Fair Work Act 2009

s.365 - General protections

General protections - jurisdictional objection - whether applicant was dismissed - whether applicant remains employed by respondent - applicant was dismissed at the employer's initiative - jurisdictional objection dismissed - application to proceed

• [1] This decision concerns a jurisdictional objection by TSHC Pty Ltd (the Respondent) to a general protections dismissal application made under s 365 of the Fair Work Act 2009 (Cth) by Ms Jelena Ivanova (the Applicant).

• [2] The Respondent objects to the application on the basis that the Applicant was not dismissed. The Respondent contends that the Applicant remains employed by the Respondent.

• [3] On 30 June 2025, the Commission held hearing in relation to the jurisdictional objection. The Respondent was represented by Mr Peter Wade (Manager of Workplace Relations and Culture) of the Australian Hotels Association. The Applicant was represented by Ms Alannah Slater of counsel who was instructed by Victoria Legal Aid.

• [4] At the hearing, Ms Iryna Kazhavets (Front Officer Manager) gave evidence on behalf of the Respondent and Ms Ivanova gave evidence on her own behalf. Ms Ivanova's first language is Russian and she gave evidence through an interpreter.

• [5] On 19 August 2019, the Applicant commenced employment as a casual cleaner at the Settlement Hotel in Cranbourne.

• [6] The Applicant's employment was initially with Cranbourne Hotel Pty Ltd.

• [7] In or about October 2023, the Settlement Hotel was acquired by the Respondent. The Applicant was offered and accepted employment with the Respondent on terms set out in a letter of offer dated 17 October 2023. The letter off offer was prefaced with the words "I would very much look forward to you continuing to work at the Settlement Hotel and details of the offer of employment is outlined within this letter". The letter specified terms of the employment including as follows:
  • You will be employed by THSC Pty Ltd as at the date of completion of the transfer [from Cranbourne Hotel to THSC], this expected to be sometime on 30 October 2023, however, this may change and this will be communicated with you
  • Your current position and classification and wages will remain the same as immediately prior to the Sale Completion Date.

• [8] In the period between 19 August 2019 and her last shift worked on 6 November 2024, the Applicant was rostered to work for at least three shifts each week and sometimes four to five shifts. The duration of the Applicant's shifts were usually six hours, albeit some shifts were longer and some shifts were shorter.

• [9] The Respondent notified the Applicant of her rostered shifts via an online rostering application called Tanda. Ms Kazhavets would schedule shifts on Tanda for employees, including the Applicant, for one or two weeks in advance. The Applicant's practice was to check Tanda every week.

• [10] It was not uncommon for employees arrange between themselves to cover shifts where an employee was unable to work a rostered shift due to personal commitments. The Applicant did not have caring responsibilities in relation to children and so was more flexible to swap shifts. From time to time, the Applicant would be called by Ms Kazhavets to work at short notice, which was partly because she lived close to the Settlement Hotel.

• [11] In 2023, the Applicant was diagnosed with rheumatoid arthritis. In the subsequent two years, the Applicant's arthritis became progressively worse.

• [12] In 2024, the Applicant was of the view that her work was contributing to the deterioration in her condition.

• [13] On 6 November 2024, a new cleaner started working at the Settlement Hotel. The Applicant helped train the new cleaner. The Applicant's last shift at the Settlement Hotel was worked on 6 November 2024.

• [14] On 8 November 2024, the Applicant phoned Ms Kazhavets and told her that she wanted to work one less shift per week. Ms Kazhavets asked why. The Applicant told Ms Kazhavets that it was because of her arthritis. Ms Kazhavets informed the Applicant that she needed to consult with someone and would call her back. There was a further exchange between the Applicant and Ms Kazhavets during which the Applicant perceived that Ms Kazhavets was not happy with the Applicant's request to reduce her hours.

• [15] Later on 8 November 2024, Ms Kazhavets phoned the Applicant. In this second telephone conversation, Ms Kazhavets told the Applicant that she could not continue working at the Settlement Hotel, that her upcoming shift of 10 November 2024 had been cancelled and that if she wanted further shifts she needed to provide a letter of capacity identifying her medical condition and the reasons why she did not have capacity to work.

