Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] Mr Antonio Di Stefano was employed by Carbridge Pty Ltd (Carbridge) as a casual Bus Driver until 28 February 2025. The circumstances by which he came to leave his employment are in dispute. Mr Di Stefano claims he was unfairly dismissed from his employment. Whereas Carbridge contends Mr Di Stefano resigned with the intention of commencing a new role with Skybus Melbourne (Skybus).

• [2] Mr Di Stefano has applied for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (Cth) (the Act). Section 385 defines what is an unfair dismissal for the purposes of the Act. The first limb of the definition is that the person has been dismissed.[1] Section 386 then sets out the meaning of "dismissed". Under section 386(1)(a), a person has been dismissed if their employment has been terminated on the employer's initiative.

• [3] A termination on the initiative of the employer is one that is brought about by the employer, and which is not agreed to by the employee. Termination of employment can be at the initiative of the employer even if it is not done by the employer - for example where an employee is forced to resign.[2] The action of the employer must be the principal contributing factor which leads to the termination of the employment relationship.

• [4] After hearing that Carbridge had lost its international bussing contract Mr Di Stefano applied for a role with Skybus. Skybus is owned by Kinetic. Since making this application Mr Di Stefano has commenced employment with Kinetic.

• [5] Sometime between 14 and 17 February 2025, Mr Di Stefano attended an interview with Skybus. At the conclusion of the interview Mr Di Stefano thought he had been successful in obtaining the role although Skybus had not at that time made him an offer of employment. During and after the interview, Mr Di Stefano inquired as to when the induction would occur and was informed the inductions would take place on 24 February 2025.

• [6] On 17 February 2025, Mr Di Stefano notified Mr Bawa, the Transport Manager with Carbridge, that he had attended an interview for a driver position at Skybus and he needed to attend the Skybus induction on 24 February 2025. Mr Bawa agreed to change the roster to accommodate Mr Di Stefano's request. Mr Bawa says that Mr Di Stefano also said he would finish with Carbridge on 28 February 2025. Mr Bawa understood this to be Mr Di Stefano's resignation.

• [7] On 21 February 2025, Mr Bawa was contacted by a representative from Skybus about Mr Di Stefano's driving experience and availability. During the conversation Mr Bawa informed Skybus that Mr Di Stefano had various Airside driving offences and in the past two years he had lost multiple points (demerit points) from his Airside Driver's Licence. Mr Bawa also discussed Mr Di Stefano's availability however, the details of that discussion are disputed. Mr Di Stefano says that Mr Bawa had informed Skybus that he was required to work until 31 March 2025 which I note is contrary to Mr Di Stefano's later claim that Mr Bawa "sacked him". Mr Bawa's recollection is that he told the Skybus representative that if they didn't need Mr Di Stefano to start immediately, he could continue to offer him work for another month.

• [8] Mr Di Stefano submits that he is aggrieved because he received a negative reference from Mr Bawa, which Mr Bawa denies. Regardless, after he had spoken to the Skybus representative Mr Di Stefano rang Mr Bawa and informed Mr Bawa that he had not agreed to be rostered on until 31 March 2025. Mr Bawa says he accepted Mr Di Stefano's refusal to work any further shifts and agreed not to roster him for any shifts beyond 28 February 2025, thus ending Mr Di Stefano's employment at his own request.

• [9] Mr Di Stefano says he did not resign and that it was Mr Bawa that terminated his employment during the discussion that occurred on 28 February 2025. Mr Di Stefano says that he didn't get the role at Skybus because Mr Bawa told the Skybus representative about his driving offences and that Carbridge needed Mr Di Stefano to continue to work until 31 March 2025. Mr Di Stefano says that at the time his employment ended Mr Bawa was aware that he had been unsuccessful in obtaining a role at Skybus.

• [10] Mr Bawa says that at the time Mr Di Stefano's employment ended he was not aware that Mr Di Stefano had been unsuccessful in obtaining alternative employment. Mr Bawa maintains that Mr Di Stefano resigned from his employment with Carbridge on 17 February 2025.

• [11] In his application Mr Di Stefano states he was dismissed on 25 February 2025, and the dismissal took effect immediately. At question 2.1 Mr Di Stefano submits he was told during a phone call to Mr Bawa that his last shift with Carbridge would be on 28 February 2025 and he subsequently received confirmation by text message from Mr Bawa that his employment had ended on 3 March 2025. Mr Di Stefano wrote that he did not think it was fair because he had been informed that he would be employed up until the 31 March 2025.

