s 365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - was the employee dismissed - employee was not dismissed - employee remains a current employee on workers' compensation - objection sustained - application dismissed.

• [1] Mrs Carolyn Philip has applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth). Mrs Philip alleges that Co-Operative Bulk Handling Limited dismissed her in contravention of Part 3-1 of the Act. CBH objects to Mrs Philip's application as it says Mrs Philip remains a current employee.

• [2] Before Mrs Philip's application can proceed, I must determine whether CBH dismissed her. In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court held that where there is a question over jurisdiction - as is the case here - the Commission must determine the jurisdictional issue before exercising its powers under s 368 of the Act.[2]

• [3] I conducted a hearing to hear evidence on the jurisdictional issue on Friday 12 September 2025. Mrs Philip represented herself and gave evidence in support of her case. I granted permission to CBH to be represented by Mr N Ellery of Counsel. CBH called Ms Vickie Loveridge (Head of Employee Relations and Talent) and Mr Ben Ashford (Head of Health, Safety and Environment).

• [4] Having considered the evidence and submissions of the parties, I find that Mrs Philip remains a current employee of CBH. She was not dismissed. Her application must therefore be dismissed.

• [5] The detailed reasons for my decision follow.

• [6] Mrs Philip commenced working for CBH as an Industrial Relations Lead on Wednesday 8 January 2024. Mrs Philip's role involved leading the bargaining processes for new enterprise agreements, as well as providing industrial relations advice to the business.[3] Mrs Philip reported to Ms Loveridge as part of the ERT team. To carry out her duties, Mrs Philip was required to engage with relevant unions and attend in-person meetings on sites.[4]

• [7] On Tuesday 13 May 2024, Mrs Philip suffered a fractured ankle and tendon injury at work while travelling back from an on-site meeting. Mrs Philip subsequently filed a workers' compensation claim, which was accepted.

• [8] Mrs Philip's workers' compensation claim was managed by an internal CBH case manager until February 2025, when that manager went on leave. Mr Ashford has been the internal case manager for Mrs Philip's claim since then. Mrs Philip's case has also been assisted by Ms Dawkins, a Senior Rehabilitation Consultant from the relevant rehabilitation services provider overseeing Mrs Philip's return to work program.

• [9] From May to end of September 2024, Mrs Philip worked remotely while undergoing various treatments.[5] During this period, CBH explored ways to try and get Mrs Philip back into the office. This included CBH covering the costs of a taxi or Uber to take Mrs Philip to and from work as she could not drive due to her injury. This turned out to not be suitable as Mrs Philip could not travel more than 30 minutes by car and could not walk the distance between her desk and the bathroom at CBH's premises due to the pain of her injury.[6]

• [10] Mrs Philip underwent surgery on Wednesday 16 October 2024. Due to post-surgery complications, Mrs Philip was not certified fit to return to work under December 2024. In December 2024, Ms Dawkins, advised CBH that Mrs Philip could undertake around 30% to 40% of her usual duties, on a largely remote basis.

• [11] Ms Loveridge's evidence is that due to Mrs Philip's injury restrictions, CBH could not accommodate a return to work program. This is because CBH was due to commence bargaining for its Kwinana worksite, which in Ms Loveridge's experience is the most intensive bargaining process out of CBH's operations. The Kwinana workforce often takes industrial action and on-site attendance is important. As Mrs Philip could not wear the appropriate PPE (steel-capped safety boots), she would not be allowed to enter the Kwinana site.[7]

• [12] On Tuesday 17 December 2024, Ms Philip provided a WorkCover WA progress certificate. This certificate stated that Mrs Philip had no capacity for work until Friday 17 January 2025, and that Mrs Philip was distressed she could not return to work as planned.[8]

• [13] On Thursday 16 January 2025, Mrs Philip emailed Ms Loveridge with an update on her fitness for work. Mrs Philip stated that she had been signed off until Sunday 9 February 2025, and that she would then be starting a work placement.[9]

• [14] From around Monday 10 February 2025, Mrs Philip commenced a work trial at Intelife. Mrs Philip had capacity for modified hours and duties. The plan was for Mrs Philip to undertake an eight-week trial at Intelife where she would progressively increase from four hours/five days per week through to eight hours/five days per week. Mr Ashford's evidence is that the return to work goal at that time was for Mrs Philip to return to same duties/same employer, returning to her pre-injury roles and duties at CBH.[10]

• [15] On or around Thursday 8 May 2025, Mr Ashford attended a monthly review of Mrs Philip's case with QBE. During this meeting, there was a discussion as to whether the return to work goal of same duties/same employer was feasible, given unclear medical evidence, Mrs Philip's ongoing restrictions and the fact Mrs Philip had been injured and absent from CBH for nearly 12 months.[11] Mr Ashford's evidence is that no decision was reached at that time.

