Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - no dismissal - Applicant still employed - jurisdictional objection upheld

• [1] This is an edited and formatted version of my decision delivered ex tempore, recorded in transcript on 30 July 2025 in which I found that the Applicant was still employed, was not dismissed at the initiative of the employer and dismissed the application.

• [2] Mr Kaleb Bierge (the Applicant) was employed as a casual Cleaner with Cityview Group (Aust) Pty Ltd (the Respondent) since 6 May 2024.

• [3] In determining the jurisdictional objection, I refer to the material filed by the parties, particularly the text message exchange between the Applicant and Ms Sharon McGaw of the Respondent at pages 10 to 23 of the Digital Hearing Book.

• [4] Section 386(1) of the Fair Work Act (the Act) relevantly provides that a person has been dismissed if:

(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.

• [5] As I understand it, the Applicant is arguing that he was factually dismissed as a result of the Respondent not contacting him and is not arguing that he was forced to resign.

• [6] The Applicant argues that he was dismissed at the employer's initiative under s.386(1)(a) because his employer failed to contact him over three weeks which led to him being, in his words, "effectively dismissed".

• [7] The Respondent argues that the Applicant's employment has not been terminated and that the Applicant simply stopped showing up. The Applicant is still on the payroll.

• [8] The fact of dismissal is determined is objectively, by reference to what a reasonable person would understand the words and actions of the parties to mean. The subjective intention of the parties is not relevant.

• [9] After the Applicant said he felt the Respondent wanted him to quit or wanted him to be fired. Ms McGaw replied that she did not want that at all.

• [10] The Applicant sent a text message on 3 May 2025 stating, "I won't be coming into work with people lying making it feel really unwelcoming and hostile". The Applicant subsequently did not arrive for his shifts.

• [11] The Applicant sent a follow up text message the next weekend on 10 May 2025 asking if Ms McGaw wanted him to work that weekend. There was no response to that text message. Ms McGaw denies receiving that text message.

• [12] The Applicant was on the roster that weekend but did not turn up. The Applicant did not arrive for his normally rostered shifts after the text message exchange of 3 May 2025.

• [13] I note the Applicant was normally rostered to work on Saturdays and Sundays, and had worked the same shifts each weekend for approximately 12 months. Additionally, he sometimes worked additional shifts throughout the week, but these were not guaranteed.

• [14] This is an unfortunate situation where both parties have made assumptions without verifying those assumptions. The Applicant assumed that he had been effectively dismissed but took no steps to clarify that. Equally, Ms McGaw assumed that the Applicant would not be coming back.

• [15] I do not accept the Applicant's argument that it was implied that when he said he would not be going to work, he meant only that weekend. The text message must be read objectively. The Applicant stated that he would not be coming to work at all, there is nothing in the words suggesting it is limited to that weekend.

• [16] I understand the Applicant's argument that the Respondent could have made further efforts to communicate with him. However, merely failing to initiate conversation about whether the Applicant would be arriving for his shifts does not establish dismissal at the initiative of the employer in circumstances where the Applicant had known in advance that he was expected to work those shifts each weekend. I accept that non-communication by the employer can initiate a dismissal but the period which the Applicant refers to of 3 weeks is a relatively short period of time. The evidence in support of dismissal at the initiative of the employer is weak. Even if the Applicant had been de-rostered, the Respondent was entitled to have other employees cover the Applicant's shifts as he was casual.

• [17] I find that the Applicant is still employed and could return to work his regular shifts. The Applicant's grievances regarding his pay should be made through the appropriate jurisdiction.

• [18] I find that the jurisdictional objection has been made out. The Applicant is still employed by the Respondent and has not been dismissed at the initiative of the employed under s. 386(1)(a) of the Act.

• [19] The application therefore cannot proceed as the Applicant has not been dismissed from his employment.

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