Fair Work Act 2009

s.394 - Unfair dismissal

Application for relief from unfair dismissal - whether applicant was protected from unfair dismissal - whether applicant was dismissed - application dismissed.

• [1] Ms Watson was employed by Feros Care Limited as a casual community support worker. Feros Care is a not-for-profit community care organisation that endeavours to support older people and people with disability to live healthier, happier, and more connected lives.

• [2] Ms Watson alleges that her employment was terminated on Feros Care's initiative on 14 May 2025, and that her dismissal was harsh, unjust and unreasonable. Feros Care denies those allegations and also contends that Ms Watson was not protected from unfair dismissal.

• [3] On 8 September 2025, I heard Ms Watson's unfair dismissal case against Feros Care by video conference. Ms Watson gave evidence in support of her case. Ms Watson also tendered a witness statement made by Ms Kerri Ann Langton, who was not required for cross examination, and an unsworn affidavit made by Ms Alice Hay, Executive Manager of Community for Feros Care, in March 2025 in connection with dispute proceedings between Ms Watson and Feros Care.[1] Feros Care adduced evidence from Ms Kylie Armstrong, People Services Manager.

• [4] Ms Watson was employed by Feros Care as a casual employee from 2018 until her employment came to an end in 2025.

• [5] It was necessary for Ms Watson to have completed a period of employment with Feros Care of at least six months to be protected from unfair dismissal (s 382(a) of the Fair Work Act 2009 (Cth)).

• [6] Because Feros Care is not a small business, the minimum employment period for Ms Feros was six months (s 383(a) of the Act). The Act does not require the minimum employment period to coincide with the final six months of the employee's employment; it can be met at any time during the employee's employment.

• [7] Ms Watson's service as a casual employee did not count towards her period of employment with Feros Care unless her employment as a casual employee was as a regular casual employee and during the period of service as a casual employee, Ms Watson had a reasonable expectation of continuing employment by Feros Care on a regular and systemic basis (s 384(2)(a) of the Act).

• [8] During about the first five years of her casual employment with Feros Care, Ms Watson worked regular and consistent hours for Feros Care, averaging about 25 to 30 hours per week, servicing regular clients of Feros Care. During this time, I am satisfied on the evidence before the Commission that Ms Watson was as a regular casual employee of Feros Care and Ms Watson had a reasonable expectation of continuing employment by Feros Care on a regular and systemic basis. Accordingly, I am satisfied that Ms Watson had well and truly completed a period of employment with Feros Care of at least the minimum employment period at the time of her alleged dismissal.

• [9] I am also satisfied that Ms Watson was covered by a modern award during her employment with Feros Care as a community support worker. It follows that Ms Watson was protected from unfair dismissal at the time of her alleged dismissal on 14 May 2025 (s 382 of the Act).

• [10] The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:

(a) the person's employment with his or his employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer."

• [11] Ms Watson relies on s 386(1)(a) of the Act. Ms Feros contends that her employment was terminated on Feros Care's initiative on 14 May 2025. Ms Watson does not contend that she resigned or was forced to resign.

• [12] The reference in s 386(1)(a) of the Act to "the person's employment with his or her employer [having been] terminated" is a reference to the person's contract of employment being brought to an end (or, perhaps in some cases, repudiated).[2]

• [13] In circumstances where the employee does not leave their employment voluntarily, the focus of the inquiry under s 386(1)(a) 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.[3]

• [14] The question of whether an employee's employment has come to an end does not depend on the parties' subjective intentions or understandings.[4] Whether an employee has ceased to be employed by their employer depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances.[5]

• [15] The detailed witness statements and affidavits filed by each party, which I have read and considered, descend into significant detail concerning alleged events, disputes and conversations on various days during Ms Watson's employment with Feros Care since 2018. Many of those matters relate to events that allegedly took place years before Ms Watson's employment with Feros Care came to an end in 2025. I do not need to make factual findings about what happened in respect of each of those events and disputes to determine whether or not Ms Watson was dismissed on 14 May 2025.

