s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - applicant claimed dual employment - applicant not dismissed at the initiative of the employer - application dismissed

• [1] On 24 July 2025, Mr Benjamin Shettigara made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he seeks a remedy in relation to unfair dismissal. The Application concerns Brimbank City Council (Brimbank).
• [2] Brimbank object to the application on the following basis:
  1. That Mr Shettigara was not dismissed within the meaning of the Act; and
  2. That Mr Shettigara had not completed the minimum employment period set out in s 383 of the Act, because the period of service asserted by Mr Shettigara to constitute his completion of the minimum employment period was one that does not count, because during it he was not a regular casual employee.
• [3] The application was allocated to my chambers on 1 September 2025 and on 19 September 2025 I made Directions that the parties file and serve Outlines of Argument and Statements of Evidence in relation to the objections raised by Brimbank.
• [4] Both parties filed documents in which various submissions and evidentiary assertions are collected, as well as other material such as screenshots of messages apparently sent via platforms such as "Slack".
• [5] I conducted a hearing in relation to the matter, which occurred via video on 14 October 2025. During the hearing, Mr La Riccia from Brimbank affirmed the veracity of the evidentiary assertions made in its material, and Mr Shettigara did likewise in relation to his material.

• [6] Brimbank said that Mr Shettigara "remains an active casual employee of Council and continues to be engaged in a range of casual roles" and that "no dismissal has occurred". Mr Shettigara submitted that his application is concerned only with a role he was engaged in by Brimbank called a Customer Service Officer (CSO), which he said was a "separate and distinct engagement" with Brimbank, from which he said he had been dismissed.
• [7] Accordingly, Mr Shettigara is effectively seeking to argue he was engaged by Brimbank in a manner sometimes described as "dual employment". While this is not a concept that has been the subject of a great deal of attention in the Commission, O'Keefe DP recently observed as follows[1]:

"I find that the decision in those cases confirm that the concept of dual employment - a situation where one employee has two separate and distinct contracts of employment with the one employer - can operate under Australian law."

• [8] Taking into account the relative novelty of this aspect of this matter, I provided the parties with a Statement for the purposes of inviting short further written submissions on the dual employment issue, should they wish to provide them. A copy of that Statement is attached to this decision as Attachment A. Both parties filed further written submissions in response to the Statement dealing in particular with the concept of "dual employment" as they considered it is relevant to this matter.

• [9] I have given regard to all of the material filed in this matter and submissions made in writing and orally by the parties, and what follows are my findings as to evidence I consider relevant to the issues I must determine.
• [10] Mr Shettigara began working for Brimbank as a swim teacher in about October 2022. During his employment with Brimbank, Mr Shettigara has worked in a number of roles, including:
  1. Swim teacher
  2. Lifeguard
  3. Duty Manager
  4. Attendant Support Officer
  5. Customer Service Officer (CSO)
• [11] In all of the roles he performed for Brimbank Mr Shettigara was engaged on a casual basis.
• [12] On 9 January 2023, Mr Shettigara was provided with a letter which has been referred to by Brimbank as his "contract of employment"[2]. A copy of the letter was provided in evidence[3]. The letter's subject line says "position of swim teacher" and that Mr Shettigara is offered employment "as Swim Teacher". It sets out the nature of the engagement, including by reference to the Brimbank City Council Enterprise Agreement 9, EA9 2022. It also says:

"In addition, when requested, you may work in any position with the Leisure Centre as long as you are appropriately qualified, trained and available to work in these positions. When you are working in these roles will be paid the relevant rate of pay for that role in accordance with the Leisure Services (Leisure Centres) appendix A4 and pay table P7".

