Fair Work Act 2009

s.604 - Appeal of decision

iDrilling Australia Pty Ltd T/A iDrilling Australia Pty Ltd

Appeal against decision [2023] FWC 2017 of Deputy President Binet at Perth on 13 November 2023 in matter number U2023/2700.

[1] Mr Trent Jowett (Appellant) has applied for permission to appeal, and if granted appeals a decision of Deputy President Binet dated 13 November 2023 (Decision) [1] which dealt with a jurisdictional objection made by iDrilling Australia Pty Ltd T/A iDrilling Australia Pty Ltd (Respondent) in relation to the Appellant's unfair dismissal application made pursuant to s. 394 of the Fair Work Act 2009 (the Act). In that application, the Appellant alleged that on 9 March 2023, he had been unfairly dismissed from his employment with the Respondent in contravention of Part 3-2 of the Act.

[2] At first instance, the Respondent contended that the Appellant had not been dismissed and was still in the employ of the Respondent. The Deputy President accepted that contention and ordered the Appellant's unfair dismissal application be dismissed.[2]

[3] The Respondent operates a 'campaign-style' drilling company supplying drilling crews to its clients. Work on these campaigns is offered via call or text message to its employees, who, should they accept the work, form the attending crew at customer premises to complete the campaign. The Respondent offers traineeships to obtain a Certificate in Drilling (Level 3) to its employees which are facilitated by the relevant Government department (in this case, the Western Australian Department of Training and Workforce Development (the Department)) and external training providers. The Department registers and administers Training Contracts and regulates the apprenticeship system in Western Australia in accordance with Part 7 of the Vocational Education and Training Act 1996 (WA) (VET Act).

[4] The Appellant was first employed by the Respondent as a casual driller's offsider on 2 January 2021. On or about 8 April 2021, the Appellant requested a separation certificate. A separation certificate subsequently issued on 12 July 2021 recorded that the Appellant's employment ceased on 1 April 2021 and outlined "employee ceasing work voluntarily" as being the reason for separation. The Appellant did not perform any work for the Respondent from 1 April 2021 until 18 March 2022. Having been initially re-engaged as a casual driller's offsider, the Appellant entered into a training contract with the Respondent for a traineeship as a Driller (Level 3) on or around 27 May 2022. A copy of a training contract dated 27 May 2022 was in evidence before the Deputy President. It was not signed by either of the parties but outlined:

1. The training contract formed a legally binding agreement between the employer and employee for training leading to a nationally recognised qualification;

2. The Respondent was the 'employer' and the Appellant was the trainee;

3. In signing, the parties were bound by the obligations in the training contract and the legislation of the State in which the training contract was to be registered (in this case, Western Australia);

4. The training contract could only be terminated within the period of probation and/or, in accordance with the requirements of the relevant State legislation or by the early completion of training competencies;

5. The training contract could only be changed by agreement of the parties and according to the State legislation;

6. The training contract was for a nominal term of 18 months;

7. The 'employment arrangement' between the parties was the Mining Industry Award 2020;

8. There were 54 hours of work and training per week;

9. The traineeship was full-time; and

10. The Appellant had prior, casual employment with the Respondent from 31 March 2022 to 29 May 2022.

[5] An email dated 6 June 2022 was sent to the Respondent from noreply.adms@dese.gov.au, attaching "a recently signed Training Contract for your Australian Apprentice, Trent Jowett and Idrilling Australia" and recording a commencement date of 30 May 2022 and an expected end date of 30 November 2023. The parties also executed a training plan outline which recorded the 30 May 2022 commencement date, a nominal training period of 18 months and the training required for the Appellant to become a fully trained driller.

[6] There was some dispute as to whether the Respondent provided the Appellant with work as time went on. The Appellant claimed he made regular requests which either did not receive a response or were met with a reply that there was no work available. The Respondent asserted offers of work were either declined or received no response. Regardless, payslips in evidence before the Deputy President indicate the Appellant either worked or was on paid leave during every pay period between 18 March 2022 and 8 December 2022. On or around 29 November 2022, the Respondent notified the Appellant that there was no work available until early January due to a Christmas shut down. In January 2023, there was some dialogue between the parties regarding the availability of work and queries the Appellant had raised regarding his entitlements under the training contract. The Appellant contacted the Fair Work Ombudsman (FWO) regarding his hours of work, relying on the training contract's reference to 54 hours of work per week. The Respondent maintained the reference to 54 hours of work per week was an error and that the Appellant's contract provided for an average of 38 hours per week.