• [12] Mr Di Stefano filed a statutory declaration which he relied on as sworn evidence in these proceedings. In his statutory declaration, Mr Di Stefano submits that on 17 February 2025 he told Mr Bawa that he had an interview with Skybus for a bus driver position and needed to take 24 February 2025 off work to attend an induction. Mr Bawa agreed and removed him from the roster for the 24 February 2025. Mr Di Stefano also submits that on 21 February 2025, the Skybus representative informed him that Mr Bawa required him to work until the 31 March 2025. Mr Di Stefano submits he then rang Mr Bawa and told him that he had never discussed and or agreed to working for another month and that it was a total "fabrication and not true".

• [13] During cross examination Mr Di Stefano initially denied having called Mr Bawa on 21 February 2025. Mr Di Stefano says that Mr Bawa called him first and told him that he had no more work for him after the 28 February 2025 and "sacked him". He says he then called the Skybus representative and was informed that Mr Bawa had said he needed Mr Di Stefano until the 31 March 2025. After the inconsistencies in his evidence were raised, Mr Di Stefano changed his evidence stating that he couldn't recall speaking to Mr Bawa on the 21 February 2025.

• [14] Mr Di Stefano says that on 17 February 2025 after telling Mr Bawa he had interviewed for a role with Skybus and was attending an induction, Mr Bawa became upset. Mr Di Stefano says Mr Bawa stated that he didn't want Mr Di Stefano to leave. Mr Di Stefano's evidence about the 17 February 2025 phone call is as follows:

"Birkram was a bit upset because I didn't tell him I'm gonna go and apply for the job. He said you been with us for a long time and you are always here, you are leaving me like this...I said Birkram you lost the contract, I want to work another 6 or 7 years I wanna work, I wanna do something, he said you gonna stay here cause there is Rex and Qantas Link to do and I want you to stay because you are very reliable and Chris ... to do those two jobs.

• [15] The above is not in contention and is consistent with Mr Bawa's evidence that after requesting time off to attend an induction with Skybus, Mr Di Stefano explained his reasons for leaving Carbridge. Mr Bawa says that Mr Di Stefano said that he wanted to finish with Carbridge on 28 February 2025 so he could start with Skybus. At the conclusion of the discussion Mr Bawa agreed to take him off shift for the 24 February 2025 so that he could attend the induction.

• [16] Mr Bawa says on 21 February 2025, he received a phone call from a Skybus representative about Mr Di Stefano's driving record and his availability. He told the representative that Mr Di Stefano was a causal employee and that he had already been advised by Mr Di Stefano that he intended to finish with Carbridge at the end of February 2025, however if they didn't require him straight away, he could continue to offer him work for a further month. Mr Bawa says on that same day he received a phone call from Mr Di Stefano who was upset at the time and stated that he was not happy that Skybus had been told he could continue to work for another month. Mr Bawa says Mr Di Stefano accused him of giving a bad reference and said he didn't want to work with Carbridge and instead he wanted to join Skybus. Mr Bawa says he told Mr Di Stefano that he couldn't hold him back and wouldn't roster him on after the 28 February 2025 so he could join Skybus. Mr Bawa says that he received no further requests for shifts from Mr Di Stefano and he was not aware at the time that Mr Di Stefano had not obtained alternative employment.

• [17] Mr Di Stefano says he spoke to Mr John Webb, Duty Manager with Carbridge on 25 February 2025. During that discussion Mr Webb expressed his disapproval in the manner that Mr Bawa conducted himself and offered to organise a meeting with Mr Bawa and Mr Di Stefano which never eventuated. Mr Di Stefano's oral evidence was that during the conversation Mr Webb asked if he wanted to continue working for Carbridge. Mr Di Stefano says he replied stating that "if he didn't get the job at Skybus he would want to continue to work with Carbridge."

• [18] Mr Webb's evidence is that on 25 February 2025, he approached Mr Di Stefano to see if he would stay with Carbridge because they were running short of drivers. Mr Webb offered to put Mr Di Stefano back on the roster because he didn't want to lose him as an employee. He also offered to arrange a meeting with Mr Bawa however this did not occur because Mr Di Stefano had made it clear that he could no longer work with Mr Bawa. Mr Webb says that after he had offered to put him back on the roster Mr Di Stefano stated that he was leaving on 28 February 2025. Mr Webb said he took the matter no further.

