Fair Work Act 2009

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 Emma Bennett 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, Donnybrook Sports & Community Club Inc. ("the Club"), has objected to the application on the basis that Ms Bennett 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 Bennett'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 13 January 2025. Prior to the hearing each party filed, and provided to each other, written statements and submissions.

• [6] At the hearing Ms Bennett was represented, with permission, by a paid agent. The Club was assisted by Mr Stevens' niece, who was described as a HR representative, on a voluntary basis.

• [7] Ms Bennett gave evidence for herself, and Mr Jeffrey Stevens, the Club's chairperson, gave evidence for the Club. Some matters stated in the application and response, including their attachments, were not adduced into evidence.

• [8] The respondent is a not-for-profit community club.[2] At the relevant times it employed a bar manager, Ms Jacaya Dell, and other bar staff. All of them were employed on a casual basis but as the manager Ms Dell worked longer hours and different days. The Club also had a paid bookkeeper. There were no other staff.[3]

• [9] Ms Bennett was employed as a casual employee from 13 August 2024. There was no evidence of any written employment contract, which is unsurprising given the nature of the employer and the role.

• [10] Ms Bennett says that she was employed as a regular casual employee until the date of her dismissal. She says her regular working hours were two to three days per week, with each shift being 8 hours long. She says she performed the work on a regular basis and that she had a firm commitment to an agreed pattern of work.[4] The Club disputes this.

• [11] Mr Stevens says that during the on-boarding and induction Ms Bennett was provided with additional hours in which she was provided training and supervision necessary to complete the role. Upon completion of the induction and onboarding, Ms Bennett was provided shifts subject to the needs of the Club.[5] Where the Club has special functions, it has a greater staff requirement.[6] The Club provided timesheets showing Ms Bennett had worked as follows (with pay weeks ending on a Wednesday):[7]

• week ending 21 August 2024:
  • 4 pm - 8 pm Saturday;
  • 3 pm to 7 pm Sunday;

• week ending 28 August 2024:
  • 2 pm to 6.30 pm Wednesday;
  • 5 pm to 10 pm Thursday; and
  • 5 pm to 10 pm Saturday;

• week ending 4 September 2024:
  • 2.50 pm to 10 pm Thursday;
  • 2.50 pm to 9 pm Friday;
  • 2.30 pm to 11 pm Saturday;
  • 2.50 pm to 5 pm Sunday; and
  • 10 am to 1 pm Monday;

• week ending 11 September 2024:
  • 2.30 pm to 7 pm Wednesday;
  • 6 pm to 10 pm Thursday; and
  • 5 pm to 9 pm Saturday;

• week ending 18 September 2024:
  • 2.30 pm to 6.30 pm Thursday;
  • 2.30 pm to 10 pm Saturday; and
  • 3 pm to 5 pm Sunday;

• week ending 25 September 2024:
  • 2.30 pm to 6.30 pm Thursday;
  • 2.30 pm to 7 pm Saturday.

• [12] The Club also provided payroll records showing variations in the amount paid to Ms Bennett from week to week.[8]

• [13] On 29 September 2024, Ms Bennett met with Mr Stevens. Mr Stevens says that the purpose of the meeting was to discuss "issues that were becoming apparent," and refers to Ms Bennett leaving temporary accommodation, Ms Bennett's mental state not being good, and Ms Bennett having issues at work including "breakdowns," drinking, and difficulty with handling cash.[9] Ms Bennett's statement does not contradict these matters.[10]

• [14] Under cross-examination Mr Stevens said he wanted to talk to Ms Bennett about drinking on duty, and said she had told the bar manager that she was stressed out and needed to settle down, and needed a drink. Under cross-examination, Ms Bennett said she had had a drink with her manager, Ms Jacaya Dell.

• [15] Mr Stevens says that there had been issues raised by customers and other members of the management committee. He also indicates Ms Bennett had told Ms Dell that she needed to be better taken care of.[11]

• [16] Under cross-examination Ms Bennett said that before the meeting she had guessed she was getting fired. She says she had not been given any shifts for that week. I took this to be a reference to the pay week ending 2 October. She said that when she had not been given any shifts for the week, she remembered going in to the Club's premises, purchasing something, and breaking down to one of Mr Stevens' daughters and asking what was going on. She said Mr Stevens was in hospital at the time.

• [17] It was common ground between the parties that at the time of the meeting of 29 September 2024, Ms Bennett had been planning to visit her terminally ill sister in Townsville and then return to work after the visit.[12] Under cross-examination she says she had decided to take this trip when she was not given any shifts.

• [18] Ms Bennett witness statement says that during this meeting Mr Stevens said there would be no further work for her, and that she understood this to mean that she was being dismissed.[13] In contrast, under cross-examination she said that Mr Stevens had said "we're going to put it straight, we can't have you working here any more." This is more definite than what had been said in Ms Bennett's witness statement, and was not put to Mr Stevens in cross-examination.

