s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - no dismissal - abandonment of employment - jurisdictional objection dismissed

• [1] Ms Topaz Rawson Heslep (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 9 June 2025. The Applicant claims that adverse action was taken against her by Studio Figura AA Pty Ltd[1] (the Respondent) under ss.340, 341, 343, 346, 347, 348, 351 and 352 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed at the employer's initiative under s.386 of the Act as the Applicant abandoned her employment.

• [3] The parties canvassed many matters which are not relevant to the jurisdictional objection in their submissions.

• [4] On 7 April 2025, the Respondent alleges that the Applicant failed to attend her shift without notice. The Applicant provided text messages showing she contacted the owners on 6 April 2025 advising she would not make it to her shift the next morning. [2]

• [5] The Respondent emailed the Applicant on 7 April 2025:

This email serves as a formal written warning regarding your unauthorised absence from your scheduled shift on Monday, 7th April, and a pattern of ongoing unprofessional conduct that has had a significant impact on the studio, your colleagues, and our clients.

Your actions reflect a serious lack of accountability, professionalism, and teamwork - all of which are core values at Studio Figura. This is a formal warning, and continued breaches of company policy, unapproved absences, neglect of duties, or failure to follow procedures will result in further disciplinary action, up to and including termination of your employment.

As we cannot be confident that your upcoming shifts will be attended or completed to standard, you are not required to return to work until a formal meeting has taken place.

Please respond within 24 hours with your availability for a disciplinary meeting, to be held on Thursday, Friday, or early next week. Failure to respond or attend will be noted and addressed as part of the disciplinary process.

• [7] The Applicant replied on 7 April 2025 as follows:

There are many things in this email that seem to be misunderstood and I am happy to resolve any conflicts of misunderstandings, and will need some time to respond back to each point in further depth.

As I have noticed a change in the dynamic since having my first offical sick day due to urgent matters that I contacted management several times due to an unexpected urgent request requesting support.

I absolutely would like to work with you to resolve these unexpected issues, due to the shock this has had as I have been working hard with studio figura covering for employees and taking on additional responsibilities since I started, I will need to organise a support person to attend the meeting with me therefore unable to confirm an exact date until I consult support for the meeting.

I will come back to you once I have availability of support.

I assume you have support to cover shifts the next few days based off this email? And have the team capacity to support others when the studio needs it. As requested, I aim to be in touch soon and meet for one of the days suggested.

• [8] On 8 April 2025, the Applicant emailed Ms Anni Simkin, owner of the Respondent, an email containing grievance she wished to raise with management. The relevant parts of those emails are reproduced below:

I hope this message finds you well. I would like to address a series of concerning issues that have been ongoing in the workplace, and I believe it is important to bring these matters to your attention for resolution.

Firstly, as you are aware, I clearly communicated on three separate occasions that I had urgent matters and required time off which was marked as unauthorised. I want to clarify that I attempted to reach out on multiple occasions regarding a single day off due to an urgent, unforeseen personal matter. The urgency persisted since last expressing the concern on Friday, after having to work Saturday despite my best efforts with trying to get support with my shift Saturday to help me attend to the urgent matter. This led to me working until the usual end time of shift on a saturday which is 3:00pm not leaving work earlier, leaving no time to attend to the personal concern. The concern strengthened after covering for other employees who were sick and added further concerns to needing time off despite my efforts to notify management, who are particularly unresponsive in moments of need contributed to my concern.

Thank you for your immediate attention to these matters, I am looking forward to meeting with you formally to resolve any concerns on Friday, 11th April 2025 at 9:00am. I will have a support person present which is within my rights as a formal discussion.

• [9] The Applicant received the following reply from the Respondent on 9 April 2025:

I understand you would like to have a support person present at our upcoming meeting. That is absolutely your right, and we respect that.

To ensure a smooth and professional process, please provide the name and role of the person attending with you. This allows us to prepare accordingly and confirm expectations for the meeting.

Please note that a support person's role is to offer emotional support and observe, not to speak on your behalf or interrupt the meeting process.

I'm not available on Friday at 9am for the meeting.

I have available time next week on Wed at 4pm or Thursday at 1pm or 1.30pm.

• [10] On 9 April 2025, the Respondent emailed the Applicant regarding the Applicant's claims of underpayment. The Respondent stated that the Applicant had been paid correctly and asserted that the Applicant had been submitting false timesheets. [3]

• [11] The Applicant states that she contacted the Respondent on 11 April 2025 and did not receive a response, as they were closed over Easter.