[7] There was further work performed by the Appellant during the period from 28 January 2023 until 8 February 2023 and pay records suggest the Appellant performed 49.50 hours of work during the 3 February 2023 - 16 February 2023 pay period. There were also attempts to discuss the Appellant's concerns, an incident on 4 February 2023 involving a vehicle driven by the Appellant and an issue regarding the currency of the Appellant's driver's licence. In response to attempts by the Respondent to ascertain his availability to perform further work, the Appellant responded by email on 27 February 2023, advising that he would not be returning to work due to health reasons and would instead take leave due to stress. The Appellant also provided a medical certificate on 27 February 2023, which outlined he was unfit for work from that date until 6 March 2023 and advised that he would be "in touch." On 2 March 2023, the Appellant sent an email to the Respondent alleging an underpayment of wages during the period from 27 May 2022 until 1 March 2023 totalling $48,392 and seeking a "redundancy type payment/settlement."

[8] The Decision also notes evidence from Mr Harding that in late 2022 and early 2023, he became aware that some of the Respondent's training contracts either contained errors, such as the reference in the Appellant's training contract to 54 hours of work per week instead of 38, or were in respect of employees who had since ceased working for the Respondent. On 7 March 2023, Mr Harding contacted the Chamber of Commerce and Industry WA (CCIWA) for advice and participated in a conference call with the Respondent's Contracts and Business Development Associate, Ms Danielle Dover, and Mr Jordan Bache of CCIWA. The steps required to rectify the various training contract issues and terminate the dormant training contracts were discussed and subsequent email correspondence received from Mr Bache attached documentation with instructions that it be completed for three individuals, including the Appellant.

[9] Mr Harding said he instructed Ms Dover to proceed with the preparation and submission of the paperwork for the relevant training contracts requiring termination and that it was his understanding that Ms Dover included the Appellant's training contract amongst these. On 8 March 2023, Ms Dover completed and signed a Notice to Terminate Contract (Notice to Terminate) in respect of the Appellant, disclosing that the reasons for the termination were "incidents", "business downturn", "performance/progression issues" and further, that the Appellant had been uncontactable during January and December and held no driver's licence. In doing so, Ms Dover was, according to the Notice to Terminate, confirming that the Appellant had consented to the termination of the training contract. This was despite the form fields for the Appellant's name, signature, and date having been left blank. Ms Dover sent the Notice to Terminate with a covering email which included the Appellant's name and identity number. In response, the Apprenticeships Office of the Department sent an email to the Appellant on 9 March 2023, advising him that notification in relation to the termination of his training contract had been received and processed. The Appellant was advised that he should contact the Apprenticeships Office if he had not requested or agreed to end his apprenticeship. This prompted the Appellant to reply by email on 9 March 2023, stating that while he had sent the Respondent a "breach of contract notice", he had not agreed to the termination of his training contract. The Appellant further outlined that the parties had not discussed termination and nor had he received anything stating that his traineeship would be cancelled. The Appellant confirmed his telephone and email particulars and invited the Department to contact him. His response prompted a Senior Apprenticeship Officer - Compliance to contact Mr Harding.

[10] Mr Harding gave evidence that he was surprised by this development and that he responded to the Department by stating that the Respondent had not intended to terminate the Appellant's training contract, explaining that it had intended to terminate the training contracts of individuals it no longer employed and amend the Appellant's training contract to remove the reference to 54 hours of work per week. Mr Harding said that he was told by the Department's Senior Apprenticeship Officer - Compliance that she would contact the Appellant to confirm whether he wished to proceed with the training contract and that in the interim, it would be 'suspended.' Despite this, the Senior Apprenticeship Officer - Compliance was not successful in making contact with the Appellant, advising Mr Harding on 21 March 2023 that the Appellant had not returned any of her telephone calls. Mr Harding himself made no attempt to contact the Appellant after 9 March 2023. On 30 March 2023, the Appellant lodged the unfair dismissal application.

