s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - whether applicant dismissed - applicant not dismissed - application dismissed for want of jurisdiction

• [1] Ms Billie Moore has applied for the Fair Work Commission to deal with a general protections dispute involving dismissal, alleging contraventions of Part 3-1 of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). The former employer, Amallah Australia Pty Ltd atf Batchica Trust ("the Respondent"), has objected to the application on the basis that Ms Moore was not dismissed. This decision deals with that objection.[1]

• [2] For the reasons set out below I have decided to uphold the objection and dismiss Ms Moore's application for want of jurisdiction.

• [3] In Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591 at [64] - [65] the Full Court of the Federal Court of Australia made it clear that the Commission only has power to deal with a dispute under section 365 if it is validly made. An application to deal with a dispute over a dismissal will not be validly made if there was no dismissal. The Court also made clear at [67] that where a question arises as to whether there has been a dismissal the Commission must resolve that question before proceeding to deal with the dispute.

• [4] Whether someone has been dismissed under the Act is to be determined by reference to sections 12 and 386 of the Fair Work Act. Section 12, the Dictionary, defines the expression 'dismissed' by referring to section 386. Subsection 386(1) reads:

(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.

• [5] It was not in dispute, and I find, that the application was made in time. The matter was dealt with at a hearing held on 20 January 2025. Prior to the hearing each party filed, and provided to each other, written statements and submissions.

• [6] At the hearing Ms Moore was represented, with permission, by a paid agent, Ms Akile Numan of Clear Employment Relations. The Respondent was represented by Ms Melissa Butters of the Queensland Hotels Association.

• [7] Ms Moore gave evidence for herself, and Mr John Hallam, the owner, gave evidence for the Respondent. I have had regard to their evidence.

• [8] I have also had regard to the parties' written and oral submissions.

• [9] It is not in dispute that Ms Moore was employed by the Respondent at a motel that it operates, the Bottlebrush Motel ("the motel"). As well as being the owner Mr Hallam works in the business at the motel.

• [10] Mr Hallam said he employed four casuals to work alongside him in the business. Ms Moore was employed as a casual from 4 or 5 August 2024. (The parties were slightly at odds as to the commencement date, but the difference is not material to this decision.) Mr Hallam described Ms Moore as being in a three-month trial period from this date.[2]

• [11] On each of 25 and 26 September 2024, Ms Moore worked at the motel. The issues in dispute between the parties arise from events on those two dates. The shift on 26 September 2024 was the last shift Ms Moore worked at the motel. Ms Moore was pregnant at the time.

• [12] Both parties agree that Mr Hallam never raised any concerns with Ms Moore about her performance or behaviour. Mr Hallam says he did not have any concerns about her performance or behaviour, only about the unsafe practice that I have referred to below.[3]

• [13] It is common ground that Ms Moore did not provide a resignation letter, and that the Respondent did not provide a termination letter. The Respondent says it did not provide a termination letter because it did not terminate her employment.[4]

• [14] Mr Hallam says that on 25 September he saw Ms Moore working in an unsafe manner. Specifically, he saw her carrying four two-litre bottles of milk at once, one in each hand and one under each arm. He told her to take down one bottle at a time and place them in a trolley, then push the trolley to where it was required at the retail fridge.[5]

• [15] Mr Hallam says Ms Moore did not immediately comply with this instruction but instead insisted on carrying the bottles that she had to the fridge, without using the trolley. He says that after that he told her not to do it anymore because it was dangerous.[6]

• [16] Ms Moore says that on 25 September 2024, she was instructed to move a crate of milk containing 9 bottles, which were 2 litres each and weighed eighteen kilograms in total, from a shoulder-height shelf to a trolley.[7]

• [17] She says she told Mr Hallam that pulling the heavy crate down from shoulder height could pose a risk to her health and her unborn child.[8] She says she removed four bottles at a time and transported them to the fridge safely.[9] She says Mr. Hallam expressed dissatisfaction with her approach and made comments suggesting that she was wasting time.[10] Ms Moore's statement does not refute Mr Hallam's claim that Ms Moore carried four bottles at a time to the fridge instead of putting them on the trolley and wheeling them to the fridge.

• [18] Under cross-examination Ms Moore accepted that she had been told to lift one bottle at a time from the shelf and put them in the trolley. She also accepted that she carried the four bottles to the fridge rather than transporting them in the trolley, though she says she held all four using her hands, rather than carrying two in her hands and the other two under her arms.

