s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - whether employee dismissed - jurisdictional objection dismissed.

• [1] Ms Raiden O'Hehir (Applicant) has filed with the Commission an Application under section 365 of the Fair Work Act 2009 (Act), seeking that the Commission deal with a general protections dismissal dispute. The Applicant has named two respondents to her application, Goyal Estate Pty Ltd (First Respondent) and Mr Nabil Chekelli (Second Respondent). The First Respondent disputes that the Applicant is entitled to bring a proceeding under section 365, on the basis that the Applicant was not "dismissed" as defined in section 386 of the Act. The Commission must satisfy itself that the Applicant has been dismissed, before exercising its powers to deal with the dispute.[1] This decision deals with the parties' respective contentions as to whether the Applicant was dismissed.

• [2] The matter proceeded to a hearing on 27 October 2025. The Applicant attended with her mother, Ms Whitton, as a support person. The First Respondent was represented by its Director and Manager, Ms Samiksha Goyal. The First Respondent is a franchisee of the Cheesecake Shop, where the Applicant last worked on 3 July 2025. It is that employment that is the subject of the current proceeding. The Second Respondent, an employee of the Cheesecake Shop attended with Mr Libbis who was also an employee of that organisation. The position of the Cheesecake Shop and the Second Respondent were that they need not have any involvement in resolving the issue of whether or not the Applicant had been dismissed[2]. Whilst the Second Respondent was informed that I would be permitted to make findings about his conduct on the available evidence even if he chose to not participate in the hearing[3], he (along with Mr Libbis) elected to take no part in the hearing and excused themselves before the opening of evidence.

• [3] As noted above, the First Respondent's objection was put on the basis that it did not consider that the Applicant had been dismissed within the meaning of section 386 of the Act. Section 386(1) relevantly 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.

• [4] Neither party contended that there was a resignation of any sort, and in those circumstances the requirements of paragraph (b) of subsection (1) of section 386 need not be discussed. Nor was there any suggestion that the exceptions set out in subsection (2) or qualified in subsection (3) had any application to the facts in this matter. The sole issue for determination is therefore whether there has been a termination of the Applicant's employment at the initiative of her employer, as referred to in paragraph (a) of subsection (1).

• [5] There has been a great deal of consideration, in this Commission and elsewhere, of what circumstances will amount to a termination of employment at the employer's initiative. Before delving into the detail of that, it is helpful to conceive of the ending of employment in the sense that Deputy Boyce did in the matter Lattouf v. ABC[4] as follows:

" In my view, in its most simple terms, the bringing of an employment relationship to an end concerns the ending of an employee's 'service', such that (for whatever reason) it is, or becomes, no longer necessary for the employee to perform any work for the employer. A determination by an employer to cease an employee's service will end the employment relationship, although it may not bring the employment contract to an end until the employee makes an election for that to occur. A wrongful failure to allow an employee to continue in the employer's service is equally a breach of contract, giving rise to a 'wrongful' dismissal at common law. As Higgins J stated in Lucy v Commonwealth:

The contract [of employment] is not a mere promise to pay money, but to pay wages for service; and the breach of contract consists in not allowing the employee to continue in the service so as to get the wages. This is the view which I accepted in Williamson v Commonwealth [(1907) [1907] HCA 60; 5 CLR 174, at 185]. " (citations omitted)[5]

• [6] It was conclusively established in NSW Trains v. James[6] that a dismissal for the purposes of section 386(1)(a) may be given effect to either by the termination of the employment relationship or the contract of employment. In either case though, the termination must be "on the employer's initiative" to qualify as a dismissal under that paragraph. The unfair dismissal jurisdiction has, since its inception, required that there be a termination of employment "at the initiative of the employer" as one of the essential elements. This is rooted in the historical constitutional underpinnings of Commonwealth laws providing for remedies in respect of unfair dismissal, yet the expression has remained a centrepiece of the scheme notwithstanding the shift to reliance on the corporations power and referral of State powers in recent decades.

• [7] The breadth of matters that might qualify as a termination on the employer' initiative is wide, and even before the Act and its predecessors expressly conferred rights of action on employees who were "forced to resign" (as paragraph (b) of subsection (1) of section 386 does presently), it was found that a termination might be regarded as "on the employer's initiative" even where the final act that brought the employment to an end was an act of the employee. In considering whether employment "has been terminated on the employer's initiative", a Full Bench of the Australian Industrial Relations Commission in O'Meara v. Stanley Works[7] held that there must be:

"...some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution"[8]

• [8] In a similar vein are the following principles referred to in the decision Full Court of the Industrial Relations Court of Australia in Mohazab v. Dick Smith Electronics (No2)[9]:

• An important feature of a termination at the initiative of the employer is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.
• A termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.
• A termination may involve more than one action, but it is necessary to ask what was the critical action, or what were the critical actions, that constituted a termination of employment.

