s.365 - General protections

Application to deal with general protections contraventions involving dismissal - jurisdictional objection: no termination at the initiative of the Employer - determined termination at the Employer's initiative - jurisdictional objection dismissed.

• [1] Mr Bradley Ames-Thomson (the Applicant) made a general protections application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with alleged contraventions involving dismissal. Mr Ames-Thomson submitted that he had been dismissed from his employment, as a music therapist, with Shine Time Music Therapy Pty Ltd (the Employer/the Respondent). Ms Sarah Hylton, a Director of the Employer, is also named as an additional Respondent (collectively the Respondents). The other Director who provided responses in this matter, was Mr Jai Smith.

• [2] The Employer in completing its Form F8A - Response to general protections application, ticked the box on the form that indicated no jurisdictional objection. However, the Employer then completed the next question on the form; 'If you answered yes ... On what basis does the Respondent object?' and ticked that the Applicant was not dismissed within the meaning of section 386 of the Act. The Respondent submitted that the Applicant ended the employment relationship when he made reference to looking for another job. The Applicant's evidence and submissions were that he had made that comment in the 'heat of the moment' in response to the Employer's comments, regarding their discussion about his payment for annual leave. Further the Applicant stated that his comment did not bring the employment relationship to an end. He stated that the Employer ended the employment relationship when he told the Applicant to 'Bring the car back and go then, ypur [sic] done'. The exchange is set out in more detail below.

• [3] The Full Court of the Federal Court's decision of Coles Supply Chain Pty Ltd v Milford,[1] requires the Commission to determine whether the Commission has jurisdiction in regard to a s.365 application to firstly determine whether a termination of employment occurred and on what date. Therefore, it must be decided if Mr Ames-Thomson was dismissed from his employment and the date of such, before the Commission's jurisdiction can be confirmed, to exercise powers under s.368 of the Act. The jurisdiction is enlivened on confirmation that a termination of employment has occurred.

• [4] Section 365 of the Act is as follows:

"365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."

• [5] Section 386 of the Act provides the meaning of "dismissed" as:

(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.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part."

• [6] This decision deals with the jurisdictional objection only; that is, whether Mr Ames-Thomson's employment was terminated by the Employer, within the meaning of s.368(1)(a) of the Act.

• [7] The matter was listed for a determinative conference in relation to the jurisdictional objection. Directions were issued for the parties to file submissions in relation to the jurisdictional objection prior to the determinative conference.

• [8] Submissions were sought on the issue of legal representation on behalf of the Applicant. The Respondent responded to these submissions. The matter was given consideration and permission was granted for the Applicant to be represented pursuant to s.596(2)(a) given the complexity of the jurisdictional issue in relation to the evidence in the matter. Mr Ames-Thomson was represented by Mr Damien Payard of counsel (on a pro-bono basis), instructed by solicitors Ms Jenny Messieh and Ms Kirra Uren from Caxton Legal Centre Inc. Mr Jai Smith and Ms Sarah Hylton, both Directors of the company, represented the Respondents.

• [9] The Applicant commenced employment with the Respondent on 19 August 2024. Ms Hylton and Mr Smith were his managers.

• [10] The key information to be assessed as to whether Mr Ames-Thomson was dismissed at the initiative of the Employer, is taken from the submissions and evidence related to the messages exchanged between the parties. The WhatsApp messages from 3 January 2025, set out below (emphasis added), were the focus of the submissions by the parties, in terms of the cessation of employment:

(a) Applicant:

1. 'Btw I expected my pay today, can I receive it today please?'

(b) Mr Smith:

1. 'You got your holiday pay last week mate. You only accrued 1 week remember..'

(c) Applicant:

1. 'I don't understand, you said I have one week holiday that is paid, and I've only had like 5 days off, the rest are public holidays'
2. 'That's why I worked up until new years eve and going back on the 5th and covered for Kate and Alex'
3. 'Christmas eve*'

(d) Mr Smith:

1. 'We are paying you way more than your working plus your driving home between sessions which costs a lot of extra fuel. Were paying you more than fair mate. You get paid again on the 10th.'

