s.365 - General protections

General protections applications involving an alleged dismissal - whether applicants were dismissed

• [1] Mrs Michelle Miller and Mrs Jacqueline Miller (Applicants) have each lodged applications pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving a dismissal. The respondent to the disputes is their former employer, Warrego Highway Properties Pty Ltd (Warrego).

• [2] The Applicants contend that Warrego contravened the general protections provisions of the Act in dismissing them from their employment. Warrego raised a jurisdictional objection to the applications. Warrego contends that it did not dismiss either of the Applicants.

• [3] The Commission must determine whether the Applicants were dismissed before it can exercise powers under s 368 of the Act to deal with a dispute about whether the Applicants were dismissed in contravention of the general protections.[1]

• [4] On 31 March 2025, I conducted a hearing in relation to whether the Applicants were dismissed by Warrego. Each of the Applicants gave evidence at the hearing, as did Mr Liam Kelly for Warrego.

• [5] 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."

• [6] Neither party has suggested that the Applicants were forced to resign because of conduct, or a course of conduct, engaged in by Warrego. The issue for determination is whether the Applicants were dismissed within the meaning of s 386(1)(a) of the Act.

• [7] The expression termination "on the employer's initiative" in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment[2] that is brought about by an employer and which is not agreed to by the employee.[3]

• [8] In circumstances where the employment relationship is not left voluntarily by the employee, 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.[4]

• [9] On 28 May 2024, the Applicants signed a written employment agreement with Warrego in respect of their employment as live-in Property Managers at Warrego's Palms Motel in Chinchilla, Queensland. They commenced employment with Warrego on 10 June 2024. The benefits provided to the Applicants under the employment agreement included salary, accommodation, meals, and leave entitlements in line with National Employment Standards.

• [10] The schedule to the Applicants' employment agreement included the following provision concerning the hours to be worked by the Applicants:

"You are required to work between Monday to Sunday or as otherwise agreed or directed from time to time, as well as reasonable additional hours as required to perform the duties of the Position, which may include before and after hours work, work on weekends and/or public holidays. These reasonable additional hours have been considered when setting your remuneration. You will work 6 days a week with a day off, work 7 weeks and get 7 days off."

• [11] The rostered system of six days on, one day off per week, with seven days off every seven weeks, did not align with Warrego's standard employment arrangement or contract, which provides for eight weeks on, followed by 12 days off. The Applicants say they were not aware of this fact at the time they signed their employment agreement.

• [12] During the first seven-week cycle, Warrego says that it was able to meet the terms of the employment agreement by providing the Applicants with their first day off and an additional seven days off at the end of their cycle, taken on 31 July 2024. The Applicants say that they only received four days off and were owed three days in lieu at the end of the first seven week cycle.

• [13] In the second cycle, it became evident to Mr Kelly that, despite Warrego's best intentions to support the Applicants preferred roster pattern, this roster pattern could not be maintained for the following reasons:

• the team member responsible for relief in Chinchilla unexpectedly leaving at short notice; and

• the lack of an available, suitably qualified replacement due to the remote location of Chinchilla.

• [14] In an effort to update and align the Applicants' roster pattern to Warrego's standard, Warrego offered the Applicants an 11 day break instead of the scheduled seven days, providing four additional days off and leaving a balance of three days owed. Mr Kelly says that this was agreed upon and accepted by all parties as a compromise. The Applicants say that they were entitled to 16 days off given they had worked for eight weeks straight. The Applicants took a break between 30 September 2024 and 11 October 2024.

• [15] When the Applicants returned to work on 11 October 2024, they raised concerns regarding the updated rostering cycle. Mr Kelly informed the Applicants that the one-day-off-per-week model was no longer sustainable for Warrego. Warrego did not have the resources to continue to meet the Applicants' employment agreement. The parties then discussed and negotiated alternative working arrangements.

• [16] On 28 October 2024, the Applicants sent an email in the following terms to Mr Kelly:

Just bringing this to both of you in hope you can rectify please.

Following our meeting on Friday, we have a couple of concerns regarding our time off. Firstly, when we started back in June, we signed a 12 month contract - in that contract we are to work 7 weeks on with 1 day off per week, then 7 days off - this is to equal 14 days off every block we work.

In our first seven-week block we only had 4 days off before Shane and Leanne left, therefore we are missing 3 days off. Our first block of 7 days off was covered by Denise & Brian between 31/7/24 - 7/8/24.

The next due time off was pushed back to 8 weeks on (in which we agreed to) but still only had 12 days. Which we feel should have been 16 days.

