Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] Jemaimah Ruel (Applicant) has lodged an application to the Fair Work Commission (Commission) to deal with general protections dispute which she alleges involves dismissal under Part 3-1 of the Fair Work Act 2009 (Cth)(Act). The respondent to the application is Campbelltown Store Pty Ltd (Respondent).

• [2] The Applicant alleged that she was dismissed on 5 June 2025. The Respondent has raised an objection to the application on the basis that the Applicant was not dismissed.

• [3] A person may only make an application for the Commission to deal with a dismissal dispute under s.365 of the Fair Work Act 2009 (Cth)(Act) if they have been dismissed. As such, in order to determine whether the Commission has the jurisdiction to hold a conference to deal with this dispute, the question of whether the Applicant has been dismissed needs to be determined as a threshold issue.

• [4] Section 386 of the Act provides:

(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.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

• [5] It is not in contention that the circumstances in s.386 (2) and (3) do not apply in this case.

• [6] The Applicant submitted that she was summarily dismissed via a Whatsapp message indicating that she was no longer required to work and was then immediately removed from all of the Respondent's group chats.[1]

• [7] The Applicant filed a series of text messages between her and her manager, Ms Majd Rihani (Ms Rihani), which indicate that the following exchange took place on 4 June 2025:

just wanted to inform you that i have a fever since monday until today. I don't know if I will be ok today so i can work tomorrow. Will go to the GP later for consultation. will send my disgnosis (sic) once done check up thanks

Ms Rihani: No worries Jem hope you get better please talk with the girls to cover

Ms Rihani: If no one to cover I can't cover as Tariq is in another state and i have the kids so please keep that in mind

I know you're sick Jem but if you like to drop Thursdays [colleague] is willing to take over

We just have to give her enough time to drop her shift in her cleaning job

Applicant: hi boss why are you thinking that i'm dropping the Thursday sched? did I say that? I message you because I am sick should i go to the shop even im not feeling well, i vomited an almost faint still you think im dropping the schedule?

Hopefully you'll own a business one day and you'll understand what im saying

Applicant: I message you coz i I don't know what will happen to me tomorrow, did you know where I get this? I was in the shop when I feel not well last monday, I got a hand indury (sic) and still not coming off until now be cause of lifting heavy items, instead of thinking my health you are thingking (sic) im dropping of the sched?

Just to clarify, you mentioned that I've been sick for almost a week after, but I'd like to check the records together:

April 24 - I had diarrhoea but still came to work because you said no one could cover. Tariq mentioned he'd be there in an hour, but he didn't show up, so I completed the shift.

May 7 - I wasn't feeling well and someone covered my shift.

May 22 - I had an important personal matter, and again somebody covered me.

Could you please let me know which" week after" you were referring to? I'm just a bit confused.

Also, I believe we're allowed to take time off when it's for health reasons.

Also, please don't forget that we work in a hospital and are exposed to sick patients every day.

We need to sit and talk i don't think I can deal with that any longer you always text you never call

Applicant: I've also noticed that when others are sick especially in Liverpool you try to make a way for them, even if they're absent for several days. We never hear you say the same things to them, or ask them to drop off their schedules, do you?

Please find another job while I hunt for someone to cover you thanks

"please find another job" do you think Im looking for another job? And now you are firing me?

Applicant: where is the no respect boss? I messaged you politely and tell you what im feeling right now, then you gonna tell me "if im dropping off the sched, someone is Willing to take over my shift" at the middle of my health now? really?

Ms Rihani: My plan for you based on your performance was to give you a higher position but i was always hesitant because of this communication issue

Let me know if you want to finish end of the week to give you enough time to ask for shifts in your other job or starting today

Applicant: i don't need promotion or what boss, all I want is understanding that in the case of this kind of circumstances you understand your people.

If your business is important to you, we your employees our health is more important.

why you keep on telling about my other work, don't you know that I am absend (sic) as well because im sick and I did not hear anything from them.

Ms Rihani: You still prefer texting i don't like this way of communication

Applicant: I can't talk properly boss that is why i don't wanna call, if I am ok why shouldnt I

messaging you is not a form of disrespecting you, as I said I cant call as I have a very bad headache and it gets worse when I talk or hear noise, so I hope it's OK that I'm sending a message instead of calling.

• [8] The Applicant pointed to the text message which said:

"Please find another job while I hunt for someone to cover you, thanks ... End of the story"

and submitted she reasonably interpreted this message as a dismissal.

• [9] The Applicant also pointed to the text message "No respect, no work" and submitted that this was not a warning or casual comment but rather was a final statement that effectively ended the working relationship.