(e) Applicant:

1. 'So after working on Christmas eve and covering sessions you're not paying me, wow haha'
2. 'And you're still not paying my super which I am entitled to'
3. 'And I'm still not on the books and you're probably pocketing the tax I should be paying'
4. 'This is nuts man, I should look for another job'
5. 'I didn't move country for this crap'
6. 'I came for a sponsorship and you've been fucking around buying new surfboards'
7. 'Instead of paying my super'

(f) Mr Smith:

1. 'Bring the car back and go then, ypur [sic] done.'

(g) Applicant: Voice call, no answer

(h) Mr Smith:

1. 'Just bring the car back with all our gear in it asap and leave it out the front. Your drum will be waiting for you.'

(i) Applicant:

1. 'You said I had three weeks holiday, one paid and two unpaid, I've had a week off and worked the rest'

(j) Mr Smith:

1. 'We paid you a week while you were in Bali and a week last week. I told you that.'
2. 'Free rent, free car, getting paid for half days and then you give me that kind of attitude, not very nice man. kate quite because she couldn't handle an 8 hour day, whats your deal?'
3. '12 days off and 2 sessions on the 13th day. We paid you for one of those weeks and then your only working 3 days when you come back and will get paid a full week.'
4. 'So bring the car back man with all our stuff, you aren't someone i want to work with in future.. Plenty of other jobs around, Im sure you will see how much better they are than working for us.'
5. 'And just a note mate, i prefer we go our separate ways without anyone threatening or sabotaging anything ok. It will be best for both of us.'

(k) Applicant:

1. 'I came here for a sponsorship and legitimate employment which you have not fulfilled. I have had no payslips and you have not been paying my super which is a legal requirement. Where is my tax going?'

(l) Mr Smith:

1. 'Its cash mate, i told you that'
2. 'I didnt sponsor you straight away because i didnt think u were going to work out and your attitude was just what you showed me'

(m) Applicant:

1. 'That's untrue - my attitude has been hardworking, passionate and committed to the job and you know that. I am an asset to your company and the clients can vouch for that. The reason you didn't sponsor me is because of financial reasons.'

(n) Mr Smith:

1. 'Yes you are a good music therapist but that only gets you half way.'
2. 'Can you bring the car back today please'

(o) Applicant:

1. 'Na come and get it, [address supplied]'
2. 'Stuffs in the car'
3. 'Key is behind back left wheel'

(p) Mr Smith:

1. 'Thanks. Dont be there when I show up.'
2. 'Please make sure the car isnt full of rubbish or anything that will upset me and we can go our separate ways all good. Some people like to make a statement at others expense and I dont want to experience anything like that.'

• [11] On 4 January 2025, there were further messages exchanges between the Applicant and Mr Smith, in which Mr Smith asked for the company iPad to be returned.

• [12] The Applicant filed a witness statement in this matter and the Respondent's submission included evidence. Neither party sought to cross-examine the other.

• [13] Mr Ames-Thomson is a citizen of the United Kingdom who is in Australia on a Working Holiday Visa (subclass 417). He is a qualified music therapist. Mr Ames-Thomson set out that in May 2024 he applied for a job advertised by the Respondent Employer, for a music therapist role. The job included sponsorship, six months of accommodation, a company car, with a $77,000 salary (stated as equivalent to approximately $1,500 a week) including holiday pay and superannuation.

• [14] Mr Ames-Thomson stated that after he had booked his flight to Australia, he was informed by Mr Smith via email that his pay would be $1,200 a week in cash until his visa goes through. Mr Ames-Thomson then moved to Australia on 7 August 2024 and commenced employment on 19 August 2024.

• [15] In relation to the above exchange of messages, Mr Ames-Thomson stated that at the start of December 2024 he was asked about his availability to work during the Christmas period and that he had one week of paid leave. Mr Ames-Thomson said that he took three days of annual leave over the Christmas period. However, he submitted that he was not paid his weekly wage and this issue, and that of other employment entitlements, was raised in the WhatsApp messages on 3 January 2025. Mr Ames-Thomson said that in these messages, he questioned issues, including cash payments, underpayment of wages, and the absence of payslips and superannuation contributions.

• [16] Reference is made to the above issues in the messages in order to give context to the statements made by the parties relevant to the jurisdictional objection. The issues regarding workplace entitlements are not central to the determination of issues of jurisdiction and are therefore not detailed further at this point.