• [16] Ms Watson lives in Suffolk Park, near Byron Bay, in New South Wales.

• [17] Feros Care operates its services within regions and those regions are further divided into areas. For example, there is a Far North Coast (NSW) region which is comprised of the following areas:

• [18] Ms Watson's preference was to undertake work for clients of Feros Care in the Byron Bay area. Understandably, Ms Watson was not prepared to travel significant distances for short shifts, such as a 60km round trip to Mullimbimby for a 1.5 hour shift.

• [19] For about 18 months prior to about the end of 2023, Ms Watson contends that Feros Care took adverse action against her because she raised concerns about a range of matters, including recording an employee's communications without their knowledge or consent, being required to undertake administrative work in an employee's own time, and travel related entitlements. The adverse action alleged by Ms Watson included putting her on a performance improvement plan, offering her shorter and less commercially viable work shifts, and calling her into disciplinary meetings.

• [20] Prior to December 2023, most community support workers employed by Feros Care were engaged on a casual basis. In about December 2023, Feros Care commenced an initiative by which it encouraged its casual care support workers to transfer to permanent part time employment. The initiative resulted in the majority of Feros Care's casual community support workers converting to permanent part time employment. As a consequence, this impacted the allocation of work to the remaining casual employees. In particular, Feros Care needed to assign work to its part time employees to ensure that it met its contractual obligations to those employees, with the result that part time employees were rostered first and casual employees were primarily offered work to fill in gaps, to replace a part time employee who was sick or on leave, or to undertake a last-minute request to attend a client.

• [21] Notwithstanding Ms Watson's contentions that Feros Care had taken adverse action against her for about 18 months, in late 2023 Feros Care asked Ms Watson, along with its other casual community support workers, whether she wanted to convert from casual employment to permanent part time employment. Ms Watson declined this offer. Ms Watson wanted to maintain the flexibility associated with casual employment.

• [22] This change in employing community support workers on a part time basis meant that from about late 2023 or early 2024 the allocation of work by Feros Care to the remaining casual employees, including Ms Watson, became increasingly irregular and sporadic.

• [23] Ms Watson has not undertaken a client service shift for Feros Care since about 22 February 2024.

• [24] In March 2024 and continuing into April 2024, Ms Watson advised Feros Care that she was having problems with her car, and as a result was unavailable to work.

• [25] At the end of May 2024 and the beginning of June 2024, Ms Watson notified Feros Care that she was able to accept casual shifts again.

• [26] On about 27 June 2024, Feros Care offered Ms Watson two separate casual engagements (2 days of work on 1 July 2024 and 8 July 2024), but she did not respond in time to accept the engagements. Those offers were sent to Ms Watson's work phone (which she was not monitoring because she had not been working for Feros Care for some months) and her work email (which she was not checking on a regular basis for the same reason).

• [27] On about 2 July 2024, Ms Watson notified Feros Care by text message to her direct manager that she had sustained a non-work related injury to her elbow and would be unavailable to work until October 2024. Feros Care reminded Ms Watson that she would have to provide a medical clearance before returning to work.

• [28] On about 8 October 2024, Ms Watson informed her manager that her injury was resolving slowly and her doctor had provided a medical certificate for another three months.

• [29] On 28 November 2024, Ms Natarlie Potter, Feros Care's General Manager of Community Care Services, sent an email to Ms Watson in the following terms:

Thank you for your email. I hope this message finds you well.

I am writing to address the current status of your casual employment in the position of Community Support Worker Level 2 with Feros Care.

Following a review of your employment status and recent changes to our workforce structure, we have determined that you meet the definition of a "true casual" employee under the Fair Work Act 2009, meaning your work is based on an as-needed, day-to-day basis with no firm commitment to ongoing hours, no annual/personal leave entitlement, and no guarantee of ongoing employment.

