s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether Applicant dismissed - no dismissal.

• [1] On 5 June 2025, Ms Hannah Slee (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Brimbank City Council (the Respondent). In her application, Ms Slee alleges contraventions of s.346 of the Act in respect to protection of industrial activities.

• [2] The Respondent objects to the application on the basis that Ms Slee was not dismissed.

• [3] Whether Ms Slee was dismissed within the meaning of s.386 of the Act is in dispute. An application under s.365 of the Act can be made where a person has been dismissed and alleges their dismissal is in contravention of their general protections. Before the Fair Work Commission (the Commission) can deal with the application in accordance with s.368, it must determine if the Applicant was dismissed within the meaning of s.386 of the Act.

• [4] Ms Slee was represented by the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Respondent was self-represented.

• [5] Ms Slee is a casual employee that first worked for the Respondent on 6 October 2023 in the position of Duty Manager in Leisure Services and occasionally worked shifts as a Lifeguard. On commencement of employment Ms Slee submits that she input her availability to work on the rostering app, Human Force. She added that she was not available to work on Tuesday, Friday and before 4pm on Sundays. Based on her availability and availability of the work she was rostered variable days and hours each week. Ms Slee added that she often worked one Sunday evening per fortnight. Ms Slee described the various communication channels, some of which provided the opportunity to pick up extra shifts by swapping with staff.

• [6] Ms Slee submits that on 18 March 2025 she commented on a message about communications relating to enterprise agreement negotiations on Slack, an internal communication tool used by the Respondent to communicate announcements to staff. Following this post, she says she was no longer offered any casual shifts. She further submits that on 1 June 2025, she posted a message on Slack about bargaining and an ASU advertisement, which was removed after 8 minutes. The following day, on 2 June 2025, she received an email from management advising her that since she has not worked since 16 March 2025 it is deemed that she is an inactive staff member. Access to Slack and to the Respondent's facilities was removed. Ms Slee contends that this action was a dismissal of her employment. Ms Slee attached the message received on 2 June 2025 and it reads:

'Our records show that you have not worked as a Lifeguard/ Duty Manager for an extended period, with the last shift you worked being on the 16 March 2025.

This deems you as an inactive staff member as per the attached Inactive Staff policy.

As a result you will be removed from the Facility Operations Team SLACK channels (including the covers pages) and your membership access to utilise Brimbank facilities will also be deactivated.'

• [7] Ms Slee contends that the failure to offer further shifts and the dismissal is backlash for the posts she made to Slack about the role of the union and the bargaining process. Further she says that it is the only reasonable conclusion due to the proximity of time with her conduct.

• [8] The Respondent submits that Ms Slee was not dismissed and is still an active employee on the payroll system. As a casual employee, Ms Slee's ongoing engagement is dependent on operational needs with no guaranteed hours of work. It submits that since 16 March 2025, no further rostered hours have been offered due to change in her availability, operational and staffing needs.

• [9] The Respondent says that if a casual staff member has not been engaged for a period of three months, they will have their facility access (gym and pool privileges) and internal communications "temporarily disabled." The disablement of access, it submits is standard procedure adopted by the Respondent. Despite this temporary disablement, staff may be reengaged with access reenabled because they remain on the casual pool and payroll lists. It submits no communication has been sent to Ms Slee advising of a dismissal.

• [10] The Respondent described the various communication channels applicable to Ms Slee's area of work. Consistent with the Applicant it confirmed that Slack was the communication channel for management, but other apps provided the avenue to accept shifts, bid or swap shifts. Ms Slee retained access to the relevant apps to accept work.

• [11] The Respondent further submits that under Council policy a casual employee that has not been offered work for "six consecutive months may be administratively terminated and issued with a letter confirming cessation of employment." At the time of the hearing, the Respondent submits that the six-month period has not been reached, therefore the Applicant remains employed on a casual basis.

• [12] The Respondent denies that the decision to not offer any further shifts relates to an alleged exercise of a general protections right. It says that the failure to offer shifts relates to the Applicant's change in availability and the operational needs of the Respondent. It further contends that as a standard practice, a further 12 employees received the same advice about disablement because of the three-month procedure.

