s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether employee 'dismissed'

• [1] Ms Corrine Sukroo (Applicant) has filed with the Commission an Application under section 394 of the Fair Work Act 2009 ('Act'), seeking an unfair dismissal remedy. The Applicant's former employer disputes that the Applicant is entitled to do so, on the basis that the Applicant was not dismissed. This decision deals with the competing contentions of the parties as to whether Applicant was "dismissed" as defined in section 386 of the Act. No other jurisdictional challenge was advanced.

• [2] An application under section 394 of the Act is conditional upon a person having been "dismissed". The meaning of dismissed is dealt with in section 386 of the Act, as follows:

(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.

(2) However, a person has not been dismissed if:

(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.

• [3] The unfair dismissal jurisdiction has, since its inception, required that there be a termination of employment "at the initiative of the employer" as one of the essential elements. This is rooted in the historical constitutional underpinnings of Commonwealth laws providing for remedies in respect of unfair dismissal, yet the expression has remained a centrepiece of the scheme notwithstanding the shift to reliance on the corporations power and referral of State powers in recent decades. The expression "at the initiative of the employer" and its derivatives have even been found to admit of some circumstances where the final act in bringing the employment to an end was an act of the employee claiming the remedy.

• [4] However, this case does not turn on the characterisation of something presenting as resignation. The central issue here is whether Ms Sukroo's employment was terminated on the employer's initiative in the more conventional sense. In deciding that question, I have adopted the following principles referred to in the decision Full Court of the Industrial Relations Court of Australia in Mohazab v. Dick Smith Electronics (No2) [1995] IRCA 645:
  • An important feature of a termination at the initiative of the employer is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.
  • A termination may involve more that one action, but it is necessary to ask what was the critical action, or what were the critical actions, that constituted a termination of employment.

• [5] For the reasons that follow, I find that the circumstances in which Applicant's employment came to an end were a termination at the initiative of the Respondent.

• [6] The matter was heard by way of determinative conference on 19 June 2025. In advance of that date, the Applicant prepared two outlines of argument, two witness statements, a list of documents and supplied numerous documents. The Respondent prepared an outline of argument, a witness statement, a list of documents and also supplied documents. I have had regard to all of this material.

• [7] The Applicant attended with a support person present, and the Respondent was represented by Mr Trevor Bell. Both the Applicant and Mr Bell were cross examined. Numerous documents were tendered without objection, which I refer to where relevant in the course of the discussion below.

• [8] The Respondent in its written materials articulated its jurisdictional objection by reference to the following matters:

(a) The employee had not been dismissed formally;

(b) No notice of termination has been issued;

(c) No final pay has been processed;

(d) No separation certificate has been provided;

• (e) No correspondence has communicated the end of Ms Sukroo's employment. [1]

• [9] It is correct that much of the material the Applicant relied on contained no formal notice of dismissal, separation certificate, or other correspondence from the Respondent directly communicating to her that she had been dismissed in express terms. The Applicant relied on a number of matters that might have been characterised as circumstantial indications that her employment had come to an end. These included:
• • That her access to e-mail and other work-related IT services had been revoked after making a workers' compensation claim;[2]
• • That amounts she believed were owing to her in the form of retainer and commission payments had not been made to her;[3]
• • A text message from the Respondent advising her that that her employer issued mobile phone account would soon be removed from the employer's account;[4]
• • Her understanding that persons connected with the Respondent had told clients that she no longer worked there;[5]
• • The Respondent informing its bank that the Applicant no longer works for it;[6] and,
• • The Respondent removing the Applicant from its website and (it was suggested) taking action which resulted in her profile being removed from third party websites.[7]

• [10] However, and critically, in her initial application, the Applicant identified 5 May 2025 as both the day she was told about the dismissal and the day the dismissal took effect.[8] The significance of that date is that is the date the Applicant received an email response from Mr Bell of the Respondent to an e-mail she had written to him on 13 March 2025,[9] which she tendered in evidence in support of case.

• [11] On 13 March 2025, the Applicant had received an e-mail from LeaseLab, the provider of the novated lease arrangement she had entered into. That e-mail commenced with the following:

"Good morning Corrine, > > Bell Real Estate have contacted us to let us know that you are shortly finishing your employment with them. As a result, we are reaching out to provide some options regarding your lease going forward"[10]

• [12] The Applicant understandably gave evidence that she was shocked to receive this correspondence.[11] The Applicant had, in early February 2025 made a workers compensation claim and was not at work when this message was conveyed to her. She did however within 90 minutes forward the message to Mr Bell of the Respondent along with a request that he "Please explain". The response, as above, did not come until 5 May 2025 and I set it out in full below.

