Fair Work Act 2009

s.394 - Unfair dismissal

Sunset Coast International English School Pty Ltd T/A Lexis English

• [1] On 31 July 2024, Ms Valentina Gallina (Ms Gallina or the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from her employment with Sunset Coast International English School Pty Ltd T/A Lexis English (Lexis or the Respondent).

• [2] Lexis objects to the application on the ground that Ms Gallina was not dismissed.  Before considering the merits of the application, the Commission must be satisfied that the Applicant has been dismissed.

• [3] Central to the consideration in this case is the operation of section 386(1) of the Act. The word dismissed is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act. Section 386(1) of the Act reads:

(a) the person's employment with his or his employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or his employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer."

• [4] This definition contains two elements. The first concerns termination on the employer's initiative and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct.

• [5] The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.[1] In determining whether there has been a termination at the Respondent's initiative, the reference to termination is in reference to that of the employment relationship, not the contract. [2]

• [6] This decision deals only with the jurisdictional objection to be determined.

• [7] Ms Gallina had been employed by Lexis for more than 12 months as a casual employee. Prior to the ending of her employment, Ms Gallina had been working approximately 20 hours per week, which she submits was on a regular basis.

• [8] Ms Gallina submits that she was dismissed at the initiative of Lexis.

• [9] Ms Gallina states that Lexis had advised that there could be an impact on her hours given the wider concerns in the industry and a reduction in staffing requirements.

• [10] However, Ms Gallina states she was not aware that her hours would be reduced to zero and thereby placing her on a relief list only.

• [11] Ms Gallina submits that the reduction in her hours to zero per week resulted in her employment being terminated at the initiative of Lexis.

• [12] Lexis confirms that Ms Gallina commenced casual employment on 13 April 2023. On 8 April 2024, Ms Gallina had a discussion with Lexis who confirmed that, due to industry wide concerns over proposed government changes, she (and other casual employees) should accept other work if available due to the uncertainty over the position of the industry. In support of this position, Lexis provided a copy of a weekly staff bulletin dated 15 April 2024, which states:

"Industry-wide concerns - You may already know that the number of Student visas being approved has drastically reduced in the past few months. Lexis and other schools are experiencing a drop in student numbers. This is already starting to show, and we predict that there will be cut to classes/working hours for teachers as the year progresses".

• [13] On 18 July 2024, Lexis confirmed that, due to the continued drop in student numbers, Ms Gallina would not have class to teach. Lexis confirms in their email that Ms Gallina "had been placed on the relief list and if anything should change we will be in touch".

• [14] Lexis noted that, as of Friday 26 July 2024, student numbers dropped from 216 to 188 which resulted in the reduction of two full classes (i.e. 14-16 student per class).

• [15] On 10 September 2024, Lexis communicated to all West Australian staff that its Scarborough campus would be closing, effective 20 December 2024, and remaining staff and students would be relocated to its city campus, effective 30 December 2024.

• [16] Having considered the submissions and materials of the parties, I find that the Ms Gallina was dismissed at the initiative of the Respondent consistent with the test under the first limb, at section 386(1)(a) of the Act.

• [17] The intended purpose of the email issued by Lexis to Ms Gallina, on 18 July 2024, was to communicate the end of the employment relationship. The language used by Lexis in the email of 18 July 2024 reflects that there was a clear intention to notify Ms Gallina that she would no longer be working at the business after 26 July 2024.

• [18] I accept that Lexis informed Ms Gallina that if a class was available after 26 July 2024, they may contact her to see if she could teach such class. However, if this was to occur, it would then be at the discretion of Ms Gallina to choose to return to employment with Lexis.

• [19] I understand the submission of Lexis, that it is a matter of courtesy to advise a casual employee that they may not be receiving shifts for some period from their employer due to a downturn in business.

• [20] However, I am not satisfied the email in question was simply communicating that there is a temporary reduction shifts that will be allocated for some insignificant or specified period of time. It is clear that the Respondent was unsure about the future operational requirements and very well aware that its operations would reduce for factors outside of its control.

• [21] Further, it is understandable that an employer would seek to reduce shifts allocated to excess casual staff during periods of operational downturn. However, if an employer seeks to do, such intention should be clearly communicated in a manner that could not, as it so clearly is in this matter, be construed as a notice of termination.

• [22] In summary, I am not satisfied the Respondent merely communicated that there were temporarily no shifts for the Applicant but instead its communication amounts to a termination upon its own initiative.

• [23] Having determined that the Applicant was dismissed at the initiative of the Respondent, the jurisdictional objection is dismissed. The parties will be contacted regarding the future programming of the matter in due course.

[1] [2017] FWCFB 3941.

[2] [2023] FWC 1352, [44].

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