• [19] The parties were in dispute as to whether Mr Stevens told Ms Bennett, at this meeting, that there would be further work for her on her return from Townsville. Mr Stevens says the outcome of the meeting was that Ms Bennett would take a break, and that once she had 'sorted out her issues,' he would then look at giving her more shifts.[14] Under cross-examination he also referred to the "opportunity for" and "possibility of" further shifts.

• [20] It was common ground that Ms Bennett's mental health was discussed at this meeting,[15] along with her personal situation.[16]

• [21] As to mental health, Mr Stevens said under cross-examination that Ms Bennett told him at the meeting that she had mental health issues, and that she needed to go and sort herself out. He says she told him she was living with her boyfriend's dad at the time, who had suggested to her that she return to Townsville to sort her mental health issues, and get everything sorted. He says at that point he said "I agree with that, that sounds like a good way to go, and when you return, we can talk about more of the shifts that may be available for you."

• [22] As to Ms Bennett's personal situation, Mr Stevens says that because theirs is a small community Ms Bennett's personal situation was known to him. He says the conversation was intended as one of support, not judgement, and was not intended to be disciplinary.[17]

• [23] Mr Stevens' statement had referred to cash handling as being an issue for Ms Bennett. Under cross-examination Ms Bennett said that at the meeting of 29 September, Mr Stevens spoke to her about giving the wrong money to someone. She said he told her to go and play Monopoly and then come back. The Respondent's case had been put first, as this was the Respondent's jurisdictional objection. Though Ms Bennett was represented, the claim about "Monopoly" had not been included in Ms Bennett's witness statement and nor had it been put to Mr Stevens in cross-examination. I have given it little weight.

• [24] Ms Bennett says she has an intellectual impairment. She says this was also discussed at the meeting, in that Mr Stevens had said to her "I know you are a bit slow."[18] Mr Stevens says there had been discussion about Ms Bennett being slow, but it was about her lack of proficiency in the role, not about an intellectual impairment.[19]

• [25] It was common ground between the parties that Ms Bennett later requested a separation certificate and the Club provided one.[20] Mr Stevens says Ms Bennett made the request on 10 October.[21]

• [26] Mr Stevens says he made multiple attempts to contact Ms Bennett regarding her request for a separation certificate, with no success. He says that had he been able to contact her, the need for the certificate would have been discussed.[22]

• [27] Mr Stevens says that he took the request to mean that Ms Bennett had resigned,[23] though this interpretation is not stated on the face of the separation certificate.[24]

• [28] The separation certificate is dated 15 October 2024. It is under the hand of Mr Stevens.[25] Under the heading "Reason for separation," the option for "Other" is ticked, and the following text then appears:

Emma was employed as a casual with no guarantee of prescribed hours and shifts due to the limited trading hours and customer numbers. The club chairperson spoke about some performance and personal issues with Emma. She said she was going away to try to sort out her issues. She was advised to do so and come back and talk about any available work when she returned. Emma later requested a separation certificate.

• [29] Mr Stevens says he wrote that text with the Club's secretary.[26]

• [30] I have proceeded on the basis that this account of the relevant events, from the separation certificate of 15 October 2024, is the one before me that is closest in time to the meeting of 29 September. Mr Stevens' statement was signed on 26 November 2024. Ms Bennett's unsigned statement is undated but was filed on 13 December 2024.

• [31] Ms Bennett's application in this matter was signed by her representative on 18 October 2024 and filed on 21 October 2024.

• [32] Mr Stevens says that on 30 October 2024, the Club received notice that this application had been filed. He says that it was not until after this time, in early November, that Ms Bennett had made contact with an email address for the separation certificate to be sent.[27]

• [33] In relation to the content of the separation certificate, Ms Bennett says:[28]

I did not dispute the wording of the separation certificate because I was unaware that I could challenge it. At the time, I was focused on pursuing this general protections claim. My failure to dispute the wording should not be interpreted as an agreement with the respondent's assertions.

• [34] There is no suggestion that Ms Bennett resigned at the meeting on 29 September 2024. The Club's position was that it had taken her request for a separation certificate, on 10 October 2024, as a resignation. Ms Bennett's position was that the Club had terminated her employment on 29 September 2024. She does not claim to have resigned at all and accordingly does not claim to have been forced to resign. Accordingly, the question is whether the employment came to an end at the employer's initiative for the purposes of section 386(1) of the Fair Work Act.

