Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - no dismissal - application dismissed.

[1] Ms Kellyann Priest (the Applicant) asserts that she was dismissed from her employment with Millenium Cleaning (VIC) Pty Ltd (the Respondent). If the Applicant was not dismissed by the Respondent within the meaning of s.386(1) of the Act, there is no jurisdictional basis for her to pursue an unfair dismissal application. More specifically, if the Applicant's employment was not terminated at the initiative of the Respondent, there is no jurisdictional basis for her to pursue her unfair dismissal application. In this case, the Respondent asserts there has been no dismissal.

[2] The Applicant was first engaged by the Respondent as a Site Manager under the terms of an 'Employment Letter of Offer Agreement' which had stipulated a commencement date of 6 March 2023 (6 March 2023 Agreement). The Applicant says that on 17 December 2025, she had a discussion with Mr Jason Ditchfield (Account Manager) and Mr Stephen Crewes (State Manager) in the food court at Plenty Valley, at which time she was told that she could not remain in her position there because the client was unhappy with her performance and required that she be transferred out. The Applicant said that she was offered another position at a site in Craigieburn and was told it would be of the same status with the same rate of remuneration and that she would be contacted by "HR" the next day. The Applicant said that she subsequently made contact with Mr Ditchfield and that he advised her to take the job "for now" and that "there may be other opportunities." The Applicant said that she thereafter telephoned Ms Jo Minton-Connell (Chief People & Culture Officer) on 23 December 2025 and was advised that the new position was that of a supervisor (as opposed to a Site Manager role), that it attracted a different rate of pay and that she could not commence it until 5 January 2026.

[3] This aspect of the Applicant's account does not accord with subsequent correspondence that passed between the Applicant and Ms Minton-Connell. At 3.23pm on 23 December 2025, Ms Minton-Connell sent an email to the Applicant, which stated:

As discussed, we will prepare to transfer you to Amazon Craigieburn, as soon as possible, as a Level 3 Cleaner, $28.12 per hour, with Leading Hand allowance, $56.94 per week.

Andrea will require you to complete a series of induction to prepare you for your start.

Please confirm your agreement to this transfer and Andrea or Kathy will be in touch.

[4] The Applicant sent an email in reply at 3.25pm on 23 December 2025, which stated:

[5] The Applicant claimed that it was not until she worked at Amazon Craigieburn on Monday 5 January 2026 that she discovered that the new position was not a supervisor role but was instead "a cleaning job." The Applicant appears to have taken paid personal leave on 6 and 7 January 2026, before working again at Amazon Craigieburn on 8 January 2026 and 9 January 2026.

[6] The Applicant said she received a copy of a new contract on Thursday 8 January 2026 which offered terms of employment stated to supersede and replace "any and all existing and previous agreements, arrangements and understandings or negotiations" between the Applicant and the Respondent (the 8 January 2026 Offer). The terms of the 8 January 2026 Offer outlined the offer of a full-time "Cleaner" position at Amazon Craigieburn, with a commencement date of 5 January 2026 and a salary of $28.12 per hour plus superannuation. It, however, made no mention of a Leading Hand allowance of $56.94 per week being payable and in fact stated that no additional amounts to the $28.12 hourly rate of pay are applicable.

[7] In response, the Applicant sent an email to Ms Minton-Connell, Mr Crewes and Ms Stephanie Trathen (Senior HR Adviser) on Friday 9 January 2026 in which she outlined.

"I am writing to formally request written confirmation and clarification regarding the recent proposal to vary my employment by moving me from my current role as Site Manager to an alternative, lesser position.

This proposal was presented to me without any prior notice, warning, or consultation. I was completely taken by surprise, as there had been no previous correspondence, performance management process, or adverse performance reviews indicating that my performance in the Site Manager role over the past three years was unsatisfactory or under review.

To date, all communication relating to this proposed change has been verbal. I have not received any written documentation outlining the reasons for the decision, nor have I been provided with any formal performance-related feedback that would justify a variation to my role or duties.

I was not offered the opportunity to have a support person or representative present during the discussion and was pressured to make an immediate decision regarding acceptance of the new role. I consider that this occurred in circumstances where I was placed under undue pressure.

In addition, I was verbally advised by my manager at the time that my overall remuneration would remain unchanged. However, the written offer subsequently provided reflects a reduced hourly rate, which is inconsistent with what was communicated to me verbally and raises concerns regarding the accuracy and transparency of the proposal.

For the purposes of clarity, record, and procedural fairness, I formally request a written response confirming the following:

The rationale and business basis for the proposed variation of my role

Any performance-related considerations relied upon in making this decision

Any changes to my remuneration, duties, responsibilities, classification, or reporting structure

Whether this variation is being proposed as voluntary or mandatory

Having this information in writing is necessary to ensure transparency and to allow me to properly understand the basis of the proposal, seek appropriate advice, and consider my rights and options under the Fair Work Act 2009.

I request that no changes to my role, duties, or remuneration be implemented until this matter has been clarified in writing and appropriately addressed.

