Fair Work Act 2009

s 365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - not dismissed - applicant returning from parental leave - request for flexible work arrangements - alleged repudiation or renunciation of employment contract - objection dismissed.

• [1] Ms Alana Garvie has applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth). She alleges that her former employer, Multispares Limited, contravened Part 3-1 of the Act by dismissing her from her employment. Multispares says that Ms Garvie repudiated the employment relationship and so there was no dismissal.

• [2] It is uncontroversial that for the matter to proceed, Ms Garvie needs to have been dismissed. In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court held that where a respondent submits that the applicant to a section 365 application was not dismissed, as is the case here, the Commission must determine that issue before exercising its powers under s 368 of the Act.[2]

• [3] I conducted a hearing on Friday 23 May 2025. Permission was granted for both parties to be legally represented.

• [4] Having considered the relevant evidence and submissions of the parties, I find that Ms Garvie was dismissed. Her application is within the Commission's jurisdiction.

• [5] My detailed reasons for my decision follow.

• [6] Ms Garvie gave evidence for her case. Mr Carl Hackwell (Branch Manager - Multispares Kwinana) and Ms Sonia Jose (Group HR & Safety Manager) gave evidence for Multispares. There were disputes between the witnesses regarding certain events. However, I find it is unnecessary for me to resolve them at this stage. This is because even based on Multispares' evidence, I find that Ms Garvie was dismissed.

Events that led to the end of the employment relationship

• [7] Ms Garvie was engaged as a full-time Spare Parts Interpreter for the Multispares Kwinana branch on Monday 19 September 2022. In November 2023, Ms Garvie went on parental leave. Prior to Ms Garvie taking parental leave, she usually worked 40 hours per week, Monday to Friday, from 7:30am to 5:00pm.

• [8] During Ms Garvie's pregnancy she suffered from hyperemesis gravidarum, which affected her working arrangements prior to her going on parental leave. I mention this as there was some contest between the parties as to the circumstances of Ms Garvie's condition and her credibility. I found Ms Garvie to be an honest witness. However, I also find that this was not a relevant issue to the matter at hand.

• [9] When Ms Garvie commenced her parental leave in November 2023, the parties had different understandings on how long the period of leave would be for - Ms Garvie understood it was for 12 months, and Multispares thought it would be six months. This misalignment was addressed between the parties in May 2024 and Ms Garvie's leave was ultimately extended to 12 months.

• [10] In September 2024 Ms Garvie explored the option of taking a parental leave position in the Multispares Kewdale branch. This would have been on a part-time basis. The parties disagree on whether this alternative position was a legitimate option for Ms Garvie. What is important is that the position did not eventuate.

• [11] In September or October 2024, Mr Hackwell and Ms Garvie caught up for a drink to discuss her return to work. Mr Hackwell's evidence is that Ms Garvie said she did not want to return to work at Multispares and he asked her to confirm this in writing.[3] Ms Garvie denies this; her evidence is that she said she did not want to return full-time.[4]

• [12] On Monday 4 November 2024, Ms Garvie sent an email to Mr Hackwell seeking to extend her parental leave period by a further 12 months. Multispares denied the request. Mr Hackwell's evidence is that this was based on the increased business activity; lack of viable cover for Ms Garvie's position; and ongoing concerns for the overall team's workload given Multispares' desire to grow.[5]

• [13] On or around Monday 25 November 2024, Mr Hackwell and Ms Garvie met. Mr Hackwell's evidence is that Ms Garvie said she could not return to work full-time and would need to finish work at 3:00pm. Further, that she could not do Saturday work or overtime/callouts going forward. Mr Hackwell said that the business could consider her request, but that her role needed to be fulltime, with Saturday work needed for the business.[6] Ms Garvie denies that she told Mr Hackwell that she could not do Saturday work or overtime/callouts. Ms Garvie's evidence is that she told Mr Hackwell that she would need notice to work Saturdays so that she could arrange childcare. Further, Ms Garvie's evidence is that Mr Hackwell asked her what her 'ideal' would be, which would be returning to work on 30 hours per week.

• [14] On Wednesday 27 November 2024, Mr Hackwell sent Ms Garvie a letter explaining that Multispares could not accommodate her request to go to part-time. However, Multispares could accommodate her extending her parental leave so that she would be returning to her role full time from Monday 3 February 2025 and working Saturdays once or twice a month.

• [15] On Tuesday 14 January 2025, Ms Garvie wrote to Mr Hackwell. Ms Garvie disagreed with the summary of the situation and conversations in Mr Hackwell's letter of Wednesday 27 November 2024. Ms Garvie reiterated her reasons for seeking a return to work on part-time hours.[7]

• [16] On Monday 20 January 2025, Mr Hackwell sent Ms Garvie a letter. This letter stated Multispares' position regarding the issues of working on Saturdays; call-outs; and affirming that they could not accommodate her returning to work on a part-time basis. The letter also stated, 'Based on the above working conditions, would you please let me know by January 24, 2025 if you are able or unable to return to work'.

