s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection -whether Applicant was dismissed - termination on the employer's initiative - Applicant dismissed - jurisdictional objection dismissed

• [1] On 29 August 2025, an application was made under s. 365 of the Fair Work Act 2009 (the Act) by Ms March for the Commission to deal with a general protections dispute involving dismissal.

• [2] Ms March asserts that Pearson's Farm and Animal Rescue Ltd (Pearson's) dismissed her for making enquiries into her rate of pay and classification under a Modern Award.

• [3] Pearson's raised a jurisdictional objection to the Commission dealing with the application on the basis that Ms March had not been dismissed.

• [4] In order for the Commission to deal with the application under s. 368 of the Act, I must first determine whether Ms March was dismissed.[1]

• [5] After considering the materials before me, I have determined that Ms March was dismissed. I set out my reasons below.

• [6] Section 386 of the Act defines '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.

• [7] The exemptions in s. 386 (2) of the Act are not relevant based on the facts before the Commission in this matter.

• [8] Accordingly, the matter for the Commission to determine is whether Ms March's employment with Pearson's has been terminated on the employer's initiative.

• [9] For the employment to have been terminated at the employer's initiative, it requires an act of the employer being the principal contributing factor that led to the termination of the employment relationship.[2]

• [10] It is accepted by both parties that the test relates to the employment relationship rather than the employment contract.[3]

• [11] Ms March contends that Pearson's actions had the probable result of bringing the employment relationship to an end when they sent the 8 August 2025 email correspondence and subsequently removed Ms March's access to the rostering system and failed to communicate with Ms March about how future shifts would be allocated.[4]

• [12] Pearson's submit that Ms March's employment relationship with Pearson's as a casual employee remains ongoing, notwithstanding that she has not been allocated further shifts due to operational requirements.[5] Further, it contends no act of Pearson's had the probable result of bringing the employment relationship to an end.[6]

• [13] On 1 August 2025 the following email was sent in response to Ms March's query regarding her allocated hours:

Thank you for your message, and for sharing how you're feeling. We value your passion for the role and your commitment to the farm and the animals.

As you know, casual hours are not guaranteed and are offered based on the needs of the business, available shifts, and the specific requirements of each role. We do our best to offer shifts fairly across the team, but there are times - like during the winter period - where hours are reduced due to seasonal slowdown and program changes.

• Alice has commenced regular Tuesday shifts and has been doing this for the last two weeks, she will also be taking on Thursdays. These shifts include working with horses and supporting some of Deb's clients, which has in turn allowed Deb to focus more on animal care. As this arrangement now covers the needs on those days, we do not currently require additional staff on Tuesdays and Thursdays.

• As Kyhe is on extended leave, we've brought on a casual team member with advanced skills in equipment use (tractor, chainsaw), animal health (drenching, shearing), and specialist experience with our Blacknose sheep, which is particularly valuable as we proceed with the embryo transfer program. These specialised requirements have influenced current staffing decisions across both sites.

I want to be very clear that your enquiry about classification or pay has not impacted your shifts in any way. All employees are entitled to raise concerns about their pay and conditions, and we respect that right. I also want to let you know that we have rang Fair work three times to follow up on your enquiry and they have stated it has to go to a senior staff member as the enquiry is complex. As soon as we know more, we will contact you.

That said, I do want to raise - respectfully - that some staff have shared concerns about discussions taking place regarding pay and staffing changes. We have already spoken to you about this but last night you questioned Nicole about new staff coming to the farm and she felt uncomfortable and not sure what to say. We ask again that any such queries be brought directly to management so we can address them appropriately, and to help maintain a supportive environment for all staff.

We have genuinely tried to maintain hours where possible, including assigning you to groups. However, as you saw last night, the farm group had only three participants, which requires just one staff member under our 1:3 ratio. With Alice working on that day from next week, she would be the preferred staff member to cover this group if it grows, as she is already rostered on.

