s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - was the Applicant dismissed - application dismissed.

[1] Ms Kate Sainty has made an unfair dismissal application against Karlayura Personnel Pty Ltd. Karlayura is a small labour hire provider in the mining industry. This decision is about whether Ms Sainty was dismissed, and if she was dismissed, whether it was unfair.

[2] Based on the information in Ms Sainty's unfair dismissal application, her application was made outside the 21-day deadline for unfair dismissal applications. On Thursday 28 August 2025, I handed down my decision in [2025] FWC 2545, finding that there were exceptional circumstances that justified an extension of time for Ms Sainty's unfair dismissal application (EOT Decision).

[3] During the determination of whether an extension of time should be granted, Karlayura did not raise its objection that Ms Sainty had not been dismissed, despite Karlayura having the opportunity to do so. Karlayura also did not lead any evidence or contest Ms Sainty's evidence during the extension of time proceedings. This was raised for the first time after the EOT Decision was handed down. The late raising of this objection and new evidence being led means that there are findings in this Decision that are at odds with findings in the EOT Decision.

[4] I conducted a hearing on Thursday 23 October 2025 to deal with the jurisdictional objection of whether Ms Sainty was dismissed, and if she was, whether her dismissal was unfair. Ms Sainty gave evidence for her case. Mr Campbell Ballantyne, Director, spoke for Karlayura, and Karlayura called Mr Aidan Foster (former General Manager for Karlayura); Ms Divyashree Rajanna (Accounts); and Ms Alisa Ncube (Accounts).

[5] Having considered the evidence before me, I find that Ms Sainty was not dismissed. Her unfair dismissal application must therefore be dismissed.

[6] The detailed reasons for my decision follow.

• [7] In April 2024, Ms Sainty commenced employment for a related entity (Karlayura Labour Hire Pty Ltd) in or around April 2024 as a casual Plant Operator based at FMG's Solomon Hub. Relevant to this matter, clauses of Ms Sainty's first employment contract included the following:[1]

1.3 You acknowledge that the nature of your role and levels of responsibility may vary during your employment. This may include, without limitation, changes to your position, reporting arrangements, duties and/or location. In the case of such changes, this Contract will continue to apply to your employment unless you and the Employer:

(a) execute a new contract of employment;

(b) vary this Contract in writing; or

(c) agree to the inclusion of a new or varied Schedule.

1.4 Your employment may be transferred between the Employer and its Related Entities. Any such changes shall not sever this Contract nor continuity of service unless otherwise agreed in writing. In such circumstances, your continuous service will be recognised by the Employer and/or its Related Entities.

7.2 You may at the time be required to work at a different location required to fulfil the duties of your position as nominated by the Employer on either a temporary or permanent basis.

• [8] In January 2025, Ms Sainty's employment transferred to Karlayura. Karlayura issued a new employment contract to Ms Sainty, which relevantly included the following:[2]

4.1 Your engagement is to be on a casual basis and the Employer makes no commitment that you will continue to be engaged on a Longterm basis, or that you will be provided with ongoing employment. This Contract will determine the terms and conditions that apply to your employment for any subsequent assignment or shift, if any, for which you are engaged, subject to the terms of this Contract.

[9] The second employment contract also set out Ms Sainty's engagement as an Operator at FMG's Solomon Hub. Mr Foster was responsible for Ms Sainty's work placements during her employment with Karlayura.

• [10] On Tuesday 11 March 2025, the FMG Senior Supervisor emailed Mr Foster raising issues about Ms Sainty. Ms Sainty disagrees with the substance of those issues, but as it is not necessary for me to make findings on the issues raised, I do not detail them in this decision. The Senior Supervisor requested that Karlayura provide a replacement for Ms Sainty on site.[3]

[11] On Wednesday 26 March 2025, Mr Foster informed Ms Sainty that FMG no longer required her at Solomon Hub, and that he was working on getting her a placement at FMG's Cloudbreak mine site. Between Wednesday 26 March 2025 and Thursday 10 April 2025, Mr Foster and Ms Sainty exchanged numerous text messages regarding the mobilisation to Cloudbreak. They also spoke over the phone.

[12] On Thursday 10 April 2025, Ms Sainty was mobilised to Cloudbreak. Ms Sainty says that upon arrival, she found that the role was for a Dump Truck Operator. Ms Sainty says that this was contrary to what Mr Foster had told her the role was, as she was expecting a loader operator role. Ms Sainty informed management on site that she could not perform the role of Dump Truck Operator.

[13] Mr Foster's evidence is that on Friday 11 April 2025, the site superintendent called him to advise Ms Sainty had refused to operate the machinery.

[14] Ms Sainty's evidence during the hearing was that she had called Mr Foster and told him that the role was not a loader operator role, despite what he had promised her during their conversations. Ms Sainty's further evidence is that Mr Foster said to her that the roles involved the same duties, which she disagreed with. Mr Foster's evidence is that he told Ms Sainty that she could either do the job offered, or arrangements would be made to fly her off site.

