Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - whether 'dismissed' -dismissal found -jurisdictional objection dismissed.

• [1] On 8 May 2024 Ms. Nadine George (Applicant) filed an application under s.365 of the Fair Work Act 2009 (Act) alleging that she had been dismissed by her employer The Face Specialist Pty Ltd (Respondent) in contravention of Part 3-1 of the Act.

• [2] The Respondent objected to the application on the basis that the Applicant was not dismissed by them. The Respondent contended that the Applicant remains employed by them as a casual employee.

365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

• [4] In order for the Commission to be able to deal with the dispute under s.368 of the Act it must determine that the Applicant has been dismissed within the meaning of s.365.[1] The Commission must conclude that the relevant dismissal has actually occurred as a matter of jurisdictional fact. It is not sufficient that the applicant merely alleges that they were dismissed. If there is a contest as to whether the alleged dismissal the subject of the application has occurred, this is an antecedent question which has to be determined before the powers to deal with the dispute conferred by s.368 can be exercised.[2]

• [5] Section 386 of the Act defines the circumstances in which a person is taken to have been dismissed for the purposes of s.365.[3] Section 386 provides as follows:

(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; or

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

(iii) 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.

• [6] The Applicant contends that her employment was terminated on the Respondent's initiative and that s.386(1)(a) applies in the present circumstances. For the reasons which follow, I conclude that the Applicant has been dismissed within the meaning of s.386(1)(a) and as a consequence, the Commission is able to deal with application under s.368 of the Act.

• [7] The Applicant first commenced work with the Respondent as a brow and lash artist in July 2020. According to the Respondent, the Applicant resigned and recommenced work in October 2022. Although there was no contract of employment in evidence, it was not in issue that the Applicant was engaged on a casual basis.

• [8] The Applicant gave evidence that she worked regular shifts for the Respondent, namely, 9.00am to 2.30pm on Mondays to Thursdays, 9.00am to 5.30pm on Fridays and 10.00am to 4.00pm on either Saturdays or Sundays every week.

• [9] Shift allocations were generally notified to staff, including the Applicant, via an app called Tanda.

• [10] On 7 April 2024 the Applicant experienced a domestic violence incident and attended a local hospital for treatment. The Applicant said that she notified the Respondent on 8 April that she would be unable to attend work and did not attend work on 8 or 9 April 2024. She returned to work on 10 April and worked a number of days after that, including in the week commencing 22 April 2024.

• [11] The Applicant said that towards the end of April 2024, she began to become concerned that she was not being rostered for any shifts. She said she raised her concerns with the Respondent on multiple occasions but was not given any explanation.

• [12] The Applicant's last paid shift was on 12 May 2024, after the present application had been filed. At the hearing, the Applicant maintained that she had been permanently removed from the shift roster on or after this date and alleged that this had happened at least in part, because she had been absent from work as a result of the domestic violence incident.

• [13] The Respondent denied that the Applicant had been dismissed because she had taken leave, or that she had been dismissed at all. They said that the Applicant, as a casual employee, was not guaranteed any work and that to the extent there was any reduction in the shift allocation, it was as a result of business needs only. The Respondent said that shift allocations were determined and notified 6 weeks in advance and that at the time the Applicant's shifts were determined, the Respondent had no knowledge of the domestic violence incident and so this could not have been a factor in the reduction of work. The Respondent maintained that the Applicant was still employed by them.

• [14] The Applicant and the Respondent's Operations Manager, Ms. Ghali, gave evidence. I regard the Applicant as a truthful witness although her recollection of the dates of some events was at times uncertain. In relation to working hours, I accept the evidence of the Applicant that she regularly worked the hours and days that she said she did. Aside from a general assertion that the Applicant did not regularly work those days and hours, the Respondent did not provide any evidence to contradict the Applicant's evidence. Had such evidence existed it would likely have been available to the Respondent to provide but they did not do so. Despite the Applicant's undisputed status as a casual employee, she was nonetheless working regular and predictable hours over the duration of her employment. I also accept the Applicant's evidence, which was unchallenged, that she had never been "left off the roster" before during the entire period of her employment.

• [15] The Applicant gave evidence that the shift roster was determined by the Respondent in advance and that employees were given a period of notice of a month or so before the shifts were to be worked. This was generally consistent with Ms. Gahli's evidence about the allocation and notification of shifts and I accept this to be the case. I also accept the Applicant's evidence to the effect that she became concerned by the end of April that there were no shifts being allocated to her and that she made multiple approaches to the Respondent to obtain an explanation, without success. There was evidence of an SMS message exchange between the Applicant and Ms. Gahli on 29 and 30 April in which Ms. Gahli told the Applicant that she was a casual employee with no guaranteed shifts and that she should "keep an eye out on Tanda for any updates to your roster." Despite that advice, no further shifts were offered to the Applicant.

