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[78]
[2026] FWC 1133
General information, not legal advice.
Fair Work Commission
2026-04-01
Original judgment source is linked above.
s.365 - General protections
Application to deal with contraventions involving dismissal - jurisdictional objection - no dismissal - application granted.
[1] Ms Jessie Perrin (the Applicant) has made an application to deal with contraventions involving dismissal to the Fair Work Commission (Commission), pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Respondent to this application is Yarra City Council.
[2] A contravention of s.365 requires a dismissal to have occurred, as defined in s.386. The Respondent in its F8A Form has argued the Applicant does not meet this requirement as they have not been dismissed but have indicated they are unwilling to meet Council's requirements to perform available shifts.
[4] To determine this question in the present case, directions were issued for parties to file evidence and submissions on the jurisdictional issue and a hearing was conducted on 23 February 2026. Both the Applicant and the Respondent filed written submissions with supporting material. The Applicant was represented by Ms Rebakah Drake from the Australian Services Union and gave sworn evidence, subject to cross examination in proceedings. The Respondent was represented by Ms Kirsten Sullivan who was granted leave to appear. The Respondent's case was supported by the sworn evidence of Mr Adam Horton.
[5] Section 386 of the Act sets out when a person is taken to have been dismissed for the purposes of s.365. If relevantly 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 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.
Relevant background, evidence and initial findings
[7] Ms Perrin started working for Yarra City Council on the 19 April 2021. She works as a casual group fitness instructor. Since approximately March 2022 she has worked a regular pattern of work completing a two hour shift each Friday morning at the Collingwood Leisure Centre.
[8] Ms Perrins work on Friday's involves teaching two Aqua classes. The duration of each class is 45 minutes. The first class commences at 8.15am, the second at 9.15am. Council requires Ms Perrin to commence her first class promptly at 8.15am. In between classes Ms Perrin performs necessary work as, and when, required. At the conclusion of the second class, she is required to pack up and is then free to leave.
[9] The Respondent gives similar evidence and Mr Horton evidence is consistent with Ms Perrins in relation to her shift times and regular pattern of work over a significant period. I am satisfied on this basis and find that Ms Perrin was in a continuing casual employment relationship from which she could be dismissed and that this relationship constituted the regular Friday work she performed for the Respondent.
[10] The Respondent's additional evidence is that up until September 2025, Ms Perrin performed her work without any issue or concerns, understanding the arrangement for this work were governed by the terms of the Yarra City Council Enterprise Agreement 2021-2025 (the Agreement). Specially, Appendix 5, subclause (a)(iii) of the Agreement which provides as follows:
"For all shifts that require instructors to set up and pack up and that are 2 hours or more, teachers will be entitled to 15 minutes time paid total per shift. If circumstances arise that prolong this setup/pack up time this would be referred for approval through the normal rostering process."
[11] The Respondent argues that as the rostered instructor for its 8.15am class on Friday, Ms Perrin was expected to be on the pool deck at 8.15am ready to commence aqua class. They accept this required Ms Perrin to set up for the class prior to the commencement of her shift. Their position is that Ms Perrin understood this to be the case. Adding further that the requirements were for the class to conducted from 8.15-9am, followed by a short 15-minute break, with the next class commencing from 9.15-10am. At the end of the second class, Ms Perrin was expected to pack up but was free to go before the end of her scheduled shift at 10.15am while still being paid.
[12] Mr Horton's evidence is that the Council's rostering system could not accommodate a shift start time prior to 8.15am. But that it was understood employees performing these shifts were allocated 90 minutes paid time instructing classes and 30 minutes paid time for the 1015 minutes set up and pack required each shift. Mr Horton submits that at no time has he received a request from Ms Perrin, or any other instructor, for additional time to be allocated to their shifts because the set up and pack up took longer than the allocated time.
[13] Ms Perrin did not dispute Mr Horton's evidence she had not previously sought additional time to be added to her shift. She also accepted in evidence that she understood the terms of her employment were governed by the Agreement. And that she also understood the Respondent expected her at work prior to the commencement of her paid shift, ready to start her class at 8.15am, and she could leave work prior to the end her paid shift.
