Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether applicant was an employee - jurisdictional objection upheld - application dismissed

• [1] This decision concerns an application made by Mr Rata Bauer (Bauer) under s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Bauer was engaged by MI Scaffold Pty Ltd (the Respondent/MI) as a casual Scaffolder on 20 July 2023. In this role he worked primarily on shutdowns projects across various mine sites.

• [2] On 7 November 2024, Mr Bauer alleges he was dismissed as a consequence of raising a complaint or enquiry. MI have raised a jurisdictional objection rejecting that Mr Bauer was dismissed and claiming instead that Mr Bauer abandoned his employment. For Mr Bauer to be eligible to make a claim under s.365 of the Act, he will need to establish that he was an employee and was dismissed in accordance with the definition in s.386 of the Act.

• [3] Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether Mr Bauer was an employee who was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Mr Bauer was dismissed in contravention of the general protections provision.

• [4] Parties were directed to file submissions and evidence. The matter was heard by Video using Microsoft Teams on 17 February 2025. After seeking the views of the parties, the matter proceeded as a determinative conference.

• [5] Neither party sought leave to be represented at the Hearing. The Applicant and Respondent appeared for themselves.

• [6] Mr Bauer had previously worked for MI in 2023 during which time his employment was terminated due to failing a drug and alcohol test.[2] Mr Bauer had also received a final written warning on 21 March 2024,[3] which provided that any further breach of MI's policies would result in termination.

• [7] Mr Bauer alleges that he had sent a number of SMS messages to MI's office staff regarding the provision of PPE equipment up to 4 November 2024. Following this, on 5 November 2024 Mr Bauer was instructed to raise concerns with his supervisor Mr Mark Bishop in the first instance. Mr Bauer disregarded those instructions, by sending further SMS messages to MI's office staff on 6 November 2024.

• [8] On 7 November 2024, Mr Bauer was informed that he had to pack up his room at the motel as his swing ended that day. Mr Bauer had earlier been reminded of this by SMS from Mr Bishop however, he had left his phone in the work bus and as such didn't receive the SMS. As Mr Bauer boarded the bus taking staff to the worksite that morning, Mr Oran Brown, another employee of the Respondent, reminded Mr Bauer that he needed to pack up his room. Mr Brown told him that the bus could not wait for him because that would make everyone late. Mr Bauer claims that Mr Brown told him that, after he had packed up, he should take the MI second bus, to get to the worksite. Whilst that vehicle was parked at the hotel, Mr Bauer had not been allocated use of it, and it had been placed there for another intended purpose.

• [9] After Mr Bauer arrived at the worksite and parked the second bus. Mr Bishop engaged him in a disciplinary discussion. Mr Bishop reprimanded Mr Bauer for continuing to contact MI's office staff against his instructions and again instructed Mr Bauer he was prohibited from contacting office staff without first raising issues with him. Mr Bishop requested Mr Bauer return the work vehicle to its original location and return to the worksite in his own car. Following this interaction, Mr Bauer formed the view he had been dismissed and did not return to the worksite. The circumstances leading to Mr Bauer's employment ending, during that interaction, are heavily contested between the parties.

• [10] I do not intend to repeat in detail all of the submissions made, which can be found in the Digital Court Book (DCB), and the evidence admitted and heard at the hearing, however I have nonetheless had regard to all of that information in my considerations.

• [11] The Respondent filed detailed submissions and sought to rely on their Form F8A and witness statements from Mr Mark Bishop (Site Supervisor), Mr Adam Ferriday (Operations Manager), and Ms Angela Benson (Human Resource Administrator). Briefly the Respondent submitted that:

• it did not dismiss Mr Bauer;
• Mr Bauer did not attend the worksite on time on 7 November 2024, and instead he missed the available transport bus;
• Mr Bauer then utilised another MI vehicle, which was due to be collected for re-allocation to another site, to drive to the worksite;
• this use was without authorisation, and was a significant cause for Mr Bishop reprimanding Mr Bauer;
• this could not reasonably have been interpreted as a dismissal;
• Mr Bishop did not have the authority to dismiss the Applicant;

• • Mr Bauer was provided with instructions consistent with continued employment, that is, he was asked to take the bus back to the hotel and to pick up his own car and return to site in his own car[4]; and

• Mr Bauer abandoned his employment by failing to comply with the directions given and he failed to return to work or make contact following the discussion.

