Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal-jurisdictional objection that Applicant not dismissed-jurisdictional objection upheld-application dismissed

• [1] This decision concerns an application made by Ms Glenda Hamilton (the Applicant) to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (the Act). The Applicant contends that Ranstad (the First Respondent) contravened various provisions of Part 3-1 of the Act by dismissing her from her employment. The Respondent denies the allegations and also disputes that the Applicant was dismissed asserting that the Applicant has not been dismissed and remains employed.

• [2] The Fair Work Commission (Commission) generally does not have a determinative function in relation to applications brought under s.365 of the Act unless the parties consent to the Commission arbitrating the matter. Rather, the Commission's role is to convene a conference and to issue a certificate to the Applicant, if it is satisfied that all reasonable efforts to resolve dispute have been or are likely to be successful. However, where the Respondent denies that the Applicant was dismissed within the meaning of s.386 of the Act and objects to the application on this basis, the Commission is required first to determine whether the Applicant was in fact dismissed or not.[1]

• [3] The parties filed materials in accordance with the directions. A hearing by Microsoft Teams was held on Thursday, 3 July 2025. The Applicant and First Respondent were both self-represented. The Applicant gave evidence on her own behalf. The Respondent submitted a witness statement from Mr Michael Stevenson who attended and gave evidence. The Applicant has sought to amend her application in various respects. There is no need to deal with that application as for the reasons that follow the application is dismissed for want of jurisdiction.

• [4] The First Respondent engaged the Applicant as a casual labour hire employee. The Applicant's contract of employment was included in the evidence.

• [5] Relevantly that contract states the following:

"2.1 The relationship between yourself and Randstad is that of casual employee and employer. This Contract of Service will apply on each occasion you are offered and accept an Assignment from Randstad.

2.2. Randstad does not control the length of Assignments with its Clients. A Client may vary the length of an Assignment or end your attendance at an Assignment at their absolute discretion, and on short notice. This includes prior to the commencement of an Assignment if the Client reassesses their needs. Changes to the internal workload, operational requirements and budgetary funding can all impact the length of an Assignment.

2.3. If you accept an assignment, at all times, you can elect to accept or reject work. Likewise, Randstad is not obligated to offer work. All work that is offered by Randstad is on an as needed basis, and in no way forms a firm advanced commitment to you for indefinite and on-going work, according to an agreed pattern of work.

2.4. On completion of an Assignment, Randstad will use reasonable endeavours to obtain an alternative Assignment for you. However, the casual nature of your engagement means there is no guarantee of ongoing or regular work. Randstad is not liable to pay you if it does not offer you any Assignments, or a particular Assignment."[2]

• [6] The Applicant was assigned to perform a 3-week role at FujiFilm Business Innovation Australia Pty Ltd (Fuji).

• [7] The Applicant was advised by Mr Stevenson the role would start on 6 May and would last approximately 3 weeks.

• [8] After the Applicant had worked 4 shifts, Mr Stevenson advised the Applicant on 10 May that Fuji had changed the requirements and would not need the Applicant in the following weeks as they would run with just 5 workers. That communication was by SMS as follows:

Mr Stevenson: Hey glenda. Fuji have let me know that they're going to run a crew of 5 next week and requested me to let you know that you're not required next week for the afternoon shift. Thanks

Applicant: Thanks for letting me know. As discussed, I arranged to leave my other job two hours early each day, so I could attend on this job.

Now they cancelled next week, I will be out of pocket.

The only time I saw you through the week was when you came down to check the conditions on Wednesday. There was no group address on that day.

I feel it is a slur to me to say that I forgot the shift when I wasn't informed of it, and it feels like I've been punished as well by being sacked.

Mr Stevenson: This decision wasn't based on you missing today.

Applicant: Because I asked to fill up my water bottle at the tap?

Mr Stevenson: Absolutely not. They just think they can complete the task with 5 for the afternoons.[3]

• [9] The Applicant lodged her Form F8 alleging dismissal the day after this SMS exchange on 11 May 2025.

• [10] Mr Stevenson's evidence is that "due to Glenda's current casual role and her commitment to their casual hours, I have not had any suitable positions to suit her availability but at no stage was she dismissed or terminated from Ranstad. Glenda is still a current casual on our books but nothing suitable has become available where we can chat with Glenda about possible work."[4]

• [11] Mr Stevenson included a list of available jobs in the period after the date of the Applicant's alleged dismissal as evidence that there have not been any jobs suitable for the Applicant since the cessation of the work at Fuji. The Applicant disputes that and claims that the role of labourer at Total Office Design was suitable.

• [12] Section 386 of the Act sets out the meaning of dismissed.

(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.

• [13] The expression 'termination at the initiative of the employer' is a reference to a termination that is brought about by an employer and which is not agreed to by the employee.[5]

• [14] The analysis of whether there has been a termination at the initiative of the employer for the purpose of s.386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment.[6]

• [15] A termination is at the employer's initiative when:

• the employer's action 'directly and consequentially' results in the termination of employment, and

• • had the employer not taken this action, the employee would have remained employed.[7]

• [16] There must be action by the employer that either intends to bring the relationship to an end or has that probable result.[8]

• [17] The question of whether the act of an employer results 'directly or consequentially' in the termination of employment is an important consideration but it is not the only consideration.[9] It is important to examine all of the circumstances including the conduct of the employer and the employee.[10]

• [18] The evidence does not support the proposition that the Applicant has been dismissed.

At no point has the employer taken action that could be considered action that intends to bring the employment relationship to an end or has that probable result.

• [19] Mr Stevenson has simply advised the Applicant that the client did not require her to perform any further shifts at Fuji. This was consistent with the terms of engagement set out earlier in this decision.

• [20] Mr Stevenson's failure to directly contradict the Applicant's claim in the SMS that she had been sacked is the only evidence supporting a conclusion that the employment relationship has ended. However, a failure to directly respond to a suggestion by the Applicant that she was sacked falls well short of action by the employer that it intends to bring the employment relationship to an end or had that probable result. In any event, the SMS exchange has to be seen in context. Mr Stevenson is clearly focused on asserting that the decision of the client to no longer require the Applicant to attend was because they thought the job could be performed by a reduced team of 5 workers and not for any other reason. While the Applicant may well have been suitable for a placement since the 11th of May as she asserted at the hearing, consistent with the terms of her engagement the employer was not required to offer her every position for which she may be suitable.

• [21] For the reasons stated above I am not satisfied, having considered the evidence, that there was a termination at the initiative of the employer.

• [22] The jurisdictional objection is upheld, and the application is dismissed.

• [23] An order[11] to this effect is issued in conjunction with the publication of this decision.

[1] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd [2020] FWCFB 5365.

[2] Digital Hearing Book (DHB), page 62.

[5] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Hatcher VP, Colman DP, Saunders C, 8 December 2017) at para. 75; see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200].

[6] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Hatcher VP, Colman DP, Saunders C, 8 December 2017) at para. 75.

[7] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200 at p. 205].

[8] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 (Watson VP, O'Callaghan SDP, Cargill C, 8 July 2011) at para. 24, [(2011) 212 IR 248]; citing O'Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100]

[9] Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000.

[10] O'Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100].; citing Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200]; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

[11] PR788867.

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