[11] The Deputy President found that the Appellant had continuous casual employment with the Respondent as a driller's offsider from 2 January 2021, with the actions of both parties indicative of their acceptance of the irregular nature of the rostering of work that transpired. In this regard, the Deputy President concluded there was no evidence that the Respondent had at any time informed the Appellant that it had terminated the Appellant's employment, either at the end of any rostered period, or at all. The Deputy President noted that the Respondent issued a separation certificate to the Appellant in April 2021 but because the certificate had been issued at the Appellant's request and recorded that he had ceased work voluntarily, the Deputy President did not consider this was inconsistent with ongoing casual employment where an employee is unavailable for work for an extended period. Further, having found that there was no evidence that the Respondent had required the Appellant to sign documentation at the commencement of his employment in 2021, nor when he recommenced performing work in March 2022, the Deputy President concluded that this also supported a finding that the Respondent had treated the Appellant's employment as continuous casual employment since January 2021.

[12] As to the training contract, the Deputy President was not persuaded that it was a new contract recording a separate period of employment with the Respondent, relying on its reference to being a contract for training, as opposed to a contract for employment, and the fact that the Appellant had resumed regular casual work for the Respondent prior to its commencement. The Deputy President also considered there was evidence from Mr Harding that the Appellant had performed duties outside of those provided for in the training contract.

[13] The Deputy President did not accept that the action of Ms Dover in forwarding the Notice to Terminate had the legal effect of terminating the employment relationship between the parties, or even the training contract. The Deputy President relied on the requirements of s.60G(2)(a) of the VET Act not having been fulfilled together with the absence of evidence suggesting that the Appellant had consented. The Deputy President concluded there was no evidence that the Appellant's employment was terminated, asserting that it was not disputed that the Respondent had never directly informed the Appellant that it had terminated either his employment or the training contract.

[14] The Deputy President rejected the Appellant's submission that the Notice to Terminate was repudiatory conduct which was accepted by the Appellant when he filed his unfair dismissal application, in circumstances where:

• (a) The training contract and the employment contract were separate and distinct;

• (b) The Notice to Terminate did not amount to clear renunciation, being both incomplete and ineffective at law to terminate the training contract;

• (c) The Appellant did not accept the alleged repudiation but instead, had immediately contacted the Department to confirm that he did not accept the termination; and

• (d) The Respondent had not communicated its intention to terminate either the training contract or the contract of employment.

[15] The Deputy President outlined the proposition that there is no repudiation if genuine attempts to cure any breach are made and regarded the attempts made by Mr Harding to correct the erroneous information provided to the Department before the Appellant filed his unfair dismissal application as critical. The Deputy President also proffered that the filing of the unfair dismissal application was incapable of constituting clear communication of acceptance of the alleged repudiation because the unfair dismissal application challenged both the lawfulness of the termination of the training contract and the Appellant's dismissal.

[16] Ultimately, the Deputy President was not satisfied that the Appellant had been dismissed for the purposes of s.385 of the Act, with the result that he was not protected from unfair dismissal. The Deputy President upheld the Respondent's jurisdictional objection and ordered that the Appellant's unfair dismissal application be dismissed.

[17] An appeal under s.604 of the Act is by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[3] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[18] This appeal is one to which s.400 of the Act applies which provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[19] The test under s.400 is "a stringent one".[4] Assessing whether the public interest test for the grant of permission to appeal involves a broad value judgment.[5] GlaxoSmithKline Australia Pty Ltd v Makin non-exhaustively identified that the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[6]

[20] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[7] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[8]

[21] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[9] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error. Here of course, we have had the benefit of receiving arguments both as to permission to appeal and the merits of the appeal.

[22] The following five grounds of appeal are advanced by the Appellant in his Notice of Appeal:

1. The Deputy President erred in holding that the notice to terminate and the Respondent's acts in terminating the training contract did not amount to a clear renunciation.

2. The Deputy President erred in finding that the Appellant did not accept the Respondent's alleged repudiation.

3. The Deputy President erred in finding that the Respondent made genuine attempts to cure the breach and therefore there was no repudiation because of it.

4. The Deputy President erred in finding that the lodgement of the Appellant's unfair dismissal application does not constitute clear communication of the acceptance of the respondent's alleged repudiation.

