"As aforementioned, I called you to inform you that you there are currently no shifts available for you until further notice. If you would like to discuss anything further, you can call me back during business hours".

Mr Udovic's representation in this text message as to the purpose of the missed telephone call on 26 June is plainly entirely inconsistent with the evidence he gave to the Commission as to the purpose of that call as recounted in paragraph [21] above, and is also inconsistent with Ms Buzasi's evidence as discussed in that paragraph about what she understood Mr Udovic was going to do.

• [23] Sometime in the first week of July, which is unable to be established on the evidence, the Applicant attended the Epping store and spoke with Ms Buzasi. It is not in contest that a discussion occurred, but there is a dispute as to precisely what was discussed. In her witness statement, Ms Buzasi said she confirmed to the Applicant that the available shifts for him were Friday 9:00-AM to 5:30PM and Saturday 9:00AM to 4:00PM and asked him if he was able to fill them. She said that the Applicant "seemed dissatisfied" and asked if additional shifts were available, to which she responded that there were not but that she would let him know if that changed. She said that the Applicant said he would let her know if the shifts she had offered were acceptable, but never heard back from him. In her oral evidence, Ms Buzasi said that by the time this discussion took place, she was not in fact the Manager and not in a position to give the Applicant any answers about shifts. The manager at the time was a person identified only as Damien, who did not give evidence. Ms Buzasi said that any shifts would need to be confirmed with Damien, but they had been allocated to the Applicant on the roster and the Applicant had not indicated his acceptance of them. Her explanation for not responding to the Applicant's inquiry on 27 June was that following her discussion with Mr Udovic on 25 June, she had left the matter in Mr Udovic's hands.[27] The Applicant's recollection of this discussion was that no roster was proposed to him, but that he said that he wanted to work and Ms Buzasi said she needed staff and would need to check with others before confirming with him but never in fact did. He said he could not recall whether Friday and Saturday shifts were discussed specifically, but that he never declined any shifts. He left the conversation with the impression that somebody would get back to him.[28]

• [24] For completeness, evidence was given by Mr Berenyi about the "MCAS Dandenong Group Work Chat". He said he created that group and its purposes related to Dandenong store. The limit of its role for rostering purposes was to arrange shift swaps or extra shifts among employees of that store only. It was not the primary rostering tool, but was utilised to address rostering difficulties where they arose in a way that gave a first opportunity to the pool of employees already assigned to the Dandenong store prior to casting a wider net.[29]

• [25] Evidence was also given about purchases made from the Respondent by the Applicant after the date he asserts was the effective date of his dismissal. There is no dispute that there is a staff discount policy, however there was conflicting evidence given as to whether in practice that discount was also offered to some former employees. The Applicant's evidence was that he did not ask for a discount but was offered it and did not refuse it.[30]

• [26] This is a case where there has been a lack of understanding as to the Applicant's status. The Applicant seemed to be of the view that he was being allocated to the Epping store for the purpose of acquiring some additional hours of work on account of opportunities to work at Dandenong being likely to reduce.[31] Mr Udovic is adamant that he conveyed to the Applicant that what he had done is arrange a transfer for him.[32] It is not in dispute that the Applicant never worked a shift in the Epping Store.

[27] The difficulty that the Respondent faces in this case is that there is no suggestion that whatever was sought to be put in place for the Applicant at the Epping store ever came into fruition. It may well have been Mr Udovic's desire, at some point at least, to facilitate a transfer for the Applicant to Epping, but certainly his contemporaneous characterisation in his text message of 9 July concerning what he had wished to talk to the Applicant about on 26 June suggests that, on his part at least, any desire to give effect to the transfer had evaporated at that point.

[28] As for Ms Buzasi's evidence, I have difficulty accepting the proposition that the ball was left in the Applicant's court as to the acceptance of hours of work. I am not satisfied on the evidence that any particular hours were in fact offered to the Applicant at Epping other than on an indicative basis by Mr Udovic during a telephone call to the Applicant on 10 June and the offer of a single, isolated shift via text message on 18 June. Ms Buzasi and Mr Udovic both seemed to think that each other were responsible for finalising the hours of work that they had agreed between themselves in June should be offered to the Applicant. Neither followed through, in part likely because of a change in their respective responsibilities between June and July.

• [29] The context of a lack of any confirmation of any placement in another store casts a shadow over Mr Udovic's communication to the Applicant on 27 June and 9 July that there were no shifts available to the Applicant until further notice. Even if that communication were read as referring to the Dandenong store, the fact of an indefinite absence of any work being offered at that store in the circumstances meant an indefinite absence of any work being offered at any store - and indeed that is the situation that persisted up to the date of the hearing.[33] The decision to not offer any further work at Dandenong was a decision to not offer any further work at all. This also manifested in the removal of the Applicant from the relevant chat group, which deprived the Applicant of an opportunity to pick up ad-hoc or unexpected shifts at that store. Whilst I can accept that the chat group was a store based initiative managed by employees, the removal of the Applicant from it was initiated by Mr Udovic. These actions and communications in the prevailing circumstances had the probable result of bringing the employment relationship to an end, and indeed had that consequence.

[30] In all the circumstances, I am satisfied that the Applicant's employment was terminated on the initiative of the Respondent. The Respondent's jurisdictional objection is accordingly dismissed.

[31] Having dismissed the Respondent's jurisdictional objection, the matter will be listed in due course for a private dispute resolution conference in accordance with section 368 of the Act.

[1] [2020] FCAFC 152.

[2] [2024] FWC 1441

[4] [2022] FWCFB 55

[5] [2006] AIRC 496.

[7] [1995] IRCA 645.

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

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

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

[11] [2021] FWC 1406.

[12] Alex Zucco v Mariana Chedid T/A Brulee Patisserie [2022] FWC 3272 [45]-47]; Fareshta Karimi v Aker Group Pty Ltd [2023] FWC 717 [23]-[26];

[21] Attachment C1 to Exhibit A1, Hearing book page 10.

Printed by authority of the Commonwealth Government Printer