Sex worker claims unfair dismissal by brothel – but was she an employee? Which case won?
Sex worker’s work arrangement covered by agency agreement
A sex worker commenced working at a Melbourne brothel in August 2019. Her work arrangement was set out in an agency agreement, which specified that she was not a partner, a joint venturer or an employee of the brothel.
The agreement further stated that the sex worker was free to refuse any client booking on any grounds, and that the brothel did not direct or control sex workers “in the nature or conduct of delivering their personal services”.
While the brothel was not able to produce a copy of the agency agreement that it claimed the sex worker had signed, the sex worker conceded that she had signed a contract during her initial interview at the brothel, although she too was unable to produce a copy of that document.
Relationship between sex worker and brothel deteriorates
In November 2021 the sex worker suffered an injury and was hospitalised. Upon her return to work in December 2021, she was limited in the services she could offer to clients due to her injury.
The sex worker became increasingly concerned about hygiene, health and safety at the brothel. She raised these concerns at a meeting with a manager in March 2022 and again at two subsequent meetings in June the same year.
Following the last of these meetings, the sex worker received a text message from the staff phone number, informing her that she had no more shifts at the brothel and could only attend the premises to collect her belongings.
Was the sex worker unfairly dismissed?
The sex worker made an application to the Fair Work Commission, claiming that she had been a casual employee of the brothel, had been unfairly dismissed and was therefore eligible for an unfair dismissal remedy.
In order to decide whether the sex worker was eligible for an unfair dismissal remedy, the FWC first had to determine whether or not she had been an employee.