• [17] In summary terms, the Respondents set out that the Applicant resigned when he stated that 'I should look for another job' and that Mr Smith's directive after this statement which required the Applicant to 'Bring the car back and go then, ypur [sic] done.' was an acknowledgement of the Applicant's resignation, rather than the Employer terminating the Applicant's employment. Further, the Respondent stated that the Applicant showed no regret or desire to reclaim his position with the Employer. Additionally, as per the Respondent's submissions, they said that the Applicant spoke about already having an interview with another company.

• [18] Both Parties submitted that the end of the employment relationship occurred on 3 January 2025, as a result of the messages between the Applicant and Mr Smith. However, the parties were in dispute as to who ended the employment.

• [19] The Respondent submitted that based on the Applicant's message '... I should look for another job', that the Applicant voluntarily resigned. Further, it was argued that as the Applicant did not dispute or clarify that he was not resigning, the Respondent stated this showed intent to leave.

• [20] The Applicant submitted that his reference to 'I should look for another job' was as a result of the heated exchange about the outstanding employment entitlements or alleged violations of workplace rights and it was not a resignation. This was suggested by the Applicant for two reasons, including that this statement is only suggestive of future actions that the Applicant may take (indicated by the use of 'should'). Further, that even if the Applicant was to look for another job, this does not represent a resignation and does not immediately bring the employment to an end. It was also submitted that the Applicant's comment was an expression of concern regarding the alleged contraventions of these workplace rights, regarding his entitlements, rather than a statement to end the employment relationship.

• [21] The Applicant submitted that the determination of whether an employee resigned was clarified in the case of Koutalis v Pollett:[2]

"[43] The question whether a resignation did or did not occur does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis' business' premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances ..."[3]

• [22] The Applicant also submitted that if his message regarding looking for another job was considered to be a resignation, that it would be characterised as a resignation made in the 'heat of the moment' and therefore not effective. This situation is similar to the extract set out below from Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli (Tavassoli )[4], where the message in the context of the exchange is of a heated and emotional nature.

• [23] In Tavassoli, the Full Bench of the Commission stated that:

"There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer."[5]

• [24] Taking into account the full context of the message exchange, while the Applicant's statement questioning looking for another job was made in the 'heat of the moment', this statement does not amount to a resignation. This statement is at most an indication of future action to potentially pursue alternative employment opportunities, rather than a statement purporting to in that moment, end the current employment relationship with the Respondent.

• [25] The Applicant's reference in the messages to possibly looking for another job was not a clear and unambiguous resignation.[6] No confirmation was made by the Employer with the Applicant if the comment was intended to be a resignation. In comparison, the message by the Employer to the Applicant to 'Bring the car back' (is examined below) and provided an unambiguous termination of the employment.

• [26] Under s.386(1) of the Act (as set out in the legislative provision above), there are two ways that a dismissal can occur. The Applicant submitted that his employment was terminated at the initiative of the Employer pursuant to s.386(1)(a). The Applicant relied on the wording in the message exchange telling him to 'Bring the car back and go then, ypur [sic] done' to demonstrate that he did not leave voluntarily. That is, it was argued on behalf of the Applicant that it was the Employer that brought about the termination of the employment.[7]

• [27] The analysis regarding 'termination at the initiative of the employer' for the purpose of s.386(1)(a) of the Act, requires an assessment to be conducted by reference to the cessation of the employment relationship. Two conditions must be met for a 'termination at the initiative of the employer' to occur:

(a) the actions of the Employer 'directly and consequentially' results in the termination of employment; and

• (b) if the employer did not take this action, then the employee would have remained employed.[8]

• [28] The approach of the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd (O'Meara)[9] in relation to the examination of the full context of the statements of both parties needs to also assess the resultant actions, relevant to the consideration of s.386(1)(a) of the Act. The Full Bench examined these issues in the following case:

"[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

'[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.' [10] (emphasis added).