• [16] On the evening of 8 November 2024 at 7:03pm, the Applicant sent a text message to Ms Kazhavets. The text message was in Russian. Ms Kazhavets also speaks Russian. The text message was translated was in the following terms:

Iryna please forgive me from disturbing you at this time of day. But I thought that we have one life and health is more important. I will need from work a letter of termination for Centrelink. You can send it to my email. Good night and have a nice weekend.

• [17] The Applicant in her evidence explained her intention in respect of the text message. She says she made the reference to "have one life and health is more important" because she perceived that Ms Kazhavets was not happy with the Applicant's request to reduce her shifts by one shift per week. The Applicant said that she asked for a letter of termination as she wanted to provide the certificate to Centrelink for the purpose of showing Centrelink that she did not have any income. This was apparently for the purpose of the Applicant obtaining some social security benefit from Centrelink for which the Applicant needed to send a report to Centrelink that she had not received income in a two-week reporting period.

• [18] At 7:18pm on 8 November 2024, Ms Kazhavets sent the Applicant a text message in response to the Applicant's text referred to in paragraph [16] above. Ms Kazhavets' text message was as follows:

Hi Jelana, we need a resignation letter from you before we can send you a separation letter for Centrelink

• [19] As I have noted in paragraph [15] above, in the second phone conversation between them on 8 November 2024, Ms Kazhavets cancelled the Applicant's rostered shift for 10 November 2024. The last shift that the Applicant worked at the Settlement Hotel was on 6 November 2024 and the Respondent has not rostered or offered the Applicant any shifts since her last shift worked on 6 November 2024.

• [20] On 12 November 2024, the Applicant sent an SMS in response to Ms Kazhavets' text referred to immediately above. The Applicant's text was as follows:

I will not write a resignation letter because I want to keep the opportunity to work two days a week.

• [21] On 13 November 2024 at about 8:50am, Ms Kazhavets sent an email to the Applicant which attached a letter dated 12 November 2024. The letter referred to the Applicant's disability status and notified the Applicant that "a specific process is in place to ensure compliance with workplace policies and to determine any reasonable accommodations needed for you continued employment as a Housekeeping Attendant at The Settlement Hotel." There were two aspects of the Respondent's process, being a "Management Review" and a "Medical Evaluation". The Management Review would involve the Human Resources and Senior Management of the Respondent reviewing "all official documentation" related to the Applicant's disability "to determine any necessary accommodations". The Medical Evaluation referred to the "physical demands of the housekeeping role" in the nature of "lifting, bending, and handling equipment" and required the Applicant to provide a "a medical clearance, in the form of a "Capacity Letter." The purpose of the Medical Evaluation was identified as "help confirm any limitations or adjustments needed to perform your duties safely." The Respondent's letter concluded that "Once we receive all documentation, we will work with you to discuss your availability to perform your regular duties and determine suitable hours and days of employment" and indicated that the Applicant should "reach out" if she had questions or wished to discuss.

• [22] At 10:01am on 13 November 2024, the Applicant attempted to ring Ms Kazhavets. The Applicant's purpose in making this call was to clarify with Ms Kazhavets aspects of the Respondent's requested "Capacity Letter" including whether the letter could be provided by the Applicant's doctor and what questions the Applicant should ask her doctor to address. Ms Kazhavets did not answer the Applicant's phone call.

• [23] In mid-November, the Applicant attempted to arrange an appointment with her treating General Practitioner. However, the General Practitioner was on leave until 29 December 2024. The Applicant evidently made an appointment with the General Practitioner for 29 December 2024.

• [24] In the period between 18 November 2024 and late December 2024, the Applicant underwent weekly sessions with a Hand Therapist to threat her arthritis.

• [25] On 2 December 2024, the Applicant met with Ms Kazhavets and Ms Colleen Sullivan (Venue Manager) at the Settlement Hotel. The meeting was initiated by the Applicant. In the meeting, the Applicant said that she could not get a capacity letter from her doctor as her doctor was on leave but that the Applicant would obtain the letter after 29 December 2024. The Applicant nevertheless asked to be rostered for a couple of shifts per week as she considered she could physically perform those shifts. Ms Kazavets and Ms Sullivan told the Applicant that they could not offer her any further shifts and would require a capacity letter prior to the Applicant returning to work. Ms Sullivan reassured the Applicant that everything would be okay and once a capacity letter was received the Respondent would work with the Applicant on accommodating her disability.