5. The Deputy President erred in finding that the Appellant was not dismissed.

[23] For the reasons that follow below, we are persuaded that the Appellant has established an arguable case of appealable error justifying the grant of permission to appeal. In accordance with s.400(1) of the Act, we consider that as the decision and order manifest an injustice, it is in the public interest for permission to appeal to be granted, and we do so.

[24] The Appellant has prosecuted the appeal on the basis that there was a termination on the initiative of the Respondent (i.e. a dismissal) based upon the Respondent's repudiatory conduct in forwarding the Notice to Terminate the training contract to the Department, such that the Deputy President's finding that the Appellant was not dismissed was erroneous (appeal ground 5). Through appeal grounds 1-4, the Appellant contends the Deputy President erred in regard to the application of the law of repudiation in a number of respects. As will be apparent from that which follows, we have decided to uphold the appeal and quash the Decision and Order.

[25] The Deputy President was not persuaded that the training contract was a contract of employment for a new and separate period of employment. Rather, the Deputy President was satisfied there was an employment relationship of a casual driller's offsider existing separate to, and independent of, the contractual agreement by the Respondent to provide the Appellant with the training opportunities. As to this, it may be observed that the training contract included a statement that it was a legally binding agreement between the employer and the employee for the training of Apprentices and Trainees.

[26] Weighing against those particular conclusions of the Deputy President are the provisions in the training contract which outlined that it was for full time employment for 54 hours of employment and training per week and that there was a prior period of casual employment from 31 March 2023 to 29 May 2023, during which the Appellant worked a fluctuating pattern of hours. The training contract also obliged the Respondent to "employ" the Appellant, indicated the relevant award coverage and included terms to the effect that the employer agreed to "employ and train the apprentice/trainees as agreed in our Training Plan..." and "provide work that is relevant and appropriate to the vocation" and "meet all legal requirements regarding the apprentice/trainee, including but not limited to, occupational health and safety requirements and payment of wages and conditions under the relevant employment arrangements." Further, payslips were in evidence revealing an hourly rate of pay of $37.50 prior to the Traineeship and $40 per hour after it commenced[10] and periods of paid annual leave and personal leave taken while the Appellant was a Trainee.

[27] We consider the employment relationship that existed prior to the training contract was fundamentally different to the employment relationship in existence after its commencement and that there is no warrant for a conclusion that there was a collateral casual employment relationship during the period in which the training contract was in operation, much less one that survived its termination. At a minimum, the training contract constituted a fundamental obligation under the employment contract.

[28] The Deputy President's primary position was that the action of the Respondent in forwarding the Notice to Terminate the training contract to the Department did not have the legal effect of terminating the employment relationship between the Appellant and the Respondent. The Deputy President also concluded that it was arguable that the forwarding of the Notice to Terminate did not have the legal effect of terminating the training contract either.

[29] The Deputy President held that there was no evidence the employment relationship had been terminated and that no repudiation occurred because the Notice to Terminate was incomplete and not legally effective because the requirements of the VET Act had not been complied with.

[30] In Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited,[11] the High Court outlined what constitutes repudiation in the following manner:

"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."[12]

[31] The questions of the Respondent's intention and whether the Notice to Terminate was complete or effective at law are not determinative. The Deputy President failed to consider whether a reasonable person, in the situation of the Appellant, would have inferred that the Respondent did not intend to be bound by the contract of employment, or at least a fundamental obligation under it, i.e. the training contract, upon receipt of notification that the training contract had been terminated. As a result, the Deputy President was in error in concluding that the Notice to Terminate did not amount to clear renunciation. We uphold appeal ground 1.

[32] It is convenient to consider appeal grounds 2 and 4 together. Ground 2 focusses on the Deputy President's finding that the Appellant did not accept the alleged repudiation because "he immediately contacted the Department and clearly stated to the Department that he rejected the purported termination of the Training Contract..."[13] In reaching this conclusion, we consider the Deputy President mistook the facts. The email the Appellant sent to the Department on 9 March 2023 was in direct response to the email he had received that day advising him that notification in relation to the termination of his training contract had been received and requesting that he contact the Apprenticeships Office if he had not requested or agreed to end his apprenticeship. The Appellant's response to that request was concise and factual. We consider the Deputy President erred by concluding the Appellant "clearly stated... that he rejected the purported termination of the Training Contract"[14] when he sent his email to the Department on 9 March 2023. The Appellant simply advised that he had not agreed to the termination of the training contract. Nor did the Appellant affirm the training contract. After sending this email, the Appellant did not attend, perform or receive payment for any work and nor did he communicate with the Respondent.