• [9] When looking upon the conduct that is claimed to give effect to a termination, an objective analysis is required. That is, whether a reasonable person with knowledge and background of the dealings between the parties would regard the conduct of the employer as terminating the employment.[10]

• [10] There can be difficulty in identifying if, or when, there has been a termination of employment at the initiative of the employer when the employment concerned is casual employment. Casual employment is generally characterised by successive, separate contracts of engagement underwritten by a subsisting employment relationship that survives the lack of continuity in the engagements themselves.[11] However, the mere possibility that some future work might be offered in circumstances where none is scheduled may not be sufficient to indicate that the employment relationship remains intact[12], much depends on the particular circumstances. I adopt the helpful observations of Commissioner Hampton (as he then was) in Bland v. MPower Projects[13]:

"I would accept that there may be circumstances where an irregularly hired casual employee my remain on the books of the employer for future work and not be dismissed, despite the absence of actual work for a short period. However, this requires an assessment of the actual nature of the employment and whether an action has been taken by the employer to conclude that employment."

• [11] In advance of the hearing, the Applicant provided a witness statement from herself (with several attachments)[14], a witness statement from Ms Whitton (her mother)[15] and written submissions. The First Respondent did not prepare any witness Statements, however the Form F8A response and submissions provided were prepared personally by Ms Goyal and provided an account of facts such that it was appropriate that they be marked as her evidence.[16] An image taken from a CCTV camera within the workplace was also provided with the submissions.[17] I have had regard to all that material. Whist I did ask questions of the witnesses, none were cross-examined by a party. No material was tendered on behalf of the Second Respondent at the hearing.

• [12] The Respondent's contention that the Applicant was not dismissed leans heavily on the fact that Applicant has not been "terminated from the roster system"[18] and the fact the employee was a casual employee. It is not in contest that the Applicant and the Respondent have not communicated about the availability of future work since the events of 9 July 2025, that the Applicant has not worked since 3 July 2025, nor that the Applicant had worked a regular pattern of shifts prior to that time on Saturdays and Thursdays (and sometimes Tuesdays) which had reduced in the month prior to Thursdays only[19]. By 9 July 2025, it had become apparent to the Applicant that she had been removed from the roster altogether.[20]

• [13] The Respondent used a system called "Tanda" for rostering purposes.[21] The Applicant explained that she could be informed of rostering arrangements one to two weeks in advance by logging in remotely to the Tanda system, or receiving an e-mail generated by it. She is no longer able to remotely log in to that system and view the store rosters[22], although was able to do so for a period after 9 July. The Applicant became aware of her removal from a work related WhatsApp chat group by way of a notification from that system, also on 9 July 2025. The Respondent submitted that the Applicant was not removed from "the rostering profile" on Tanda[23]. The technical difference or significance of being unable to access the system as an employee versus not removing the employee from the employer's "rostering profile" were not explored in the evidence. In any event, the Applicant stated that she has been into the store since she last worked there and seen another employee (who she understands to be a new employee) working the shifts that she otherwise would have.[24]

• [14] The reduction of shifts, and the reasons for this, appear to be a catalyst for the events of 9 July 2025, as captured by a series of text messages between the Applicant and Ms Goyal, which were provided as annexures to Applicant's witness Statement.[25] Without reproducing them in full, they reveal the following relevant matters:

• The Applicant, and her mother, were evidently displeased by concerns expressed by Ms Goyal about the amount of cash in the til at the end of the day. The messages disclose a desire by the Applicant to have a discussion with Ms Goyal about those matters (which the Applicant described as "allegations") so that she could respond to them, or if Ms Goyal did not intend to discuss the allegations, the Applicant's position was that the shifts should be restored.
• Ms Goyal in response offered to provide documents relating to end of day cash receipts, but said she was "not putting any allegations" but rather "these are more behaviour issues" and advised the Applicant that "..you have been hired as a casual employee always and I have all rights to remove shifts and amend rosters".
• In the course of these messages, Ms Goyal requested to have a discussion with the Applicant's mother, which evidently occurred. This request came after Ms Goyal had sent pointed messages to the Applicant that included the following:

"Moreover please don't try and threaten me that you screenshots these messages as I have facts with me which I would be happy to provide if I need 'formally'. For now, it would be better that the keys are returned and we don't work with each other as it clearly isn't working with your ongoing behavioural issues"