• [17] On Friday 24 January 2025, Ms Garvie sent the below email:[8]

The working week being 40 hours (55 with my travel time and daycare drop off/collections) is still not something that I can manage at the moment with my young family. That's not to say it won't be later, but at this present moment physically and mentally being away from my baby for that length of time and for five sometimes six days is too much.

The first five years of a child's life are the most important and a 40/40+ work week would mean I only spend three days in a fortnight with my baby; as he would be in daycare during his full wake windows on weekdays. At this present time he needs me to be available to him more than that.

• [18] On Friday 31 January 2025, Mr Hackwell sent the following letter to Ms Garvie:[9]

As you know, we have been in regular communication regarding your parental leave. Following your email dated 24 January 2025, it is our understanding that you have been unable to and will not be able to return to work in the near or foreseeable future, due to family and/or caring responsibilities for your young child.

As you are aware, your parental leave officially ended on or around 04 November 2024, and we are now coming close to the 15-month mark from commencement of your parental leave. While we have made every effort to explore reasonable adjustments that might allow you to return to work, unfortunately, we are unable to provide a suitable adjustment or alternative role that would enable your return to the workplace that would suit circumstances, in particular, the needs of your family.

After careful consideration and consultation, we regret to inform you that we are left with no other options but to end your employment contract with Multispares Limited effective 04 February 2025.

We want to emphasize that this decision was not made lightly, and we acknowledge and appreciate your contributions to the company prior to your leave. As part of your final pay, you will receive all statutory and contractual entitlements plus two-weeks pay as gesture of good faith.

Please feel free to contact HR via [redacted] should you have any questions about your final pay, outstanding benefits, or the termination process.

We wish you and your family all the best in the future and hope for your continued well-being.

Please feel free to reach out if you need any clarification or assistance

• [19] 'Dismissed' is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

• [20] Ms Garvie primarily submits that she did not engage in repudiatory conduct. Ms Garvie says that prior to the end of the employment relationship, she had been proactively contacting Multispares; proposing alternative arrangements; and demonstrating a clear intention to return to work. Further, as all communication and negotiation took place well in advance of Ms Garvie's set return to work date, there was no actual breach or failure to perform her obligations under her employment contract.

• [21] In the alternative, Ms Garvie submits that even if she did engage in repudiatory conduct, the authorities that Multispares relies on are distinguishable from her situation as she did not abandon her employment. Further, directly relevant authorities demonstrate that in these circumstances, an acceptance of a repudiation is still a dismissal within the meaning of s 386(1)(a) of the Act.

• [22] In summary, Multispares submits that Ms Garvie's conducted demonstrated that:

(a) she was not willing to work the full-time hours as per her contract of employment, despite hours of work being a fundamental term of any employment agreement;

(b) she no longer wished to be bound by the employment agreement and her obligations under it; and

(c) she would only perform work for Multispares on her terms.

• [23] Multispares says this is repudiatory conduct, which was accepted by Multispares on Friday 31 January 2025. Multispares submits that this means the employment relationship ended on Ms Garvie's initiative, and therefore there was no dismissal.

• [24] The parties agreed on much of the relevant authorities in this area but disagreed on how they should be applied in this matter.

• [25] The issue of repudiation in the context of the Act was recently examined by Deputy President Bell in Simonovski v Fonterra Brands (Australia) Pty Ltd.[10] In that matter, the respondent employer contended that as Mr Simonovski had evinced an intention not to comply with a lawful and reasonable instruction to perform certain duties, Mr Simonovski had repudiated his contract of employment by renunciation. The respondent further contended that as it had accepted Mr Simonovski's repudiation, that this did not constitute a 'dismissal' under the Act.[11]

• [26] The Deputy President found that even on the respondent's preferred analysis and facts, there had been a dismissal under the Act.[12] In his decision, the Deputy President analysed the relevant cases on repudiation, in particular, NSW Trains v James [2022] FWCFB 55; the Full Bench decision in Abandonment of Employment;[13] and the High Court decision of Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd.[14]

• [27] The Deputy President noted that though Abandonment of Employment did refer to the decisions of Koompahtoo and Visscher, Abandonment of Employment generally does not:

...[support] the wide proposition that appears to be advanced by [the Respondent] that where conduct of an employee constitutes renunciation, that conduct will necessarily result in a termination at the initiative of the employee. The Full Bench was dealing with a factual scenario of 'abandonment'. Necessarily, that is conduct that will be at the initiative of an employee.[15]

• [28] In disposing of the respondent's jurisdictional objection, the Deputy President found that, '...even with a finding that Mr Simonvski's conduct constituted renunciation, at common law, entitled Fonterra to elect to terminate the Contract, the circumstances in this case are a 'dismissal' for the purpose of s 386 of the Act.'[16]

• [29] This issue was also recently considered by the Commission in Sowden v Design True Pty Ltd.[17] In that matter, Ms Sowden accepted employment with another employer during her ongoing employment with the respondent, in breach of her employment contract with the respondent. The respondent employer's position in that matter was that Ms Sowden had repudiated her contract and it had accepted her repudiation.