• [13] The Respondent tendered into evidence an email sent to the ASU copying the correspondence they sent to the Applicant regarding the temporary deactivation. In this email they also advised that 12 other casual employees in the Facilities Operations department received the same correspondence. A second email was tendered confirming Ms Slee has not been removed from the payroll system and no termination of employment. In addition, the Respondent provided a copy of the Facility access for Brimbank Leisure Centre staff policy. I observe that the policy provides for deeming staff as inactive at the four-week period (two pay periods) rather than three months, although the policy does allow for exemptions to the policy to be authorised by the Leisure Centre Manager.

• [14] Section 365 of the Act deals with applications before the Commission and contains two limbs, one that there is a dismissal and secondly that the Applicant alleges that the dismissal occurred because of a contravention of general protections. Relevantly, s.365 provides:

'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.'

• [15] The term "dismissed" in s.365 of the Act is defined in s.386 of the of the Act.[1] A dismissal is to be at the initiative of the employer, or a person was forced to resign but a dismissal does not include a range of situations (e.g. employment for a specified period of time or for a specified reason). The relevant extract from s.386 provides:

(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 their employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.'

• [16] The relevant provision in this matter is the application of subsection 386(1)(a) of the Act which goes to the employment coming to an end because of the employer's action.

• [17] Furthermore, a dismissal does not take effect until it is communicated by the employer to the employee being dismissed.[2]

• [18] To make a general protections dismissal application the person must have been dismissed as defined by the Act. Before exercising its powers under s.368[3] of the Act, the Commission must be satisfied that the person was dismissed in fact.[4]

• [19] The Respondent applies a process for inactive casuals to be removed from certain employee benefits, but this inactive process does not mean there is a dismissal. The policy concerning facility access makes clear that access is disabled when a casual becomes is inactive. The same policy does not contemplate dismissal, nor does the policy deal with termination of employment. It is not reasonable to reach the conclusion that an inactive status is a dismissal.

• [20] In the course of the hearing, evidence came to light that in fact Ms Slee had made a change to her availability and this was related to her commitments to her other casual job and her studies. Ms Slee further accepted that ordinarily she was simply rostered to work and did not use the available options to pick up additional shifts via swapping shifts or bidding. Both of these options are available through the apps available to active casuals. However, Ms Slee retained access to other apps being #general and #positivevibes. Further there was no evidence of Ms Slee being removed from the Human Force rostering app. The Respondent did not tender evidence of Ms Slee's request to be removed from allocated shifts, but this was not contested by the Applicant.

• [21] Having considered the submissions and evidence before me, I am satisfied that the Respondent did enact an inactive status as a casual that prevented Ms Slee's access to certain apps, Slack and the leisure facilities but this did not amount to dismissal. The evidence was that access to other apps remained post inactive status and Payroll confirmed that Ms Slee had not been removed from the payroll system and remained employed.

• [22] As I am satisfied that Ms Slee has not been dismissed at the time of this application, this application has not been properly made by failing to satisfy the first limb of s.365 of the Act.

• [23] However, before the application is dismissed, I will consider whether I should exercise my discretion to amend the application should it be required to the date of dismissal. Inactive casuals are dismissed after a six-month period of inaction. At the time of writing this decision the six-month period was 16 September 2025.

• [24] Should Ms Slee contact my Chambers to confirm that her employment had been dismissed and seeks her application be amended from 5 June 2025 to the date of dismissal, I will use my discretion to amend the application date pursuant to s.586(b) of the Act. I am satisfied that this is a reasonable course should it be required on the basis that the application was made prematurely and per s.577 of the Act it would be appropriate to waive the irregularity consistent with the Full Bench authority in Mihajlovic v Lifeline Macarthur.[5]

• [25] Accordingly, Ms Slee is required to contact my Chambers and advise whether her employment has been dismissed. If her employment has been dismissed orders will be issued amending the date of dismissal on her application. If Ms Slee has reengaged/ become an active casual again, this application will be dismissed by order of this Commission. Ms Slee is asked to advise before 4.00pm on 9 October 2025.

[1] See Part 1-2 - Definitions in s.12 of the Fair Work Act 2009, which refers to s.386.

[2] Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, William SDP, Acton SDP Gregor C, 21 November 2000) at para 24.

[3] Dealing with a dismissal dispute other than by arbitration.

[4] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54].

[5] Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070; 241 IR 142.

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