• [16] On Tuesday 13 May 2025, Mrs Philip's treating orthopaedic specialist, Dr Maor, provided a letter regarding Mrs Philip's prognosis. The letter relevantly stated that Mrs Philip had, '...managed to reduce her use of crutches too one and can walk about 200 metres before the pain becomes unbearable. The numbness in her toes persists, particularly in the fifth toe. She experiences significant pain when applying pressure to the area, simulating the act of wearing boots, which is required for her job'.[12] Dr Maor recommended a further review with a specialist to explore strategies for Mrs Philip's pain, as well as further surgery as a last resort.

• [17] On Tuesday 3 June 2025, Ms Dawkins advised Mr Ashford on Mrs Philip's most recent medical certificate, which stated Mrs Philip continued to have restrictions in standing and walking.[13]

• [18] On or around early June 2025, QBE advised Mr Ashford that Mrs Philip's return to work goal should change to alternative duties/different employer.[14]

• [19] Mrs Philip says that CBH excluded her from various work events, including the staff Christmas party and People & Culture team functions held during work hours.[15] Mrs Philip says that this supports a finding that she was dismissed.

• [20] However, during cross-examination Mrs Philip conceded that she had been invited to the CBH 2024 Christmas party, but that she had declined the invitation.

• [21] Mrs Philip also relied on a picture in the People and Culture Whatsapp group of two team members posing with the caption, 'CBH prom'. From this, Mrs Philip inferred that there was a People and Culture specific Christmas function that she was not invited to. Mrs Philip did not speak to anyone about this at the time.

• [22] Ms Loveridge's evidence is that there was no People and Culture specific Christmas function. Ms Loveridge explained that the 'CBH prom' photo was taken on a day where there was a corporate photo shoot for a CBH publication. In the picture, the two employees had used some tissues to make a corsage and pocket square and were effectively joking around with the 'prom' photo. I accept Ms Loveridge's evidence. It is cogent and credible.

• [23] To the extent it is relevant to the question of whether Mrs Philip was dismissed, I do not find that Mrs Philip was deliberately excluded from work events.

• [24] Mrs Philip, Ms Loveridge, Mr Ashford, Ms Dawkins and Mr Philip met on Wednesday 11 June 2025.

• [25] Mrs Philip's account of the meeting is as follows:

• She was informed that CBH was changing her return to work goal from same employer/same role to alternate employer/alternate role, and that CBH would not support her return to CBH in any capacity.
• Mrs Philip asked about the possibility of reasonable adjustments or alternative duties but was told 'no' to both.

• • She was told to return all CBH property.[16]

• [26] Ms Loveridge's evidence is that she said to Mrs Philip:

• CBH could not maintain her pre-injury role given it had not been 13 months since her injury. In consultation with CBH, QBE had determined to change her return to work goal to alternate employer/different duties.
• Mrs Philip would continue to be paid and supported by CBH.
• As Mrs Philip had not performed any duties for CBH since late September 2024, she would need to return her laptop.

• [27] Mr Ashford's evidence of the discussion between Ms Loveridge and Mrs Philip is as follows:[17]

• Ms Loveridge told Mrs Philip that CBH had kept her role open for 13 months post-injury and could no longer keep the role open. In discussion with QBE, the return to work goal had changed from same duties/same employer to alternative duties/different employer.
• This decision was based on the insufficient progress in Mrs Philip's medical capacity over the last 13 months. Mrs Philip's restrictions remained and there was an unclear prognosis. Given this, Mrs Philip's return to full capacity work at CBH was not a realistic expectation within the foreseeable future.
• This change in return to work goal would not change Mrs Philip's treatment plan or access to workers' compensation payments. CBH would continue to pay Mrs Philip; the work trial at Intelife would continue; and QBE would consult with Mrs Philip on transitioning into a new role. Further, that Mrs Philip should consider pursuing employment opportunities outside CBH.
• Mrs Philip asked if there were any alternative positions within CBH that could accommodate her medical restrictions. Ms Loveridge said that all relevant positions had the same physical requirements, including site travel and the need to wear PPE in the form of steel-capped safety boots.
• Ms Loveridge asked Mrs Philip to return her work laptop and advised that her access to CBH's systems would be discontinued.