• [12] The Applicant sent a further email on 13 April 2025 querying what the purpose of the formal meeting was for, as she believed she had addressed the Respondent's concerns in prior emails.

• [13] On 17 April 2025, the Applicant emailed the Respondent again as follows:

I am still yet to receive a response regarding the formal meeting arrangement or even a response back to clarify the concerns shared.

As I understand that studio Figura are about to close for the Easter long weekend and I have now been without work for two weeks and no real valid reason that stands.

I am requesting a response within 48 hours to resolve concerns and request to clarify what the formal meeting is for? As the original email outlines reasons that have been addressed around the one day off I had and have provided my valid reasons to management.

• [14] The Applicant provided a screenshot of a text message she says she sent to Ms Simkin on 22 April 2025:

Is studio Figura just not going to respond to me? Very confused how I was employed there, we were desperate for staff and now the company has just refused me back after one day off. I'm genuinely reaching out here for clarify from employee to someone I thought I had a good connection with and seen potential for us to grow together...

• [15] Ms Simkin advised during the hearing that she did not recall receiving this text message.

• [16] On 29 April 2025, the Respondent sent the following email to the Applicant, replying to their email sent on 9 April 2025:

I'm writing to follow up as we are still waiting on several important items from you:

• Clarification regarding the hours mentioned in the previous email
• Details about your support person
• Proof of any delayed payments you referenced

Additionally, on April 9th I sent you an email with proposed times for a meeting. I have not received a response, and those dates have now passed.

In your recent email, you mentioned that you have not received any annual or sick leave since the beginning of your employment. I have double-checked this with our accountant and reviewed your payslips. I can confirm that the leave you requested was processed during the week ending 11/03, as reflected in the attached payslip.

Additionally, our system records show that this leave request was submitted via your mobile device. If you did not submit this yourself, could you please clarify who else has access to your Xero account? Please be reminded that allowing third parties access to your Xero account may constitute a breach of confidentiality and company policy.

You must send all the information within the next two days.

If you feel that this role is no longer aligned with your goals or capabilities, and you are considering stepping away, please let us know so we can support you with the appropriate process and paperwork. We're here to have an open and respectful discussion about your current situation and next steps.

We are currently unable to move forward until the requested information is provided. Once we receive this, we will be able to coordinate a suitable time for the meeting.

• [17] On 1 May 2025, Applicant replied to the Respondent's concerns. The email states, among other things:

Again, I'm available and can meet for the formal meeting if you provide your availability I can see what support networks might be able to attend. I can't provide names if I don't know availability as this needs to be confirmed with support networks to see if they will be available to attend. I have a few people on hand.

• [18] On 6 May 2025, the Respondent emailed the Applicant advising that they could not see any emails which contained the information they had requested. The Applicant was formally directed to respond in writing by 7 May 2025.

• [19] On 21 May 2025, the Respondent issued a termination letter to the Applicant as follows:

We are writing to formally advise you that your employment with Studio Figura is terminated, effective 21 May 2025, due to serious and ongoing breaches of your employment obligations.

This decision follows prior written warnings, continued underperformance, failure to respond to meeting requests, failure to send requested information and conduct that constitutes serious misconduct under the Fair Work Act and our internal employee policies.

You failed to attend your scheduled shift without management approval. This left your colleague alone at the studio, caused significant disruption, and led to three client complaints about you - two of whom requested refunds. The business incurred a loss of approximately $2,2000.

A written warning was issued on that day, and you were advised not to return until a disciplinary meeting was held.

1. Failure to Respond to Disciplinary Meeting Arrangements

On 9 April 2025, we emailed you with several meeting options (Wednesday at 4:00pm or Thursday at 1:00pm or 1:30pm) and requested confirmation and support person details.

Follow up emails were sent on 29 April, 30 April and 6 May. No response or clarification was received.

You failed to submit your timesheet by 1st April, breaching your employment agreement and the Studio Figura Employee Handbook. We requested clarification for missing or incorrect entries for the following dates: Thursday 13th March, Tuesday 25th March and Monday 24th February

Despite reminders sent on 9th, 29th and 30th April, and again on 6th May, you did not provide a complete response until 15th May and even then the information was incomplete.

An internal audit found you submitted hours for shifts not worked, including:

• 7 April 6 hours submitted, though you were absent
• 8 April 11 hours submitted though you were not in attendance

This conduct constitutes serious misconduct and a fundamental breach of trust under the Fair Work Act 2009 and our Employee Handbook. It may also amount to a breach of workplace laws under relevant Queensland legislation

While you raised concerns about missing pay in March and delayed payments, you failed to provide requested documentation (e.g., Official bank statements) despite reminders on 9, 29 and 30 April and again on 6 May/ This matter remains unresolved due to lack of cooperation.