• [12] Further, MI submitted that Mr Bishop's disciplinary action of Mr Bauer on 7 November 2024 was reasonable. Mr Bauer had previously been instructed not to communicate with the MI office staff and Mr Bauer had breached that instruction. As such, the Respondent submits that even if it is found to have taken adverse action it would not infringe the general protections.

• [13] Again, I do not intend to repeat in detail all of the submissions made and evidence given, however I have nonetheless had regard to all of that information in my considerations.

• [14] At hearing Mr Bauer gave evidence that was at times confusing and contradictory. Mr Bauer's evidence was that:

• he had left his phone on the bus the day (6 November 2024) before his last day of employment (7 November 2024);
• when the bus came around 6:30am the bus driver told him that he was required to go and pack up his room before he came to site;
• the bus couldn't wait for him to pack up his room;
• it actually wasn't the bus driver that told him, it was a passenger Mr Oran Brown who told him to pack up his room;
• a text message was sent to him reminding him to pack his room but as he left his phone on the bus he didn't get the message;
• after missing the bus, he packed up his room and put it in his personal car and then took the spare bus to the site;
• when he arrived and got out of the bus, his supervisor, Mr Bishop, started shouting at him that he shouldn't have contacted the office to make complaints and was told there was no work for him anymore, he should return the vehicle and he was "gone" and he was sacked. He said he was shocked;
• when cross examined about who would normally terminate employment at MI and who had authority to do this, he claimed he had never been sacked before and wasn't sure how MI sacked people. Under further cross examination, he conceded that he had been fired in 2023 for failing a drug and alcohol test and whilst vague about the sequence of events, remembered when prompted that there may have been two steps, on leaving the worksite then reporting to the office where he was given instructions that his employment was terminated.

• • when he was previously terminated[5] he first claimed he was driven home directly from the worksite by another manager Mr Walton. When questioned about the previous termination, he initially claimed not to remember, however eventually, he conceded that Mr Walton him took him back to the office where he was terminated by Mr Ferriday[6] and then another employee, Mr Adlington took him home;

• under cross examination Mr Bauer made a number of further contradictory statements including that he:

• considered it was unusual to pack up his things at the end of the swing;
• thought he could return to his hotel to have a shower and a rest before he headed home;
• conceded that he was due to end his swing that day and that the 7th of November was a travel day to go home;
• was previously told (the day before given he didn't have his phone; that morning) that his accommodation would be allocated to someone else on the 7 November 2024;
• that the bus driver told him to pack up his room;
• that it wasn't the bus driver it was Mr Oran Brown a passenger on the bus who told him to pack up his room and take the second work bus that was parked at his hotel to site instead;
• had never been asked to vacate his room before, at the end of a swing;
• when he was taken to a previous occasion and asked if he was required to pack up his room on his last day, he gave evasive answers and when pressed, eventually conceded that he had previously packed up his room on the last day (citing projects on Peak Downs, Abbott Point and Caval Ridge);
• then further conceded that he usually did pack up his room on travel days if he doesn't have a permanent room, after he conceded that, he continued to change his story and be evasive when it appeared that his evidence did not support a narrative that he had been terminated.