• [26] After finishing her discussion with Ms Kazhavets and Ms Sullivan, the Applicant went and spoke with another employee at the Settlement Hotel. While she was doing so, the Applicant was contacted by Ms Kazhavets and asked to return to speak with her. The Applicant then met again with Ms Kazhavets and Ms Sullivan. Ms Kazhavets asked the Applicant in Russian what the Applicant meant in her text message of 8 November 2024. The Applicant replied in English that she had no intention of quitting and did not mean to convey this to her employer.

• [27] On 29 December 2024, the Applicant had an appointment with her General Practitioner. The General Practitioner certified in a medical certificate that the Applicant was "unfit to continue her usual occupation" between 29 December 2024 and 12 January 2025. The Applicant emailed Ms Kazhavets a copy of the medical certificate dated 29 December 2024.

• [28] Between January and February 2025, the Applicant undertook an intensive course of treatment for arthritis including laser therapy, wax wraps and water therapy. The Applicant also commenced taking new medication during this period.

• [29] On 12 January 2025, the Applicant obtained a further medical certificate from her treating General Practitioner. The medical certificate dated 12 January 2025, certified that the Applicant was "unfit to continue her usual occupation" between 13 January 2025 and 24 January 2025. The Applicant emailed the medical certificate to Ms Kazhavets on 12 January 2025.

• [30] On 13 January 2025, Ms Kazhavets emailed the Applicant the following response: "Thankyou Elena. Hope you feel better."

• [31] Also on 13 January 2025, the Applicant consulted with a rheumatologist. The rheumatologist prescribed laser therapy, which the Applicant was continued to undertake twice a week and continued to undertake as at the date of hearing.

• [32] On 27 January 2025, the Applicant consulted her General Practitioner and obtained a further medical certificate. The medical certificate dated 27 January 2025, certified that the Applicant was "unfit to continue her usual occupation" between 28 January 2025 and 23 February 2025.

• [33] On 11 February 2025, the Applicant emailed the medical certificate dated 27 January 2025 to Ms Kazhavets under cover of an email in which she stated that she was "currently undergoing an intensive course of treatment" which ended on 21 February 2025 and "after that I can return to work." The Applicant's evidence was that she felt physically better and stronger due to the intensive course of treatment she had undertaken between January and February 2025.

• [34] On 20 February 2025, the Applicant undertook an MRI scan and on 26 February 2025, she consulted her treating General Practitioner who reviewed the report from MRI scan. The General Practitioner issued a document entitled "Certificate of Capacity" which said that the Applicant "is suitable for house keeping jobs with some modifications (no longer than 15 hours per week, maximum lifting capacity is 15kg; working 3 days per week: Tuesday, Saturday and Sunday."

• [35] On 28 February 2025, the Applicant went to the Settlement Hotel and met with Ms Kazhavets and Ms Sullivan. The Applicant initiated this meeting. There is some controversy between the parties as to what was said at this meeting. However, it was not in controversy that the Applicant provided Ms Kazhavets and Ms Sullivan with a copy of the Certificate of Capacity. It was also not controversial that the Applicant said that her treatment had been positive, or that the Respondent indicated that it had no shifts to presently offer the Applicant. The Applicant gave evidence that Ms Sullivan and Ms Kazhavets told her that they would rectify the situation by the following week. The Applicant says that Ms Sullivan and Ms Kazhavets told her that there were presently no shifts available because of the timing of the rostering but that they would find the Applicant some hours. The Respondent denies that this was said and says that it merely indicated that in the coming weeks it would monitor occupancy levels and then determine appropriate hours and days that could be assigned to the Applicant based on the limitations in the Capacity Letter. But it is not necessary to resolve this conflict in the material before the Commission. The Applicant said during this meeting that she felt that she was not being given shifts because of her disability. The Respondent does not deny the Applicant said this but merely asserts that Ms Sullivan and Ms Kazhavets made no mention of disability. Importantly, it is not controversial between the parties that Ms Sullivan told the Applicant that as long as she could log into Tanda, she was still employed by the Respondent.