"Hi Corrine > > You will need to provide your bank details to metro finance as Bell Real Estate Olinda is no longer trading as a licenced real estate agent and will be wound up. Therefore, you will be personally responsible for the payments, as together with all employees who were previously employed by the company your employment is at an end, and your workcover claim has been approved by Gallagher Bassett who are now providing you with remuneration"[12] (emphasis in underline added).

• [13] In my view, in the absence of some very creative arguments it would inescapable that the above message satisfies the requirements set out in Ayub v. NSW Trains[13] for a dismissal to be communicated to an employee and consistent with the reasoning in that case the termination took effect from 5 May 2025, as the Applicant claims.

• [14] In attempting to explain the Respondent's position, Mr Bell relied on correspondence from the Victorian Business Licencing Authority dated 27 March 2025,[14] which advised Mr Bell that a condition had been imposed on the licence of the Respondent such that the it "must not carry on business as an estate agent until an officer in effective control has been appointed to manage the licensee's estate agency business". In exploring the context of this with Mr Bell, it became apparent that he himself had been the officer in effective control of the Respondent, and had taken the decision to become the officer in effective control of a different entity that was a real estate business, in circumstances where he was only permitted by the relevant regulatory framework to be the officer in effective control of one such business.[15] Mr Bell was highly complementary of the Applicants success as real estate agent,[16] and said she was the primary source of listings and sales in for the Respondent.[17] The loss of the Applicant's contribution to the success of the Respondent on account of her absence on workers' compensation, together with the lack of certainty as to when she might return to work, were significant factors in Mr Bell's decision to restructure his affairs and bring the operations of the Respondent to an end.[18]

• [15] Mr Bell expressed a willingness to re-employ the Applicant in one of the entities he is connected with, following the restructure.[19] These entities include Bell Real Estate (Olinda) Sales Pty Ltd (which seems to have inherited the remaining business of the Respondent),[20] Bell Real Estate (Olinda) Rentals Pty Ltd,[21] Bell Real Estate (Belgrave) Pty Ltd and Bell Real Estate (Montrose) Pty Ltd.[22]

• [16] The position on behalf of the Respondent was not that the Applicant remained employed or had resigned, but rather that her employment had come to an end in some way other than that which might be characterised as a dismissal.[23] I offered the Respondent an opportunity to address me on whether the doctrine of frustration of contract had any application in the circumstances of the Respondent losing its licence to trade.[24] The Applicant did not make any submissions on the issue, however the facts of the mater rather suggest a "self-induced" frustration[25] at best, which the Respondent would not be entitled to rely on to escape the conclusion that the termination of the Applicant's employment had been at its initiative. There was no obfuscation as to the fact it was Mr Bell's deliberate decision to cease being the officer in effective control of the Respondent that led to the Respondent losing its legal capacity to employ the Respondent. It was a choice that led to the termination of the Applicant's employment. I find that the Applicant was notified of her termination on 5 May 2025 and that such was a notification of her dismissal.

• [17] The Respondent's jurisdictional challenge to the Applicant's claim has not been successful.

• [18] In the course of hearing this matter, it became evident that there were other matters between the parties, including the Applicant's workers' compensation claim and a dispute concerning entitlements that was before the Federal Circuit Court. In addition, I note that the evidence before me was that as at March of 2025, the Applicant had no current work capacity[26] and that the only justification (as Mr Bell saw it) for the Respondent continuing to exist as an entity was to continue to pay workers' compensation premiums.[27] These are factors that may complicate an agreed resolution, or possibly even a determination, of the Applicant's unfair dismissal claim before the Commission. Nonetheless, the matter will be re-listed before me in due course to program it for final hearing and to explore the parties' desire to participate in a conciliation while the hearing preparation is underway.

[1] Respondent's Outline of Argument, Hearing Book p 119.

[9] The complete e-mail chain was marked as Exhibit A3.

[12] The complete e-mail chain was marked as Exhibit A3.

[13] [2016] FWCFB 5500

[25] See Penrith District Rugby League Football Club v. Fittler & Sing [1996] NSWSC 523 at [162] - [172].

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