• [29] The circumstances of that case are analogous to the current situation where there was a refusal by the Employer regarding the annual leave payment. The conduct of both parties has been examined. Further to this point, in determining whether a termination of employment occurred, the Federal Court in Alouani-Roby v National Rugby League Ltd,[11] stated that this requires an evaluation of all of the evidence in order to determine what caused the termination and clarified that:

"in order to determine whether an employee has been terminated at the initiative of the employer, there must be intent (which requires an assessment of the employer's state of mind), or there must be, objectively, the probability that termination would result by virtue of the employer's conduct."[12]

• [30] The context of the parties' statements is recorded in terms of the messages. The statement by the Applicant, 'I should look for another job', arises out of the Applicant's frustration (as per the exchange of messages) regarding what he considered were unpaid entitlements. The frustration of both parties regarding the questions of employment entitlements is recognised, however as indicated above, the issues regarding entitlements are not central to the determination of issues of jurisdiction, and therefore these elements are not discussed in detail in this decision. They are relevant though, to an objective assessment of the conduct of both parties with respect to the end of the employment relationship. As a result of the discussion regarding these entitlements, the Employer clearly told the Applicant to return the work car and the gear, both of which were tools of trade provided by the Employer to enable him to discharge his duties as a music therapist. The Respondent therefore in requiring him to return the car was clearly intending to end the employment relationship.

• [31] In relation to the assessment of whether a termination of employment occurred, in O'Meara it is stated:

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether 'the act of the employer [resulted] directly or consequentially in the termination of the employment.' Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign." [13] (footnotes omitted) (emphasis added).

• [32] The jurisdictional determination in the current matter requires a finding that the Employer's actions either need to intend to bring the employment relationship to an end or have that probable result.[14] The statement by the Employer to the Applicant, to bring the car back, clearly was intended to bring the employment relationship to an end. The conduct of the Employer was intended to bring the employment relationship to an end, not to force him to resign. The action of the Employer directly resulted in the termination of the Applicant's employment. Following this, the Respondent's subsequent emails and messages regarding where to bring the car back to and that the Applicant's drum would be there, reinforced the Employer's clear intention to bring the employment relationship to an end.

• [33] Further, the Applicant submitted that due to Mr Smith's messages, he emailed Ms Hylton, raising concerns regarding this conduct, including stating that 'I find it unacceptable that my employment was terminated suddenly, without giving me the chance to say goodbye to the children who I have worked with for a few months'. In response, the Respondent did not dispute or question the reference to the termination of employment, which the Applicant stated is further evidence that there was a termination at the initiative of the Employer. The two emails under consideration above were annexed to the Applicant's witness statement. The email of the Respondent contained poor language directed at the Applicant, and this reinforced the earlier statement of the Employer ('Bring the car back and go then, ypur [sic] done') and that it was intended to bring the employment relationship to an end.

• [34] In considering the case authorities against the current facts of this matter, the Applicant although indicating that he was somewhat dissatisfied with his employment with the Employer for several reasons, did not resign or voluntarily leave his employment and his messages, presented as a statement in the 'heat of the moment'. I find that the Respondent in stating to the Applicant 'Bring the car back and go then, ypur [sic] done.' was the message that clearly ended the employment relationship between the parties, and this was reinforced by the Respondent's further messages and the email of the Respondent to the Applicant. The Applicant could not have continued to undertake his work with the Employer's clients in the circumstances where he no longer had access to the work vehicle and where he has been told by his manager that he is 'done'. Further, there is no evidence until these proceedings that the Respondent refuted the Applicant's contention that his employment was 'terminated suddenly'. On the evidence in this matter, the Applicant's employment had been terminated at the initiative of the Employer.

• [35] I am satisfied that on the basis and context of the Employer's statements, Mr Ames-Thomson's employment was terminated by the Respondent within the meaning of s.386(1)(a) of the Act. The termination of employment occurred on 3 January 2025. Accordingly, the Respondent's jurisdictional objection, that no termination of employment at the initiative of the Employer occurred, is dismissed.

• [36] A separate Order has been made to this effect (PR787458).

[1] [2020] FCAFC 152.

[2] [2015] FCA 1165.

[4] [2017] FWCFB 3941.

[6] Ngo v Link Printing Pty Ltd (1999) 94 IR 375.

[7] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75]; Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200.

[8] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200.

[9] [2006] AIRC 496 (PR973462).

[11] [2024] FCA 12 at [82] (as cited by the Applicant).

[13] [2006] AIRC 496 (PR973462) at [23].

[14] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 at [24].

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