• [36] On 11 March 2025, the Applicant texted Ms Kazhavets as follows, with the question mark being in a separate text:

• [37] Ms Kazhavets did not respond to this message. In her oral evidence, Ms Kazhavets indicated she felt the message was abrupt and rude, as the question mark was sent in a separate text message. The Applicant indicated that the question mark was sent separately and immediately after the first text message because she had omitted to include it in the first text message. I don't consider that the Applicant was intending to be rude or abrupt in the formulation of the text messages, albeit nothing turns on the Applicant's intention in sending the messages in this form.

• [38] The Applicant received no communications from the Respondent regarding her return to work after providing the Certificate of Capacity to Ms Kazhavets and Ms Sullivan at the meeting on 28 February 2025.

• [39] Ms Kazhavets gave evidence that, as at 28 February 2025, the roster was already pre-made for an upcoming two weeks. Ms Kazhavets also gave evidence that the hotel was quiet in March, which was proffered as an explanation as to why to the Applicant was not allocated shifts.

• [40] On 13 March 2025, the Applicant went to the Settlement Hotel. Upon her arrival, the Applicant knocked and entered Ms Kazhavets office and then the Applicant, Ms Kazhavets and Ms Jo-Anne Stewart (Accounts Officer) had a conversation. Again, there is some controversy as to the substance of this conversation. The Applicant's account given in evidence was to the effect that she asked whether the Respondent had any shifts for her and was told in response by Ms Stewart that the Respondent was not obliged to offer her shifts as she was a casual employee. The Respondent's account is to the effect that Ms Stewart told the Applicant that as per the terms of her casual 'employment, she was not guaranteed any shifts, that shifts were allocated based on operational needs and that at that time, no shifts were available that aligned with the Applicant's availability and limitations. Ms Kazhavets gave evidence that the Applicant conducted herself in an aggressive manner during this conversation. The Applicant denies that she did so, but acknowledges that she was louder than usual because she was stressed and angry. It is not necessary to resolve this dispute about what was precisely said at this meeting or the nature of the Applicant's conduct for the purposes of this Decision. The important matter is that the Respondent did not give the Applicant any assurance about the provision of further shifts.

• [41] Furthermore, it was apparent that the Respondent took an adverse view of the Applicant's conduct at this meeting. After the Applicant attended the Hotel on 13 March 2025, the Managing Director of the Respondent, Mr Joe Scerri, informed Ms Kazhavets that she was not to respond to any further contact from the Applicant and was to direct any inquiries from the Applicant to him.

• [42] Subsequently, the Respondent changed the Applicant's status on Tanda to "inactive". The date on which this occurred is not in evidence. The Respondent contended that it did so because the Applicant's access to Tanda enabled her to obtain information about other employees regarding their rostered shifts. The Respondent contends that the Applicant has used this information to speak to other employees about their shifts and that this had led to complaints from other employees, causing the Respondent to render the Applicant's status on Tanda inactive as a precautionary step. It is not necessary for me to resolve whether the Applicant was using information from Tanda for the purpose of speaking to other employees and whether this was the subject of any complaint from other employees. It is not controversial and I find that the Applicant's status on Tanda was changed to inactive. Ms Kazhavets gave evidence and I accept, the that the Respondent never informed the Applicant that she had been made inactive on Tanda.

• [43] On 30 April 2025, the Applicant attempted to log into Tanda and noticed that her status on Tanda for the Settlement Hotel was "Inactive." The Applicant was thereby unable to access information about rosters via Tanda at the Settlement Hotel. The ordinary and established means by which she would be notified of shifts was thereby denied to her. The Applicant's evidence was that about this time, she came to the view that she had been dismissed by the Respondent.

• [44] The Respondent has indicated that while the Applicant's status on Tanda was changed to "inactive" she was still listed as "active" on its WageEasy payroll system.

• [45] It is common ground between the parties the Respondent never sent the Applicant any formal communication, in the nature of a letter or email, terminating her employment.

• [46] On 2 May 2025, the Applicant filed her application for the Fair Work Commission to deal with a dismissal dispute under s 365.

• [47] As I have noted, the Respondent maintains that the Applicant remains an employee of the Respondent. However, it is not controversial that the Applicant has not worked any shifts since 6 November 2024.

• [48] Section 365 of the Act identifies the persons who are entitled to make a general protections application involving dismissal to the Commission. Relevantly, section 365(a) establishes a requirement that the "person has been dismissed".