• [13] In about May 2023, Mr Shettigara applied for a role with Brimbank as a CSO. In order to apply for the role as a CSO, Mr Shettigara was required to at least complete a written (online) expression of interest and participate in a group interview presided over by a Mr De Silva and a Ms Harrison. Mr Shettigara was successful in obtaining the CSO role and began working in the role in about October 2023.
• [14] In the CSO role, Mr Shettigara worked on the front desk of the leisure centres operated by Brimbank, attending to patrons' access to the centre and assisting with the operation of a café outlet.
• [15] Mr Shettigara considers that his engagement in the CSO role was a separate engagement from the other roles he was engaged to perform at Brimbank.
• [16] When he commenced in the CSO role, Mr Shettigara was not provided with a letter confirming his offer of the position. This contrasts with when Mr Shettigara began working for Brimbank as a swim teacher, as referred to above.
• [17] The CSO role reports to a CSO Manager (Mr De Silva), who is responsible for the management of CSO's, and to whom Mr Shettigara would go to for assistance in respect to the CSO role or in relation to rostering. The rostering system in respect to the CSO role was discrete from other roles and managed by the CSO Manager.
• [18] Mr Shettigara was remunerated in relation to the CSO role pursuant to a rate of pay that was specific to that role. The pay rates attaching to the various roles Mr Shettigara performed with Brimbank were all different, including the CSO role.
• [19] There was a separate communication system used by people engaged by Brimbank as a CSO, not used in relation to the other roles.
• [20] There were induction and training arrangements specific to the CSO role in relation to which only persons engaged in a CSO role were required to complete.
• [21] In his evidence given at the hearing, Mr Shettigara sought to assert that in the CSO role he was required to have different qualifications than are required for the other roles. One such qualification was first aid where, as I understood Mr Shettigara's evidence, the first aid qualification requirements for the CSO role were different than the other roles. Another was the requirement that a CSO has a food handling safety certificate. I did not consider Mr Shettigara's evidence in relation to the first aid requirements in relation to the CSO role to be clear enough to be reliable. I accept that the role has the discrete requirement that a food handling safety certificate be obtained.
• [22] Mr Shettigara claims his dismissal took effect on 4 July 2025 when he stopped working in the CSO role - a circumstance which he claims to have amounted to his dismissal from that role. His application was filed on 24 July 2025. However, he continued to work for Brimbank in other roles after the purported dismissal and after he filed his application. Brimbank said in its response filed on 11 August 2025 he worked a shift as recently as 5 August 2025 and had during the course of the four weeks prior to 11 August 2025 worked six shifts. I did not understand there to be any dispute as to this assertion. Mr Shettigara said he "acknowledged" he performed a small number of hours in other casual roles such as Lifeguard and Attendant Support Officer[4].
• [23] In terms of what Mr Shettigara described as his "dismissal" he placed reliance on a message he received on 4 July 2025 from his supervisor. This message said, relevantly:

"We appreciate you reaching out again and we can understand that a lack of shifts can be frustrating.

As you know, we have undertaken an extensive review of the CSO rosters, availability and current demands as we work through our quieter winder period. You may have noticed that we have also recently undertook a recruitment drive for more permanent staff members earlier this year which has resulted in more shifts being covered by permanent staff.

Based on these factors and current service provision levels the Customer Service Unit does not have the volume of shifts available at this point to engage you consistently.

Therefore you will be listed as an "Inactive CSO staff member".

As a result you will be temporarily removed from CSO Slack groups however you will be contacted again should there be an increase in service provision where you may be engaged and reinstated.

As an "inactive" staff member with us it is important to note the below

• You will not be required to attend CSO meetings
• You will no longer have the ability to bid on CSO shifts in HumanForce
• Your access to the facility (gym/pool/group fitness) will be removed.

If you are currently working in another department, this CSO change will not impact your employment in those teams. You will also retain your facility access by being an active staff member in those teams ..."

• [24] If the Commission is to find Mr Shettigara was unfairly dismissed and award, as he seeks, a remedy, it must first be established that Mr Shettigara was dismissed within the meaning of the Act. Section 386(1) of the Act provides:

(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."

