Employee or Independent Contractor?

AU: Dismissed pregnant worker an employee not independent contractor

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From Lexology, Wolters Kluwer Australia discusses a case in which the court said a worker as an employee despite being labeled an independent contractor and unlawfully dismissed because of her pregnancy. Wolters Kluwer Australia writes:

An office-worker was unlawfully dismissed because of her pregnancy. Her employer also misrepresented the nature of the engagement as one of independent contracting and failed to provide payslips. The employer was ordered to pay $8,020 in compensation by the Federal Circuit Court.

The applicant, Ms Stuart, worked for Gold Coast Business Management (GCBM), a business operated by the first respondent as a sole trader. Her contract of engagement referred to her extensively as an independent contractor and she worked under an ABN. The second respondent was the first respondent’s agent in matters concerning the business, and the third respondent was the manager.

The applicant was dismissed after she became pregnant with her second child. She claimed the dismissal was adverse action taken because of pregnancy and family and carer’s responsibilities in contravention of s 351 of the Fair Work Act 2009 (Cth) (FW Act). She also claimed that the first respondent misrepresented the nature of her engagement as one of independent contractor when she was in fact an employee, in contravention of s 357 of the FW Act.

The respondents argued that the applicant’s claim must fail because she was an independent contractor and not an employee.

Applicant was an employee

Jarrett J held that the applicant was an employee, despite the label used by the first respondent to describe her engagement. The court found that the applicant did not have her own business, despite using an ABN. She was not pursuing her own business interests or generating any goodwill on her own account. Instead, she was working to grow and maintain GCBM as a business.

The first respondent, through the third respondent, exercised control over the applicant’s work and working arrangements. The applicant was directed as to the conduct of work and was not free to work for more than one business because of the hours she was required to work for the first respondent. She was paid as dictated by the first respondent and her pay was not dependent on any particular outcome. The applicant had no right to refuse work and the first respondent provided her with everything she needed to perform her role.

The court held that the first respondent misrepresented the nature of the applicant’s engagement in contravention of s 357 of the FW Act. The first respondent also contravened s 536(1) of the FW Act by failing to provide payslips.

Read the full story at Dismissed pregnant worker an employee not independent contractor – Lexology

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