Fair Work Act 2009

s.365 - General protections

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

• [1] Ms Glynnis Morton (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 contraventions involving dismissal. Ms Morton stated that she had been dismissed on 6 February 2025 from her employment with Roadside Civil Solutions Pty Ltd (the Employer/the Respondent), a labour hire company.

• [2] The Respondent, in completing its Form F8A - Response to general protections application, raised a jurisdictional objection to the application on the grounds that Ms Morton's employment had not been terminated on the Employer's initiative pursuant to s.386(1)(a) of the Act.

• [3] The Full Court of the Federal Court in the decision of Coles Supply Chain Pty Ltd v Milford[1] requires the Commission to determine whether Ms Morton's employment was terminated by the Employer and if so, the date of such. These findings are required, before the Commission's jurisdiction under s.365 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. The Commission can then deal with a dispute in conference about whether Ms Morton was dismissed in contravention of the general protections provision. The application was filed within the statutory 21 day time frame.

• [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] The meaning of "dismissed" is provided at s.386 of the Act:

(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 only with the jurisdictional objection to be determined; that is, was Ms Morton dismissed by the Employer from her employment within the meaning of s.368(1)(a) of the Act.

• [7] The jurisdictional objection was listed for a determinative conference. Ms Morton represented herself. Mr Jackson Gilbert, the Managing Director, represented the Respondent. Directions were issued for the parties to file submissions in relation to the jurisdictional objection prior to the determinative conference.

• [8] The Respondent is a labour hire company, providing earthmoving equipment and labour hire employees to its clients. The Applicant commenced employment with the Respondent in August 2024. The Applicant was employed as a casual, Truck Operator.

• [9] Ms Morton stated that she had made recent complaints to her supervisor about the quality of the trucks and questioned the associated safe operation of the vehicles. In particular, on her final day of work, she contended she had mechanical and safety issues with the truck she was operating and had taken videos of the deficiencies with the vehicle. Ms Morton included with her submissions a screenshot of a video of the broken steering wheel on the truck.

• [10] The Respondent submitted that the Applicant was not dismissed but was instead stood down in relation to the breakdown of the truck. Mr Jackson Gilbert stated that before communication could occur with the Applicant about any further work they may have, the Applicant filed this s.365 application. The s.365 application was filed 18 days after the final day of work. Mr Jackson Gilbert stated it was the Respondent's understanding that they should not communicate directly with the Applicant once 'legal proceedings had commenced' (referring to the general protections application).

• [11] The Applicant submitted screenshots of emails and text messages she had sent to the Employer immediately after work on the last day. The Applicant stated that she was dismissed over the phone by Mr Luke Gilbert on 6 February 2025. She submitted that Mr Luke Gilbert called her and accused her of not isolating a machine with a safety issue, to which the Applicant responded that she had. She then stated that Mr Luke Gilbert called her argumentative and told her that she is to leave the site and not come back to the company.

• [12] The text messages submitted by the Applicant included messages from herself to Mr Jamie Greenaway (operations manager) on 6 February 2025. These text messages were as follows:

(a) At 8:32am the Applicant sent the following series of messages:

"Luke has told me to leave the company . He is saying that I didn't isolate the truck when I did . He is going off about me having problems with the truck. The steering wheel was broken I should not have been driving the truck in the first place."

"Can you send me the proof that I didn't isolate the truck . The gps proof ."

"It's unfair dismissal. I know I isolated the machine"

"Can you please call me tomorrow Jamie just for a chat. Thank you"

• [13] The Applicant stated that after the last day of work she was not called by anyone from the Employer. The Respondent submitted that multiple phone conversations took place after the breakdown of employment until the Applicant indicated that she would be lodging this application. However, there was no evidence provided by the Employer of phone calls after the last day of work.