This block was covered by Kelly from the 30/9/24 - 11/10/24. We had asked for an extra 2 days off, which was declined.

Then to hear our November block getting pushed back again. The original date would have been 7 weeks if the previous wasn't pushed. We don't mind when the time of his allocated, as long as it's fair on us & we get plenty of notice. We understand how hard it can be to get relief managers.

So as it stands now, we are owed 7 days in total from starting in June. A suggestion from us is, I think from here on in we work 7 weeks and have 14 days off, until such time we get overleaf manager.

We feel we have drawn the short straw here and would like to reach a fair outcome as per contract.

• [17] In late October 2024, Mr Kelly says that he became aware that the Applicants were routinely leaving the property unattended during their scheduled working hours, including multiple trips to Dalby and Miles - towns requiring a round trip of approximately one to two hours. Recognising the need for greater clarity in the Applicants' working arrangements, Mr Kelly took proactive steps to formalise expectations. On 1 November 2024, Mr Kelly presented the Applicants with a revised employment agreement that provided a structured framework for their work schedule.

• [18] On 1 November 2024, Mr Kelly sent an email in the following terms to the Applicants:

Firstly, I will apologise. I had every intention of forwarding this correspondence last night but due to the significant hailstorm in my area I was busy securing my property. I will make myself available at 11am today to discuss, I will call you.

Since our last conversation last week in your subsequent email I have reflected on my record of our conversations pertaining to leave and leave entitlements.

It is clear that we are not in alignment on this subject. My understanding from previous discussions and concessions on our part and agreements seem to differ from yours.

I have reviewed the original agreement that I had issued in relation to your offer of employment and the terms and conditions which I believe were signed off in good faith. I have subsequently established that the agreement that you signed off was forwarded to you by Keith Thompson and was in fact not the agreement that I issued.

As a result, the terms of your employment need to be reset to be aligned with our group policy and reasonable terms around leave dates. The version of the agreement that I originally issued made no reference to a working roster of 6 Days on and one day off with 7 days off every 7 weeks. Whilst I agree it was tabled and discussed, at the time I could not commit to offering this roster as we had no certainty around a suitable relief manager who could fill the relief role for the 1 day a week.

As it turned out, we could not offer this model, and I recall advising you of this on two separate occasions including in our face-2-face conversation on 11th July 2024.

As a result of this discussion, we agreed to review your leave model, and we ultimately adjusted the arrangement to 7 weeks on and 10 days off and gave you additional days as compensation for your efforts in the kitchen. You terminated that commitment on or around 23 September 2024.

We need now to consider our options moving forward to achieve alignment of the structure and avoid uncertainty.

• A revised agreement will be tabled for your consideration based on the same salary with a leave structure of 8 weeks on and 12 days off. If you are open to this, I will draft and forward a revised contract.
• If you choose not to accept the revised employment contract, we will provide you 4 weeks' notice that your contract will cease. At the conclusion of this 4 week period (nominally 29 November 2024) we will arrange a smooth transition of the property to new management structure. Noting 29th November is your next designated break, we would pay you out of the seven day break as well as any leave accrued.
• NB: please note that if you choose not to work through the notice period of 4 weeks, we will pay you for the time that you work only. We would much prefer that the date of departure be by mutual agreement. Therefore, if you choose to leave our employee on 10 November 2024, we will pay you to this date.

I would appreciate your response as soon as possible.

I will make myself available at 11am on Friday 1st November to discuss with you."

• [19] Mr Kelly says that the Applicants declined to engage in discussions regarding an amended work schedule and refused to sign a new or amended employment agreement. The Applicants say that they declined to engage with Mr Kelly at 11am on 1 November 2024 because he gave them just a couple of hours to have an answer for him. The Applicants also say that the new proposed contract, which provided for them to work 8 weeks on and have 12 days off, would have resulting in them losing 4 days each per cycle (on the same salary), which was worth about $1600-$1800 between the Applicants. The Applicants were prepared to accept Warrego's new roster arrangements, but only on the basis that they be paid an additional $25,000 each. Warrego was not prepared to pay the Applicants the additional remuneration sought by them.

• [20] On 8 November 2024, Mr Kelly sent an email in the following terms to the Applicants:

Thanks for your response and I acknowledge your comments.

We are legally obliged to provide you with four weeks' notice of any change to the contract conditions.

