challenged, the multi-factorial test is relevant [Hempel] – no written contract between applicant and Church or Clinic in this case – common ground that contract was verbal – Commission considered the factors that may be applied in a multi-factorial test, as summarised in French Accent – Commission found that applicant: had no control over how her work was performed; did not pursue or generate her own client base; did not work independently – purported requirement that applicant be a member of Church and comply with its belief systems was further evidence of control – no evidence that applicant: had a separate place of work or advertised her services to the world at large; provided any tools or equipment necessary to perform the work; or had the right to delegate or subcontract her work to others – no income tax was deducted from applicant’s remuneration – Commission found that evidence that applicant was responsible for conducting her own taxation affairs indicated an intention by Church/Clinic to engage her as a contractor, but did not establish that she actually was a contractor – applicant did not receive paid holidays or sick leave other than an ex gratia payment when she was absent from work due to surgery – Commission found that ‘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 12 entitlements’ – applicant did not provide invoices after completion of tasks – applicant created no goodwill or saleable assets for her own business and no evidence that applicant spent any of her remuneration on business expenses associated with any business she was running – Commission found that the relevant indicia weighed overwhelmingly in favour of a finding that she was an employee of Church or Clinic – principles applied to identify which entity employs a person were summarised in Gothard – Commission concluded that Clinic was part of, and controlled by, Church and it followed that applicant was employed by Church – evidence of Vice President of Church established that in her capacity as a sole trader, Vice President paid applicant’s wages – no evidence from Vice President as to whether she owned any assets used to conduct the business of the Clinic – matter will now proceed to a hearing on the merits to determine whether there was a valid reason for applicant’s dismissal and whether dismissal was procedurally fair. Chait v Church of Ubuntu U2021/9704 [2022] FWC 2947 Asbury DP Brisbane 7 November 2022