[14] Ms Perrin's evidence is that she had been concerned about these working arrangements for some time, and she believed she should be paid for all time at work. In September 2025, she says she contacted the Fair Work Ombudsman (FWO) about these concerns and was told she was entitled to be paid for all time at work. In receipt of this advice, Ms Perrin's evidence is she made it clear to her employer she wanted to be paid for all her time at work and back paid for the unpaid time she had already worked.
[15] To this end, on 5 September Ms Perrin sent an email to her manager, Mr Horton asking that if he wanted her to start work before 8.15am, could he please make the adjustments to her roster. On 9 September she sent an email to the Respondent's payroll department seeking payment for approximately 3075 minutes of unpaid work. The email Ms Perrin sent to Mr Horton was as follows:
Next week I will also need to arrive for CLC for an 8.15am start. I spoke to Fair Work and they told me that an employee needs to be paid for the time they are onsite and performing set up duties, so I expect this should be ok.
I'm happy to make sure I'm there to set up after next week, however my hours will need to be adjusted to reflect this change as I am currently on shift from 8.15-10.15.
I will be on site for pack up obviously, as my shift ends at 10.15 and that 15 minutes is sufficient to complete pack up and brief patrons post-class.
If you'd like me to start work before 8.15am could you please make the adjustments on my timesheet to accurately reflect the time I am expected to be on-site and working."
[16] Mr Horton did not reply to Ms Perin until 10 September. His evidence is that he consulted with colleagues before providing his response. His reply to Ms Perrin was as follows:
Thank you for your email and confirming you are unable to meet the requirements of the shifts.
I have removed you from the future roster. As always, you are welcome to request available shifts you are available for, for consideration.
[17] On receipt of Mr Horton's email, Ms Perrin replied indicating that she was able to meet the requirements of her shift and requested he put her back on the roster. A few hours later, she sent a further email indicating she did not know why she had been removed from the roster as she was able to work the 8.15am to 10.15am requirements of the shift. This email reiterated she had been advised by Fair Work that it was illegal for her employer to expect her to attend to perform unpaid set up duties. Mr Horton did not reply to these emails.
[18] Ms Perrin's position is that the email Mr Horton sent her advising he had removed her from the roster amounts to a dismissal within the meaning of the Act, at the initiative of the employer. She argues the reason for this decision was because she had sought to exercise her workplace rights by seeking payment for time worked in breach of the general protection provisions.
[19] The Respondent's position is that as a casual employee all the Respondent has done is remove Ms Perrin from the roster because of her advised unavailability. They argue the applicant remains an employee of the respondent, and that she is on their records as an ongoing casual employee with access to its email and rostering systems. Adding that in the event the Applicant advises she is available to perform work she will be given opportunities that align with her availability and the needs of the respondent.
[20] Ms Perrin's evidence is since Mr Horton removed her from the roster she has not been offered any opportunities to work or been otherwise contacted by the Respondent. She maintains this is because she was dismissed on 10 September 2025 for exercising her workplace rights.
[21] The Respondent's position is that the Applicant was not dismissed and that she remains a casual employee of the Council. Their submissions are that Ms Perin was a casual employee who has consistently worked a 2hr Friday shift as an aqua gym instructor from 8.15am to 10.15am since 2022.
[22] Mr Horton's testimony is that when Ms Perrin advised she was unable to present prior to 8.15am on the Friday 5 September he was able to help her out. He says this was a 'once off' and he made it clear at the time Council's requirements for future shifts would be that Ms Perrin needed to be on site for set up and pack up. Adding that he advised Ms Perrin this was because she was receiving 2 hours pay, for two 45 minutes classes.
[25] The respondent is adamant neither Mr Horton or any other member of management communicated to Ms Perrin she was being dismissed or that they intended to bring her employment relationship to an end. The Councils further position is that at no stage has it engaged in any conduct that could cause this outcome to be the probable result. In short, their position is that Ms Perrin's email of 10 September advised the Respondent she was not ready, willing or able to do perform the 8.15am Friday shift. And that it was because of this advice, Council had no choice but to remove Ms Perrin from the rostered until such time as it was advised she is willing to perform the available work.
[26] In further support of its position the Respondent notes Ms Perrin remains on the Council payroll system. And that she continues to have access to her council email account and ongoing access of its rostering system and other council facilities.