• [28] Mr Ashford's recollection is that there was no mention of Mrs Philip's employment being terminated.

• [29] Since Wednesday 11 June 2025, Mrs Philip has continued to perform her duties at Intelife.

• [30] On Friday 13 June 2025, Mrs Philip wrote to Ms Jacky Connolly, Chief People Officer for CBH. Mrs Philip's letter stated that during the meeting on Wednesday 11 June, Ms Loveridge had 'told me that my employment was being terminated' and sought written confirmation of her official date of dismissal, notice period and when her entitlements, notice and leave would be paid.[18]

• [31] On Monday 16 June 2025, Ms Connolly sent the following email to Ms Loveridge:[19]

Thanks for your patience as I understand what has transpired to date. I can confirm that CBH has not terminated your employment, the decision that was discussed with you was that your return-to-work objective has changed and you can continue to focus on strategies to enable a return to work in an alternate place of employment. This is what led to the collection of your CBH assets, as you will not be required to return to CBH.

The ultimate focus is on getting your fitness for work back to the stage of full employment.

CBH is currently liaising with QBE in relation to setting up your new return to work goal and this may include their considerations in relation to your employment with CBH going forward and how your leave entitlements will be handled. Alternatively, you can resign from employment with CBH at any point which would enable the release of your outstanding leave entitlements earlier.

I will endeavour to provide a further update to you by the end of next week.

• [32] On Wednesday 2 July 2025, Mrs Philip emailed CBH's payroll to find out why her leave balances had not increased since Sunday 25 May 2025. Mrs Philip was informed that CBH had transitioned to a new payroll system, which meant that her leave was being manually corrected. Mrs Philip's leave balances were corrected in the next pay cycle.[20]

• [33] Ms Loveridge explained that during this period there had been issues with payroll and leave accruals for employees on workers' compensation, and that it had not been limited to Mrs Philipp. I accept Ms Loveridge's evidence on this point.

• [34] 'Dismissed' is defined in s 12 of the Act, which refers to s 386. The definition of dismissal in s 386(1) of the Act has two parts. The first deals with 'termination on the employer's initiative' and the second, 'resignation in circumstances where the person was forced to do so because of conduct or a course of conduct'.

• [35] In Mohazab v Dick Smith Electronics Pty Ltd,[21] a decision made prior to the passage of the Act, the Full Court of the Industrial Relations Court of Australia considered the meaning of 'termination at the initiative of the employer'. The Full Court stated (emphasis added):[22]

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature 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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd ("David Graphics"), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee who resigned because "he felt he had no other option". His Honour described those circumstances as:-

"... a termination of employment at the instance [of] the employer rather than of the employee".

"I agree with the proposition that termination may involve more than one action.

But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment."

• [36] Mrs Philip's submissions can be summarised as follows:

• a) CBH made the decision to sever her return to work pathway without exploring or waiting for the outcomes from her pain specialist and occupational physician.[23]

• b) CBH's actions on Wednesday 11 June 2025 amounted to 'constructive dismissal'. This is because she was removed from her permanent position; denied the right to return despite being medically cleared; and excluded from any further organisational involvement or communication.[24]

• c) Mrs Philip is not performing any duties for CBH; cannot access internal systems; cannot apply for leave or access her online payslips. There is no ongoing engagement or employment relationship in practice.[25]

• [37] CBH's submissions can be summarised as follows:

a) There is no factual basis to conclude that there has been a termination at their initiative.

b) The issue for determination is not whether CBH acted fairly, or reasonably, or did enough to support an injured worker.

1. Section 386(1)(a) requires a person's 'employment' to be terminated, not the termination of a particular role. An employment relationship may evolve or change over time for various reasons.

d) Mrs Philip's employment contract contemplated that she could be required to change the tasks and duties she was required to perform.