[15] Later that day, Mr Foster text messaged Ms Sainty the details of her flight off site. Ms Sainty sent a text stating, "I was asking if there [are] any other operator jobs at other sites. I understand your [sic] pissed but if I knew it was a dump truck role I would [have] told you then & there that I'm not one & I recall in a conversation I confirmed with you it was a loader op position". Mr Foster informed Ms Sainty that as per their morning phone call, there weren't any other jobs available for her.

[16] Between Monday 14 April and Wednesday 23 April 2025, Ms Sainty and Mr Foster exchanged numerous text messages arguing over whether Ms Sainty should be paid for attending site on Thursday 10 - Friday 11 April 2025. This included a lengthy text message from Ms Sainty on Wednesday 23 April 2025 that stated:

"Aiden, what don't you get? You lied about the role that you transferred me for.. you did not transfer me for the same job role, if you did then there would be no problem. I would still be there, currently, if you told me that you were transferring me up there as a truck operator, not a loader operator like I was originally employed for none of this would've even happened. Nobody's time would've been wasted.. you lied to me to get paid and I'll get a butt seat, thinking I would just put up with it, a load of [sic] operator. [N]ot a dump truck driver, as per conversation on the phone, you stated the superintendent said there was no job for me as a loader or ancillary operator, therefore I left site as there was no job for my role, there was only a job as a dump truck operator, which was a temporary 6 month role for them to upskill their own people... I am not a dump truck operator & I have not been for years".

"I never refuse[d] to work. There was no role for me. You lied about the role you transferred me as."

"There wasn't anyone lying Kate. What you failed to understand was I tried to help you after you were deemed no longer required on another site[.] What you should have done is carried on with the job and after a period of time probably could have moved into other roles. You made a decision to not work as an operator (all be it [sic] [a] Dump truck operator) so you were transferred to a suitable role when in hindsight I should have made a decision from previous feedback to perhaps have not helped you."

[18] During the many messages between Ms Sainty and Mr Foster on Wednesday 23 April 2025, Ms Sainty sent a screenshot of an AI overview search that stated an employee is entitled to know the reason for a dismissal. Mr Foster replied, "You weren't terminated you were offered another job and refused to do it", and "I'm not going to go back and forth I am confident you will pick up another role Kate if anything else comes up [on] my end I will let you know accordingly".

[19] On Wednesday 21 May 2025, Ms Sainty wrote to Mr Foster to request a separation certificate. That same day, Mr Foster sent Ms Ncube an email that simply stated, "Can I get a separation certificate please for Kate Sainty".

[20] Ms Ncube's evidence is that she asked Ms Rajanna to complete the certificate and tick "end of contract" as the reason for the employment relationship ending as that was what would normally be selected when a separation certificate is requested. Ms Rajanna was in her second day of employment with Karlayura and followed Ms Ncube's instruction. Neither Ms Ncube nor Ms Rajanna were aware of Ms Sainty's circumstances. I accept their evidence in this regard.

[21] On Wednesday 11 June 2025, Ms Rajanna sent Ms Sainty a separation certificate. The separation certificate stated the reason for separation as, "end of season or contract".

[22] 'Dismissed' is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act 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."

[23] The definition of dismissal in s 386(1) of the Act has two parts. The first deals with 'termination on the employer's initiative' and the second, 'resignation in circumstances where the person was forced to do so because of conduct or a course of conduct'.

• [24] In Mohazab v Dick Smith Electronics Pty Ltd,[4] a decision made prior to the passage of the Act, the Full Court of the Industrial Relations Court of Australia considered the meaning of 'termination at the initiative of the employer'. The Full Court stated (emphasis added):[5]

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 an important feature is that the act of the employer results directly or consequentially 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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd ("David Graphics"), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee who resigned because "he felt he had no other option". His Honour described those circumstances as:-

"... a termination of employment at the instance [of] the employer rather than of the employee".

"I agree with the proposition that termination may involve more than one action.

But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment."

[25] Ms Sainty does not argue that she was forced to resign. Ms Sainty contends that she was dismissed, and that there are multiple dates where she was dismissed.

• [26] Ms Sainty argues that she should have been mobilised to Cloudbreak on Thursday 27 March 2025, and that the failure to do so constituted a dismissal.[6] I do not accept this argument. It is clear from Ms Sainty's two employment contracts that she was engaged on a casual basis, as a labour hire employee, which means that she worked on an assignment-by-assignment basis. Ms Sainty not being paid between assignments is part of being a casual employee - payment is made for time worked. By itself it does not indicate a dismissal.

[27] From Ms Sainty's own evidence, Mr Foster told Ms Sainty that she would be receiving a new assignment at Cloudbreak. From the text messages between Ms Sainty and Mr Foster, the date of Ms Sainty's mobilisation to Cloudbreak was subject to the client's needs and arrangements. The communications between Ms Sainty and Mr Foster also support a finding that the employment relationship continued after 27 March 2025. I do not find that Ms Sainty's employment was terminated when she was told her assignment at Solomon Hub was coming to an end and her new assignment at Cloudbreak did not start immediately after.