• the message from Mr Bishop reminding him to pack up his room came through later that morning (around 7.30am) after he had already left the worksite;

• • When asked about the text message that said 7 November 2024 at 7.34am time, he claimed that he didn't get that text message until after he got back to his room at 10.14am which is when the screenshot of the text message shows that he replied explaining he had left the phone in the bus the night before. However, the screenshot of the text message from Mr Bishop originally texting Mr Bauer to remind him to pack up his room, shows that it came through at 7.34am;[7]
  • • he had contacted another Manager, Mr Walton, after he left the worksite to tell him that Mr Bishop had terminated his employment however there is an email from Mr Walton to Mr Kennedy stating that Mr Walton had a call from Mr Bauer on the morning of 7 November 2024 at approximately 9.43am that lasted for a period of 2 minutes and 43 seconds. Mr Walton said that Mr Bauer did not mention that anyone was sacking him;[8]

• was vague and confused around the timeline of events and what occurred at times;
  • did not get a letter of termination. He didn't ask for nor did he obtain a separation certificate;

• • when taken to previous site documentation, pre-start documents etc and shown where he had signed off that he had all of the PPE he required to do the job safely,[9] he claimed that he didn't raise the PPE concerns because he was worried he would lose his job. This was inconsistent with his repeated evidence that he was repeatedly reporting safety issues to Mr Ferriday and Ms Benson by text message because he was so concerned about the issues;[10]

• Mr Bishop sacked him for the last messages he sent to Rick and Adam after he warned him on 4 November to raise them with his supervisor first;
  • Mr Bauer was taken to Mr Bishop's diary entry for 7 November that says:

"Rata came in late in MI34. Had discussion with Rata about bringing MI34 to site as it was not to be brought to sites. Sent Rata to drop MI34 back to motel and bring his own vehicle back to site. Also had a discussion about texting Adam after hours. Rata never returned."

• Mr Bauer claimed that the diary entry was false and untrue;

• • confirmed that he was a casual employee and under cross examination, he reluctantly conceded that he had previously had a number of weeks break between previous shutdowns, that he was unable to work on certain mine sites because of his previous Drug and Alcohol test breach. After he conceded this, he proceeded to claim that he had those breaks because of other safety complaints however this is at odds with his own submissions and evidence, that he had not indicated in previous pre-start or site inductions or safe work method statements (SWMS) [11] that he had safety concerns because he was afraid for his job security.

• [15] I found Mr Bauer's evidence to be unreliable and contradictory both with his own submissions and his evidence. Further, when inconsistencies were brought to his attention, he claimed to not remember or when he had time to think, he provided self-serving explanations.

• [16] Mr Oran Brown another employee at MI Scaffold, gave uncontested evidence that:
  • He (Mr Brown) was on the bus on 7 November 2024;
  • the bus stopped at Mr Bauer's hotel to pick up Mr Bauer and another employee Mr Tapsell;
  • Mr Bauer hadn't packed up his room but Mr Tapsell had;
  • he told Mr Bauer he was required to pack up his room and that they couldn't wait for him because they would all be late for work; and
  • It was pretty standard that employees were required to pack up their things on their last day of their swing.

• [17] Ms Benson, the HR Administrator at MI Scaffold, gave evidence that:

• she had worked for MI for just over 3 years;
• the usual process when an employee resigned, would be that she would receive word from management;
• the usual process when an employee was terminated, would be that she would receive word from management and the employee would not be required to come to the office for a discussion with management;
• she was never advised that Mr Bauer was being terminated or had been terminated;
• around the 7th of November Mr Bishop told Ms Benson that Mr Bauer would come into the Mackay office to speak to Mr Ferriday to find out what site he would go to next however Mr Bauer did not do so; and
• on Monday 11 November 2024, she became aware that there was a green bag outside the front door of the office, it may have been there from a previous day. In the bag was Mr Bauer's work property. Ms Benson advised her Manager.