• [19] In his reply statement, Mr Hallam says Ms Moore had said she was okay doing the job her way, and the discussion became slightly inflamed.[11]

• [20] Mr Hallam and Ms Moore subsequently had a meeting. Mr Hallam initially said this also happened on 25 September, but later accepted the meeting had occurred on 26 September.

• [21] Mr Hallam says that in that meeting he told Ms Moore that if the unsafe practice were to continue, they would have to call it quits. He says that when he said that she stood up and left the business.[12]

• [22] He says he did not terminate Ms Moore's employment. He assumed she needed some time to cool off and would return to work when she was ready.[13] He says that as he runs a small business in a rural town, when employees do not show up for work or call in sick, he steps in and does what needs to be done to keep the business running. He says his genuine belief was that Ms Moore was "heightened" and needed some time to cool off before she returned to work. He says he had "no idea" Ms Moore had left her employment.[14]

• [23] Mr Hallam says it was not until he received communication from the Fair Work Commission that he learned of Ms Moore's perception of the matter.[15]

• [24] Ms Moore says that on 26 September 2024 she attended work as usual and completed her shift from 8:00 AM to 2:00 PM.[16] She says that at the conclusion of her shift, Mr. Hallam pulled her aside for a meeting.[17] She says that during this conversation, Mr. Hallam made the following comments:

• "You will need to lift heavy items eventually while you are working here"; and

• [25] She says that there was no discussion during this meeting about ongoing shifts, her potential return to work, or any possibility of continuing employment.[18]

• [26] Under cross-examination Ms Moore said Mr Hallam had said, in the meeting of 26 September 2024:

• yesterday had scared him and he did not want on his conscience hurting Ms Moore's baby, or possibly her;

• if she was going to work there, there were heavy items around, which she would have to pick up eventually; and

• so because of that, because she was pregnant, he was going to have to let her go.

• [27] She said that was the end of the conversation because she got up and walked out, because she was upset and shocked. She says she grabbed her stuff, and Mr Hallam was in the kitchen when she was doing so, so there was plenty of time for him to pull her aside. But that was the end of it.

• [28] Mr Hallam says he did not say, in this meeting or at any time, that as Ms Moore was pregnant, he would have to let Ms Moore go.[19]

• [29] Mr Hallam says Ms Moore had told him of her pregnancy days before this. He says he told her he would do whatever possible until she had to stop work.[20] He says that they had spoken about Ms Moore being available for casual shifts until after Christmas, at which point she would be unavailable. He says they would not have had those conversations if he intended to terminate her employment.[21]

• [30] Mr Hallam also says he has a commitment to workplace safety that he had developed over years working at the nearby Gregory Mine. He provided two documents from BHP from the late 1990s congratulating him for working without lost time injury, including a certificate regarding ten years without a lost time injury from 1989 to 1999.[22]

• [31] As can be appreciated from the foregoing, this is a matter involving a factual dispute with competing accounts from the two persons present at the two material events.

• [32] Despite being directed to appear by video, Mr Hallam appeared by telephone. My chambers was advised very late that he was unable to appear by video so there was no opportunity to try to make alternative arrangements. Though I could not see Mr Hallam I listened closely to him.

• [33] Both witnesses seemed forthright. I preferred Mr Hallam's account for the following reasons.

• [34] Mr Hallam made concessions where appropriate and readily conceded that he could not remember the conversation of 26 September 2024 word for word. His account was also more logically consistent. It was uncontested between him and Ms Moore that a few days prior to these events they had been discussing arrangements for her to work up to or beyond Christmas, for as long as she could work given the pregnancy. It seems less likely that he would dismiss her for being pregnant a few days later, than that he would raise safety concerns with her and put her on notice she would have to work safely, or she would not remain employed there. This is consistent with Mr Hallam's understanding that Ms Moore was in a three-month trial period at the time. Also, there was an objective basis for his safety concern given it was not in dispute that Ms Moore was carrying four two-litre bottles at once rather than using a trolley, and that Ms Moore had insisted on undertaking the task in that manner.

• [35] Ms Moore's representative attempted to assail Mr Hallam's credibility on the basis that he had not wanted to sign documents that incorrectly stated his name or referred to the incorrect award. This had the opposite effect of showing Mr Hallam was conscious of trying to be accurate.

• [36] Under cross-examination Ms Moore accepted that Mr Hallam had asked her to take one bottle down at a time and put them in the trolley. This was in contrast to her witness statement in which she says she was told to move the crate of nine bottles weighing 18 kilograms from the shelf to the trolley.[23]

• [37] Ms Moore agreed she had not asked for a termination letter or separation certificate to include with the application to the Commission. She said she did not think she needed to ask for one "because of all of this." When asked to elaborate she referred to Mr Hallam's having said that she had resigned, even though she had not. But there is nothing on the evidence suggesting Mr Hallam had made such a claim, between the meeting of 26 September and Ms Moore filing this application. To the contrary he said he did not know of Ms Moore's perception of the matter until receiving communication from the Commission.