• [10] Ms Rihani also sent the Applicant voice messages on 4 June 2025, and the Applicant filed the audio and transcription of these messages, the contents of which were not disputed. In those messages and by way of summary, Ms Rihani:

• suggested a 'sit down' and that the Applicant had too much on her plate and probably incurred her injury working in another job;
• indicated she needed someone who lived close by and was reliable;
• indicated she was a small business and did not have enough staff to cover sick leave;
• expressed a desire to sort things out;
• indicated that she and the Applicant where not on the same page;
• communicated that she did not expect the Applicant to come to work when she was sick but if she had too much on her plate that made her feel unwell it probably meant the Applicant could not handle that much work and there were other employees willing to take over;
• expressed that she could not rely on the Applicant and that there was a problem that needed to be solved as soon as possible;
• indicated her business was not big enough to meet the Applicant's needs because her business relies on one person and has to shut when the person is not there;
• thanked the Applicant for her efforts and said:

"Sorry we couldn't get to a point where we understand each other. I'm going to go ahead and allocate some shifts to .... other people who are really willing to be there who are really willing to call me to discuss things with me. Thank you so much and I wish you all the best";

• said there were limits to her ability to accommodate the Applicant's needs, the Applicant was good at what she did and could find a good place to work if she was not happy working with the Respondent;
• she preferred to communicate via phone calls rather than text messages.

• [11] The Applicant said that on 5 June 2025 she messaged her colleague to cover her Thursday shift on 12 June 2025 and did so because she did not want to deal with further arguments or stress. A further text message exchange followed this on 5 June 2025:

Ms Rihani: Very obvious that you have things on Thursdays

Yeah i messaged [colleague] about thursday and might give her the sched permanently because I want peace of mind and dont want any argumentation, being sick today, sending my med cert seems not enough for you to believe, then be it.

if you believe i'm doing other things on thursday be it.

if you changed the roaster (sic) completely its ok with me.

Ms Rihani: Good lick (sic) jem sorry we can't have a good work relationship and your message above confirmed that

Im sure you'll do great in another work place but here no communication you still message no good

• [12] The Applicant also filed a screenshot from her phone indicating that she was removed from the Respondent's group chats.

• [13] The Applicant said she tried to call Ms Rihani, the first call was rejected but on her second attempt Ms Rihani answered, the Applicant asked her why she had been removed from the group chat and Ms Rihani replied with words to the effect of:

• [14] The Applicant submitted that this comment, along with her removal from the group chat and the sequence of messages such as "No worries", "Good luck" and "I'm sure you'll do great in another workplace" all clearly indicate a dismissal.

• [15] The Respondent refuted that the Applicant was dismissed[2] and submitted:

• • many conversations were had with the Applicant between 4 and 7 June 2025 that were based around trying to find a solution that would allow the Applicant flexibility while continuing to work with the Respondent but the Applicant was argumentative via text message and started taking words out of context;[3]
• • the discussions were about potentially giving the Applicant's Thursday shift to someone else because the Applicant had taken several Thursdays off;[4]
• • Ms Rihani never said the words "you are dismissed";[5]
• • Ms Rihani ended the conversation with "take care of yourself" because she did not like confrontation;[6]
• • the Applicant was not removed from the group chats because she was dismissed but was removed because she has a history of misconduct which involved her being aggressive in conversations with staff;[7]
• • Ms Rihani sent several voice messages and text messages requesting that she sit and talk with the Applicant and added that she was willing to work with her to meet her needs, but the Applicant continued to argue.[8]

• [16] The Respondent provided a copy of a text message said to have been sent from the Applicant to Ms Rihani on 7 June 2025 and which states:

I just wanted to reach out before doing anything formal. I've been thinking about what happened, and I want to say that I'm not trying to cause any problems or bad blood between us.

I was disappointed with how the situation was handled when I was unwell, especially after I gave you a medical certificate. I messaged you first, out of respect, before asking if someone could cover my shift because I didn't want to bypass you as the boss. I did this to be responsible and make sure the work was taken care of. I wasn't trying to do anything else, but I think this was misunderstood.

I understand running a business is hard, especially with your family to care for. But I believe that when employees are genuinely sick, their health should be respected. We should be allowed to rest without being questioned or judged.

I've already talked to a lawyer and have a scheduled meeting with the Fair Work Commission's legal team to learn more about my rights. But before doing anything else and before lodgement, I wanted to reach out because I care about my co-workers - they are like family to me. You and the team have also become like a second family, and I've genuinely enjoyed the work I've been doing. That's why this situation has been so upsetting for me. I never wanted things to end this way.