• [14] The Applicant also submitted that the Respondent paid out her wages (for the days worked) on the 6 February 2025. She stated she was not supposed to get paid until the following week on 13 February 2025 which was the normal pay cycle. The Applicant included evidence of this as per the text message exchanges with Edel McHugh, the payroll officer, which stated:

(a) At an unknown time, the Applicant messaged Ms McHugh stating:

"Hey edel that's my timesheet for today . I take it you know I'm gone . I just want to say thanks for everything only for ya x chat soon"

"I'll drop the 2 tops to one of the girls to give back"

(b) Ms McHugh replied to the Applicant at 12:19pm with the following:

"Hey Glynnis, I only just heard! no worries at all! I paid you the 9 hours you had banked as well as today's hours too! Thanks so much x"

• [15] There is also an email sent by the Applicant to the Respondent on 7 February 2025 that reiterates her perspective in regard to the cessation of employment. This email states:

"Just an email regarding my wrongful dismissal yesterday.

It was alluded to that I did not isolate the Bell 45 dumper and this and being allegedly "argumentative" led to my dismissal. I can confirm that I isolated the machine as required.

It was noted that management could see that the machine was not isolated on the GPS, please provide me with adequate evidence of this.

Over the past number of weeks, I have flagged multiple safety issues with the machines I was operating. I also provided video footage of these issues. While this is may seem an inconvenience that I point these out it is for best for both the safety of myself and others.

I contacted Luke regarding brake fluid warning lights flashing on the and on Friday it was parked up. I was given the go ahead to drive it Monday and Tuesday as it was deemed safe by management and was informed by the Komatsu Mechanic on Tuesday afternoon that he had advised management not to drive this machine due to safety concerns with the brakes. I had driven this machine for two days. The machine was found to have low levels of nitrogen in the accumulator.

I pointed out issues with the steering wheel of the dumper in which the steering column height adjustment was broken leavening the steering wheel loose.

My line manager did not appear to be very appreciative that I flagged safety issues with the equipment on site.

While I understand issues may hold up work, safe work is essential, and you as an employer have a duty of care to ensure all equipment is fit for purpose.

If you can please respond to each of comments above and request for evidence of me not isolating the machine by Tuesday COB."

• [16] The Applicant stated that she had raised (with her supervisor) multiple safety concerns with the machines in the weeks leading up to what she considered to be her dismissal. The Respondent did not provide evidence in relation to the supervisor's reference that there was GPS evidence allegedly displaying that the Applicant did not isolate the vehicle.

• [17] Mr Jackson Gilbert replied to the Applicant's email on 11 February 2025 as follows:

"I acknowledge receipt of your email sent on Friday, 07/02/2025, at 10:04 AM. This response is made in relation to the points raised in your communication.

Following a series of meetings with management, specifically Luke Gilbert and Jamie Greenaway, concerning your allegation of wrongful dismissal, I would like to clarify the following:

That you were not dismissed but rather sent home due to a machine breakdown. At that time, there were no available sites for you to be reassigned to, other than the machine that was out of operation. The reason for your absence from work was not related to any argumentative behaviour, as suggested in your email. I trust this clears up any misunderstandings regarding the nature of your absence.

Regarding the safety concerns you raise; we take safety matters extremely seriously at Roadside Civil Solutions. In response to your concerns about the equipment, I have reviewed several text communications between you and Luke. These indicate that the issues you flagged were promptly addressed, and in each instance, Luke often asked for confirmation that the equipment was deemed safe for continued operation and you were comfortable, To which you consistently responded with a confirming text indicating that the machines were indeed safe for use before proceeding with operations.

I trust that this explanation adequately addresses your concerns. However, should you wish to discuss this matter further, I encourage you to contact me directly."

• [18] The Applicant stated she received no further communication from the Employer regarding the availability of work.