As previously discussed, there has been a significant shift in our Community workforce model, which includes the Ballina-Byron Bay team. In late 2023/early 2024 we started to transition to a structure where shifts are now primarily offered to our permanent part-time staff, with casual employees filling service gaps as needed. As part of these discussions, you were offered the opportunity to transition to a permanent part time contract, which you declined.

Over the last 24 months your availability to work has been irregular and not systematic, with your last client service being completed on 24 February 2024. In July 2024, you informed us of a non-work related injury and advised that you would be unavailable to work initially for three months. We accommodated this request although no supporting documentation has been provided to us when requested. In October 2024, you advised that your recovery was ongoing and that you would be extending your time off work, as well as taking time for holidays. During this time, we still did not receive the requested medical documentation to substantiate your injury related absence or functional assessment from your doctor to ensure you are cleared to safely return to work.

I now regret to inform you that currently we do not require casual employees in the Byron Bay area to fill in the gaps in rosters. I want to invite you to a meeting on tomorrow, Friday 29/11 at 12.30PM or alternatively on a Monday, 2/12 at 11:00AM with your manager Janene Fisher and Ursula Smerdel (HR Business Partner) to discuss further.

You are welcome to bring a support person to that meeting. Please confirm their name if you chose to do so.

If you have any questions, do not hesitate to contact me or Ursula Smerdel."

• [30] Ms Watson responded to this email, contesting many of the statements contained within it and stating that she would need an agenda before locking in a time for a meeting with her manager.

• [31] There was some back and forward on the timing of a meeting, but in the end the meeting never happened.

• [32] On 19 December 2024, Ms Watson filed an application for the Commission to deal with a dispute in relation to entitlements Ms Watson believes she is owed under Feros Care's enterprise agreement.[6] The arbitration of that dispute was heard by Commissioner Ryan on 29 April 2025.

• [33] Ms Watson took the view that it would not be ethical for her to make herself available for casual shifts with Feros Care while her dispute was being dealt with by the Commission. This covered the period from 19 December 2024 until the completion of the hearing by way of arbitration on 19 April 2025.

• [34] Ms Watson also filed a general protections application not involving a dismissal. No conference was held in the Commission in relation to this matter and Ms Watson has not filed an application in a court to pursue this matter.

• [35] Ms Watson also complains that she was not invited to the 2024 Christmas party for Feros Care staff and was shut off from emails to members of the Feros Care Byron Bay team.

• [36] On about 1 May 2025, Ms Watson spoke to Ms Armstrong by telephone. There is a dispute as to what was said during this discussion. Ms Armstrong gave the following account of the discussion:

(a) Ms Armstong explained that she was new to the organisation, to which Ms Watson said words to the effect, "You don't know what type of organisation you've joined." Ms Armstrong asked what she meant. Ms Watson then said words to the effect, "You'll find out soon enough!" Ms Watson then told Ms Armstrong about her dispute with Feros Care in the Commission and warned her to "watch out", which Ms Armstrong understood to be a warning as to how Feros Care would treat her as an employee. Based on what Ms Watson said to her during this discussion, Ms Armstrong concluded that Ms Watson had a very low opinion of Feros Care as an employer and as an aged care provider.

(b) Ms Watson then asked Ms Armstrong if she could arrange the meeting that was originally scheduled for November 2024. At this time, Ms Armstrong was confused because she was not fully aware of Ms Watson's employment history at Feros Care. Ms Watson forwarded to Ms Armstrong the emails from late 2024. Ms Watson then said to Ms Armstrong words to the effect, "I want that meeting to go ahead so that they can sack me." Ms Armstrong said words to the effect, "That meeting was a point in time and we are now six months on. I'm not sure what that meeting was about and how I can get that rescheduled." Ms Watson said words to the effect, "I know what it was. They were going to sack me", to which Ms Armstrong responded, "Are you sure?" Ms Watson responded saying, "Yes. I knew that they were going to sack me, so I didn't go to the meeting." Ms Armstrong asked Ms Watson why she wanted the meeting of November 2024 to now go ahead. Ms Watson said words to the effect, "because Feros was going to terminate me at that meeting and I want to be terminated". Ms Armstrong said words to the effect, "Why do you want to be terminated rather than resign on your own accord given your frustrations with the organisation", to which she said words to the effect, "It would be fun at my age to get fired. I have never been fired before." Ms Watson then asked Ms Armstrong what her entitlement to pro rata long service leave would be if she was to resign from Feros. Ms Armstrong told her she would look into the eligibility criteria but that she did not believe there was an immediate entitlement to pro rata long service leave in New South Wales. Towards the end of the conversation, Ms Watson asked Ms Armstrong not to tell anyone about their conversation. Ms Armstrong responded by saying that she would need to discuss it with payroll as part of making enquiries into her long service leave entitlements.

