s.394 - Unfair dismissal

• [1] Ms Veronica Stark has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (Act), alleging she was unfairly dismissed by the respondent, the Department of Education. Ms Stark says that her dismissal took effect on 14 May 2025. The respondent says that the employment ceased on 28 May 2017 by operation of law and that Ms Stark has not been dismissed within the meaning of s 386 of the Act.

• [2] For the reasons that follow, Ms Stark's employment ceased by operation of law. She was not dismissed. Accordingly, Ms Stark is unable to make an unfair dismissal application.

• [3] Section 2.4.34 of the Education and Training Reform Act 2006 (ETR Act) provides as follows:

An on-going employee who is absent from duty for a period of 3 months...otherwise than on leave granted on this or any other Act ceases to be an employee in the teaching service.

• [4] The ETR Act draws a distinction between an employee who has been dismissed, or whose employment has been terminated, by the Secretary (that is, on the employer's initiative) and an employee whose employment has otherwise ceased.[1]

• [5] From 18 March 2013 to 27 February 2017, Ms Stark was on approved leave without pay.[2] From 28 February 2017, Ms Stark was absent from duty without leave.[3] On this basis, a "Stop Pay" was applied to Ms Stark's employment profile in the respondent's payroll system. The first "Stop Pay" was processed for the period from 28 February 2017 to 28 February 2025. A further "Stop Pay" was processed for the period from 1 March 2025 to 30 December 2030.[4]

• [6] On 7 February 2025, Ms Stark sent an email raising certain questions, including why she had been placed on "On-Going Unpaid Leave till 2030."[5] The Principal of Werribee Secondary College, being the school to which Ms Stark had previously been deployed, wrote to Ms Stark on 8 May 2025 regarding the fact that she had been absent without leave from 28 February 2017.[6] Although that letter referred to s 2.4.34 of the ETR Act, it erroneously stated that Ms Stark's employment with the Department "will cease at your own initiative on 3 days from issuing the letter." On 23 May 2025, the Acting Principal of Werribee Secondary College wrote to Ms Stark to inform her that her employment had ceased by operation of s 2.4.34(1) of the ETR Act.[7] However, that letter erroneously stated that Ms Stark's employment ceased with effect from 14 May 2025 (being three business days after the letter 8 May 2025 letter).

• [7] I find that from 28 February 2017 Ms Stark has been absent from duty without leave. It follows that from 28 May 2017 Ms Stark had been absent from duty for a period of three months, otherwise than on leave granted under the ETR Act (or any other Act).

• [8] The effect of this finding is that Ms Stark's employment ceased by operation of s 2.4.34(1) of the ETR Act with effect from 28 May 2017. Section 2.4.34 of the ETR Act operated so as to automatically end the employment relationship without any intervention or action by the Department, and Ms Stark ceased to be an employee in the teaching service from that time. This is the case despite any misapprehension as to the status of Ms Stark's employment between the parties, or as communicated to Ms Stark in May 2025.[8] The letter of 23 May 2025 advising that Ms Stark's employment ceased with effect from 14 May 2025 was of no legal effect.

• [9] As Ms Stark was not dismissed by the respondent (see s 386 of the Act), in May 2025 or at all, Ms Stark is unable to make an unfair dismissal application. The application must be dismissed.

• [10] Ms Stark's application for an unfair dismissal remedy is dismissed.

[1] As to the former, see for example ss 2.4.56, 2.4.58, 2.4.59(4), 2.4.61A, 2A.1.15 of the ETR Act; as to the latter, see for example ss 2.3.10(3), 2.4.9(2) and 2.4.59(5) of the ETR Act

[5] Exhibit 1, p.57-58; Exhibit 2, document 1

[6] Exhibit 1, p.54-56; Exhibit 2, document 3

[7] Exhibit 1, p.53; Exhibit 2, document 4

[8] See Lennie v Department of Education [2024] FWC 1281 where O'Neill DP reached the same conclusion on similar facts. See also the analysis of the ETR Act in Applicant v Secretary to the Department of Education and Training [2022] FWC 1994 (Young DP) and Whelan v Department of Education and Training [2025] FWC 1818 (Colman DP)

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