• [25] Brimbank says Mr Shettigara was not dismissed because he has continued to work for it after his purported termination and has continued access to is systems such as its rostering tool and its Slack channels[5]. It says the CSO role is not a separate role - that each of the roles Mr Shettigara was engaged in, including the CSO role, are part of a single employment contract through which he was engaged[6]. It also submits that even if Mr Shettigara was engaged through a dual employment arrangement and the CSO engagement is separate (which it disputes), he was not dismissed from this role because "inactive status does not equal dismissal" and he may be re-engaged and reactivated at any time[7]. But Mr Shettigara says the CSO role was a "distinct and concurrent employment relationship" and the unilateral decision to remove him from the CSO roster systems and communications on 4 July 2025 removed his ability to perform CSO work[8] and "effectively terminated that employment"[9]. He submits the CSO role was "separate" because it had a separate management and reporting line, it had distinct systems and communication channels, it had a different pay rate and classification, and it had distinct duties and qualification requirements[10].
• [26] I agree with the recent observations made by O'Keefe DP that a concept such as "dual employment" as discussed in particular by Mortimer J (as she then was) in Lacson v Australian Postal Corporation[11], has application in Australian law[12]. The concept as described by her honour is concerned with the operation of two separate employment arrangements between an employee and the same employer, which may be regulated differently[13]. The concept was also discussed by Blake J in Joni Kroeger v Mornington Peninsula Shire Council[14] where in that matter the Court was dealing with circumstances with some factual similarities to that concerning Mr Shettigara and Brimbank:

"The evidence in this matter discloses, and I accept, that the Applicant initially commenced employment under a contract with the Respondent in the role of a Fitness Instructor. No written contract was in evidence but it is clear that in the period 1994 to 2004, the Applicant performed this role alone.

It is equally clear from the evidence, and is accepted by both parties, that when the Applicant commenced in the CSO Position, she did so pursuant to a letter of offer. That letter expressly provided that the CSO position was a 'new employment position'. The terms of the letter further made clear that the Applicant's previous employment status would be an 'additional position'. It is therefore clear that terms offered to the Applicant, and which she accepted, delineated between the two separate positions and jobs she was performing for the Respondent. I was not taken to any other evidence, whether in May 2016 or otherwise, which suggested that, the CSO position was to be regarded as anything other than an 'additional position' treated separately from the Fitness Instructor position. I therefore find that the Applicant agreed to perform two separate and distinct roles."[15]

When all of the evidence above is considered, I find that the Applicant was performing her two jobs separately. I am not satisfied that the jobs became 'merged' in May 2016, or at any time thereafter. Each job was the subject of a separate contract. Importantly, each job was provided for and separately identified in the relevant Agreements. Each job had a separate principal purpose, acknowledged by the Applicant. Each job had different rates of pay and while there may have been errors as to pay made by the Respondents, they were not of a sufficient nature or degree to enable a finding to be made that it constitutes evidence of the jobs being 'merged'. Finally, while the jobs were performed back to back on occasion, those occasions did not occur anywhere near like the majority of cases and in any event, given the distinct nature of the two roles, could not in my view be relied on to draw the factual finding necessary for the Applicant to succeed in this matter that the jobs became 'merged'.[16]