If you're open to a common respectful conversation before anything else happens, I'd really appreciate it."

• [17] The Respondent submitted that on 7 June 2025 the Applicant and Ms Rihani had a lengthy conversation in which Ms Rihani made it clear that her issue was not about the Applicant taking leave for being sick but that she needed to make better arrangements that accommodated all needs as Thursday was the day the Applicant was regularly taking off and had concerns about respect in the workplace. Ms Rihani said she ended the conversation by asking the Applicant what she wanted so her needs could be accommodated and as the Applicant said she did not know Ms Rihani asked her to come back to her so a resolution could be found Ms Rihani said she did not hear back from the Applicant and soon after the Applicant contacted staff to inform them of her intention to commence action for unfair dismissal.[9]

• [18] The Respondent submitted that the text message exchange on 5 June 2025 was the culmination of issues that had arisen during the Applicant's short period of employment, and the Applicant chose to leave of her own accord following the telephone conversation on 7 June 2025.[10]

• [19] The Applicant submitted that the Respondent's claim that the conversations focused on finding a solution allowing the Applicant flexibility and continued work does not align with the actual exchanges of communications. The Applicant submitted that in her voice messages Ms Rihani:

• repeatedly emphasised business constraints stating "I am a small business... I can't close the shop";
• asked the Applicant to reduce shifts, stating "If you like to drop Thursdays [colleague] is willing to take over" and this was not presented as a s supportive option, but amounted to pressure to reduce the Applicant's work with Ms Rihani saying the Applicant had "too much on [her] plate";
• insisted on phone calls rather than text messages despite the Applicant being unwell;
• the conversations centred on demands and ultimatums rather than collaboration or support for flexibility.

• [20] Communications between the Applicant and Ms Rihani took place on 4 June 2025 when the Applicant notified Ms Rihani that she was unable to attend work due to illness. It is apparent that Ms Rihani had concerns about what she perceived to be a pattern of absence on the part of the Applicant on Thursdays. The communications suggest that Ms Rihani had wanted to assign the Applicant's Thursday shifts to another employee and was seeking to get the Applicant's agreement to this but became frustrated when the Applicant would not agree and by the Applicant's use of text messages as a means of communication, rather than via a telephone conversation.

• [21] While I accept that Ms Rihani was initially trying to find a solution to deal with the Applicant's absences as they presented challenges for her as a small business, when she perceived that the Applicant was not cooperating with her suggestion to drop her Thursday shifts the tone of the communication changed. This is evident in the following communications:

Please find another job while I hunt for someone to cover you thanks

"My plan for you based on your performance was to give you a higher position but i was always hesitant because of this communication issue

Let me know if you want to finish end of the week to give you enough time to ask for shifts in your other job or starting today

• [22] The above statements indicate that Ms Rihani was seeking to bring the Applicant's employment to an end. If there was any doubt about Ms Rihani's intention, this resolved the following day when the Applicant enquired about why she had been removed from the roster and whether she had been "fired". In response, Ms Rihani made the following comments:

"Good lick (sic) jem sorry we can't have a good work relationship and your message above confirmed that"

Im sure you'll do great in another work place but here no communication you still message no good

• [23] At around the same time as sending these messages Ms Rihani removed the Applicant from the Respondent's group chats.

• [24] It is apparent that Ms Rihani was not only concerned with the impacts of the Applicant's absences on her small business but was dissatisfied with the way in which the Applicant communicated with her and formed the view that she could not have a good working relationship with the Applicant. The text messages sent by Ms Rihani and which the Applicant reasonably understood to mean she had been dismissed were, in my view, intended to bring the relationship to an end.

• [25] Having regard to the above, I find that it was the actions of the Respondent, through Ms Rihani, that brought the employment relationship to an end and that the Applicant was dismissed at the Respondent's initiative.

• [26] I find that the Applicant was dismissed, and the jurisdictional objection is dismissed. The parties were advised of this decision following the conclusion of the hearing on 11 September 2025 and the matter has been listed for a conference at which the Commission will assist the parties in resolving the matter.

[1] Form F8 Application, response to q. 2.2.

[2] Form F8 Response, response to q. 1.2.

[3] Form F8 Response, response to q. 1.2.

[4] Form F8 Response, response to q. 1.4.

[5] Form F8 Response, response to q. 1.4.

[6] Form F8 Response, response to q. 1.4.

[7] Form F8 Response, response to q. 1.4.

[8] Form F8 Response, response to q. 1.4.

[9] Form F8 Response, response to q. 1.4.

[10] Respondent's Email Submissions to the Commission dated 19 August 2025.

Printed by authority of the Commonwealth Government Printer