s.365 - General protections

Eden Ritchie Recruitment Pty Ltd & Queensland Corrective Services

General protections dismissal dispute - casual labour hire arrangement - issues between employee and host organisation - whether employee dismissed from casual employment with labour hire business - employee not dismissed - jurisdictional objection upheld - application dismissed

• [1] Benjamin Symons is a casual employee of Eden Ritchie Recruitment Pty Ltd (Eden Ritchie). Eden Ritchie operates a labour hire business. Mr Symons is engaged to perform work for the State of Queensland, Queensland Corrective Services (QCS) in the role of Senior Test Analyst, Business Systems and Applications - Digital Services & IT Command. QCS has required contractors such as Mr Symons to work in the office for a minimum of four days per week since at least July 2025, or to have an approved Flexible Working Arrangement for any alternative arrangements. Mr Symons sought a Flexible Working Arrangement because of caring duties for his wife and child. Mr Symons' request was not approved, with the decision seemingly being made by QCS. The disagreement about Mr Symons' working arrangements came to a head during a meeting between Mr Symons, Mr Bert Wei (QCS Manager), and Mr John Williams (QCS Manager) on Friday, 15 August 2025. According to Mr Symons' evidence, the meeting ended with confirmation from Mr Williams that Mr Symons' engagement to perform work for QCS would end and Mr Symons was escorted from the workplace. Mr Symons says Mr Williams offered him an alternative of resigning from his employment and being paid 10 days in lieu of notice. Mr Symons sent an email to Ms Angela Anderson (Senior Recruitment Consultant - Eden Ritchie) at 8:23am on Monday, 18 August 2025 which confirmed he was not resigning and that he would be communicating with QCS about returning to work and finishing the relevant project. Mr Symons subsequently resumed working in his role for QCS on around 20 August 2025 and currently remains employed. Mr Symons filed an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) on 4 September 2025 which alleges Eden Ritchie dismissed him on 15 August 2025 in breach of the general protections in the FW Act. Mr Symons argued that his subsequent reinstatement on around 20 August 2025 does not negate the fact that a dismissal occurred on 15 August 2025. This decision concerns whether Mr Symons was "dismissed" by Eden Ritchie within the meaning of s.386 of the FW Act on or around 15 August 2025.

• [2] The issue of which persons were involved in[1] the alleged contravention generated a significant amount of controversy. Mr Symons named QCS as an additional respondent to the application. Mr Symons then sought leave to amend his application to also name two individuals that he considers made relevant decisions on behalf of QCS. QCS strenuously argued it should not be named as a respondent because it is not subject to the general protections regime in the FW Act being a state government department. Mr Symons ultimately helpfully agreed to not press his amendment application and to also amend his application to not name QCS as a respondent during the hearing on 3 December 2025. These steps negated the need to determine the jurisdictional issues raised by QCS. Mr Symons agreed to these actions after reviewing the Federal Court judgment in Knight v Visionstream Australia Pty Ltd[2] which confirms a person making a general protections court application is not limited in the naming of persons allegedly involved in the contravention by the names appearing on a certificate issued by the Commission.

• [3] Mr Symons is the only witness that gave evidence about what occurred during his meeting with Mr Wei and Mr Williams on 15 August 2025. Mr Symons gave evidence that Mr Williams indicated Mr Symons' engagement was being terminated and that the only other option was for Mr Symons to resign and be paid 10 days in lieu of notice. Mr Symons gave evidence that he told Mr Williams he would consider his position over the weekend. Mr Symons gave evidence that he was then asked to gather his possessions and was escorted from the building at the end of the meeting.

• [4] The evidence suggests that Mr Symons contacted Eden Ritchie after the meeting on 15 August 2025 and indicated QCS had ended his engagement.[3] However, it appears QCS informed Eden Ritchie that Mr Symons and QCS "mutually agreed" that the engagement would end.

• [5] Mr Symons sent an email to Ms Anderson at 8:23am on 18 August 2025 which stated:

"After careful consideration over the weekend, I have decided not to resign my engagement at QCS.

I will be contacting them this morning to advise them that I will not be resigning and explaining that I would like to return and finish out the project and that I understand the expectations of office attendance and am committed to meeting them going forward.

I don't know if this will help, but maybe after the weekend, cooler heads will prevail."

• [6] Ms Anderson responded to Mr Symons' email at 8:37am on 18 August 2025 and stated:

"That sounds like a good approach. I can understand why you wish to stay on in the role and team and see out the project. I hope it goes well and please keep me posted."