[27] The Applicant's submissions establish that Ms Perrin had regularly worked one shift a week for the Respondent from 8.15am to 10.15am on Friday's conducting the morning aqua class. They further submit that she had performed this work for more than 3 years and had a reasonable expectation that this would continue to be the case. Their position is that this regular Friday morning shift was the nature of Ms Perrin's casual employment relationship with the respondent and that this relationship included an entitlement to be considered for future rostered shifts consistent with a continuing casual employment relationship.
[28] The Applicant argues it was the acts of the Respondent alone, by virtue of Mr Horton's email, that terminated this relationship. They submit Mr Horton's evidence is that he determined Ms Perrin's email advised him she could not meet Councils requirements for the 8.15am shift that on this basis he determined she should be removed from the rostered after consultation with colleagues.
[29] The Applicant identifies that this decision was made without any prior discussion or further response to Ms Perrin's communications. Noting, that Ms Perrin communications did not say she was unable to meet the requirements of the shift. In this regard, the Applicant argues all Ms Perrin's communications were seeking to do were to raise a reasonable request she be paid for time at work.
[30] In proceedings, the Applicant's representatives accepted Ms Perrin's communications were not just a request her start time be adjusted. Their position is that the essences of Ms Perrin's communications to have her roster reflect the time she was at work were reasonable and went to the nub of a dispute she was seeking to have resolved with the Respondent to be paid for time worked. They argue Ms Perrin acted reasonably as best she was able and the fact the Respondent did not engage with her reasonable request or initiate a discussion with her about alternative options reinforces the conclusion a determination was made to end her employment contrary to the general protection provisions.
[31] The Applicant argues the fact a further email Ms Perrin sent within minutes clarifying she was able to perform the requirements of the shift went answered reinforces this conclusion. At the very least, they argue, the Respondent should have acted to confirm Ms Perrin's position about her upcoming shift, as well as her ongoing availability for future shifts. The Applicant submits that the Respondent did not do this, but determined Ms Perrin was unable to meet the requirements of all future shifts confirms it was the Respondent's decision and actions that brought Ms Perrin's employment relationship to an end.
[32] After having already decided Ms Perrins was unable to fulfil the requirements of future shifts, the Applicant argues any offer or suggestion from Mr Horton that she would be considered and was welcome to apply for future shifts was not genuine. Adding the fact Mr Horton's gave evidence he did not reach out to Ms Perrin or actively consider her for subsequent shifts confirms this to be the case.
[33] The essence of the Applicant's case is that in determining Ms Perrin could not fulfil the requirements of her regular shift, removing her from the roster, taking away her regular shift, not considering her for future shifts or providing any reasonable reliable indication of future work the Respondent confirmed its decision the end her employment.
[34] In this light the Applicant argues that Ms Perrin had ongoing access to her email, council resources or its rostering system are not determinative. Their position is that in this case, having been removed from the roster there was no indication Ms Perrin would be provided work at the Respondent's initiative and there was no reliable indication Ms Perrin would be provided any future work going forward. On this basis, they argue she has been dismissed within the meaning of the Act, and her application should be allowed to proceed.
"(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable period of time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was a probable result of the employer's conduct such that the employee had no effective choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element."
"a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship."
In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly and important feature is the act of the employer results directly or consequently 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."
"The analysis of whether there has been a termination at the initiative of the employer for the purposes of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the last term of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.
As stated in Mohazab, the expression "termination at the initiative of the employer" is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment."[8]
[38] In this case, the Respondent's contention is that the Applicants employment has not come to an end at all. Their position is the employment relationship continued to exist at the date of the hearing. This being the case, the question remaining be determined is whether Ms Perrin's employment was terminated at the initiative of the Respondent.
[40] Much of the relevant facts in this case are not in dispute. Critically, the correspondence sent between Ms Perrin and Mr Horton between 3rd and 10 September is not contested.
[41] Nor is it in dispute that on 9 September Ms Perrin sent an email to the Respondent's payroll team articulating a claim to be paid backpay for the 15 minutes of unpaid set up time she believed she was entitled to be paid.
Commissioner: were you consistently saying, I'm happy to work at 8.15am?