[28] Ms Sainty also submits that she was dismissed when she was demobilised from Cloudbreak on Friday 11 April 2025. The thrust of Ms Sainty's argument is that Karlayura misled her about the role at Cloudbreak, and that Mr Foster had told her the role was the same as her role at Solomon. Ms Sainty also argues that the Cloudbreak role was not adequate, largely on the basis that she had not operated a dump or haul truck for four years. Ms Sainty's evidence is that if she had known the role was a Dump Truck Operator, she would not have accepted it.

• [29] I have carefully read through the various screenshots that Ms Sainty tendered. There is no mention of what the Cloudbreak role was. The closest reference was between Ms Sainty and Mr Foster on Wednesday 9 April 2025, where Ms Sainty asked about her pay rate, and she asked if it was for Loader Operators. Mr Foster replied that it was the rate that FMG had set for the "role [she] was doing".[7]

[30] I find that Mr Foster was not as honest as he should have been with Ms Sainty regarding the role, and that he should have made it clear in writing that the role was for a Dump Truck Operator. However, I do not agree with Ms Sainty that it was not a suitable role to offer to her.

[31] During the hearing, Karlayura tendered the resume Ms Sainty provided to Karlayura Labour Hire Pty Ltd when she applied with them. The resume stated that Ms Sainty is an experienced operator of various models of loaders and haul trucks, and that she has nationally recognised tickets for loader, haul truck, roller, water cart, excavator, integrated tool carrier and bobcat. Ms Sainty's resume also stated that she worked as a Dump Truck Operator for FMG at Solomon Hub in 2021, and as a Dump Truck Operator on other sites from 2020 - 2021 and from 2018 - 2020. Ms Sainty confirmed in cross-examination that the history and qualifications in her resume are correct. During the hearing Ms Sainty also confirmed that she had operated trucks during her most recent stint at Solomon when directed by FMG supervisors.

[32] During cross-examination, Ms Sainty explained that to operate a dump truck at FMG, you need to pass a Verification Of Competency process known as 'passing out', where you complete a certain number of supervised hours in the dump truck. Ms Sainty's evidence is she had previously achieved this VOC when she worked at Solomon in 2021, but her understanding was that this VOC should have expired by the time she returned to Solomon as a Karlayura employee.

[33] Ms Sainty's evidence is that when FMG directed her to operate a dump truck in 2025, a trainer had "reluctantly" passed her out on a limited basis. During the hearing, I asked Ms Sainty if she could have been passed out with the Dump Truck Operator role at Cloudbreak. Ms Sainty explained that she had not previously operated the model of dump truck that was on site, but that she could have gone through the VOC process to operate it.

[34] Based on this evidence, I find Karlayura's view that the Dump Truck Operator role was suitable for Ms Sainty to be a reasonable one. Ms Sainty was within her rights to reject it. But offering the role to Ms Sainty is not proof that Karlayura was seeking to terminate the employment relationship; on the contrary, from the evidence Karlayura was trying to find a new assignment within Ms Sainty's skillset and experience as soon as possible. Though I appreciate that Ms Sainty did not want to do the role, I do not find that Karlayura's actions can be said to have directly or consequentially led to the termination of the employment relationship.

[35] Ms Sainty did not lead any probative evidence that there were other suitable roles available that Karlayura could have offered to her. I appreciate that Ms Sainty disagrees with the reasons behind FMG's request that she be removed from site and that she wanted to stay at Solomon. However, her employment was not permanently tied to Solomon; her employment contracts clearly state that her assignment and site could be changed. I also note that her application is against her former employer, Karlayura, not FMG.

• [36] I also note that Ms Sainty submitted screenshots of messages between herself and FMG employees where she asked about other vacancies at Solomon. Whilst these screenshots have low probative value, given they do not identify who exactly the messages are from, they notably feature an FMG employee telling Ms Sainty that there were no other roles on site for Ms Sainty.[8]

[37] Karlayura submits that it contacted Ms Sainty on Friday 23 May, Friday 30 May, Monday 16 June, Wednesday 18 June, and Monday 30 June 2025 regarding potential assignments. However, Karlayura did not provide proof such as copies of emails or call logs to support this submission, and so I do give any weight to this submission or make any findings on this point.

[38] Based on the evidence, I find that Karlayura did not have any other assignments to offer Ms Sainty at the time she was demobilised. However, I note again that this is a normal feature of the casual, labour hire employment relationship, and is canvassed in Ms Sainty's employment contracts. Based on Mr Foster's message to Ms Sainty that he would be in contact if other roles came up, I find that the employment relationship continued after Ms Sainty demobilised from Cloudbreak.

[39] I find that the employment relationship between Ms Sainty and Karlayura ended on Wednesday 23 April 2025 when Ms Sainty requested a separation certificate. I find that this was not on Karlayura's initiative.

[40] As Ms Sainty did not make any submissions on whether any resignation was forced, there is nothing for me to consider with regards to s 386(1)(b).

[41] As Ms Sainty was not dismissed within the meaning of s 386 of the Act, her application is not within the Commission's unfair dismissal jurisdiction. Accordingly, I order that her application be dismissed.

[4] [1995] IRCA 625.

Printed by authority of the Commonwealth Government Printer