TERMINATION OF EMPLOYMENT – contractor or employee – ss.382, 394 Fair Work Act 2009 – application for unfair dismissal remedy – the applicant worked as a physiotherapist at the respondent’s practice for about 2.5 years – respondent raised a jurisdictional objection, arguing that the applicant was an independent contractor and not an employee – having regard to the indicia of control [Hollis], [Cai] the Commission observed that the respondent did not directly supervise the applicant’s work, and that the applicant and respondent ‘passed like two ships in the night’ with each using the physio room at different times – the applicant was found to have provided services in the name of the respondent’s practice, which was more consistent with an employment relationship – on balance, it was held that, without detracting from the range of competing indicia, the applicant was working within the business environment established by the respondent and the services were provided as part of the business of the respondent – this included that it was the respondent that had the right to make important business decisions – the respondent was found to be able to set and change the context in which the applicant’s services were provided – the respondent took the risks associated with the payment for the provision of those services – the applicant was found to be an employee of the respondent – it was held that the Commission had jurisdiction to hear the application – substantive matter to be heard. Mitchell v Uraidla Physio