• [37] Ms Watson accepts that she asked Ms Armstrong in their discussion on about 1 May 2025 how long she had been working at Feros Care, and after she was told that Ms Armstrong had only recently joined Feros Care, Ms Watson said words to the effect, "You are going to have a bit of fun." Ms Watson gave oral evidence that the gist of her discussion with Ms Armstrong was that she said to Ms Armstrong that she was not sure where she stood, and she would like to return to work, they needed to have the meeting proposed in November 2024 to sort out whether she was coming back to work or what was going on. In her witness statement, Ms Watson said:[7]

"May 1, I contacted the Human Resources department and spoke with Kylie Armstrong to inquire about my entitlements regarding pro rata long service leave and to determine whether there was an intention to reschedule the meeting initiated by Natarlie Potter, Nov 28, 2024."

• [38] I prefer the evidence of Ms Armstrong over that of Ms Watson regarding their telephone conversation on about 1 May 2025. Ms Armstrong gave direct and responsive answers to the questions asked of her. She came across as a careful and cautious witness. Ms Watson was argumentative during much of her evidence. I consider that Ms Watson's evidence has been coloured by her negative perception of Feros Care as her employer and her frustration with Feros Care during at least April and May 2025.

• [39] On 5 May 2025, Ms Watson sent an email in the following terms to Ms Armstrong:

As discussed last week, Ursula was chasing me up about a meeting regarding my future employment with Feros.

I have thought long and hard about returning to work. The truth is I am still youngish and have no plans to travel overseas till September 26. Therefore I do have availably to work.

Therefore can you set up a meeting as I am planning to keep working for the next 18 months at least.

• [40] On 7 May 2025, Ms Armstrong sent an email in the following terms to Ms Watson:

Apologies for my delayed response to your email - I have been waiting on the LSL telephone discussion and your request last Wednesday.

I will progress your request below for a meeting with the relevant Managers and someone touch to schedule.

Below is the link to NSW LSL provisions including FAQs regarding pro rata LSL entitlements casuals.

https://www.nsw.gov.au/employment/rights-responsibilities/leave/long-service-

A worker who has completed more than 5 years but less than 10 years continuous to a long service pro-rata payment if they:

are dismissed for any reason other than serious and wilful misconduct, OR die.

A worker who has completed more than 5 years but less than 10 years of continuous entitled to a long service pro-rata payment if:

the worker resigns on account of illness, incapacity, domestic or other pressing necessity.

If they resign on account of illness or incapacity, it is suggested they provide a medical/report(s) to the employer at the time they resign so an assessment can be made.

Should you meet the above criteria, your entitlement would be 65.15hrs pro-rata 05/05/25."

• [41] On 8 May 2025, Ms Watson sent an email in the following terms to Ms Armstrong:

Thanks for getting back to me re pro rata long service leave. I am well aware to the policy re returning to work after a non work related injury. I know that I will be required to complete a form and function assessment at my GP and am confident that I will pass the test as I would not be working if I was not fit and able to do so.

However before I pay to get this done, I want to have a clear commitment from Feros that they will be employing me on a permanent part time basis as they have offered in the past."