We understand this may be disappointing, and we appreciate your ongoing interest in maintaining regular hours. At this stage, due to operational shifts and program capacity, we're unsure how many shifts we'll be able to offer moving forward. However, should opportunities arise that match your skills and availability, we'll certainly keep you in mind.

• [14] On 6 August 2025, Ms March noticed that the remaining Thursday shifts that she was rostered on through the month of August had been removed so she contacted Pearson's. In response, Pearson's sent the following email on 8 August 2025:

Apologies for not letting you know sooner - I had thought Karen had already emailed you.

At this stage, we won't require your assistance for the group sessions, as we have Kelly leading the group and if she needs extra help we now have Alice working on a Thursday which is useful as we are focusing more on horse-related activities this term.

Thank you again for following up and I'll definitely keep you in mind for any upcoming farm hand work.

• [15] On 20 August 2025 Ms March discovered that she had been removed from the Deputy App, which Pearson's used for rostering shifts.

• [16] No communication was provided to Ms March by Pearson's regarding her removal from Deputy, or at all, beyond the email dated 8 August 2025.

• [17] Ms Pearson's evidence, whilst extremely confusing and at times contradictory, was clear that the Deputy App was no longer being used by Pearson's to allocate shifts to employees.

• [18] It is not in dispute that around 20 August 2025 Pearson's ceased using the Deputy App to roster employees onto shifts.

• [19] I accept Pearson's submissions that a casual employee not being offered shifts doesn't necessarily equate to a dismissal.

• [20] In determining whether a dismissal has occurred, the Commission ought to consider the context and actions of the parties as a whole.[7]

• [21] The fact of dismissal is determined objectively, by reference to what a reasonable person would understand the words and actions of the parties to mean.[8]

• [22] Internal email correspondence from Pearson's was provided on 17 September 2025 confirming that Ms March was still active in Pearson's payroll system, but I do not consider this to demonstrate that the employment relationship remains ongoing in the present circumstances.

• [23] After cancelling Ms March's remaining shifts for the month of August 2025 and not rostering her on any further shifts beyond that date Pearson's told Ms March that they would keep her in mind for any upcoming farm hand work. Pearson's then ceased using the Deputy App without any communication to Ms March about how she would be allocated future shifts.

• [24] Upon logging into the Deputy App on 20 August 2025 to see if she had been allocated any shifts, Ms March was greeted with a message saying she was no longer connected to a 'Deputy business'.[9]

• [25] In the absence of any communication from Pearson's about the change to how shifts would be communicated to employees, I find that a reasonable person would understand that they had been dismissed.

• [26] Pearson's act of ceasing to use the Deputy App without notification to Ms March and its failure to advise Ms March how she could be allocated shifts in the future had the probable result of bringing the employment relationship to an end.

• [27] The date of dismissal for an employee who has been dismissed at the initiative of the employer does not take effect until they are aware that they have been dismissed or at least have had a reasonable opportunity to become aware.[10] Accordingly, I find that Ms March was dismissed by Pearson's on 20 August 2025.

• [28] The jurisdictional objection is dismissed and the matter will be set down for conferencing.

A Scarfo of The Working Women's Centre SA Inc with permission, appearing on behalf of D March, the Applicant.

S Popovic of PGC Legal with permission, appearing on behalf of K Pearson for the Respondent.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

[2] Khayam v Navitas English Pty Ltd (T/A Navitas English) [2017] FWCFB 5162 at [126].

[3] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625, 62 IR 200; Khayam v Navitas English Pty Ltd (T/A Navitas English) [2017] FWCFB 5162 at [37].

[7] Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [27]; See also George v The Face Specialist Pty Ltd [2024] FWC 2239 and Stimson v Dr Michael Tawadrous [2020] FWC 3999 at [29].

[8] Koutalis v Pollett [2015] FCA 1165; 235 FCR 370 at [43].

[10] Ayub v NSW Trains [2016] FWCFB 5500 at [36]; See also Foyster v Bunnings Group Ltd [2017] FWCFB 3923 and McKenzie v Synco Global Pty Ltd [2025] FWC 820 at [34].

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