• [7] Mr Symons subsequently sent an email to Ms Anderson at 1:09pm on 18 August 2025 which sought clarification about a range of matters. Ms Anderson responded to the email at 1:40pm. The emails exchanged between Mr Symons and Ms Anderson stated:

"Further to recent events at QCS, I am seeking written confirmation of my status with Eden Ritchie.

1. "Employment status: Am I currently employed by Eden Ritchie, or has my employment been terminated?"

"As the completion of your duties has been mutually agreed with QCS to have occurred last Friday 15 August (with payment of 10 days in lieu of the notice period), then under the terms of our contract with you, your employment as our contractor will be terminated from Friday 15 August with 10 days' notice being paid in lieu of notice period.

1. "QCS assignment: Has QCS formally ended my assignment with them? If so, please confirm the date and the stated reason you've received."

"QCS advised in writing in the afternoon of last Friday 15 August that you met with the hiring team and it was mutually agreed you would complete your duties effective immediately, with payment of 10 days in lieu of the notice period."

1. "Redeployment: If I remain employed, what suitable roles are available now, and what steps are being taken to redeploy me? Please advise expected timelines."

"We would definitely be keen to submit you for suitable available opportunities going forward and would advise you as soon as we take in a role with a match to your skills and experience. We can confirm we do not have an opportunity currently but have worked with many contractors who we have engaged on multiple contracts over time. Each contract is a separate engagement and we are unable to offer any redeployment options in between contracts."

"Given there is presently "nothing on the books" for me, I'd appreciate your written response by 5:00pm AEST, 19th August, so I understand whether I am being redeployed or my employment is ending and on what basis."

• [8] Mr Symons sent the following response to Ms Anderson's email at 2:26pm on 18 August 2025:

"Thank you for clarifying my employment status. I acknowledge that Eden Ritchie Recruitment has recorded my contract as being terminated effective Friday 15 August, with 10 business days' pay in lieu of notice owing.

Could you please confirm the payment date for the 10 days in lieu, as I understand this should be processed promptly in line with the contract terms.

I also note your email records that the completion of my duties was "mutually agreed" with QCS. For accuracy, I request that Eden Ritchie Recruitment's records reflect that the termination was initiated by QCS and was not mutually agreed."

• [9] Ms Angela Macpherson (Operations Manager - Eden Ritchie) responded to Mr Symons' email at 9:52am on 19 August 2025 and stated:

"We are currently waiting for the timesheet (last weeks) and the miscellaneous invoice to be approved by the client (for the notice period). Once this occurs, we can release the payment to you.

With respect to this being a "mutually agreed" resignation, Eden Ritchie acknowledges that this is not how you see it, and that is how you expressed it to me last Friday, with QCS initiating the end of your contract."

• [10] Eden Ritchie's Form F8A response states:

"On the 19th August 2025 (11.57am) Eden Ritchie Recruitment received a message from the RMS that the applicants contract had been reinstated.

On the 19th August 2025 Eden Ritchie Recruitment confirmed with the applicant he was aware of the reinstatement and ensure the applicant would be OK to return to the workplace and whether a date had been agreed. The applicant assured the consultant he was fine and was of the view he would be reinstated by 21st August 2025."

• [11] The Full Bench in Wayne Shotland v The Smiths Snackfood Co Pty Ltd[4] stated the following in relation to the often-difficult task of assessing whether a casual employee has been dismissed:

"Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements."

• [12] The Full Bench in Yuri Humeniuk v Sculpture by the Sea Incorporated[5] stated that whether there has been a termination of the employment relationship must be assessed objectively based on whether a reasonable person in the position of the parties would have understood that the employment relationship was terminated.

• [13] I have sympathy for the legally complicated situation faced by Mr Symons. While all parties accept Mr Symons was a casual employee of Eden Ritchie at all relevant times and was never employed by QCS, the actions that Mr Symons is aggrieved about have clearly been taken by QCS. Specifically, it was QCS that rejected Mr Symons' request for flexible working arrangements, and the meeting that led to Mr Symons' alleged dismissal on 15 August 2025 was between Mr Symons and representatives of QCS. A representative of Eden Ritchie was not present at that meeting, and it does not appear Eden Ritchie even knew about Mr Symons making a flexible work request until after the alleged dismissal.