• [30] In [23]-[37] of Sowden, Commissioner Crawford examined the authorities and literature on repudiation. I agree with his analysis and respectfully adopt it; I do not repeat it in this decision for brevity.

• [31] In considering the relevant authorities and the facts at hand, the Commissioner relevantly found that even if Ms Sowden did repudiate her employment contract with the respondent and the respondent accepted the repudiation, this did not constitute a dismissal within the meaning of the Act.[18]

The FW Act expressly allows an eligible employee to contest an employer's determination that they have committed serious misconduct or some other serious breach of their employment contract via the unfair dismissal and general protection regimes. The definition of "dismissed" contained in s.386 applies to both regimes. On Design True's argument, an employer can avoid the operation of both regimes by relying on contractual arguments about repudiation and acceptance. If repudiation by the employee and acceptance by the employer is established, the Commission's functions would end there. The statutory provisions that determine whether a person has been "unfairly dismissed" or dismissed in contravention of the general protections, would not be assessed by the Commission. I do not accept that is the intended operation of the FW Act.

Finally, I consider it would be an extremely odd outcome if an employer who is alleging

that an employee has committed a serious and repudiatory breach of their employment contract can select whether to summarily dismiss the employee at the employer's initiative or alternatively accept repudiation and have the employment terminate at the employee's initiative. An employer in that case is effectively selecting the battleground for any challenge to their decision. The logical choice would be acceptance of repudiation because that enables the employer to initially mount a jurisdictional objection on the basis that there is no dismissal, and then if they are unsuccessful on that argument, defend whether the dismissal was an "unfair dismissal" or was in breach of a general protection. That outcome cannot be described as a simple or efficient process. I do not consider it was intended by the FW Act.

• [34] Multispares submits that the decisions in Simonovski and Sowden are single member decisions that do not change the interpretation of the Full Bench decision of Abandonment of Employment, NSW Trains and Koompahtoo. Multispares says the authorities of the Full Bench and High Court remain applicable and set out that where a party evinces an intention to no longer be bound by the employment contract or to fulfill it only in a manner substantially inconsistent with the party's obligations it is a form of repudiation termed renunciation.

• [35] I do not agree that the decisions in Simonovski or Sowden are somehow inconsistent with the authorities of the Full Bench or High Court. In Abandonment of Employment, the Full Bench referenced Koompahtoo and Visscher in the following way:

[21] "Abandonment of employment" is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee's conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee's fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee's renunciation of the employment obligations (citations omitted).

[22] Where this occurs, it may have various consequences in terms of the application of provisions of the FW Act...Third, if the employee lodges an unfair dismissal application, then the application is liable to be struck out on the ground that there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s 386(1)(a) (unless there is some distinguishing factual circumstance in the matter or the employee can argue that there was a forced resignation under s 386(1)(b)).

• [36] I agree with the findings in Simonovski and Sowden that the Full Bench in Abandonment of Employment was dealing with the factual scenario of abandonment of employment that was before them. The factual matrices in Simonovski and Sowden did not deal with abandonment of employment; in both matters, the relevant applicants were actively communicating and present. The Full Bench in Abandonment of Employment recognises at [22] the importance of relevant factual circumstances.

• [37] I find that the findings in Simonovski and Sowden to be persuasive and agree with the respective analyses regarding repudiation under the Act.

• [38] In this matter, I find that Ms Garvie's situation is analogous to Simonovski and Sowden. There is no argument that she abandoned her employment. Whilst the parties disagreed as to the content of the discussions between Ms Garvie and Mr Hackwell, there is no contest that Ms Garvie was communicating with Multispares in person and in writing on a regular basis leading up to the end of the employment relationship.

• [39] Even if I accept Multispares' evidence of the events leading up to the Friday 31 January 2025 and Multispares' argument that Ms Garvie's conduct constituted repudiation of the employment contract that Multispares elected to accept, based on the facts in this matter I find that Mr Hackwell's letter to Ms Garvie on Friday 31 January 2025 ended the employment relationship on Multispares' initiative, and therefore constituted a dismissal under s 386 of the Act.

• [40] As Ms Garvie was dismissed by Multispares, her application is within the Commission's jurisdiction. The matter will now be listed for a conference pursuant to s 368 of the Act.

C Hunter of Circle Green Legal for the Applicant.

D Gardner and A Yahl of Bartier Perry for the Respondent.

[1] [2022] FCAFC 152.

[3] Witness statement of Carl Hackwell, Digital Court Book 57 [32].

[4] Witness statement of Alana Garvie, Digital Court Book 107 [41].

[5] Witness statement of Carl Hackwell, Digital Court Book 57-8 [34]-[35].

[6] Witness statement of Carl Hackwell, Digital Court Book 58-9 [37].

[7] Witness statement of Carl Hackwell, Annexure 7, Digital Court Book 89.

[10] Simonovski v Fonterra Brands (Australia) Pty Ltd [2023] FWC 429 (Simonovski).

[13] [2018] FWCFB 139.

[14] [2007] HCA 61; (2007) 233 CLR 115.

[17] Sowden v Design True Pty Ltd [2024] FWC 2063.

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