[33] However, the Appellant also contends that by filing the unfair dismissal application (in which he sought compensation and did not seek reinstatement), he clearly and unequivocally accepted the repudiatory conduct of the Respondent and asserts that the Deputy President erred in finding otherwise. The Deputy President held that that the lodgement of the unfair dismissal application did not "constitute clear communication of acceptance of the alleged repudiation because it challenges the lawfulness of the termination of the Training Contract and the dismissal from employment."[15] Through ground 4, the Appellant submits that the Deputy President erred in concluding that the lodgement of the unfair dismissal application did not constitute a clear communication of the acceptance of the repudiatory conduct of the Respondent. We agree. We consider the following conclusion of the Full Bench in NSW Trains v James relevant and instructive:

"[70] As the Appellant contends, whether there has been a termination of the contract of employment following an employer's repudiatory conduct 'depends on the resolution of a factual inquiry as to the response to the repudiatory conduct.' For example, the employee might affirm the contract by negotiating with the employer and agreeing to changes to the contract of employment. Alternatively, the employee could elect to accept the repudiation by lodging an application under Part 3-2 of the FW Act and leaving the employment or (reluctantly) continuing in employment with the employer in the demoted position under a new contract of employment, whilst pursing the unfair dismissal application.

[71] Here, Deputy President Saunders found that Mr James did not agree with the NSW

Trains' unilateral decision to reduce his grade and pay, although he remained employed by NSW Trains in the position of Shift Manager. We agree with the Deputy President's findings in this regard. While Mr James continued in employment with NSW Trains as a Shift Manager, he purported to accept the employer's alleged repudiatory conduct by lodging an unfair dismissal application under Part 3-2 of the FW Act."[16]

[34] We uphold appeal grounds 2 and 4.

[35] The Deputy President stated at paragraph [104] of the Decision, "Critically the evidence is that Mr Harding sought to correct the information provided to the Department and that he did so prior to the Application being filed" before enunciating, at [108] of the Decision, the principle that if genuine attempts to cure any breach are made, there is no repudiation and seemingly impugning, at [109] of the Decision, the filing of the Application by the Appellant because it occurred after Mr Harding had taken steps to correct the information contained in the Notice to Terminate. It is, however, well established that a repudiation may only be retracted or cured by the party in breach if reasonable notice of the change of intention is given to the innocent party and this is done so before the innocent party exercises the right to terminate the contract.[17] Therefore, to the extent the Deputy President's finding that there was no repudiation was based on the Respondent having made genuine attempts to cure the breach, we consider this finding was not open to her based on the evidence and uphold appeal ground 3.

[36] It follows from our findings in relation to Appeal Grounds 1 to 4, that the Deputy President erred in finding that the Appellant was not dismissed.

[37] On rehearing we have had regard to the evidence and submissions filed before the Deputy President and based on our findings above, we have determined that the Appellant was dismissed within the meaning of s 386 (1)(a) of the Act for the reasons that follow.

[38] As outlined above, the test for establishing repudiation outlined in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited 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. [18]

[39] It is not disputed that the Respondent sent an email attaching the Notice to Terminate to the Department, which in turn sent an email to the Appellant on 9 March 2023, advising:

"The Apprenticeship Office received notification in relation to the termination of your Training Contract, which has been processed."

[40] Notwithstanding that the Department administered the training contract, the Appellant and the Respondent were the only two parties to it. We therefore consider that a reasonable person in the Appellant's position, knowing that they themself had not contacted the Department to terminate the Training Contract, would have considered (correctly) that the Respondent had given notification to the Department to terminate the Training Contract.

[41] We also consider the following content in the 9 March 2023 email from the Department to the Appellant would convey to a reasonable person, in the situation of the Appellant, repudiation either of the employment contract as a whole or the fundamental obligation under it to comply with the training contract:

• The subject line, which read "Termination With Apprentice Consent of Trent J Jowett's Training Contract [identification numbers etc]";

• "Termination type: With Apprentice Consent";

• "Termination approval date: 9/03/2023".

[42] The 9 March 2023 email also details support services for people who have been 'displaced' and includes sources of information for ongoing employment advice and assistance. The email goes on to address the option of recommencing a traineeship and provides contact details for a helpline with assistance available for apprentices and trainees.