• [35] There is no exhaustive description of what constitutes termination "at the employer's initiative."[29] In this case, the employer's conduct was not intended to bring the employment relationship to an end and nor did it have that probable consequence. The employer intended that Ms Bennett would take a break, essentially unpaid personal leave, and come back to them after she had returned from Townsville and had dealt with her mental health issues, and issues relating to her personal situation. They expected the employment to continue at that point. The period of anticipated absence was indefinite and the offer of additional shifts was put on an equivocal basis. I infer the Club wanted to be satisfied that her return to work was not premature.

• [36] Ms Bennett says she was shocked and distressed by what was said at the meeting. This is not surprising given that she misconstrued Mr Stevens' use of the word "slow," taking it to mean that she was intellectually slow, rather than its intended meaning that she was slow at doing her job. The word is capable of both interpretations. Her prior apprehension that she would be dismissed, together with her shock and distress at what was said at the meeting, resulted in her coming away with the impression that she had been fired.

• [37] Ms Bennett was a casual employee who, by 29 September 2024, had been employed a very short time of only a few weeks. There appears to have been no written employment contract. Mr Stevens says her hours were irregular and inconsistent, and that shifts were made available to her subject to the Club's needs, and her availability to accept those shifts.[30] The irregular nature of her work is corroborated by the timesheets and payroll records which show that her hours were highly variable in the weeks she worked for the Club. There was no basis for her to expect a regular pattern of work. Nor would a decision, of the chairperson's, not to offer her any shifts for a period while she went to Townsville to visit her sister, and sorted out issues in her personal life, have had the probable consequence of bringing the employment to an end, having regard to all of the circumstances.

• [38] When Ms Bennett requested the separation certificate the employer attempted to discuss the request with her but could not contact her.[31] I accept that, as Mr Stevens said under re-examination, the Club was surprised to receive the request and reiterated that he had tried to contact Ms Bennett a number of times to discuss it with her. If Mr Stevens had thought that the employment had ended on 29 September, he would not have needed to discuss the separation certificate request with Ms Bennett. The Club could have issued the certificate in a straightforward manner, with one or more of the standard options selected under "Reason for separation."

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

• [40] Ms Bennett's application is dismissed for want of jurisdiction.

Ms A. Numan of Clear Employment Relations for the Applicant

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

[2] Exhibit 2, Respondent's combined submissions and statement, [14].

[3] Exhibit 3, letter from the Club Secretary, the contents of which were adopted by Mr Stevens.

[4] Exhibit 7, statement of Emma Bennett filed 13 December 2024, [3] - [5].

[5] Exhibit 2, Respondent's combined submissions and statement, [2].

[6] Exhibit 3, letter from the Club Secretary, the contents of which were adopted by Mr Stevens.

[7] Exhibit 4, pay records and timesheets.

[8] Exhibit 4, pay records and timesheets; Exhibit 5, payslips.

[9] Exhibit 1, statement of Jeffrey Stevens dated 26 November 2024.

[10] Exhibit 7, statement of Emma Bennett filed 13 December 2024.

[11] Exhibit 2, Respondent's combined submissions and statement, [6].

[12] Exhibit 7, statement of Emma Bennett filed 13 December 2024, [11]; Exhibit 1, statement of Jeffrey Stevens dated 26 November 2024.

[13] Exhibit 7, statement of Emma Bennett filed 13 December 2024, [8].

[14] Exhibit 1, statement of Jeffrey Stevens dated 26 November 2024.

[15] Exhibit 7, statement of Emma Bennett filed 13 December 2024, [21]; Exhibit 1, statement of Jeffrey Stevens dated 26 November 2024.

[16] Exhibit 7, statement of Emma Bennett filed 13 December 2024, [7(a)]; Exhibit 1, statement of Jeffrey Stevens dated 26 November 2024; Exhibit 2, Respondent's combined submissions and statement, [6].

[17] Exhibit 2, Respondent's combined submissions and statement, [6].

[18] Exhibit 7, statement of Emma Bennett filed 13 December 2024, [7(b)].

[19] Exhibit 2, Respondent's combined submissions and statement, [6].

[20] Exhibit 7, statement of Emma Bennett filed 13 December 2024, [14] - [17]; Exhibit 1, statement of Jeffrey Stevens dated 26 November 2024.

[21] Exhibit 2, Respondent's combined submissions and statement, [9].

[22] Exhibit 2, Respondent's combined submissions and statement, [9].

[23] Exhibit 1, statement of Jeffrey Stevens dated 26 November 2024.

[24] Exhibit 6, separation certificate.

[25] Exhibit 6, separation certificate.

[27] Exhibit 2, Respondent's combined submissions and statement, [9].

[28] Exhibit 7, statement of Emma Bennett filed 13 December 2024, [17].

[29] Bupa Aged Care Australia Pty Ltd T/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941; 271 IR 245, [28], relying on Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; 62 IR 200.

[30] Exhibit 2, Respondent's combined submissions and statement, [1]-[2].

[31] Exhibit 2, Respondent's combined submissions and statement, [9].

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