• [19] On 3 March 2025, Mr Di Stefano rang Mr Bawa by mistake. Mr Bawa messaged Mr Di Stefano "call you back in 10". Mr Di Stefano replied "you don't need to call me back I rang by mistake" (sic). Mr Bawa replied requesting Mr Di Stefano return his uniform and company cards, and he would be taken off the books. Mr Di Stefano's evidence is that the next day he returned the company property and that Mr Bawa told him to keep the ASIC and ADA cards and said "you use it just in case you go to Skybus". Mr Bawa agrees that when Mr Di Stefano returned the company property, he told Mr Di Stefano to keep the ASIC and ADA cards for ease of transfer to Skybus.

• [20] Mr Di Stefano provides various accounts of when his alleged dismissal occurred. He says that Mr Bawa "sacked him" on the 21 February 2025, he also says that Mr Bawa dismissed him on 25 February 2025, and the dismissal took effect immediately. Mr Di Stefano also says that at the time his employment ended Mr Bawa was aware that he had been unsuccessful in obtaining employment with Skybus. Mr Bawa says that Mr Di Stefano resigned from his employment during a discussion that took place on 17 February 2025. Mr Di Stefano gave inconsistent evidence as to each of those matters and I have formed the view that he at times changed the evidence to suit his own narrative.

• [21] Whilst I accept that Mr Di Stefano is aggrieved about not being successful in obtaining employment with Skybus especially given his passion for aeroplanes and busses and his desire for secure ongoing employment, I am not persuaded that Mr Bawa at any time dismissed Mr Di Stefano from his employment. I am also not persuaded that Mr Bawa was aware that Mr Di Stefano had been unsuccessful in obtaining employment with Skybus at the time his employment ended with Carbridge. For the reasons set out below I find that Mr Di Stefano refused to perform any shifts with Carbridge after the 28 February 2025, bringing his employment to an end at his own initiative.

• [22] What occurred during the discussion between Mr Di Stefano and Mr Bawa on 17 February 2025 is in dispute. Mr Di Stefano's written and oral evidence was inconsistent. However, it is not in contention that Mr Di Stefano had applied and interviewed for a role with Skybus because Carbridge had lost the international bussing contract. He requested time off to attend the Skybus induction because he thought he had been successful in obtaining the Skybus role regardless of that fact that it had not been confirmed during the interview. Mr Bawa was upset to hear that Mr Di Stefano had gone for a role with Skybus however, he consented to Mr Di Stefano's request for time off to attend the induction on 24 February 2025. The evidence before me is that during this conversation Mr Di Stefano informed Mr Bawa that he wanted to work for a further five or six years and that Carbridge could not offer him that level of security, and it was for those reasons he was going to work for Skybus. Although Mr Di Stefano denies having resigned during that discussion, I prefer Mr Bawa's evidence. I have formed the view that it was reasonable for Mr Bawa to conclude that Mr Di Stefano intended on finishing his employment with Carbridge on 28 February 2025.

• [23] The events of 21 February 2025 are also in dispute. Mr Di Stefano says that he spoke to the Skybus representative on the 21 February 2025 and was informed that Mr Bawa required him to continue working for Carbridge until the 31 March 2025. Mr Di Stefano says that he then received a call from Mr Bawa and that it was during this discussion Mr Bawa "sacked him". Mr Di Stefano says that at the time Mr Bawa "sacked him" he was aware that he had been unsuccessful in obtaining a position with Skybus.

• [24] First, I make the following observation, Mr Di Stefano gave inconsistent and at times contradictory evidence in relation to the events that occurred on 21 February 2025. When those inconsistencies were raised with him, Mr Di Stefano did not make any concessions, he instead changed his evidence stating that he could not recall the events that took place on 21 February 2025. Mr Di Stefano's evidence is that he rang Mr Bawa on the 21 February 2025 to inform him that he would not and had not agreed to work until 31 March 2025, evidence he later denied. Mr Di Stefano's evidence that his dismissal was unfair because he was told he would have work until the 31 March 2025 is at odds with his earlier statement.