• [42] On 14 May 2025, Ms Watson sent a further email to Ms Armstrong in the following terms:

I'm just following up regarding my return to work permanent part time.

It's been over a week now and I'm starting to feel like I've been left "hanging".

So it would be nice if you could get back to me and let me know how things are progressing. If you are not going to give me work, surely you owe me the courtesy of advising me that my service is not required."

• [43] On 14 May 2025, Ms Armstrong sent an email in the following terms to Ms Watson:

Thanks for your patience - I apologise for the delay in getting back to you.

I appreciate your proactive communication and the confidence you've expressed in your readiness to return to work. However, to clarify, currently we are not able to offer you employment on a permanent part-time basis. While such arrangements have been offered previously and were declined by yourself, there are no part-time vacancies available at this time. Additionally, you do not currently meet the eligibility criteria for conversion from casual to part-time employment.

We also do not have any available casual shifts at present and are therefore unable to re-engage scheduling of casual shifts at this time.

If our operational needs change in the future, we will be in contact with any suitable opportunities. In the meantime, I encourage you to regularly check our job vacancy board for any open roles that may interest you. You're welcome to apply, and all applications will be considered in line with our standard recruitment process. You can access the vacancies - Vacancies."

• [44] At the time Ms Armstrong informed Ms Watson on 14 May 2025 that there were no "available casual shifts at present", Ms Armstrong did not mean that Feros Care did not have any casual shifts available to anyone in any part of its business. Instead, Ms Armstrong made that statement because there were no casual shifts available in the area in which Ms Watson's employment was designated (the Byron Bay area) during the days and times at which she was available - 7:30am to 4pm on Mondays, Tuesdays, Thursdays and Fridays.[8]

• [45] The evidence revealed that another casual employee of Feros Care, who was based in Byron Bay, undertook casual work in her local area on some weekends in 2025, but this does not suggest or establish that casual work was available in the Byron Bay area on the weekdays and times at which Ms Watson was available for work in May 2025.

• [46] Later on 14 May 2025, Ms Watson responded to Ms Armstrong as follows:

I will take the email below as confirmation that you no longer require my services and I have effectively been terminated as you have no work for me anymore and I do not

meet the criteria for conversion to part time employment.

Therefore can you please advise the amount of my pro rata long service leave and when it will be paid into my account. You have advised me it was 65.15 hours @$39.08 should be over $2500."

• [47] On 16 May 2025, Ms Clarissa Fraser sent an email in the following terms to Ms Watson:

Thank you for your email. Kylie has passed on your email to me, as she has been caught up in a leadership offsite and we wanted to respond to your query as we had committed.

To clarify, we are not seeking to terminate your employment. The intention of the previous communication was to advise that there are currently no casual shifts available to reengage your services as a casual employee at this time.

Should operational requirements of the business change in the future, creating the availability

of casual shifts in your region, we will be in contact with you."

• [48] On 19 May 2025, Ms Watson sent an email to Ms Fraser in the following terms:

Thank you for your email. As we have not met, and you did not provide full details, I am unaware of your position within the company. It appears you may not have an accurate understanding of previous correspondence sent to me from Feros Care.

In short, I have been advised that there is no work for me in any capacity, casual or permanent part time. It was suggested that I could reapply for a position within the company, if or when it becomes available. I have accessed Seek Job Portal (18/05/2025) and there is an abundance of newly advertised Jobs/ Positions / Hours available. Given I have been disconnected from the company portal for more than 6 months with no notice, or communication from the company regarding this.

With this said, my position and role within the company was effectively terminated on Wednesday 14th of May, 2025. (see correspondence below from Kylie Armstrong) Included in this correspondence is my entitlements which I meet the criteria to access for the full amount owed to me.

See below my bank details to deposit the outstanding monies into my bank account before COB Friday 23rd of May, 2025.

In the meantime, please advise if you want the company phone back which I still have in my possession.

If so, let me know when you arrange a courier, and I will have it ready to be collected from my home address.