"For now it would be better that they keys are returned and we don't work with each other as it clearly isn't working for both of us"

• After repeating a request to have a discussion with the Applicant's mother, Ms Goyal wrote "Please return the keys for now till the time we sort your shifts back again if both of us agree"

• [15] Ms Goyal's evidence of the phone call between her and Ms Whitton was that she was requested by Ms Whitton in a threatening manner to reinstate the Applicant's shifts until the end of the school year "or otherwise she would have taken me to different mediums and complained about me"[26]. Ms Goyal's oral evidence was that after that "really heated"[27] conversation with the Applicant's mother, she felt she could no longer trust the Applicant.[28] Her evidence was that prior to the conversation with Ms Whitton, she had a willingness to "work it out"[29] but that after that discussion her position changed. Thereafter, the Applicant was removed from a WhatsApp chat group that had been used as a platform of communication between the employer and its employees.[30] The Applicant has not been offered work by the Respondent since. Ms Whitton's evidence of the conversation was that she asked Ms Goyal if the Applicant was being dismissed and was told by Ms Goyal that she wasn't, so she asked "if there was no reason to dismiss her then why not reinstate her shifts?"[31]. Ms Whitton said that Ms Goyal raised the issue concerning end of day til receipts and Ms Whitton suggested that Ms Goyal have a formal meeting about that. When Ms Goyal rejected the suggestion of the formal meeting, Ms Whitton told her that her refusal suggested that there wasn't in truth a problem with the end of day til cash receipts and if that was so, she should reinstate the shifts.[32] Ms Whitton agrees that she sought from Ms Goyal that shifts continue until November, when the Applicant was due to finish school, in part because it was "only a couple of months" that the Respondent would need to tolerate the Applicant's "alleged behavioural issues"[33].

• [16] As is evident from the discussion of the relevant principles at paragraphs [5] - [10] above, neither the fact an employee is a casual employee or the fact the employee remains in some sense registered on the employer's systems necessarily means that the employee has not been dismissed.

• [17] In this case, there is clear evidence of an active decision making process on the part of the director and manager of the business to:

• no longer roster the Applicant for any shifts, notwithstanding that the Applicant had developed a reasonably regular pattern of shifts;
• remove the applicant from an electronic "chat group" used for communicating between the employer and employees; and
• require the Applicant to return her keys to the workplace.

These decisions were communicated to the employee on 9 July 2025 and made in context where the director and manager admitted in her oral evidence that she no longer trusted the Applicant and expressed to the Applicant at the time of making the decisions that "It simply is not working right between us". The decisions and the communications of those decisions should also be viewed against Ms Goyal's Statements in the Form F8A,[34] that whilst she did not view the decisions as amounting to a "dismissal", they did amount to a "cessation of employment", a decision to "stop offering shifts" and "no longer roster" the Applicant, that were in Ms Goyal's view, decisions that were justified in the circumstances.

• [18] There is no room to rationally argue that a reasonable person in the Applicant's position, with knowledge of the relevant context, would not consider that their employment had been terminated upon being given notice of the above decisions. Whilst it is true that some of messages sent by Ms Goyal to the Applicant on 9 July are consistent with the possibility of future work at a later stage, for example "Please return the keys for now till the time we sort your shifts back again if both of us agree", it is likewise clear that the highest this could be put was that unless something changed, the service of the Applicant was no longer required. That is, the employment relationship that had existed to that point had been terminated. The termination of that employment relationship was unquestionably brought about by actions of Ms Goyal that were intended to bring the employment to an end and unquestionably would have led to that eventuality.

• [19] The consequence of this conclusion is that the First Respondent's jurisdictional objection must be dismissed.

• [20] A notice of listing will be sent to the parties for a conference in relation to the section 365 dispute.

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

[4] [2024] FWC 1441

[6] [2022] FWCFB 55

[7] [2006] AIRC 496.

[9] [1995] IRCA 645.

[10] Fatallah v. Gallawah; Lemana v. Gallawah [2023] FWC 2542 at [114]

[11] See Knott v. MGH Employment and Training [2021] FWC 2498 at [33] (upheld on appeal) and the authorities there cited.

[12] Shears v. Playford City Soccer and Community Club Inc [2017] FWC 6267 at [43]; Bland v. MPower Projects [2021] FWC 1406 at [52].

[13] [2021] FWC 1406.

[19] Hearing Book pages 69-70, PN 156-162.

[23] Exhibit R1 at Hearing Book p 40, PN 76-77.

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