Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application - application dismissed

• [1] Luke Killen has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). From January 2023 Mr Killen worked as a casual employee of ActivateRail Pty Ltd (company). On 7 May 2025, the company wrote to Mr Killen, stating that there had been a decrease in work volume and that it would be 'offboarding' him effective immediately. Mr Killen contends that he was unfairly dismissed because the real reason for his dismissal was connected to his complaints in respect of his entitlements, and to his role as a union delegate. The company denies this and maintains that it ended Mr Killen's employment because of the decline in business.

• [2] The company objected to the application on the ground that Mr Killen had not served the 6 month minimum employment period (MEP). It contended that although Mr Killen had worked as a casual since 2023, he had not been a 'regular casual employee', and could not have had a 'reasonable expectation of continuing employment by the employer on a regular and systematic basis', as required by s 384(2)(a). The company said that it was made clear to Mr Killen on induction that the company was a labour hire company with no control over workflow and that there was no guarantee of work. It said that Mr Killen's service as a casual therefore did not meet the requirements of s 384, which defines when service as a casual counts towards a period of employment, and that Mr Killen had therefore not satisfied the MEP.

• [3] I reject this contention. Mr Killen said that throughout 2023, he worked virtually on a full time basis, on a single major project, and that throughout this time he expected his casual employment with the company to continue. I accept this. In my view, his expectation was reasonable. Mr Killen was being rostered regularly and systematically each week over this period. His engagements were clearly regular at this time. The 'system' was that he was engaged each week to work a significant number of hours. Regular and systemic engagement does not require uniformity or clear patterns. From 2024, Mr Killen's engagements were less regular. And in 2025, they petered out. But I am satisfied that Mr Killen had 6 months of employment with the company in 2023, of the kind contemplated by s 384(2)(a).

• [4] I proceed therefore to consider the merits of Mr Killen's unfair dismissal application. Taking into account the matters in s 387 of the Act, I have concluded that the dismissal was not harsh, unjust or unreasonable, and that therefore it was not unfair. There was no valid reason for dismissal related to capacity or conduct (see s 387(a)), nor was there a notification of, or an opportunity to respond to, such a reason (ss 387(b) and (c)). However, the company had a legitimate reason for the dismissal, which is a relevant matter under s 387(h). This reason was the fact that there had been a decrease in work volume from the one client for which Mr Killen was qualified to work, Metro Trains. Unlike many other casuals, Mr Killen was not qualified to work for other rail operators. I accept the evidence of Mr Reid and Ms Pettigrew about this decrease in work. Mr Killen was notified of the reason for his dismissal in the company's letter of 7 May 2025.

• [5] Mr Killen said that the company had recently hired a number of new casuals, including 5 that had the same qualifications as he did. Mr Reid and Ms Pettigrew said that they had understood that, unlike these other 5 persons, Mr Killen did not have an 'Inner Metro' qualification, which is an important qualification. But Mr Killen said at the hearing, and I accept, that he did in fact have such a qualification. He had commenced training for this qualification while engaged as a casual for the company, but had concluded the training for it while working at another employer, Safe Rail Australia. Mr Killen acknowledged that he never told the company that he had completed the training, but believed that they would have been advised of this by Metro. But I accept the evidence of the company witnesses that they did not know that Mr Killen had completed the Inner Metro qualification. I do not consider that they ought reasonably to have been aware of this. Mr Killen should have told them.

• [6] Mr Killen said that he was delisted because he had uncovered that he was entitled under the ActivateRail and RTBU Safeworking Agreement 2021 (Agreement) to be paid for training, and that after he raised the matter in January 2025, he stopped getting work. I reject this. Mr Reid and Ms Pettigrew denied that this was a factor in his dismissal and I believe them. It is not credible that they would delist him because he had raised a question about his entitlement to payment for training, particularly given that the company continued to roster him for work afterwards. Further, it was ultimately Mr Killen who rejected offers of work from the company from late February 2025. The company's view about the training issue was that Mr Killen was not entitled to be paid for it, because he had not been directed to undertake the training, and that the Australian Rail, Train and Bus Industry Union (RTBU) had no problem with the company's approach to this issue. Mr Killen said that he had been so directed. But who is right about this question is irrelevant for present purposes. I find that the training payment query formed no part of the reason for the dismissal.

• [7] Mr Killen also said that his dismissal occurred because he had recently become a union delegate. He said that Mr Reid had told the RTBU that he could not be a delegate because he was a casual and also because he worked for a second employer. Mr Reid said that Mr Killen's dismissal had nothing to do with him being a delegate, and that the company welcomed and needed union delegates. Mr Reid said that his understanding from the RTBU was that an employee who has two employers cannot be a delegate at either employer. I find that it was Mr Reid's understanding that the union's preference was for delegates not to have 2 employers, but that this was a matter for the union. I find that this formed no part of the company's reasons for dismissing Mr Killen.

• [8] Ms Pettigrew said that another factor in the decision to delist Mr Killen was the fact that he had last worked a shift on 26 February 2025, and since then had rejected numerous offers to work. She noted that delisting casuals provided certainty in respect of workers who were not being utilised. She also noted that the company had to pay a license fee for certain software on a per user basis, and that the company can also be required to pay for compliance training if a casual remains on the books. Ms Pettigrew noted that in May 2025, the company had delisted several other casuals because of the downturn in work. In my view, it is operationally legitimate to delist casuals for whom the employer reasonably believes it has no or little work for the foreseeable future. This was the company's reasonable belief in respect of Mr Killen.

• [9] As to the other mandatory considerations in s 387, there was no unreasonable refusal of a support person (s 387(d)); warnings for poor performance are not a relevant matter (s 387(e)); and I find ss 387(f) and (g) to be of no relevance in this matter.

• [10] In my opinion the company had a legitimate reason to dismiss Mr Killen. It had nothing to do with Mr Killen's views or complaints about the Agreement or his union activities. There was nothing about the dismissal that was harsh, unjust or unreasonable.

• [11] If I had concluded that the dismissal was unfair, I would not have ordered a remedy. Reinstatement would have been inappropriate. Mr Killen sought compensation, but I do not consider that there is any relevant loss in this case. Mr Killen said that the reason he was not accepting shifts from the company from late February 2025 was because he was getting work from another employer, and that since that time he has worked for this employer on average 3 days a week. The Commission does not have a general discretion in respect of the award of compensation. It must consider the matters in s 392, which include the remuneration that the person would likely have received from the former employer if the person had not been dismissed. In my view, if Mr Killen had not been dismissed, it is not likely that he would have undertaken any further work for the company. Further, Mr Killen was a casual with no guaranteed hours. I am not satisfied that there is any identifiable loss to compensate in this case.

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