Thank you for your attention and cooperation in resolving this quickly.

I would prefer not to waste anymore of my time engaging in this matter."

• [49] I accept Ms Armstrong's evidence that:

(a) if an employee does not access the portal for a period of 60 days, then their access is suspended and all that needs to be done is to call the service desk to have the access reset;

(b) preventing access after a gap of 60 days is a security measure; and

(c) Ms Watson was not cut off from the portal because she had been dismissed.

• [50] On 27 May 2025, Ms Fraser sent an email in the following terms to Ms Watson:

Thank you for your email. I apologise for the very late response to you; I was aware unwell last week and have been catching up with my emails.

To clarify, your employment has not been terminated by Feros Care. As previously communicated, there are currently no available casual shifts to offer you, and you do not meet the eligibility requirements for casual conversion to part-time employment at this time. This does not equate to termination of your employment.

Given your statement that your position was "effectively terminated" and the inclusion of your bank details, could you please confirm whether you are formally resigning from your casual position? If so, please confirm this in writing so we can proceed accordingly.

In regard to your long service leave entitlement, as outlined in previous correspondence, pro rata long service leave for employees with between 5 and 10 years of service is only payable where the resignation occurs for a reason such as illness, incapacity, or another pressing necessity. Supporting documentation (such as a

medical certificate) would be required to process such a payment.

Once your resignation is confirmed, and if you meet the eligibility criteria, we will process any outstanding entitlements including pro rata long service leave as applicable.

Regarding the company phone, thank you for offering to return it. Once your employment status is confirmed, we will be in touch to arrange return via courier.

Please don't hesitate to contact me if you have any questions or require further clarification."

• [51] On 23 July 2025, Ms Armstrong sent an email in the following terms to Ms Watson:

Back on 16 May 2025, after you claimed (wrongly) that Feros Care had dismissed you, we advised that:

1. We did not have any casual shifts to offer you at that time; and

2. "Should operational requirements of the business change in the future, creating the

availability of casual shifts in your region, we will be in contact with you".

The need for casual shifts has not changed, and there are none available at the moment. Out of courtesy however, we want to let you know that Feros Care is recruiting for several permanent parttime Community Support Worker (CSW) level 2 positions in the Ballina and Lismore regions. The hours on offer are a minimum of 40hrs per fortnight. As of 7 July 2025, the hourly rate for CSW 2 positions is $34.01. The other allowances - such a travel allowances - remain the same as under your casual employment terms.

I have included the link to the advertisement and online application below:

If you want to be considered for one of these positions, you are invited to submit an application. There is no guarantee of appointment. All applications (including yours) will be considered on merit. As previously communicated, you do not meet the eligibility requirements for casual conversion to part-time employment at this time. This however, may be an opportunity if this role is one that you want to consider."

• [52] Feros Care's understanding of Ms Watson's ongoing employment changed by August 2025 following receipt of the materials filed by Ms Watson in these proceedings. In light of the negative way Ms Watson spoke to Ms Armstrong about Feros Care as an employer in May 2025 and the content of Ms Watson's material and assertions that her employment with Feros Care had ended, Ms Armstrong formed the view that Ms Watson no longer considered herself to be an employee or to be available for casual work from Feros Care. Feros Care concluded that any employment relationship or relationship of trust and confidence between Ms Watson and Feros Care was non-existent. On that basis, and because Feros Care believed it was necessary to remove any doubt about Ms Watson's employment or her availability for further casual work from Feros Care, on 18 August 2025 Ms Armstrong sent an email in the following terms to Ms Watson:

Over the course of your time with Feros Care, we have aimed to address your questions and concerns about your employment in a fair and constructive way.

We worked with you through discussions about the option to move from casual to part-time employment, and respected your decision at the time to remain casual. We also engaged with you through your application to the Fair Work Commission without allowing that process to impact your ongoing employment.

As we explained, when many employees moved to part-time, the number of casual shifts available reduced, particularly in the Byron Bay area where you preferred to work.

