Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - whether the Applicant was dismissed - termination on the employer's initiative - Applicant was not dismissed - jurisdictional objection upheld

• [1] An application was made under s. 365 of the Fair Work Act 2009 (the Act) by Ms Stephens on 4 June 2025 for the Commission to deal with a general protections dispute involving dismissal.

• [2] Uniting Country SA Ltd (Uniting) raised a jurisdictional objection to the Commission dealing with the application on the basis that Ms Stephens remained employed and has not been dismissed.

• [3] In order for the Commission to deal with the application under s. 368 of the Act, I must first determine whether Ms Stephens was dismissed.[1]

• [4] After considering the materials before me, I have determined that Ms Stephens has not been dismissed. I set out my reasons below.

• [5] Section 386 of the Act defines 'dismissed' as,

(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.

• [6] The exemptions in s. 386 (2) of the Act are not relevant based on the facts before the Commission in this matter.

• [7] Accordingly, the matter for the Commission to determine is whether Ms Stephen's employment with Uniting has been terminated on Uniting's initiative.

Was Ms Stephens' employment with her employer terminated on Uniting's initiative?

• [8] It is not disputed that Ms Stephens commenced casual employment with Uniting as a support worker in around November 2024.[2]

• [9] Ms Stephens relied on the following evidence in asserting that she was dismissed on 3 June 2025:
  • • Loss of access to Brevity System which was necessary to perform her role;[3]
  • • Her regular 2-hour shift on Friday 6 June being allocated to another support worker;[4] and
  • • Not being given any hours of work since 3 June 2025.[5]

• [10] The following witnesses gave evidence for the Respondent:
  • Ms Donna Slade, Manager - People and Culture at Uniting Country SA;
  • Ms Amy Davis, Team Leader - Disability Services at Uniting Country SA;
  • Ms Jasmine-Lee Arbon, Support To Access Community (STAC) Engagement Officer at Uniting Country SA; and
  • Ms Megan O'Shaughnessy, General Manager - Finance at Uniting Country SA.

• [11] It was uncontested that the Brevity System (Brevity) was necessary for support workers employed by Uniting to perform their roles. Ms Stephens stated that it was "where you can see your clients and you can review notes..."[6] and "Brevity is where you did all your official reporting and all your sign-ins for your shifts"[7]

• [12] Ms Stephens gave evidence that around the time of 3 June she had "been wiped off the system"[8] and that Ms Davis removed her from Brevity.[9] Ms Stephens did not provide any documentation to support this contention and did not give any details of the message displayed when she tried to access Brevity at that time.

• [13] In her evidence Ms Davis confirmed that "Ms Stephens is still an active member on Brevity"[10] and when asked if she was aware of whether Ms Stephens had access to Brevity on 3 June 2025 Ms Davis indicated "Yeah, to my knowledge, she still has access".[11]

• [14] Ms Arbon also confirmed that Ms Stephens still has access to Brevity and the Teams chat that is used to offer additional 'cover' shifts to employees.[12]

• [15] In her evidence, Ms Davis explained that Ms Stephens' access to Brevity could have been impacted if she had forgotten her password when logging in or did not have access to the required authenticator application.[13]

• [16] I accept Ms Stephens' evidence that she had difficulties accessing the Brevity System on 3 June 2025, but I cannot be satisfied on the materials before me that the difficulties were a result of Uniting removing or blocking Ms Stephens' access to Brevity.

• [17] On Sunday 1 June 2025 Ms Stephens sent a group message to Support To Access Community (STAC) Engagement Officers of Uniting by Teams that detailed some personal circumstances she had been experiencing, safety concerns relating to her employment and reference to a period of '8 weeks off to feel better'(1 June Message).[14]

• [18] Ms Davis and Ms Arbon were included in that message and Ms Davis responded in her capacity as the Team Leader, on Monday 2 June 2025, offering Ms Stephens support and indicating that the concerns raised were being taken seriously and escalated to HR.[15]

• [19] Ms Slade gave evidence that when the concerns raised by Ms Stephens were escalated to her, she suggested that Uniting "ask if Jennifer would come in and meet with us just around her safety and her well-being"[16] and made the decision to suspend Ms Stephen's shifts in the meantime.[17]

• [20] Uniting had other employees cover Ms Stephens' shifts until Ms Stephens was able to meet with Uniting to discuss an appropriate way forward.[18]

• [21] While a more appropriate response might have been to pay Ms Stephens for the regular Friday shifts until the meeting occurred, I do not consider that this constitutes a dismissal by Uniting when having regard to all of the information before me.

• [22] Ms Stephens' 1 June Message refers to a period of '8 weeks off to feel better' and getting a doctor's certification but is not clear whether such a request is actually being made and no medical certificate has been provided the Commission.

• [23] It is reasonable that Uniting wanted to meet with Ms Stephens to clarify those comments as well as to discuss her wellbeing and the safety concerns prior to performing work given the content of the 1 June Message.