• [18] Mr Bishop, Site supervisor at MI Scaffold, gave evidence that:

• he keeps a work diary on his desk or in his drawer;
• he annexed to his statement diary notes of the week that Mr Bauer last attended for work;
• he stepped through which things are written in the diary ahead of time and other notes which are made daily;
• on Monday 4 November he spoke to Mr Bauer because he was sending text messages to the office in the middle of the night. He explained that the chain of command was that he was required to first raise issues with him and if he wasn't satisfied with the response, Mr Bauer could then contact the office;
• on 7 November, he messaged all of the scaffold crew who were staying in hotels (he explained who they were) to remind them that they need to pack up because it was the last day of the swing;
• work was finishing early that day, so everyone needed to be packed up before 10:00am so that MI wouldn't be charged for another day for the hotel;
• Mr Bauer left his phone in the bus the night before and was the only one who didn't pack up. The bus came and told him they couldn't wait for him. Mr Bauer came to site late in the second bus that he wasn't supposed to use because it had been left there for another purpose for which it was still required;
• when Mr Bauer arrived at site late, about 6.40am, he had another conversation with him about texting the office because he had been advised that Mr Bauer had again done so after his last warning. He had sent another message in the middle of the night on Tuesday night to Mr Ferriday and Ms Benson;
• he told Mr Bauer to take the bus back and return to site in his personal car. Mr Bauer left but did not return to site and he did not hear from him again;
• under cross examination, Mr Bishop could not explain the text message interchange he had with Mr Bauer at around 1.30pm. He couldn't explain why he didn't ask Mr Bauer why he hadn't come back initially but then said it was because he had a project to run and he was busy. Further, he seemed confused about his contact with Ms Benson but claimed that he had called her and let her know that Mr Bauer did not return to site. This was at odds with Ms Benson's evidence;
• There was a stand in supervisor when he was sick on 5 and 6 November and Mr Bauer was aware of this because that person conducted the pre-start meeting, therefore Mr Bauer should have raised any concerns with that person in the first instance; and
• He was adamant that he did not fire Mr Bauer.

• [19] Mr Bishop's evidence was not self-serving. He answered questions freely and whilst he did get confused a couple of times, I found his responses to be honest.

• [20] Mr Ferriday, Operations Manager at MI Scaffold, gave evidence that:

• he is the senior Manager to Mr Bishop at MI;
• supervisors such as Mr Bishop don't have authority to terminate anyone's employment;
• terminations are conducted in the office;
• on 7 November 2024, Mr Bishop had contacted Mr Ferriday to inform that Mr Bauer had taken the wrong vehicle to site and had discussed with him what would happen with Mr Bauer next;
• he did not give any instruction to Mr Bishop to terminate Mr Bauer;
• Mr Bauer had repeatedly texted him and Ms Benson about matters that should have been communicated with his supervisor first. He told Mr Bishop to have a talk to Mr Bauer to address this with him;
• Mr Bishop came and saw him earlier in the week and asked him to find Mr Bauer work on another site because Mr Bauer wasn't following Mr Bishop's instructions and some of the work on that project was coming to an end (another employee was also being transferred from there to another site;
• Mr Bauer should raise issues about PPE with his supervisor and he should not continue work without the PPE;
• He made no decision or instruction to terminate Mr Bauer's employment;
• Mr Bauer should have worked his shift on 7 November 2024 but that was the end of his work on that particular project;
• Ms Benson told him that she found Mr Bauer's returned work property at the office on or before 11 November 2024;
• Mr Bauer had a number of previous written warnings:

• o A final written warning terminating his employment on the BMA Peak Downs site for a non-negative drug and alcohol reading on 20 October 2023;[12]
• o A formal final warning on 21 March 2024 as a result of an altercation with a co-worker at Dalrymple Bay Coal terminal;[13]

• Consequently, he could not be placed at all BMA sites because of his drug test failure and this affected 6 or more sites;
• he also couldn't be placed at Stanmore red mountain because he had previously failed to show up to work; and
  • Mr Bauer would have been given more work wherever he could be placed if he had turned up to the office at the end of his shift on 7 November 2024 as instructed.