Thank you for your attention to this matter. I look forward to your response"

[8] Ms Trathen responded with an email sent on Monday 12 January 2026, stating:

I would like to arrange a time to discuss these changes with you. Please let me know a suitable time for us to meet.

As discussed with Stephen and Jason during your in‑person meeting prior to Christmas, the client requested that you be moved from your previous position as they felt the role requirements were not being met.

As a Millennium employee, we have placed you in the most suitable available role within a reasonable commuting distance from your home, which is the Cleaning Supervisor position.

In your email to Jo on 23 December, you confirmed your acceptance of the new role and award rate, and you commenced in this position effective 5 January 2025.

To ensure I fully understand what you would like clarified, I am more than happy to meet with you and go through your questions in detail."

[9] On Wednesday 14 January 2026, the Applicant lodged her Unfair dismissal application Form F2 (Form F2) with the Commission, alleging she was notified of her dismissal on 17 December 2025 and that her dismissal took effect that same day.

[10] Section 394(1) of the Fair Work Act 2009 (the Act) limits those who can make an unfair application to a "person who has been dismissed." The criterion of a "person who has been dismissed" is in objective terms and will be fulfilled if there has been a dismissal in fact. Section 386(1)(a) of the Act provides that a person is dismissed "if the person's employment ... was terminated on the employer's initiative." In this case, the Respondent asserts in the F3 Employer response form (Form F3) that the Applicant has not been dismissed and is still a current employee. The Respondent regards the Applicant as being on "medical leave." The Applicant stated her belief that she is still an employee of the Respondent "on WorkCover", albeit she regards herself as having been demoted. She also gave evidence that she does not know whether she regards herself as having been dismissed or as being an ongoing employee and stated that she will decide whether to stay with the Respondent or work elsewhere once she obtains medical clearance for a return to work. The Applicant also provided a 'Payment Advice' document, which outlines that she was on:

1. Paid personal leave on Monday 12 January 2026;
2. A combination of annual leave and leave without pay (LWOP) on Tuesday 13 January 2026;
3. A combination of paid personal leave and LWOP on Wednesday 14 January 2026;
4. LWOP on Thursday 15 January 2026 and Friday 16 January 2026; and
5. LWOP from Monday 19 January 2026 to Friday 23 January 2026 (inclusive).

[11] I am satisfied that the Applicant did not accept the 8 January 2026 Offer but having regard to the factual background outlined above, I am not prepared to conclude that the Applicant was notified of her dismissal from her employment with the Respondent with immediate effect on 17 December 2025. This is because the 6 March 2023 Agreement contained terms that stipulated that:

1. from time to time the Applicant could be required to perform the duties of any other position which she was able to perform because of her skills, training and experience (clause 1);
2. she would initially report to the State Operations Manager but could be directed to report to a person in another position, in accordance with the Respondent's operational requirements (clause 2); and
3. she would be based at Scentre Group Plenty Valley, albeit she would be required to perform her duties in locations as directed by the Respondent in accordance with operational requirements (clause 10).

While I have noted that clause 4 of the 6 March 2023 Agreement provided that the Applicant was "initially" engaged as a Site Manager with remuneration that included a base salary of $72,500 per annum plus superannuation, and that the Applicant has subsequently changed her mind, claiming she was stressed and under duress when she sent her email to Ms Minton-Connell on 23 December 2025, these factors do not change the fact that the Applicant unequivocally confirmed in writing that she would take the position as a Level 3 Cleaner at Amazon Craigieburn with the $28.12 per hour rate of pay and Leading Hand allowance of $56.94 per week[1] after discussing this proposal with Ms Minton-Connell on 23 December 2025. I consider the Applicant did so taking into account Mr Ditchfield's recommendation that she take up the position on offer and his suggestion that there may subsequently be other opportunities.

[12] I am therefore not persuaded that the Applicant's employment was terminated at the initiative of the Respondent (s.386(1(a)). The Respondent sought to exercise rights under the 6 March 2023 Agreement and, on 23 December 2025, the Applicant unequivocally confirmed in writing her acceptance of its proposal. As to whether there has been a dismissal within the meaning of s.386(1)(b) of the Act, I do not consider that the Applicant resigned. This is because there has been no resignation enunciated by her and she gave no evidence before the Commission that indicates she has resigned.

[13] Whereas s.385(a) of the Act requires the Commission to be satisfied the Applicant was dismissed, I have concluded that there was no dismissal within the meaning of s.386 of the Act. I have concluded there was no termination of the Applicant's employment on the Respondent's initiative and it has not been contended by the Applicant and nor I have not been persuaded that she resigned. The effect of my conclusion that the Applicant was not dismissed is that I am satisfied there was no harsh, unjust or unreasonable dismissal (s.385(b)). It follows that I have not been persuaded that the Applicant has been unfairly dismissed. Her application fails and must therefore be dismissed. Given this conclusion, I will not issue an Order.

[1] It is noted that the Respondent disclosed the Applicant's weekly wage /salary as being $1,127.33, which reflects the $28.12 hourly rate being applied to a 38-hour week and supplemented with a Leading Hand allowance of $56.94 per week.

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