[43] We have noted the Deputy President's conclusion that the parties' casual employment relationship survived the apparent cancellation of the training contract but we are not persuaded there was a collateral casual employment relationship during the period in which the training contract was in operation. Bearing in mind that the parties had entered into a training contract providing for 54 hours of full-time employment per week and the Respondent had committed to an 18-month training plan, we consider the Respondent's apparent cancellation of the training contract constituted a repudiation capable of acceptance because it was a renunciation of such a fundamental obligation. Further, the Appellant received no communication from the Respondent on or after 9 March 2024 providing confirmation that the Notice to Terminate had been lodged in error and his employment was in fact ongoing until after he had filed the unfair dismissal application. We consider a reasonable person, in the situation of the Appellant, would have understood that the Respondent did not intend to be bound by the contract of employment, or at very least a fundamental obligation under it comprising the training contract, upon receipt of notification that the training contract had been terminated.

[44] At this point, the Appellant had the choice either to accept the Respondent's repudiation or affirm the employment contract and continue it. In Sargent v A.S.L. Developments Limited,[19] Mason J, as he then was, outlined:

"A person confronted with the exercise of alternative and inconsistent rights is not bound to elect at once. He may keep the question open, so long as he does not affirm the contract or continuance of the estate and so long as the delay does not cause prejudice to the other side."[20]

[45] We do not consider the Appellant either expressly or impliedly affirmed the contract of employment or the training contract by his conduct on or after 9 March 2023 and further, we do not consider that delaying in filing of the unfair dismissal application until 30 March 2023 caused prejudice to the Respondent.

[46] The questions of the Respondent's intention and whether the Notice to Terminate was complete or effective at law are not determinative. Having regard to the circumstances of the matter before us, we are not persuaded the Respondent made genuine attempts to cure the breach such that the repudiation was incapable of being accepted by the Appellant. As outlined above, no communication between the Appellant and the Respondent occurred between 9 March 2023 (when the Notice to Terminate was provided to the Department and the Appellant was notified of it) and 30 March 2023, when the Appellant filed his unfair dismissal application. The Respondent's attempts to cure the breach prior to 30 March were ineffective because the Appellant was not made aware of them. The Respondent's attempts made after 30 March 2023 were also ineffective because they occurred after the Appellant's acceptance of the repudiation.

[47] After 9 March 2023, the Respondent did not cure the repudiation and the Appellant did not affirm the contract of employment. We are satisfied the Appellant accepted the repudiation by the Respondent and clearly communicated this to the Respondent by lodging his unfair dismissal application. This brought the employment relationship to an end. In circumstances where the acceptance of the repudiatory conduct of an employer brings an employment relationship to an end, there is a dismissal within the meaning of s 386(1)(a) and this is our conclusion in this matter.

[48] We order as follows:

1. Permission to appeal is granted.

2. The appeal is upheld.

3. The decision of Deputy President Binet of 13 November 2023 in Mr Trent Jowett v Idrilling Australia ( [2023] FWCA 2017) and the order in Mr Trent Jowett v Idrilling Australia PR768218 are quashed.

4. On rehearing, the Respondent's jurisdictional objection that the Appellant was not dismissed is dismissed.

5. The application is remitted to Deputy President Binet to determine the merits.

Sydney and Perth by video link using Microsoft Teams:

[1] [2023] FWC 2017.

[3] This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[4] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed).

[5] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]- [46].

[6] [2010] FWAFB 5343, 197 IR 266 at [24]- [27].

[7] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].

[8] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

[10] It is not clear whether these rates were inclusive of a casual loading.

[11] 2007 HCA 61.

[13] [2023] FWC at [107].

[16] [2022] FWCFB 55 at [70]- [71].

[17] Peter Turnbell & Co. Pty Ltd v Mundus Trading Company (Australasia) Pty Ltd [1954] HCA 25; (1954) 90 CLR 235 at 250, Tullet Prebon v Purcell [2008] NSWSC 852; (2008) 175 IR 414 at [26] and Whittaker v Unisys Aust.(2020 192 IR 311 at [39].

[18] 2007 HCA 61 at [44].

[19] [1974] HCA 40; (1974) 131 CLR 634.

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