• [49] Section 12 of the Act defines the term "dismissed" by reference to s 386. Section 386 is relevantly in the following terms:

(a) the person's employment with his or her employer has been terminated on the employer's initiative;

• [50] The key issue in determining whether there has been a dismissal is whether an action on the part of the employer was the principal contributing factor which lead to the termination of the employment relationship.

• [51] For the reasons that follow, I am satisfied that the Applicant was dismissed by the Respondent.

• [52] On 8 November 2025, the Applicant notified Ms Kazhavets that she wanted one less shift per week and gave her reason as being due to her arthritis. Later that day, the Respondent cancelled the Applicant's shift scheduled for 10 November 2025 and informed her that if she wanted further shifts she would need to provide a letter of capacity indicating her medical condition.

• [53] Since 8 November 2024, the Applicant has not been offered or rostered for any shifts by the Respondent, with the last shift she worked being on 6 November 2024. However, I do note that the Applicant provided the Respondent medical certificates indicating that she was unfit for work in the periods from 29 December 2024 until 23 February 2025. This provides a proper explanation why the Respondent did not roster or offer the Applicant work in that period. Nevertheless, on 26 February 2025, the Applicant provided the Respondent a certificate of capacity indicating that she was fit housekeeping duties with modifications. Importantly, the Applicant was not offered or rostered for any shifts after 26 February 2025.

• [54] On 28 February 2025, the Applicant spoke with Mr Kazhavets and Ms Sullivan at the workplace. Ms Sullivan assured the Applicant she was still employed as long as she could log into the Tanda App. Ms Kazhavets did not demur from this statement. I find that Ms Kazhavets in effect assented to this statement by Ms Sullivan.

• [55] On 13 March 2025, the Applicant attend the workplace and spoke with Ms Kazhavets and sought allocation of shifts. The Applicant was not allocated any shifts and was not provided any assurance from the Respondent as to whether she would be offered shifts in the future. The Respondent took an adverse view about the Applicant's conduct at the meeting.

• [56] Subsequently, the Respondent rendered the Applicant's status on Tanda inactive. The Respondent's act in doing so meant that the Applicant was not able to access her rosters and the ordinary means by which she would be notified of shifts was denied to her. The Applicant became aware of this inactive status on 30 April 2025. Given the assurance that Ms Sullivan gave the Applicant on 28 February 2025 to the effect that she was still employed whilst she had access to Tanda, the act of making the Applicant's status inactive is clearly an act of the Respondent which conveyed to the Applicant that she would no longer be offered shifts and no longer employed by the Respondent. The Respondent seeks to make something of the fact that the Applicant is still listed as active on its WageEasy Payroll system. I do not consider that this fact precludes a finding that the Applicant has been dismissed, particularly given that the Applicant's status was made inactive on Tanda.

• [57] As I have noted above, the Respondent took an adverse view about the Applicant's conduct during her interaction with Ms Kazhavets on 13 March 2025. The Respondent's representative described the Applicant's behaviour on this occasion as intemperate. As I have noted, it is not necessary to resolve any factual conflict about the Applicant's actual conduct at this meeting. However, it is pertinent that the Respondent on its own case contends that it took a negative view about the Applicant and then rendered her status on Tanda inactive. This sequence of events is consistent with a decision by the Respondent not to roster or offer the Applicant further shifts. I do not accept the Respondent's explanation summarised in paragraph [42] above, that it did so as a precautionary step.

• [58] Furthermore, even if the Settlement Hotel was not busy in March 2025 as the Respondent contends, this matter is not sufficient to displace all of the matters that I have referred to above, which are consistent with a dismissal.

• [59] In the circumstances, I find that the Respondent has determined that it will not offer or roster the Applicant further shifts.

• [60] I conclude that the Respondent dismissed the Applicant within the meaning of s 386 of the Act. The Respondent's jurisdictional objection has not been sustained.

• [61] The matter will be listed for a conference so that the Commission can deal with the dispute as required under s 368(1) of the Act.

• [62] I order that respondent's jurisdictional objection be dismissed.

• [63] I direct that the application (C2025/3617) be listed for a conference Monday, 6 October 2025 at 3:00pm AEST by video using Microsoft Teams. A Notice of Listing will be issued by my chambers in due course.

Ms A Slater, counsel, for the Applicant, instructed by E Kuiper of Victoria Legal Aid

Mr P Wade, of the Australian Hotels Association, for the Respondent

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