• [38] In her statement Ms Moore said she had observed Mr Hallam express frustration about her pregnancy on several occasions, both directly to her and in written communication with the Fair Work Commission.[24] Under cross-examination Ms Moore was asked to point out where, on the material before the Commission, Mr Hallam had done so. Ms Moore was only able to give one example, saying he had done so in an email to the Commission. However, she was not able to specify which email she was referring to. I infer she is referring here to the Employer Response in which Mr Hallam had stated he should have been notified of the pregnancy sooner, with two exclamation marks. This is self-evidently a concern expressed after the application had been filed. Ms Moore was not able to point to any other expression of frustration that pre-dated the meeting of 26 September. The inclusion of this assertion in her witness statement appears to have been intended to give the impression that Mr Hallam had been frustrated about the pregnancy prior to the application being made, which is not borne out. To the contrary, as the parties both accepted, he had discussed arrangements with Ms Moore for her to work as long as she was able.

• [39] Ms Moore's assertion that Mr Hallam had said to her, in the meeting of 26 September, that what had happened the day before had scared him and he did not want on his conscience hurting Ms Moore's baby, or possibly her, was not included in her witness statement, nor put to Mr Hallam for response during cross-examination.

• [40] I accept that there was time for Mr Hallam to speak with Ms Moore further while she was packing up to leave, but did not do so. I also accept that Mr Hallam could have but did not contact Ms Moore in the days following 26 September to ask whether she was returning to work. I also accept that Ms Moore could have contacted the Respondent to ask for confirmation that she had been 'let go.' Neither party communicated well, and if either party had done so then the Commission might not have been called upon to decide whether Ms Moore had been dismissed, with a view to considering whether it has jurisdiction to deal with the dispute pursuant to section 365 of the Fair Work Act.

• [41] Ms Moore was not dismissed within the meaning of that term for the purposes of section 386 of the Fair Work Act.

• [42] Ms Moore's application is dismissed for want of jurisdiction.

Ms A. Numan of Clear Employment Relations for the Applicant

Ms Melissa Butters of the Queensland Hotels Association for the Respondent

[1] as required following Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

[2] Exhibit 2, Supplementary witness statement of Mr Hallam dated 10 January 2025, [14].

[3] Witness statement of John Hallam dated 19 December 2024, [26].

[4] Witness statement of John Hallam dated 19 December 2024, [27].

[5] Exhibit 1, Witness statement of Mr John Hallam dated 19 December 2024, [9]-[12].

[6] Exhibit1, Witness statement of John Hallam dated 19 December 2024, [14]-[15].

[7] Exhibit 3, Witness statement of Billie Moore filed 3 January 2025, [6].

[8] Exhibit 3, Witness statement of Billie Moore filed 3 January 2025, [7].

[9] Exhibit 3, Witness statement of Billie Moore filed 3 January 2025, [8].

[10] Exhibit 3, Witness statement of Billie Moore filed 3 January 2025, [10].

[11] Exhibit 2, Supplementary witness statement of Mr Hallam dated 10 January 2025, [5].

[12] Exhibit 1, Witness statement of John Hallam dated 19 December 2024, [17].

[13] Exhibit 1, Witness statement of John Hallam dated 19 December 2024, [18]-[20].

[14] Exhibit 2, Supplementary witness statement of Mr Hallam dated 10 January 2025, [17].

[15] Exhibit 1, Witness statement of John Hallam dated 19 December 2024, [22].

[16] Exhibit 3, Witness statement of Billie Moore filed 3 January 2025, [12].

[17] Exhibit 3, Witness statement of Billie Moore filed 3 January 2025, [13].

[18] Exhibit 3, Witness statement of Billie Moore filed 3 January 2025, [15].

[19] Exhibit 1, Witness statement of John Hallam dated 19 December 2024, [24].

[20] Exhibit 1, Witness statement of John Hallam dated 19 December 2024, [25].

[21] Exhibit 2, Witness statement of John Hallam dated 10 January 2025, [12].

[22] Exhibit 1, Witness statement of John Hallam dated 19 December 2024, annexures.

[23] Exhibit 3, Witness statement of Billie Moore filed 3 January 2025, [6].

[24] Exhibit 3, Witness statement of Billie Moore filed 3 January 2025, [18].

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