• [16] Ms. Gahli accepted in her evidence that she did not ever have a conversation with the Applicant to tell her that there was a likelihood that her shifts would be reduced. She maintained that April and May were usually less busy periods for the business than other months of the year. She said that she thought she had just started to slowly and progressively reduce the number of shifts to suit the business. I do not accept that to be the case insofar as the Applicant was concerned. There is insufficient evidence to conclude that any other employees felt the impact of any asserted changed business circumstances through a change or reduction in working hours and I do not accept that there was a progressive reduction for other employees. In any event, I prefer the Applicant's evidence to the effect that she did not observe any changes to customer numbers or bookings during the months of April and May 2024.

• [17] No other reasons were proffered by the Respondent at the hearing to explain the sudden change of shift arrangements for the Applicant. Whilst it is not determinative, I note that Ms. Ghali confirmed at the hearing that rostering arrangements had at that point been allocated for all staff up to mid-September 2024 and that the Applicant was not rostered for any work in that period.

• [18] I am satisfied that the Applicant approached others in the Respondent's business for information as to why she was not being given any further shifts and was not told why this had happened. The Applicant gave evidence of a conversation with a representative from the Respondent's head office shortly before her SMS interaction with Ms. Gahli who was unable to explain why the rostering change had occurred and simply told the Applicant that her inquiries were "stressing (her) out." The Applicant also said that she had spoken with approximately five other work colleagues who had all received their usual shift allocations and had not had any reduction of work. I accept that evidence. The reduction of what were otherwise regular and predictable shifts to zero came suddenly to the Applicant without explanation.

• [19] There was also evidence given about the removal of the Applicant from a chatgroup of the Respondent's employees. The Respondent said that the chatgroup was a social group created and used by employees and the Respondent had no control over the group. Ms. Gahli said that to the extent the Applicant had been removed from the group, this would have happened because one of the group's members had decided to do that for social reasons and not any reason connected with the Respondent's business or the Applicant's employment. Ms. Gahli did not say how she would know that the Applicant was removed for those reasons and I think that evidence should be treated as speculation on her part. She said that in any event, the Applicant still had access to the Tanda app and this was the official mechanism used to allocate work within the business, not the chatgroup. The Applicant accepted that she still had access to that app.

• [20] The Applicant's evidence was originally that she had been removed from the group on 3 May. She also provided documentation that showed she had been removed from the group by someone called Nat. The Applicant explained that this person was her direct manager. The document is inconclusive as to the date when this removal occurred, although I note it appears under another message dated 3 May. At the hearing the Applicant was firm in her evidence that this had in fact occurred after she worked her last shift on 12 May and on balance, I accept that to be the case.

• [21] It is clear from the document that the group was not just a forum for social exchanges. It contained, for example, messages from the Applicant's manager saying that she was ill and would not be coming to work, and messages from that manager and others saying that their arrival at work had been delayed. There was no evidence that the Applicant had fallen out with her work colleagues. Despite the evidence of Ms. Gahli, I consider that it is more likely that the removal of the Applicant from the group by her manager was not a personal act of social exclusion but a step that was consistent with the Applicant's employment relationship being brought to an end by the Respondent.

• [22] Whether a person has been "dismissed" for the purposes of Part 3-1 of the Act depends on whether their circumstances come within one or other of the two limbs of s.386(1). In this case it was not contended that the Applicant had been forced to resign because of conduct, or a course of conduct by her employer. The dismissal was said to be a dismissal on the employer's initiative within the meaning of s.386(1)(a).

• [23] In Khayam v. Navitas English Pty Ltd t/a Navitas English[4] a Full Bench of the Commission summarised the approach to be taken to the interpretation and application of s.386(1)(a) as follows:

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. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.

As stated in Mohazab, 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. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[5]

• [24] In Varichak .v COG Regional Team Pty Ltd[6] the Full Bench said:

The reference to the termination of the employment relationship in Navitas must now be considered in light of the subsequent Full Bench decision in NSW Trains v James which held, in effect, that s.386(1)(a) of the Act means termination of the employment relationship and/or the contract of employment, depending in part upon the factual and statutory context. That is, at least in the context of demotion matters, Navitas should be understood as meaning that the termination of a contract will not necessarily lead to a dismissal where the persisting employment relationship remains on foot and largely unchanged, not that contract termination is irrelevant.(footnotes omitted)[7]

• [25] In this instance the Respondent did not contend that the Applicant's employment had come to an end at all. Notwithstanding the conventional characterisation of casual employment as a series of separate contractual engagements and Ms Gahli's statement to the Applicant that she did not have any guaranteed shifts, the Respondent maintained that the employment relationship subsisted as at the date of the hearing. Nor is this a situation where it is asserted that a change to employment arrangements for a casual employee amounted to a repudiation of an employment contract and a constructive dismissal, because there was a contractual right to work particular hours or shifts which was infringed by the employer[8]. The question here is whether the employment of the Applicant was terminated on the employer's initiative.

• [26] A situation where a casual employee is told in unequivocal terms that the relationship is at an end and no further work will be offered can constitute a termination of employment on the initiative of the employer, as could a reduction in hours or pay for a casual employee[9]. A dismissal does not ordinarily take effect unless and until it is communicated to the employee by plain or unambiguous words or conduct.[10] The effective date of a dismissal can be more difficult to determine where, as here, there is no clear express communication, including, in the case of casual employees, no communication in relation to future work.

