s 365 - General protections

The Trustee For The Dynamo Fitness Family Trust

Application to deal with contraventions involving dismissal - jurisdictional objection - was the Applicant dismissed - Applicant dismissed - jurisdictional objection dismissed - application to proceed. Application to deal with contraventions involving dismissal.

• [1] This is an edited version of my decision delivered on transcript on Friday 12 June 2025.

• [2] Mr Blair Brown has applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth) alleging contraventions of Part 3-1 of the Act by The Trustee For The Dynamo Fitness Family Trust. Dynamo Fitness objects to the application on the basis that Mr Brown was not dismissed.

• [3] I conducted a determinative conference on Friday 13 June 2025. Mr Brown gave evidence for his case. Mr Ahmad Abbas (Director) and Ms Desiree Posthuma (Human Resources) spoke for Dynamo Fitness.

• [4] After hearing the evidence of the parties, I informed the parties that I was satisfied that Mr Brown had been dismissed. I then proceeded to conduct a conference as required by s 368 of the Act.

• [5] The relevant events can be briefly summarised as follows.

• [6] Dynamo Fitness is in the business of selling exercise equipment. On Tuesday 17 September 2024, Dynamo Fitness employed Mr Brown as a Sales Representative on a casual basis.

• [7] On Wednesday 19 March 2025, Mr Brown emailed Dynamo Fitness requesting that that his employment be converted to permanent part-time. At the time, Mr Brown was rostered to work Thursday 20 March 2025.

• [8] At 4:07pm on Wednesday 19 March 2024, Mr Brown received a notification that his Thursday 20 March shift had been cancelled.

• [9] On Thursday 20 March 2025, Mr Brown, Ms Posthuma and Mr Abbas engaged in email correspondence where Dynamo Fitness denied Mr Brown's request for conversion. Relevantly, Mr Abbas sent Mr Brown an email stating:

Hi Blair, You were constantly late and missed a lot of shifts, I would not give you a full time job even if my lively [sic] hood and family dependant [sic] on it so Stop wasting my people time here and instead focus on actually showing up and being on time then maybe someone will give you full or part time role in the future.

Going forward do not email us go straight to fair work.[1]

• [10] On Thursday 20 March 2025, Mr Brown filed an application for the Commission to deal with a dispute under s 66M of the Act.

• [11] At 8:37pm on Thursday 20 March 2025, Mr Brown received a notification that he had been removed from his rostered shift on Saturday 22 March 2025.[2]

• [12] Mr Brown messaged his line manager to ask why his shift had been removed. Her response was that it had been a quiet week at the business and weekend rosters needed to be adjusted.[3]

• [13] On Tuesday 25 March 2025, Mr Brown received a notification that he had been removed from his rostered shifts on Thursday 27 March 2025, Sunday 30 March 2025, Thursday 3 April 2025, Saturday 5 April 2025 and Sunday 6 April 2025.[4]

• [14] At the same time, Mr Brown's access to the Dynamo Fitness MS Teams channels and his work email was revoked.

• [15] Dynamo Fitness submits that to save costs, it disabled the emails and MS Teams accounts of employees who rarely use their email or Teams account.

• [16] Mr Brown has not been rostered on any shifts since Wednesday 19 March 2025.

• [17] 'Dismissed' is defined in s 12 of the Act, which refers to s 386. The definition of dismissal in s 386(1) of the Act has two parts. The first deals with 'termination on the employer's initiative' and the second, 'resignation in circumstances where the person was forced to do so because of conduct or a course of conduct'.

• [18] Mr Brown submits that he was dismissed when Dynamo Fitness withdrew his rostered shifts for the remainder of March and April 2025. Dynamo Fitness' submits that as Mr Brown is a casual, it has the right to provide shifts as required or withdraw them without notice, and that this does not mean that he has been dismissed.

• [19] It is well-established that a reduction in hours or pay for a casual employee can constitute termination of employment at the employer's initiative.[5] In this case, Dynamo Fitness removed all of Mr Brown's rostered shifts and disabled his access to his work email account. Based on the evidence before me, I am not satisfied that this was a temporary measure.

• [20] In reaching this finding, I also rely on Dynamo Fitness' own written materials. Mr Abbas' witness statement provides:

Furthermore, given the multiple legal applications filed by Mr Brown, continued unprofessional behaviour when liaising with the Dynamo Fitness team and defamatory emails against the organisation, all of which has damaged the relationship. This has put the organisation in a difficult position to consider him for this role or to offer him further shifts until this matter is resolved.[6]

• [21] Further, in an email to the Commission on Friday 6 June 2025, Dynamo Fitness stated:

We would like to add to this, that while we indicated in our submission, we were open to reinstating Mr Brown's shifts dependent on the outcome, we can no longer consider this. This is due to a member of our team receiving a harassing text message at 8:02pm last night after our submissions were made. The organisation has been subjected to copious emails of abuse during this process from Mr Brown and therefore are no longer willing to consider future employment with the safety and well-being of all of our employees being priority.

• [22] The comments in the email above were repeated by Mr Abbas during the determinative conference where he spoke about the decision to not to roster Mr Brown on for any further shifts. These statements from Dynamo Fitness are consistent with a finding that Dynamo Fitness made the decision to withdraw Mr Brown's shifts and to not give him any further shifts. I find that Dynamo Fitness dismissed Mr Brown.

• [23] As noted in [5] of this Decision, as a conference has been conducted in accordance with s 368 of the Act, the Commission's function in this matter is now concluded.

[5] Park v LOTW Indro Pty Ltd [2020] FWC 858 [36].

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