• [19] Under s.386 of the Act, one way that a dismissal can occur is when an employee's 'employment' is 'terminated on the employer's initiative'. In other words where it is the employer that brought about the termination, and this was not agreed to by the employee.[2] The analysis regarding 'termination at the initiative of the employer' for the purpose of s.386(1)(a) of the Act, requires an analysis to be conducted by reference to the termination of the employment relationship.[3] Two criteria must be met for a 'termination at the initiative of the employer' to occur:

(a) the actions of the employer 'directly and consequentially' result in the termination of employment; and

• (b) if the employer did not take this action, then the employee would have remained employed.[4]

• [20] This requires that the employer's action needs to either intend to bring the employment relationship to an end or have that probable result.[5] In this matter, the Respondent's actions in abruptly telling Ms Morton to leave the site and not come back clearly intended to bring the employment relationship to an end. This was reinforced by the Employer immediately paying out the Applicant rather than if she had simply been stood down paying her with the normal pay cycle. On the evidence, for five days no further contact was made with the Applicant. Certainly no discussion had been undertaken with her on the day that she was sent home to demonstrate that the Applicant remained on the books and the Employer was actively looking for alternative work for her. Apart from the Respondent referring to this after five days in an email, there was no evidence that this was occurring.

• [21] The approach of the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd (O'Meara)[6] is that the full context of both parties needs to be examined in terms of the resultant actions relevant to the consideration of s.386(1) of the Act. The Full Bench examined 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... 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'" [7]

• [22] In relation to this matter, all of the circumstances, not only the act of the Employer, must be examined. The circumstances in this matter are that the Applicant was reporting safety issues with the truck and her supervisor in the last discussion (on the case of the Applicant) deemed her to be argumentative, it appears for engaging in reporting safety issues. The Employer's conduct, on the Applicant's evidence, in telling her to leave site with no accompanying communication about finding her other work at other sites or on other vehicles, together with being paid out that day her remaining wages, clearly indicates a course of action by the Employer intended to bring the employment relationship to an end. Even when some five days later the Employer attempted to redress these allegations made by the Applicant, there was no evidence provided of the pursuit of further work for the Applicant or the communication of any attempts the Respondent was making to find further work or that she was on their books for further engagement for employment.

• [23] The Full Bench's approach in O'Meara further states:

"[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

'Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.'

[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." [8] (footnotes omitted) (emphasis added).

• [24] In this matter there was no evidence that the Applicant was contemplating resignation, and it was the Employer's action that brought about the end of the employment relationship when she was told to leave site. Whilst the Employer on 11 February 2025 attempted to correct the record with the Applicant, they did not provide any evidence with regard to the accusation that she had not isolated the truck. No further communication was provided to her regarding possible work at other sites or on other vehicles. They did not stay in contact with her and when she filed the application there was still no further contact from the Employer. The conduct of the Employer was intended to bring the employment to an end. The Employer's email was sent to clarify the situation. However, the Employer's email was a protective measure in response to the Applicant's email, that clearly set out that the Employer's actions had brought her employment relationship to an end. In addition, there was no further work or evidence of intending her to work further with the company provided. She had also been paid out that day.

• [25] Further to the above, a Full Bench of the Commission reinforced the relevance of the above approach in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[9] (Tavassoli):

"[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a "forced" resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the 'termination at the initiative of the employer' formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:

'1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.'

[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) Wilkie v National Storage Operations Pty Ltd, that 'The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd' (footnotes omitted)." [10]

• [26] In considering the case authorities against the current facts of this matter, the relevant facts before the Commission are that:

(a) The written contract between the parties allowed for termination on the provision of one week's notice by either party. No formality of that nature in terms of the provision of notice by either party was exercised. The Employer told the Applicant to immediately leave site and this was not redressed in any way.

(b) The Applicant considered that the Respondent fairly soon after her last day was advertising for drivers. However, the Respondent clarified that these positions were separate to the Applicant's and were for Moxy Drivers. It is understandable that the Applicant assumed that this job advertisement may have related to her job as a driver given that she had not had any further contact from the Employer regarding ongoing work. The Applicant considered that based on the Employer's exchange with her on the last day, then being immediately paid and the conduct of the Employer having no communication with her regarding any further work, that she had been dismissed by the Employer.

