Unfair dismissal; employee or contractor

When determining whether a relationship for the purposes of unfair dismissal is that of employer and employee or principal and contractor, the fact that PAYG tax may have been withheld from payments is not dispositive of the relationship and is just one of several Issues which are taken into account.

“There was no misapplication of facts to the law. Whilst one factual matter weighed in favour of Mr Carter (that PAYG was deducted from monies paid by RUBIK3) other factors weighed against or were neutral. The Deputy President was not wrong in observing that a PAYG deduction “is not in itself determinative of an employment relationship”. 9 The overall conclusion reached was that the evidence, in the sense of the weight of evidence, “points clearly in one direction”10. That approach was consistent with the weighing of indices required of the Commission when determining such questions.”

Carter v RUBIK3 Pty Ltd (2021) FWCFB 6060 delivered 6 December 2021 per Catanzariti VP, Anderson DP and O’Neill C