s.365 - Application to deal with contraventions involving dismissal

Support Solutions Group Pty Ltd Trading AS Townsville Support Solutions

Application to deal with contraventions involving dismissal - whether applicant dismissed - probationary period of employment - contract for specified period of time

• [1] The reasons set out below are an extended version of reasons I delivered ex tempore at the hearing of this matter which was conducted on 15 July 2025.

• [2] Ms. Danielle Fox (Applicant) commenced employment with Support Solutions Group Pty Ltd trading as Townsville Support Solutions (Respondent) in December 2024. The Applicant was engaged as a casual employee in the role of casual support worker pursuant to the terms of a written contract. The Respondent provides support services through the National Disability Insurance Scheme to persons in the Townsville region.

• [3] Clause 1 of the contract between the parties provides:

Your employment will be on a casual basis, as required. Each occasion that you work will be a separate contract of employment which ceases at the end of that employment.

• [4] Clause 2.1(c) provides that as a casual employee, there is no guarantee of ongoing or regular work.

• [5] On 16 April 2025 a director of the Respondent, Mr. Edward Cobley, sent an email to the Applicant in the following terms:

I am writing to inform you that, following a review of our current staffing arrangements and operational needs, there are no shifts available to offer you at this time.

As your role with Support Solutions Group Pty Ltd has been on a casual basis, with no guarantee of ongoing work, this means your engagement with us has now concluded. No further shifts will be allocated, and you are no longer employed with our organisation.

We appreciate the support you have provided to participants during your time with us and we wish you the best in your future endeavours.

• [6] On 6 May 2025, the Applicant applied under s.365 of the Fair Work Act 2009 (Cth)(Act) alleging that the Respondent had dismissed her in contravention of Part 3-1 of the Act. The Respondent objected to that application on the basis that the Applicant had not been dismissed by them. The Respondent said the Applicant had been engaged on a casual basis and there was no suitable work available to be allocated to the Applicant because of "participant feedback and care risks". The Respondent said that no written or verbal notice of dismissal was issued and that the cessation of shifts was "operational in nature and consistent with the employer's rights under a casual engagement".

• [7] An objection of the kind raised by the Respondent must be dealt with and determined before the Fair Work Commission can deal with the dispute by conducting a conference under s.368 of the Act.[1]

• [8] Section 386 of the Act defines the circumstances in which someone is dismissed for the purposes of the Act,[2] including for the purposes of s.365. It provides as follows:

(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.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

• [9] In this case the Applicant contended that her employment had been terminated on the Respondent's initiative for the purposes of s.386(1)(a).

• [10] The Respondent's submission that the Applicant was not dismissed cannot be accepted. The email of 16 April 2025 is in clear terms. It leaves no room for doubt that the Applicant's employment is being brought to an end by the Respondent with immediate effect. The termination of the Applicant's employment is further confirmed by the separation certificate provided by the Respondent to the Applicant. That certificate, dated 22 April 2025, said that the Applicant's employment with the Respondent ceased on 16 April 2025 for reasons of "shortage of work." The Respondent gave evidence as to the various reasons why the Applicant was no longer offered any work by the Respondent. The Respondent cited "operational necessity", "participant directed feedback" or complaints from those the Applicant was allocated to assist, various performance issues, the Applicant's limited availability and the Applicant's refusal to use her own vehicle for work purposes. None of these matters change the fact that the Applicant's employment was ultimately brought to an end on the initiative of the employer on 16 April 2025.

• [11] Nor does the Applicant's status as a casual employee change the fact that her employment was brought to an end on the Respondent's initiative. Whilst it may be the case that as a casual employee the Applicant was engaged over a series of separate engagements and employment contracts, it remained open to the Respondent to continue the Applicant's casual employment or discontinue the arrangement in its entirety. The Respondent chose the latter course. The Applicant's employment was brought about by a unilateral act of the Respondent who had come to a view that there would be no further work provided to the Applicant and determined that the employment would be brought to an end on a date of the employer's choosing. The Respondent's action resulted "directly and consequentially" in the termination of the Applicant's employment.[3] The action of the Respondent was intended to bring the employment to an end and had that probable result.[4] I conclude that the Applicant was terminated on the Respondent's initiative within the meaning of s.386(1)(a) and was therefore dismissed for the purpose of s.365 of the Act.

• [12] The Respondent's jurisdictional objection to the application is dismissed.

Video conference via Microsoft Teams at 10:00 AEST on Tuesday, 15 July 2025

[1] Coles Supply Chain v. Milford [2020] FCAFC 152.

[2] See s.12.

[3] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645. See also Pawel v Advanced Precast Pty Ltd Print S5904.

[4] Barkla v. GS4 Custodial Services Pty Ltd [2011] FWAFB 3769, Khayam v. Navitas English Pty Ltd [2017] FWCFB 5162 at [75(2)].

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