• [28] While Mr Shettigara submitted the matter before Bake J is "factually analogous"[17] it is important to note that both Lacson and Kroeger are not concerned with applications made pursuant to Part 3-2 of the Act, but rather the operation of s 52(2) of the Act which relates to the circumstances in which it can be said that an enterprise agreement has application to an employee "in relation to particular employment". For example, in Kroeger the Court was concerned with whether Ms Kroeger should have her hours of work performed in two different jobs for the same employer treated cumulatively, for the purposes of calculating overtime, or separately, taking into account that Mortimer J in Lacson had found that the phrase "particular employment", when used in s 52(2) was used to "enable the identification, with sufficient precision, of what the job or position of an employee is at any given time"[18].
• [29] Part 3-2 of the Act, which relates to unfair dismissal, poses a different set of questions. Unfair dismissal is, as O'Keefe DP alluded to[19], concerned not with the termination of an employment contract, but the termination of the employment relationship[20]. While the two concepts are interrelated, and the "employment relationship" is underpinned by the employment contract[21], it can be conceived of as often being a broader concept than that of the employment contract.
• [30] Accordingly, for an Applicant to establish unfair dismissal in a dual employment situation of this kind, it may therefore be necessary to establish the existence of not just two separate and distinct employment contracts with the same employer, but separate employment relationships, one of which they are dismissed from at the initiative of the employer (within the meaning of the Act).
• [31] This is not that case. Mr Shettigara was engaged by Brimbank as a casual employee in a variety of casual roles. He has an employment relationship with Brimbank that encompasses those roles. I accept Brimbank's submission, that the engagement was pursuant to one contract of employment[22] not, as was found to be the case in Kroeger, more than one. The letter he received in January 2023 describing the terms of his contract of employment referred to a multiplicity of roles. There was no evidence before me Mr Shettigara was issued with a different document which may have constituted a separate contract in respect to the CSO role. The relationship underpinned by his contractual arrangement has a fluidity not unusual in many casual relationships. Sometimes Mr Shettigara was rostered to work in different aspects of Brimbank's operation, according to its needs and his capabilities. Some of those roles attracted different rates of pay or were the subject of different management structures. There was not a great deal of difference in the underlying qualifications required for the various roles or to some extent, skill set.
• [32] The circumstances of the alleged dismissal provide context. Brimbank said to Mr Shettigara that his removal from CSO "slack groups" was "temporary", and because its level of service provision was not at a volume sufficient to continue to engage him, a casual employee, consistently. It also said when service levels increased, he might be "engaged and reinstated". It also specifically provided that this change does not affect his employment in other teams, in other roles. In my view, the message describes a not uncommon circumstance involving the fluidity associated with many casual engagements.
• [33] This casual engagement of Mr Shettigara by Brimbank continued after 4 July 2025 and even after he filed his unfair dismissal claim. Mr Shettigara contends that the dismissal occurred on 4 July 2025, when he was told he would be marked as "inactive" in respect to the CSO role, and temporarily removed from the CSO slack channel. However, since then, he has worked for Brimbank as a lifeguard and Attendant Support Officer - roles he had previously performed during his employment. This suggests the continuation of the employment relationship beyond the date of the alleged dismissal.
• [34] I have considered whether the conduct of Brimbank, in making Mr Shettigara an "inactive CSO staff member" was of a nature that could be said it forced him to resign. Mr Shettigara did not argue his case this way, which was proper in my view, because there is no evidence before me that he did resign either from the CSO role distinctly, or from being employed in other roles with Brimbank, which he was, after 4 July 2025.
• [35] Having said that, when after this matter was allocated to my chambers I listed it for mention, and I was told by Mr Shettigara at the mention that he was about to travel overseas, and that he sought his matter either be adjourned until about February 2026 or conducted on line via video. I ultimately agreed to conduct the matter online.
• [36] For the reasons outlined above, I do not consider Mr Shettigara's dismissal occurred on 4 July 2025 as he contends, nor do I consider he was "dismissed" on 24 July 2025 when he filed his unfair dismissal application. It appears however his employment with Brimbank may not be continuing, or in existence now. That being likely the case, a question perhaps arises as to how it ended. I do not consider it necessary for me to answer that question and probably cannot on the basis of the material before me. I observe however that perhaps if the employment is no longer currently in existence it is because Mr Shettigara has left the country and will not be back for quite some time.
• [37] When he filed his application in the Commission, Mr Shettigara had not been dismissed by Brimbank. It is not therefore necessary for me to determine whether Mr Shettigara completed the minimum employment period (the other ground of objection raised by Brimbank). The application must be dismissed. An Order[23] will issue to that effect.

[1] Ranya Aljobouri v Cosmetique Cosmetic Clinics (Services) Pty Ltd [2025] FWC 2987 [63] (Aljobouri)

[2] Respondent's Outline of Submissions on Dual Employment, 22 October 2025 [8]

[3] Respondent's evidence, R1, attachment 3

[4] Applicant's Outline of Argument and Reply, 7 October 2025, p.5

[6] Respondent's Outline of Submissions on Dual Employment, 22 October 2025 [11]

[7] Respondent's Submissions p 1; Respondent's Outline of Submissions on Dual Employment, 22 October 2025 [19]

[8] Applicant's Further Submission - Dual Employment Issue p 4

[11] [2019] FCA 51

[14] [2019] FCCA 2313

[17] Applicant's Further Submission - Dual Employment Issue p 5

[20] Saeid Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 [75]

[21] Alouani-Roby v National Rugby League Ltd [2022] FWCFB 171 [125]

[22] Respondent's Outline of Submissions on Dual Employment, 22 October 2025 [8]

[23] PR792624

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