• [27] The question of whether an employment relationship continues to exist is a question of fact and it is necessary to consider all of the circumstances to determine whether the employment is at an end. It is also necessary to consider the circumstances to determine if there has been a communication of dismissal by words or conduct[11]. In my view, notwithstanding the absence of an express dismissal by the Respondent and the Respondent's own insistence that the employment relationship remained on foot, the Applicant's employment was brought to an end on the Respondent's initiative shortly after the Applicant worked her last shift on 12 May. By this point it was clear that the Applicant had not been allocated any future shifts. She was the only employee whose shift arrangements had changed and had repeatedly asked Respondent representatives, including Ms. Gahli, why her shifts had been removed and when they would be reinstated. She had not received a response beyond being told to "keep an eye out" for roster allocations. The removal of the Applicant from the chatgroup also meant that the Applicant no longer had the usual means of direct communication with her manager or work colleagues available to her.

• [28] In circumstances where the Applicant had previously worked very regular shifts since October 2022 and had found herself without any work and without any explanation, it was reasonably apparent that by 19 May 2024, which was the Applicant's evidence as to when she was removed from the chatgroup, the Respondent did not intend to offer any further work and, objectively viewed[12], the Applicant's employment was at an end.

• [29] I also conclude that the termination of the Applicant's employment was on the initiative of the Respondent. The employment relationship was not left voluntarily by the applicant. The Applicant's employment was brought to an end by the conduct of the employer which resulted directly or consequentially in the termination of employment.[13] That conduct was the deliberate decision, without explanation, to remove the Applicant from all future shifts. Had the employer not taken the action, the employee would have remained in the employment relationship. It was the action of the Respondent that either intended to bring the employment to an end or had that probable result.[14] I conclude that the applicant was dismissed by the respondent within the meaning of s386(1)(a) and that the dismissal took effect on 19 May 2024.

• [30] The conclusion that the dismissal took effect on 19 May 2024 is at odds with the original application in which it was alleged by the Applicant that the dismissal took effect on 29 April 2024. It also means that the application itself predated the dismissal. It is understandable in cases such as this where no clear dismissal is communicated to an employee that there is uncertainty on the employee's part as to when a dismissal takes legal effect. However, it is not clear why the Applicant's former representative chose to file an application on 8 May alleging dismissal in circumstances where the Applicant was continuing to work shifts up until 12 May 2024.

• [31] In Mihajlovic v Lifeline Macarthur[15] a Full Bench of the Commission considered a situation in which an applicant for an unfair dismissal remedy had filed an application for relief before the date on which it was determined the applicant's dismissal had taken effect. The Bench there considered the combined operation of subsections 394(1) and (2)(a) and concluded that those provisions operated to require that in order for an application of that kind to be made in accordance with the Act, the application had to be made by a person who has been dismissed within the time limit of 21 days after the dismissal took effect[16]. The Bench concluded that since the applicant did not meet the condition of being a person who has been dismissed at the time the application was made, the application had not been made in accordance with the Act. Given the similarity of the wording in s.366, I adopt the same approach here.

• [32] The Bench in Mihajlovic went on to consider whether such an application was amenable to correction or waiver under s.586. They said:

An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. We consider that Mr Mihajlovic's premature filing of his application constituted an irregularity in the manner in which he made his application capable of waiver under s.586(b).[17]

• [33] I am of the view that I should exercise my discretion under s.586(b) in this case to waive the irregularity in the manner in which the application was made. I do so taking into account all of the circumstances including the fact that the original application was prepared and filed by a person who no longer represents the Applicant.

• [34] As a consequence of my conclusions above, the Respondent's jurisdictional objection is dismissed.

• [35] The matter will be relisted for conference on a date to be determined.

Ms. Samantha Langan (Francom) for the Respondent.

10:00am (AEST) on Tuesday, 23 July 2024 by video using Microsoft Teams.

[1] Coles Supply Chain Pty Ltd v. Milford [2020] FCAFC 152; (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche [2023] FWCFB 101.

[3] See s.12 of the Act and Coles Supply Chain v. Milford [2020] FCAFC 152; (2020) 300 IR 146; Fair Work Ombudsman v. Austrend International [2018] FCA 171; (2018) 273 IR 439.

[4] [2017] FWCFB 5162.

[6] [2022] FWCFB 37

[8] Balgowan v. City of Sydney RSL & Community Club Pty Ltd [2018] FWCFB 5.

[9] Park v. LOTW Indro Pty Ltd [2020] FWC 858. See also Harmer v. Trustee for the Noonan Family Trust [2023] FWC 1760 and Torres-Carne v. Darwin Aboriginal and Islander Women's Shelter [2020] FWC 4080.

[10] Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496. See also Ayub v. NSW Trains [2016] FWCFB 5500 at [17].

[11] See for example Stimson v. Tawardrous [2020] FWC 3999 at [29] referring to Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 428; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [27].

[12] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [45].

[13] Mohazab v. Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200.

[14] O'Meara v. Stanly Works Pty Ltd PR973462.

[15] [2014] FWCFB 1070.

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