It is important to note that the new contract stipulates the same salary, albeit with an adjustment to the leave cycle. This adjustment should not come as a surprise to you as we have had several conversations around the difficulties in accommodating the original arrangement, which I have explained is both unsustainable and outside of our company policy and practice.

The issuing of the new contract was necessary to ensure expectations are clear to both parties. The new contract serves to supersede the previous contract as of 29 November 2024 and at such time the original contract is terminated.

Your indication that you will not be signing the new contract therefore leaves us with no employment agreement as of 29 November 2024.

Am I correct in assuming that this indicates your intention to cease employment with us as of 29 November 2024? Please clarify."

• [21] On 9 November 2024, the Applicants responded to Mr Kelly's email from the previous day:

Yes, we are confirming that us/our contract will be terminated on the 29/11/24.

As stated before, the new agreement meant we lose out. 4 days per block we are meant to give up for the same salary. As we said - not fair."

• [22] On 27 November 2024, Mr Kelly informed Warrego's payroll department of the Applicants' pending departure and arranged for their final payments on the basis of a last working day of 29 November 2024.

• [23] 29 November 2024 was the last day on which the Applicants worked for Warrego.

• the Applicants' refusal to engage in discussions regarding a reasonable adjustment to their working arrangement created operational challenges for Warrego,

• their decision to leave Warrego was their own, and

• neither Applicant was terminated at the initiative of Warrego.

• [25] Mr Kelly considers that he did not terminate the Applicants' employment, but instead offered an alternative working arrangement designed to be mutually beneficial. Mr Kelly says that this proposal allowed the Applicants to effectively plan their days off and personal commitments without requiring Warrego to request their availability to work during their rostered days off.

• [26] The Applicants consider that Warrego terminated their employment agreement because Mr Kelly's email of 1 November 2024 stated that if they did not sign the new contract then their contract would cease in four weeks' time.

• [27] The Applicants claim that they are owed overtime and days in lieu by Warrego. These claims are disputed by Warrego.

• [28] The Applicants plainly did not leave their employment with Warrego voluntarily. They were content to continue working for Warrego on the terms of the contract they signed in May 2024.

• [29] The Applicants had a contractual entitlement under their employment agreement with Warrego to work "6 days a week with a day off, work 7 weeks and get 7 days off". This arrangement turned out not to be operationally viable for Warrego.

• [30] On 1 November 2024, Warrego gave the Applicants an ultimatum: enter into a new employment agreement with a roster of 8 weeks on and 12 days off or be provided with four weeks' notice that their employment agreement would cease and Warrego would "arrange a smooth transition of the property to new management". The Applicants did not agree to the new employment agreement presented by Warrego. As a result, Warrego gave the Applicants notice of the termination of their employment agreement. So much is clear from the 1 November 2024 email from Mr Kelly, together with the following parts of Mr Kelly's 8 November 2024 email to the Applicants:

"... We are legally obliged to provide you with four weeks' notice of any change to the contract conditions.

The issuing of the new contract was necessary to ensure expectations are clear to both parties. The new contract serves to supersede the previous contract as of 29 November 2024 and at such time the original contract is terminated.

Your indication that you will not be signing the new contract therefore leaves us with no employment agreement as of 29 November 2024.

Am I correct in assuming that this indicates your intention to cease employment with us as of 29 November 2024? Please clarify."

• [31] By email sent to Mr Kelly on 9 November 2024, the Applicants clarified that their contract would "be terminated on 29/11/24". This was not a voluntary decision by the Applicants to cease their employment with Warrego.

(a) refusing to continue to comply with the Applicants' employment agreement,

(b) issuing the ultimatum to the Applicants on 1 November 2024, and

(c) giving four weeks' notice of termination of the Applicants' employment agreement

was the principal contributing factor which resulted, directly or consequentially, in the termination of the Applicants' employment agreement and their employment relationship with Warrego. For these reasons, I am satisfied that the Applicants' employment with Warrego has been terminated on Warrego's initiative.

• [33] For the reasons given, the Applicants were both dismissed within the meaning of s 386(1)(a) of the Act. It follows that Warrego's jurisdictional objection is rejected in each application.

• [34] At the conclusion of the jurisdictional hearing on 31 March 2025, I conducted a conciliation conference in relation to the general protections claims made by each of the Applicants against Warrego. Neither claim settled in conciliation. Accordingly, I will issue a certificate under the Act.

Mr S. Macneil, solicitor, appeared for Warrego Highway Properties Pty Ltd

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67]

[2] NSW Trains v James [2022] FWCFB 55 at [45]

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

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

Printed by authority of the Commonwealth Government Printer