The Fair Work Commission has rejected a sex worker’s unfair dismissal claim against a brothel.
The worker claimed the company employed her as a casual employee and sacked her when she complained about health and safety.
However, the Commission found the brothel did not employ the woman.
Instead, it found she was engaged as an independent contactor, and therefore, not entitled to protection from unfair dismissal.
The Top Of The Town brothel is licenced to provide 11 booking rooms in Melbourne.
The venue provides booking, introduction, accommodation and related support and statutory services to sex workers.
In return, the sex workers provide services to customers as sole traders.
In this case, the sex worker had been working at Top Of The Town since August 2019.
She told the Commission she attended an interview and signed a contract at the start of her employment.
However, she was unable to provide a copy of the contract and nor did she recall the terms of any such contract.
Events leading to ‘termination’
In November 2021, the worker suffered an injury which she blamed on the venue’s unsafe hygiene practices.
After a stint in hospital, she returned, but remained in pain and unable to offer penetrative sex to her clients.
She told the Commission that she became increasingly concerned about certain health and safety issues in the workplace which she raised with the head receptionist.
With the issues left unaddressed, and after a series of exchanges with the management, she said she felt “saddened, frustrated, stressed and concerned.”
Due to the head receptionist’s “dismissive” attitude about the issues she raised, the worker allegedly called the latter a “disgusting piece of shit.”
When she left the establishment, she received a text message from the staff phone number informing her that “there were no more shifts available” for her.
But after clarifying if she was to complete her rostered shift that night, she was advised that she had “no more shifts” and could only attend to pick up her belongings.
The worker then filed an unfair dismissal application, saying there were no warnings, and she was not notified about her behaviour or performance.
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Fair Work rejects sex worker’s dismissal claim
Deputy President Amber Millhouse found “no financial relationship” existed between the parties.
The client pays the establishment the cost of the room hired and then pays the worker the agreed fee for services rendered.
Essentially, the establishment only provides administrative assistance to the worker.
Ms Millhouse also noted the worker had “the right to refuse bookings and negotiate the prices and types of services with each client”.
She said this kind of discretion is not available in employment relationships.
Additionally, Ms Millhouse found the worker had the right to:
- request to undertake shifts at her discretion;
- decline to perform a shift at any point prior to its commencement;
- refuse to provide services to any client at any point; and also
- charge different amounts and adjust her services for each client.
Ultimately, Ms Millhouse found the worker was an independent contractor, not an employee, so the unfair dismissal remedy was unavailable to her.
Industrial advocate Miles Heffernan said the case highlights the importance of expert advice.
“Workers who believe they have been unfairly dismissed from employment should seek urgent expert advice,” he said.
“We have extensive experience filing successful unfair dismissal claims for our clients.
“We know dismissal laws intimately and can offer confidential advice to a worker of their best options before they go through the process of making a claim.”
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