• [21] In considering the material before me, including the evidence at hearing, I consider that Mr Bauer was regularly required to pack up his things on his last day on a project. I am satisfied that other members of his work crew staying in hotel accommodation were also required to do so. There was nothing unusual about Mr Bauer being required to pack up his room that morning.

• [22] Further, it is my view that Mr Bauer's employment was not terminated by Mr Bishop when he arrived for work late at around 6.40am on 7 November 2024. I am satisfied that he was told to return the company bus to the hotel and come back to work in his car. I accept it is likely there was a heated discussion between Mr Bishop and Mr Bauer that morning. It is also likely that Mr Bishop was frustrated with Mr Bauer. Under cross examination Mr Bishop acknowledged that Mr Bauer had previously failed to follow his directions, failed to do what he was asked and failed to turn up to work. Mr Ferriday also gave evidence consistent with this, that Mr Bishop was frustrated with Mr Bauer not following his instructions. Further, I am satisfied that Mr Bauer was a casual employee, and his project work regularly had gaps between projects.

• [23] Whilst Mr Bauer referred to a text interchange with Mr Bishop later in the day on 7 November 2024 as evidence he had been terminated, I think it is more likely the interchange was a consequence of Mr Bauer being upset about being reprimanded by Mr Bishop. It is clear from the evidence there was a heated discussion. The text message evidences that Mr Bauer was unhappy about the discussion between them that morning. I am persuaded that this is what occurred, and I have no doubt Mr Bauer was distressed by that exchange. I am satisfied that there is credible evidence that Mr Bishop did not have the authority to terminate Mr Bauer's employment and Mr Bauer was aware of that. This was corroborated by evidence from Ms Benson, Mr Bishop and Mr Ferriday and further it was also acknowledged by Mr Bauer when cross examined. Further, that evidence also corroborated that formal disciplinary action was conducted by Mr Ferriday, as it did in previous terminations and warnings received and in evidence on 20 October 2023[14] and 21 March 2024.[15] I am persuaded that Ms Benson did not receive any notification that Mr Bauer was to be terminated.

• [24] I am satisfied that Mr Bauer was required to report to Mr Ferriday in order to obtain information as to when his next rostered work would begin however he failed to do so. Had he done so, Mr Ferriday would have provided further work to Mr Bauer consistent with the nature of his casual employment and his prior working arrangements. This did not occur because Mr Bauer chose not to return to speak to Mr Ferriday and instead, he chose to drop off his belongings at the Mackay office of MI.

• [25] It is indeed a very serious matter to file a diary note and swear under oath that it is true and correct. I reject this assertion. Mr Bishop's evidence whilst not perfect was open and honest. I found no reason to find that his diary entry for 7 November was falsified. Mr Bauer's evidence on the other hand was contradictory and self-serving, changing when a new issue was brought to his attention that was inconsistent with his own evidence. When these inconsistences in the evidence were pointed out to Mr Bauer, he regularly denied them then made excuses for them. Often those excuses were about completely unrelated accusations that witnesses had engaged in activities that showed them in a bad light, such as claiming site emergency plans were not properly executed. This was the case even though those unrelated accusations had not been previously raised in Mr Bauer's evidence or submissions.

• [26] Section 365 of the Act requires a person to be dismissed to be eligible to make a General Protections application involving dismissal.

• [27] Section 386(1) of the Act relevantly provides that a person has been dismissed if:

(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.

• [28] In respect of the first limb, the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[16] outlined the relevant authorities with respect to what it means for an employee's to be terminated at the initiative of the employer.[17] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[18]

• [29] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[19] It is sufficient that the employer's conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[20]

• [30] All the circumstances - including the conduct of both the employer and employee - must be examined.[21] In other words, it must be shown that "the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.[22] It is also relevant that where an employee has resigned as a result of performance management it has not been found to have been forced by the employer.[23] I would note that the exception would be where such performance management is found to be unreasonable.