Applicant: Yes. There was the date that I wasn't available and I said - but after that, that was when I talked to Fair Work and I was confident that I knew my rights and I said, "If you do need me to turn up, then could you please pay me to turn up."
[43] Ms Perrin's evidence in this regard is consistent and unequivocal. It applies to all her communications about what she meant about being available to work from 5 September, including in relation to the email she sent at 8.17am on 10 September asking to be put back on the roster because she was able to work the 8.15am-10.15am shift.
[44] This evidence clearly establishes that Mr Horton was correct to conclude that what Ms Perrin was telling him was that if he wanted her to work before 8.15am, she wanted to be paid for this work. I am satisfied that this is the case.
[45] Critically, however, Ms Perrin does not mention or express any intention that she is resigning or that she intended the bring her continuing employment relationship to an end with this communication.
[46] I accept Mr Horton's evidence that the circumstances he faced was the Respondent's rostering system could not accommodate a shift start time prior to 8.15am. At no stage however does Mr Horton, or the Respondent, argue or suggest they sought to communicate or explain this situation to Ms Perrin.
[47] Rather, in response to Ms Perrin's clear communication she was able to work and wanted to be paid Mr Horton's evidence is that he consulted with colleagues and determined she had told him she was not willing to work anymore shifts for the respondent. He then proceeded to remove Ms Perrin the regular shift she had performed for over 3 years, replaced her with another member of staff and advised her of this decision.
[48] Ms Perrin made no reference to her ongoing availabilities in her email to Mr Horton. On the contrary, she made clear that she wanted to work and asked - "please put me back on the roster". Mr Horton ignored these requests.
[49] In my view, notwithstanding the absence of an express dismissal and the respondent's instance that an employment relationship continued, in taking these actions and failing act in response to Ms Perrin's requests, Mr Horton acted to bring her continuing employment relationship to end.
[50] In proceedings Mr Horton made clear he determined, in consultation with colleagues, that Ms Perrin was telling him she was not willing to work future shifts. As discussed above, I do not accept that Ms Perrin told Mr Horton what he and his colleagues thought.
[51] Objectively viewed, in circumstances where Ms Perrin had worked a regular Friday shift since early 2022, in being removed from these shifts and replaced on the roster with another member of staff, it is reasonably apparent the Respondent did not intend to offer her any future work and that her employment was being brought to an end.
[53] Because of these findings I am satisfied that Ms Perrin was dismissed by the Respondent within the meaning of the Act on 10 September 2025.
[54] In reaching this conclusion, I have considered the Respondent's submissions that Ms Perrin continued to be on the books of the respondent with access to its emails, roster systems and facilities. In the circumstances of this case however, I do not consider these factors to be of assistance. Ms Perrins evidence is after 10 September she believed she had been dismissed. She sought advice, and within weeks made her application to the Commission under the general protection's provisions. She did not consider contacting the Respondent, updating her availabilities or seeking additional shifts. In light my of findings above, I am satisfied Ms Perrin had legitimate reason to form this view. Because of these facts, whether the Council had, or had not removed her from their system or kept her on their books is not determinative in the circumstances of this case.
[55] Accordingly, the Respondent's jurisdictional objection is dismissed. This application will now be programmed for a Conciliation Conference in line with s.368 of the Act in due course.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591.
[2] Grass v Chinese Tennis Association Inc [2021] FWCFB 3443 at [11].
[4] See Witness Statment of Adam Horton, DCB p.78 at [7]
[9] See Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 and also Ayub v NSW Trains [2016] FWCFB 5500 at [17]
[10] See Park v LOTW Indro Pty Ltd [2020] FWC 858. Also Harmer v Trustee for the Noonan Family Trust [2023] FWC 1760, Nadine George v The Face Specialists Pty Ltd [2024] FWC 2239 and Corina Shears v Angle Vale Tavern [2017] FWC 6267
[11] See for example Stimson v Tawadrous [2020] FWC 3999 at [29] referring to Byrne v Australian Airlines Limited (19950 185 CLR 410 at 428.
[13] Stimson v Tawadrous [2020] FWC 339 at [45]
Printed by authority of the Commonwealth Government Printer
Jessie Perrin
Yarra City Council [2026] FWC 1133
(2020) 279 FCR 591
(1995) 62 IR 200