Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - Jurisdictional objection - Not dismissed - Objection upheld - Application dismissed

• [1] This is an application made by Ms Sheree Cook (the Applicant) pursuant to s. 365 for the Commission to deal with a dispute with Wisely Group Pty Ltd (the Respondent) in which Ms Cook alleges that she was dismissed contrary to Part 3-1 of the Fair Work Act 2009 (the Act). The Respondent objects to the Commissions jurisdiction on the basis that, it contends, the Applicant was not dismissed.

• [2] This decision addresses that objection. For the reasons set out below I find that Ms Cook has not been dismissed within the meaning of that term in s. 386 of the Act. Accordingly, the Commission has no jurisdiction to deal with the Applicant's claim which must be dismissed.

• [3] Both parties were unrepresented. At the hearing of the objections on 1 April 2025 it became clear that I would require further material to determine the matter. Both parties subsequently filed additional material on the basis that I would proceed to decide the matter on the papers.

• [4] The Applicant commenced casual employment with the Respondent in January 2023. The Applicant was employed as a Trade Assistant undertaking work associated with shutdowns at various minesites.

• [5] The Respondent employs staff in a number of categories for shutdown work including Supervisors, Boilermakers, Fitters, Riggers and Trade Assistants. Of the 64 employees who conduct shutdown work for the Respondent, only one is employed on a permanent basis.

• [6] In October 2024 the Applicant made a workplace complaint regarding the conduct of two employees and a Manager. Her application which was filed on 2 February 2025 states that she was dismissed sometime in October 2024. During the proceedings the Applicant explained that she had worked in early December 2024. She had been scheduled to work in January 2025 but the client cancelled the shut down and so the work did not proceed.

• [7] The Respondent maintains that the lack of work is due to the irregular nature of shutdown work and the cancellation of a number of planned jobs which the Applicant had been scheduled to work on.

• [8] The Respondent provided a detailed documentary picture of their workforce, the pattern of work available generally and that work allocated to the Applicant. None of that material was disputed.

• [9] From that material I observe and am satisfied that:

a) The amount of work undertaken by the Applicant varied substantially since her commencement in 2023. In some weeks there were less than 15 hours, in others more than 70.

b) The pattern of work was intermittent and irregular and dependent on allocation to specific site shutdowns.

1. It was not uncommon for site shutdowns and associated works to be cancelled by the client;

d) Since early October (the date the Applicant suggests her dismissal occurred) she undertook work for the Respondent:

1. Between 21 and 29 October 2024;
2. Between 6 and 12 November 2024; and
3. Between 4 and 12 December 2024.

e) The Applicant was offered work between 30 and 31 December 2024 which she declined;

f) The number of trades assistants employed by the Respondent has halved in the relevant period;

g) That reduced headcount is consistent with less planned shutdown works scheduled in the relevant period; and

h) Each project required different skills and qualifications and Trades Assistants were allocated, where required on the basis of those skills.

• [10] 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 clarified that the Commission can only deal with a dispute under s. 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.

• [11] The question of whether someone has been dismissed is to be determined by reference to ss. 12 and 386.

• [12] Section 12, the Dictionary, defines the expression dismissed by referring to s. 386. Section 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.

(2) However, a person has not been dismissed if:

(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;

• [13] The task of determining whether a casual employee has been dismissed where employer fails to provide ongoing shifts is not uncommon. In Khayam v. Navitas English Pty Ltd t/a Navitas English a Full Bench of the Commission said at [71]:

It is reasonably apparent that, notwithstanding that it is expressed as an exclusionary provision, the purpose of s 384(2)(a) is to confirm that casual employees of the type referred to are included in the operation of Pt 3-2 and are able to make an application for an unfair dismissal remedy. However there is a difficulty in that, conventionally, casual employment is taken to be constructed of daily or shorter contracts of employment (although this is not a universal indicium of casual employment and in some cases the existence of a longer-term contract of employment may be inferred). Where a casual employee is taken to be engaged under a sequence of daily contracts, then if a casual completes their engagement on a particular day and is never thereafter engaged by the employer, contractually the employment has come to an end by agreement due to the effluxion of the contractual term rather than by any act by the employer to terminate the contract. If that situation was incapable of being characterised as a dismissal under s.386(1)(a) it would substantially or entirely defeat the operation of s.386(2)(a)

• [14] There is no suggestion that the Applicant has resigned. The question I must determine then is whether, within the meaning of s.386(1)(a) the Applicant was "terminated on the employer's initiative".

• [15] The Application was filed on 2 February 2025 in response to the cancellation of work to be performed in January 2025.

• [16] The period between the beginning of October and 2 February spanned 19 working weeks for which the Respondent provided a weekly breakdown of scheduled works and the labour allocated to that work. Having taken all of the scheduling material into account, I find that:

• From October to a number of planned projects to which the Applicant was allocated were cancelled and the Applicant's services no longer required;

• The availability of work for trades assistants generally was substantially reduced in that period; and

• The allocation of work between the trades assistants was not unreasonable or otherwise exclusionary to the Applicant.

• [17] Following the filing of the application and the hearing of the objection, the Respondent has offered further work to the Applicant. I was told that the Respondent expects to have further work for the Applicant in July 2025.

• [18] The Respondent has given evidence that Ms Cook is a valued employee. There is nothing in the way of Ms Cook returning to more regular engagements when available.

• [19] In this case there was no firm or binding commitment to future work that was withdrawn by the Respondent. The whole employment relationship has been characterised by intermittent and unpredictable patterns of work.

• [20] Here, the reduction in work, whilst clearly difficult for the Applicant, has not been caused by a dismissal but rather the nature of the casual employment.

• [21] I cannot identify any action on the part of the Respondent that, viewed objectively could constitute a termination at the initiative of the employer as required by s. 386 of the Act. Accordingly, I uphold the objection and the application is dismissed.

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