The employer’s witnesses also addressed the discrimination allegations, with staff members providing evidence that the practice owner was respectful to all patients and staff regardless of their race, gender, religious belief or other protected attributes. The practice owner denied ever making any remarks that were discriminatory in nature.
The Commission noted that where the worker’s evidence conflicted with the employer’s witnesses, it preferred the tested witness evidence of the employer’s witnesses. This preference was based on the fact that the worker’s evidence had not been subject to cross-examination due to her absence from the hearing.
The FWC’s decision
The FWC found that the competing accounts between the worker and the employer’s witnesses created a credibility issue that needed to be resolved. The Commission stated: “I note where the [worker’s] evidence conflicts with the [employer’s] witnesses, I preferred the tested witness evidence of the [employer’s] witnesses.”
The Commission was critical of the worker’s failure to attend the hearing, noting that “the [worker’s] witness evidence was not subject to cross examination and could not be tested.” This absence meant that the worker’s version of events could not be properly examined or challenged, giving greater weight to the employer’s evidence.
The FWC made clear findings about the absence of an employment relationship: “From the witness evidence before the Commission, I am not satisfied that the [worker] was ever employed by the [employer], rather the [worker] was participating in a recruitment process of which she was ultimately not the successful candidate.”