(c) The Applicant's wages were paid out on 6 February 2025, rather than on the regular pay cycle of 13 February 2025. The Applicant stated she was told to leave the site that day. Further, her exchange with the Respondent's payroll officer indicated to the Applicant that the payroll officer knew the Applicant was 'gone' from the company and that this had been the Employer's clear intention to finish her employment up that day.

(d) The Applicant sent a text message to Mr Greenaway on the day of the alleged dismissal where she sought clarity on the situation after referring to the cessation of employment as a 'dismissal'. She also sent an email to the Respondent referring to a 'dismissal'. She did not receive a response from the Respondent in any form until 11 February 2025 where although the Employer considered that she was not dismissed, it did not clarify the status of the employment relationship. The Respondent failed to confirm with the Applicant, as they later volunteered, that she was still on their books and that they were still looking for alternative sites for her to work at.

• [27] The Respondent conceded that once the Applicant's general protections application was received, that they ceased communication with the Applicant. They did not confirm with her that they considered she remained an employee on their books or whether they were endeavouring to find further work for her. They did not refute the Applicant's assertion that what occurred on 6 February 2025 was a dismissal until five days after the fact. However, the Employer's response failed to explain the events. Further, the Applicant placed emphasis on receiving her final pay immediately after the events of the final day and one week earlier than the regular pay cycle. This payment was made in circumstances where the Applicant stated that the payroll officer stated she was aware that the Applicant was 'gone' from the company. The consideration of all of the conduct by the Respondent demonstrates that the Applicant's employment was terminated at the initiative of the Employer. The Applicant clearly did not voluntarily leave the employment as reflected by her text messages and emails to the Respondent. Commensurate with this, she was seeking clarity on the employment matters, such as the GPS evidence the Employer alleged they held regarding whether she had isolated the truck and asking for the Respondent's supervisor to 'chat' with her about the final events. The GPS 'evidence' was not provided by the Employer. In addition, it has been taken into account that she was a casual employee however in accordance with the terms of her regular engagements there was no evidence of her remaining on the books or communication with her about ongoing work or trying to find such for her.

• [28] I am satisfied that taking into account the conduct of both parties, that Ms Morton's employment was terminated at the initiative of the Employer within the meaning of s.386(1)(a) of the Act. The dismissal occurred on the final day she received work being the 6 February 2025. No further work or direct discussion with her about attempts to find her work occurred up until she filed the application 18 days later. The Applicant stated that the events occurred after she recorded a safety issue, was removed from the truck she had been operating and told to leave site. She was then paid her wages for time worked that day rather than being paid with the regular pay cycle. It was reinforced by payroll that her payment has been finalised as she was 'gone'. The Employer in response did not directly address these issues despite the Applicant's texts seeking the Employer to clarify the reasons for finishing her employment and the reasons the Applicant stated the Respondent had communicated to her for removing her from the workplace; she did not receive a response in these issues. The Applicant submitted that the Applicant's supervisor stated on the last day she worked that she had not isolated the vehicle and that she was argumentative. The Applicant had sought the GPS evidence that the Respondent had said they relied on for her not isolating the vehicle, but it was not provided. The Employer did not engage in any reasonable responses regarding the events that day or the status of her employment relationship. The instruction from the Employer that day and the immediate finalisation of her wages can only be interpreted as intending to bring her employment to an end. Accordingly, for the reasons set out, the Respondent's jurisdictional objection is dismissed. It is concluded that on 6 February 2025, there was a termination of the Applicant's employment at the initiative of the Employer, pursuant to s386(1)(a).

[1] [2020] FCAFC 152.

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

[3] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75].

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

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

[6] [2006] AIRC 496 (PR973462).

[9] [2017] FWCFB 3941.

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