The attached document replaces the document previously issued with the above code on 1 July 2025.

The word "Hopper" has been removed from the appearances and replaced with "Hooper".

[2025] FWC 1870

Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] The following is an edited version of a decision given on transcript earlier today.

• [2] Caitlin Brown has made an application under s 365 of the Fair Work Act 2009 (Act). The respondent, Kmart Australia Limited, objects to the application on the grounds that Ms Brown is a casual employee and has not been dismissed by it.

• [3] The respondent contends that Ms Brown is employed as a casual customer service team member at its Bendigo store. As confirmed by Ms Brown, that role means that Ms Brown can work across multiple departments. Ms Brown has worked in the customer service department before moving to perform 'sequence' duties. In summary, sequence duties require processing customer sales, refunds and exchanges, replenishment and backfill duties and running cages to the shop floor for filling shelves, requiring frequent lifting, carrying, reaching forward and overhead.

• [4] On 24 April 2025, Ms Brown provided the respondent with a letter from her treating physiotherapist which set out that Ms Brown was being treated for an ongoing chronic condition and advised that:

(a) Ms Brown needed to be provided with modified duties until she could be further assessed;

(b) the likely prognosis for a return to Ms Brown's normal duties would be more than six months; and

(c) repetitive overhead activity with increased load can worsen Ms Brown's symptoms.

• [5] Ms Brown's physiotherapist stated that repetitive overhead activity with increased load can worsen symptoms, impair abilities of daily living and increase pain.

• [6] The respondent provided Ms Brown with a work capacity checklist to take to her treating practitioner for assessment as to her functional capacity and physical exertion limits, amongst other things. On 29 April 2025, Ms Brown's physiotherapist completed the checklist by providing information about Ms Brown's functional capacity, physical exertion limits and other limitations. From this, the respondent determined that Ms Brown was unable to safely undertake the sequence duties.

• [7] On 2 May 2025, Kmart Bendigo's Operations Manager offered Ms Brown duties as a customer greeter, in line with her medical restrictions and work capacity. Ms Brown declined these duties. On 2 June 2025, the respondent's P&C Advisor, Ms Francese, wrote an email to Ms Brown which referred to the 2 May 2025 offer of duties and advised that "the option of undertaking these duties still remains open to you." Ms Brown responded to this email on 3 June 2025 and stated, amongst other things, that "while I acknowledge that I am technically still employed by Kmart, I must advise that I consider myself to have been constructively dismissed due to the significant changes in my duties and treatment I have experienced in the workplace regarding an injury that has been acknowledged by management over the course of my employment."

• [8] Ms Brown contends that she was constructively dismissed as she was removed from the roster and excluded from her role with no reasonable options to return. I do not accept this contention. Ms Brown accepted during these proceedings that she has not resigned. The respondent was bound to adhere to the terms of Ms Brown's work capacity. The steps it took were appropriate. It offered Ms Brown revised duties to accommodate her capacity and Ms Brown acknowledges that she has not accepted these revised duties. Ms Brown remains a casual team member on the respondent's books. Her employment is recorded as active in the company's human resources management system.

• [9] I am satisfied that Ms Brown has not been constructively dismissed (s 386(1)(b)). Section 386(1)(b) proceeds on the basis that the "person has resigned" and Ms Brown has confirmed in these proceedings that she has not resigned. Section 386(1)(b) is not engaged.[1] For completeness, I am also satisfied that Ms Brown's employment with the respondent has not been terminated on the employer's initiative (s 386(1)(a)). There is no evidence of this before the Commission.[2] Further, as earlier stated, Ms Brown's email of 3 June 2025 to the respondent acknowledges that she is "technically still employed by Kmart."

• [10] Ms Brown declined the respondent's offer of casual shifts because she did not wish to perform customer greeter duties, but the respondent remains ready to deploy Ms Brown to perform shifts in line with her current work capacity. The respondent's adherence to Ms Brown's work capacity requirements did not end the employment relationship. I find that the respondent did not dismiss Ms Brown.

• [11] A person may make an application under s 365 of the Act only if he or she has been dismissed. Ms Brown has not been dismissed by the respondent and therefore had no standing to make this application. For this reason, the respondent's jurisdictional objection must be upheld.

• [12] Ms Brown's application is dismissed.

[1] Bupa Aged Care Australia Pty Ltd T/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941; 271 IR 245 at [47]

[2] Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75]

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