• [14] Nevertheless, the issue I must determine is a confined one and that is whether Mr Symons' casual employment with Eden Ritchie ended and, if the employment did end, whether the employment ended at the initiative of Eden Ritchie, or whether the employment ended because Mr Symons was forced to resign.

• [15] I consider Mr Symons' best argument is that his employment ended at the initiative of Eden Ritchie on 18 August 2025 based on the email sent by Ms Anderson at 1:09pm on 18 August 2025. Ms Anderson's email expressly referred to Mr Symons' employment as our contractor being "terminated from 15 August 2025."

• [16] However, Ms Anderson's email also refers to a mutual agreement between Mr Symons and QCS about the completion of his duties. This statement highlights that Ms Anderson did not have a full understanding of what had occurred between Mr Symons and QCS when she sent the email. I consider this reduces the weight that should be given to the reference in Ms Anderson's email to Mr Symons being "terminated" in the overall assessment of what occurred.

• [17] On the other hand, there is a significant amount of other evidence that indicates Eden Ritchie did not make it clear to Mr Symons "by words or actions that there will be no further engagements."[6]

• [18] Firstly, Ms Anderson's email to Mr Symons at 8:37am on 18 August 2025 strongly suggests that Eden Ritchie wanted Mr Symons' casual employment to continue and for Mr Symons to "see out the project." This suggests that Eden Ritchie had no concerns about Mr Symons' casual employment continuing despite what had occurred at the meeting between Mr Symons and QCS on 15 August 2025.

• [19] Secondly, Ms Anderson's email sent to Mr Symons at 1:40pm on 18 August 2025 indicated a willingness for Mr Symons to be offered suitable engagements with other host organisations in the future. Ms Anderson stated: "We would definitely be keen to submit you for suitable available opportunities going forward and would advise you as soon as we take in a role with a match to your skills and experience." This content is consistent with Eden Ritchie indicating it would keep Mr Symons active as a casual employee as part of its labour hire business and to make Mr Symons an offer of further engagements if a suitable opportunity arose. This is quite inconsistent with the proposition that Eden Ritchie informed Mr Symons that there "would be no further engagements" and hence brought the employment relationship to an end.

• [20] Thirdly, Eden Ritchie seemingly provided Mr Symons with further casual engagements without issue once Mr Symons and QCS reached agreement about Mr Symons resuming his project role for QCS. Eden Ritchie did not, for example, state to Mr Symons that his casual employment with Eden Ritchie had ended and that Mr Symons could resume working for QCS as a direct employee or through a different labour hire company. Eden Ritchie simply allowed Mr Symons to resume performing shifts as a casual employee.

• [21] Fourthly, there is no evidence that Mr Symons and Eden Ritchie considered that Mr Symons had to commence a new casual employment relationship when he returned to his role for QCS. For example, no party indicated that a new contract or other paperwork would be required because the previous casual relationship had been concluded. The evidence suggests Mr Symons recommenced performing casual work in accordance with his existing casual employment contract.

• [22] For these reasons, my objective assessment is that a reasonable person in the position of the parties would have understood that the casual employment relationship between Mr Symons and Eden Ritchie did not terminate during the brief period where Mr Symons ceased performing work for QCS. I consider the better view is that neither party communicated a legally effective end to the casual employment relationship.

• [23] I find that Mr Symons was not dismissed from his casual employment with Eden Ritchie within the meaning of s.386 of the FW Act. I do not consider Mr Symons' casual employment was terminated at the initiative of Eden Ritchie. I also do not consider that Mr Symons resigned.

• [24] I uphold Eden Ritchie's jurisdictional objection. Mr Symons' application is dismissed.

As I stated to Mr Symons during the hearing on 4 December 2025, there may be other legal options open to Mr Symons to try and address his grievances that are better suited to the nature of the relationship between Mr Symons, Eden Ritchie, and QCS.

Ms K Ritchie and Ms A Macpherson representing Eden Ritchie.

[1] Section 550 of the FW Act provides that persons involved in a contravention are taken to have contravened the relevant provision.

[2] [2017] FCA 1513 at [34] and [35].

[3] Ms Angela Macpherson's (Operations Manager - Eden Ritchie) email to Mr Symons at 9:52am on 19 August 2025 refers to Mr Symons telling her on 15 August 2025 that QCS had ended the engagement - DHB page 36.

[4] [2010] FWAFB 5709 at [13].

[5] [2025] FWCFB 212 at [53].

[6] The test identified in Wayne Shotland v The Smiths Snackfood Co Pty Ltd [2010] FWAFB 5709 at [13].

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