• [31] In respect of the second limb, forced resignation is when an employee has no real choice but to resign167. Mr Bauer does not allege that this occurred so I will focus on the first limb.

• [32] On the basis of the evidence before the Commission, Mr Bauer was unable to prove to the requisite level of satisfaction that MI acted in a manner that resulted in the termination of his employment. The only evidence Mr Bauer pointed to that might rise to this level, was the allegation that Mr Bishop told him when he arrived late at the worksite, driving the second company bus, that he was done or he was sacked, that he shouldn't have raised the complaints again directly with the office and that he should leave and not come back. However, this allegation is inconsistent with:

(2) the evidence of Mr Bishop that he did not tell Mr Bauer he was sacked or that he was done, instead he told him to return the bus to the hotel and come back to work in his private car;

(3) the evidence of Ms Benson as to the process for terminations at MI demonstrated that terminations are not actioned by supervisors and nor are they actioned on site but rather in the office;

• (4) the evidence of Mr Ferriday that he had never authorised a termination, that the process for a termination occurred in the office, that he was the only person authorised to terminate employment, and that Mr Bauer knew this, drawing the Commission's attention to the previous termination record[24] and previous final warning;[25]

(5) the evidence of both Mr Bishop and Mr Brown that it was usual to clear the hotel room on the last day of shift and in fact all scaffolding crew in hotels were required to clear their room that day including Mr Tapsell who was staying at the same hotel as Mr Bauer;

• (6) the evidence of an email before the Commission from Mr Walton,[26] that in his conversation with Mr Bauer on the afternoon of 7 November 2024, Mr Bauer did not tell him that he had been sacked. This directly contradicts Mr Bauer's evidence;

(7) the casual nature of Mr Bauer's employment and the evidence of Mr Bishop, Ms Benson and Mr Ferriday that such work was project based, there were other reasons that the Abbot Point project work for Mr Bauer and another employee were always going to end on 7 November 2024 and that had Mr Bauer reported to the office, he would have been given details as to when he should return to the next project. Mr Bauer on his own initiative failed to do so; and

• (8) Further, whilst there is evidence before me of the text interchange between Mr Bauer and Mr Bishop[27] and of a phone call between Mr Bauer and Mr Walton,[28] none of that evidence demonstrates a clear communication that Mr Bauer had been terminated by Mr Bishop.

• [33] In order for me to find that Mr Bauer was dismissed by MI, I am required to find evidence that MI has taken action with the intent to bring the relationship to an end or that has that probable result[29]. For the reasons set out in the preceding paragraphs, I am unable to find such evidence before the Commission.

• [34] In assessing the conduct of Mr Bauer and MI, Mr Bauer had not returned to work on 7 November 2024 when he was asked to do so. Further, Mr Bauer did not attend the Mackay office as was usual practice, to obtain details of his next project. Instead, Mr Bauer returned the company property in his possession to the Mackay office of MI and he left it at the door after work hours.

• [35] Mr Bauer was not dismissed on 7 November 2024 within the meaning of s.386(1) of the Act as Mr Bauer alleges. Accordingly, Mr Bauer's application cannot proceed for want of jurisdiction and is dismissed.

[1] [2020] FCAFC 152.

[4] DCB p.54. (Contemporaneous diary note of Mr Bishop).

[16] [2018] FWC 1074.

[19] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2)(1995) 62 IR 200.

[20] Rheinberger v Huxley Marketing Pty Limited ( 1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941at [31].

[21] Whirisky v DivaT Home Care [2021] FWC 650at [77].

[22] Mohazab v Dick Smith Electronics (No 2)(1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[ 2017] FWCFB 3941at [28].

[23] Ashton v Consumer Action Law Centre [2010] FWA 2720.

[29] O'Meara v Stanley Works Pty Ltd PR973462, 11 August 2006 (Giudice P, Watson VP, Cribb C)

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