• [38] I find that the witness accounts of what was said at the meeting on Wednesday 11 June 2025 largely align, with any differences attributable to individual interpretation. It is not controversial that at this meeting Mrs Philip was asked to return any CBH property, and that after the meeting her access to CBH's physical and digital infrastructure was revoked.

• [39] It is also not controversial that Mrs Philip continues to be paid by CBH by virtue of her workers' compensation claim, and this would be the case regardless of whether she is employed or not.

• [40] Mrs Philip is aggrieved with how CBH has handled her return to work process. She says that CBH did not properly investigate whether there were accommodations that could be implemented to facilitate her returning to work at CBH; that CBH overstated how much of her role required on site visits or required the wearing of PPE; and that CBH did not wait for further medical advice from specialists as to whether there were other options for her return to work. With respect to Mrs Philip, I find that these issues would be more appropriately ventilated in a different forum.

• [41] Mrs Philip submits that the decision of Dupre v Excell Protective Group Pty Ltd[26] is analogous to hers, in that the applicant in that matter was told to return his keys, collect his belongings and his access to work IT systems was then revoked. In Dupre, it was found that Mr Dupre had been dismissed, and Mrs Philip says I should rely on Dupre to reach the same conclusion in this case.

• [42] I do not agree. Dupre dealt with a very different fact pattern where Mr Dupre had been in a lengthy dispute with the respondent regarding his employment contract, which culminated in a meeting where he was told that he would be 'finishing up', and that a separation certificate would be provided, along with the payment of his leave entitlements.[27] Mr Dupre was also not participating in a return to work program as part of an accepted workers' compensation claim.

• [43] I find that Mrs Philip has not been dismissed. Before the meeting on Wednesday 11 June 2025, Mrs Philip was clearly employed by CBH. Mrs Philip does not contend otherwise. After the meeting, Mrs Philip remained unfit for her pre-injury role and continued to participate in a return to work program through Intelife. I do not find that changing her return to work goal from 'same duties/same employer' to 'different role/different employer' ended the employment relationship.

• [44] This finding is supported by the Workers Compensation and Injury Management Act 2023 (WA). Section 5 of the WCIM Act defines 'return to work' as follows:

'return to work, in relation to a worker who has an incapacity for work, means -

a) the worker holding or returning to the position that the worker held immediately before becoming incapacitated if it is reasonably practicable for the employer who employed the worker at the time the incapacity occurred to provide that position to the worker; or

b) if the position is not available, or if the worker does not have the capacity to work in that position, the worker taking a position, whether with the employer who employed the worker at the time the incapacity occurred or another employer - for which the worker is qualified; and that the worker is capable of performing;'

• [45] The WCIM Act clearly contemplates that a return to work program may see an injured worker taking a position with someone other than their employer if they do not have capacity to work in their pre-injury role.

• [46] Division 2 of the WCIM sets out the duties of an employer in relation to establishing and implementing a return to work program for an injured employee as well as the duties of an employee to comply with any reasonable obligations under the return to work program. Combined with the definition of 'return to work', these sections suggest that there is an ongoing employment relationship during return to work programs, even where the injured worker is undertaking a return to work program away from their employer. This of course does not mean that employer can't, or don't, dismiss employees who are on a return to work program. Like most other cases, it will depend on the facts of the individual matter.

• [47] With regards to Mrs Philip being asked to return her work laptop and return any CBH property, I find that this is consistent with the possibility that Mrs Philip will not be employed by CBH in the future. However, I find that Mrs Philip has jumped the gun - so to speak - with this application. It may be that the result of the return to work program or her workers compensation claim is that her employment with CBH is terminated, but as of the date of this matter being heard, Mrs Philip remains an employee of CBH. Her application is therefore outside the Commission's jurisdiction with regards to applications made under s 365 of the Act.

• [48] I order that Mrs Philip's application under s 365 of the Act is dismissed.

[1] [2020] FCAFC 152.

[3] Witness Statement of Vickie Loveridge, Digital Court Book 126 [8]; DCB 9.

[5] WS of Vickie Loveridge, DCB 127 [10].

[10] Witness Statement of Ben Ashford, DCB 165 [12].

[14] Witness Statement of Ben Ashford, DCB 166 [16].

[17] Witness Statement of Ben Ashford, DCB 166 [17].

[21] [1995] IRCA 625.

[26] [2024] FWC 2313.

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