• [24] The regular shift that Ms Stephens was permanently allocated to on Fridays has not been permanently allocated to another worker and is being allocated as a cover shift.[19] Those have been allocated as cover shifts because Uniting hoped to "meet with Ms Stephens and have that meeting and come to a resolution moving forward".[20]

• [25] Ms Slade's evidence was "we were a little bit concerned that we didn't want to place Ms Stephens in an unsafe situation if she was already feeling unsafe. So in order to combat that then I made a decision to suspend Ms Stephens' shifts until we could have the meeting. If Ms Stephens came in and if we could find a good work around, then she would potentially just continue to have those shifts"[21]

• [26] Ms Arbon is responsible for the rostering and confirmed that she can still "see Ms Stephens' name on the roster".[22]

• [27] While it is well established that the cancellation of shifts for a casual with regular ongoing shifts will often constitute a dismissal,[23] I am not persuaded given the factual circumstances in this matter that the cancellation of the shift can be said to have terminated the employment.

• [28] The materials before the Commission do not demonstrate Uniting bringing the employment relationship to an end, but rather support a finding that Uniting were seeking to engage with Ms Stephens to facilitate her ongoing employment taking into consideration the concerns raised by her in the 1 June Message.[24]

• [29] It was submitted by Ms Stephens that "not gaining a paycheck is to me, you don't have a job, so I've been dismissed".[25]

• [30] Uniting do not dispute that Ms Stephens has not been provided shifts since 3 June 2025. However, it says the reason that shifts have not been provided is because Uniting are waiting for Ms Stephens to arrange a time to meet that is suitable for her.[26]

• [31] It is clear that the reason Ms Stephens has not been provided with shifts since 3 June 2025 is that Uniting sought to meet with Ms Stephens to discuss the concerns she raised with Uniting in her 1 June Message.

• [32] Uniting made numerous attempts to contact Ms Stephens,[27] but Ms Stephens indicated that she does not want to meet with Uniting and has therefore not responded to the meeting requests.[28]

• [33] Ms O'Shaughnessy provided a detailed description of Uniting's processes for the termination of casual employees. This included an 'exit form' being completed and uploaded into the employees' file. [29]

• [34] It was confirmed by Ms O'Shaughnessy that this process has not occurred for Ms Stephens and that Ms Stephens is still actively listed on Uniting's payroll system.[30]

• [35] Ms Stephens did not contest this evidence.

• [36] Having considered materials put to me by Ms Stephens and Uniting, I am not satisfied that Ms Stephens' employment with Uniting has been terminated. It was made clear in the evidence that shifts remain available for Ms Stephens upon her meeting with Uniting to discuss the concerns that she raised.

• [37] The uncontested evidence is that Ms Stephens still has access to the necessary internal systems to perform her role and receive shifts and that she remains on Uniting's payroll.

• [38] Further, Ms Stephens' allocated client has not been permanently reallocated to another support worker and she remains active in Uniting's roster system.

• [39] At this point in time, it appears that Ms Stephens remains a casual employee of Uniting who has not been rostered since 3 June 2025.

• [40] Accordingly, I am not satisfied that Ms Stephens' employment with Uniting has been terminated on the employer's initiative.

• [41] If Ms Stephens is seeking to continue her employment with Uniting meeting with them is going to be crucial.

• [42] As I am not satisfied that Ms Stephens has been dismissed, the application to deal with an alleged breach of the general protections provisions under s. 365 must be dismissed. An order giving effect to this decision will be issued in conjunction with its publication.[31]

D Slade and K Shearer on behalf of the Respondent, Uniting Country SA Ltd.

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

[2] Audio recording of Hearing at 18:40 -18:55.

[3] Ibid at 34:41-34:54, 50:45, 55:47-56:01 and 57:44.

[5] Ibid at 13:20-13:58 and 2:24:03-2:24:29.

[12] Ibid at 2:13:28-2:13:36 and 2:15:03.

[16] Audio recording of Hearing at 1:30:57-1:31:06 and DHB at p 43.

[17] Audio recording of Hearing at 1:31:22-1:31:30.

[19] Audio recording of Hearing at 2:05:31-2:05:40.

[23] Howard v Falls Creek Ski Lift Pty Ltd T/A Falls Creek Ski Lift Group [2023] FWCFB 154 at [31]. See also Field v the Returned and Services League (Mount Gambier Sub-Branch & Memorial Club) Inc T/A Mount Gambier Community RSL [2011] FWA 5930; Urand v Beaconsfield Children's Hub [2014] FWC 2024 and Birchley, Ian Patrick v Downer EDI Mining Pty Ltd [2019] FWC 6336.

[24] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200 and Howard v Falls Creek Ski Lift Pty Ltd T/A Falls Creek Ski Lift Group [2023] FWCFB 154 at [31]. Cf. Field v the Returned and Services League (Mount Gambier Sub-Branch & Memorial Club) Inc T/A Mount Gambier Community RSL [2011] FWA 5930; Urand v Beaconsfield Children's Hub [2014] FWC 2024; Birchley, Ian Patrick v Downer EDI Mining Pty Ltd [2019] FWC 6336.

[25] Audio recording of Hearing at 2:24:03-2:24:30.

[28] Ibid at 46:44-47:01, 1:01:23-1:01:53 and 1:16:33-1:16:42.

[31] PR792156.

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