In May 2025, you expressed an interest in part-time work. Unfortunately, no part-time positions were available at that time, and you did not meet the statutory requirements to transition from casual to part-time. We also advised that there were no casual shifts available at that time.

When you raised concerns that your employment had been terminated, we confirmed that this was not the case. As a casual employee, employment occurs on a shift-by-shift basis, and we had not ended the employment relationship. You also made comments about potentially wanting your employment to end, which we did not act on, as termination was never our intention.

When your unfair dismissal claim was lodged, we were surprised, as we still considered you to be a casual employee to whom shifts could be offered if available. In July, when a part-time role became available in the broader Northern NSW region, we informed you of it, as we had committed to do.

However, after reviewing the information you submitted as part of your claim, it appears you do not regard yourself as an employee and do not wish to be bound by an employment relationship. In your submission, you stated that the employment relationship ended on 14 May 2025.

Given this, and to avoid any uncertainty, Feros Care accepts your position that the employment relationship has ended. We will continue to respond to your unfair dismissal application on the basis that your employment was not ended by Feros Care, and that it is now clear the decision to end the employment relationship has come from you."

• [53] Both parties contend that Ms Watson's employment with Feros Care has come to an end. Ms Watson contends that her employment terminated at Feros Care's initiative on 14 May 2025. Feros Care contends that, in August 2025, it accepted Ms Watson's position that any relationship of trust and confidence and any employment relationship between Ms Watson and Feros Care was over.

• [54] I am satisfied that Ms Watson's employment with Feros Care did not, as she contends, terminate on Feros Care's initiative. Notwithstanding the allegations of adverse action in the 18 months leading up to about December 2023, Ms Watson was offered the same opportunity as other casual employees of Feros Care at the end of 2023 to convert from casual employment to permanent part time employment. It was Ms Watson's choice and right not to accept that proposal. However, as is often the case, moving a cohort of casual employees across to part time employment means that the employer must first meet its contractual obligations to provide work to its part time employees, such that there is limited work available for the remaining casual employees. I am satisfied on the evidence before the Commission that this is what happened from about the end of 2023 in relation to Ms Watson's employment with Feros Care.

• [55] Car troubles meant that Ms Watson was not available for any work in part of the period from March to the end of June 2024.

• [56] It is undisputed that Ms Watson was not available for any casual work from 2 July 2024 until the end of 2024 on account of her tennis elbow injury.

• [57] Ms Watson then took the view, understandably, that she did not want to make herself available for casual work in the period from 19 December 2024, when she lodged her application for the Commission to deal with a dispute under the applicable enterprise agreement, to 29 April 2025, when the arbitration of that dispute was heard by the Commission.

• [58] In May 2025, Ms Watson made contact with Feros Care about whether she would return to work. I accept the evidence adduced by Feros Care that there was no permanent part time employment or casual work available, at that time, to suit Ms Watson's preferences as to work days, times and locations. This did not, however, preclude the possibility of such work becoming available in the future. So much is clear from Ms Armstrong's email to Ms Watson on 14 May 2025 (see paragraph [43] above).

• [59] I consider that a reasonable person in the position of the parties would have understood, based on the communications between Ms Watson and representatives of Feros Care in May 2025, and having regard to the surrounding circumstances, that Ms Watson's casual employment with Feros Care remained on foot during May 2025, albeit she was not being offered any casual work at that time. Further, I am satisfied having regard to all the circumstances that there was not any action on the part of Feros Care that was the principal contributing factor which resulted, directly or consequentially, in the termination of Ms Watson's employment.

• [60] For the reasons given, Ms Watson was not dismissed by Feros Care. Therefore, Ms Watson has not been unfairly dismissed. It follows that Ms Watson's application for relief from unfair dismissal must be dismissed.

Mr King, solicitor, appeared on behalf of Feros Care Limited

[2] Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 at [63]

[3] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200

[4] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704 at [30]

[5] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704 at [30]

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