• [25] Mr Di Stefano's evidence includes a record of his mobile phone usage data and a series of screen shots of calls to and from his mobile phone. The mobile phone records show that after receiving a call from Skybus on 21 February 2025, Mr Di Stefano did in fact call Mr Bawa from his mobile phone. For clarity Mr Bawa's evidence about the sequence of the calls that occurred on 21 February 2025 is consistent with the evidence in Mr Di Stefano's statutory declaration. The evidence supports a finding that Mr Di Stefano spoke to the Skybus representative at 4:12pm, he then called Mr Bawa at 4:15pm to inform him that he had neither discussed nor agreed that he would continue to work for Carbridge up until 31 March 2025. Mr Di Stefano's allegation that Mr Bawa "sacked him" during the discussion that occurred on 21 February 2025, is at odds with his earlier evidence that Mr Bawa had offered for Mr Di Stefano to continue working for Carbridge until 31 March 2025. Where the evidence differs, I prefer Mr Bawa's recollection of the conversation that took place on 21 February 2025. I accept Mr Bawa's evidence that he told Mr Di Stefano that he couldn't hold him back and wouldn't roster him on after the 28 February 2025 so he could join Skybus. Therefore, I am not persuaded that Mr Bawa "sacked" Mr Di Stefano during the discussion held on 21 February. I am satisfied that Mr Di Stefano had informed Mr Bawa that he would not continue to work for Carbridge up until 31 March 2025.

• [26] In determining if Mr Di Stefano was dismissed from his employment at the initiative of his employer, I have also considered the evidence of Mr Webb. It remained uncontested that on 25 February 2025, Mr Webb asked Mr Di Stefano if he would stay with Carbridge because they were running short of drivers. This is again at odds with the proposition that Mr Di Stefano had been dismissed. Mr Webb also offered to put Mr Di Stefano back on the roster however this did not occur because Mr Di Stefano made it clear that he could no longer work with Mr Bawa. Mr Webb took the matter no further and I note at no stage prior to his employment ending did Mr Di Stefano make any inquiries or request to be placed back on the roster. I find the evidence of Mr Webb tells against a finding that Mr Di Stefano was dismissed from his employment.

• [27] For completeness, I observe the following. Mr Di Stefano's gave oral evidence about his conversation with Mr Webb. In response to Mr Webb asking if Mr Di Stefano wanted to continue working for Carbridge, Mr Di Stefano replied stating that "if he didn't get the job at Skybus he would want to continue to work with Carbridge." Therefore, it is evident that at that time his employment ended, it was unclear to Mr Di Stefano as to whether or not he had been successful in obtaining employment with Skybus. I'm therefore not persuaded that Mr Bawa was aware at any time before Mr Di Stefano's employment ended that he had been unsuccessful in obtaining a role with Skybus. Further, the uncontested evidence that when Mr Di Stefano returned his uniform and company property, Mr Bawa told him to keep the ASIC and ADA cards for ease of transfer to Skybus. This is also inconsistent with the proposition that Mr Bawa was aware that Mr Di Stefano had been unsuccessful in obtaining employment with Skybus at the time his employment with Carbridge came to an end.

• [28] On the evidence before me, I am persuaded that on 17 February 2025, Mr Di Stefano requested he be taken off his rostered shift so he could attend an induction with Skybus on 24 February 2025. Mr Di Stefano informed Mr Bawa that due to Carbridge having lost the international bussing contract he had sourced employment with Skybus. When Mr Bawa made offers for Mr Di Stefano to continue to work for Carbridge up until the 31 March 2025, Mr Di Stefano made his intentions clear by refusing any further work with Carbridge. Further, when Mr Webb offered to put Mr Di Stefano back on the roster, Mr Di Stefano declined stating that he couldn't work with Mr Bawa. Mr Di Stefano was not placed back on the roster beyond 28 February 2025 at his own request, therefore it follows that Mr Di Stefano was not dismissed by Carbridge within the meaning of s.385 of the Act, there is no jurisdictional basis for him to pursue his unfair dismissal application.

• [29] In conclusion, taking into consideration each of my findings above, I am not persuaded that Mr Di Stefano's employment was terminated at the initiative of his employer. Further, there is no argument before me that Mr Di Stefano was forced to resign. On the facts I find that Mr Di Stefano was not dismissed. He is not eligible to apply for an unfair dismissal remedy and the application will be dismissed.

• [30] Accordingly, the application is dismissed. An order[3] to this effect will be issued with this decision.

[1] Fair Work Act 2009 (Cth), s 385(a).

[3] PR789700.

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