• Incomplete client record and treatment notes
• Leaving tools and equipment uncleaned (e.g., brushes, gel bowls)

These actions fall below the hygiene and operational standards expected at Studio Figura

You received written warnings on 7, 9, and 29 April and again on 6 May. These warnings were not acknowledged or acted upon.

• [20] 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.

• [21] In Abandonment of Employment, the Full Bench of this Commission considered the meaning of "abandonment of employment".

"'Abandonment of employment' is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee's conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee's fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee's renunciation of the employment obligations.

Where this occurs, it may have various consequences in terms of the application of provisions of the FW Act. To give three examples, first, because the employer has not terminated the employee's employment, the NES requirement in s 117 for the provision of notice by the employer, or payment in lieu of notice, will not be applicable. Second, if a modern award or enterprise agreement provision made pursuant to s 118 requiring an employee to give notice of the termination of his or her employment applies, a question may arise about compliance with such a provision. Third, if the employee lodges an unfair dismissal application, then the application is liable to be struck out on the ground that there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s 386(1)(a) (unless there is some distinguishing factual circumstance in the matter or the employee can argue that there was a forced resignation under s 386(1)(b))." [4]

• [22] The difference between renunciation and repudiation was explained in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited as follows (references omitted):

_"_In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it... Secondly, it may refer to any breach of contract which justifies termination by the other party... There may be cases where a failure to perform, even if not a breach of an essential term ... manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words." [5]

• [23] The Full Bench also referred to the requirement for the employer to attempt to contact the Applicant to establish a reason for the absence, as summarised and applied by Commissioner Gregory in Thompson v Zadlea Pty Ltd t/a Atlas Steel[6]:

_"..._the Full Bench has emphasised that it will normally be expected that the employer will have consulted, or attempted to consult, with the employee as part of the process of establishing the cause of the employee's absence. While the Full Bench made these comments in the context of the Manufacturing Award I am also satisfied that such processes would normally be expected to be a part of what could reasonably be expected in the context of an employer coming to a conclusion that an employee has renounced their employment contract by abandoning their employment.[7]

• [24] The Respondent has failed to establish that the Applicant abandoned her employment.

• [25] Firstly, while the state of the evidence is far from satisfactory, the Applicant consistently replied to the Respondent's emails regarding attending a disciplinary meeting. The suggestion that the Applicant failed to respond is not credible. There was back and forth between the Applicant and Respondent regarding arranging a date, which was never arrived upon. It appears that the Respondent was asked by the Applicant to propose a date, and this was not done.

• [26] Secondly, it is suggested that the Applicant abandoned her employment by failing to attend work on 7 April 2025 and thereafter.[8] That is an untenable position for the Respondent to take. The Applicant did text the Respondent to explain that she would not be in attendance on 7 April 2025, although I accept that she did not have authority to not attend that shift. Further, the Applicant was directed not to attend work until a disciplinary meeting was held. This was confirmed over email and in the email of 21 May 2025 confirming the end of the Applicant's employment. It would be absurd to suggest that the Applicant abandoned her employment by failing to attend for work when she had been directed not to.

• [27] Thirdly, abandonment of employment is a species of contractual renunciation. It requires the employee to evince an objective intention that they no longer wish to be bound by the employment contract. The evidence does not reach that threshold. If anything, it appears that the Respondent failed to reply to the Applicant on numerous occasions.

• [28] I note the Respondent made arguments which appear to proceed on the basis that if there was a dismissal, it was justified. Given the Respondent has made a jurisdictional objection that led to this hearing, these are not relevant arguments for the Commission to consider. The Commission does not have power, in this matter, to make a finding about the reasons for dismissal.

• [29] I find that the Applicant did not abandon her employment. Consequently, the Applicant's employment was ended at the employer's initiative on 21 May 2025 when the Respondent emailed the Applicant terminating her employment.

• [30] The Applicant was therefore dismissed at the initiative of the employer in accordance with s.386(1) of the Act. The jurisdictional objection is dismissed.

The matter will be programmed for a conciliation conference in accordance with s.368 of the Act.

[1] The Respondent's name was corrected to "Studio Figura AA Pty Ltd" under s.586 of the Act as per the ASIC records.

[4] [2018] FWCFB 139 at [21]- [22].

[5] [2007] HCA 61 (Gleeson CJ, Gummow, Heydon and Crennan JJ).

[6] [2019] FWC 1687.

[7] [2019] FWC 1687 at [49].

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