s.365 - General protections

Kare Qld Pty Ltd T/A Without Limits Disability Support Services

Application to deal with contraventions involving dismissal - jurisdictional objection - no dismissal - objection upheld- Application dismissed

• [1] This decision reflects that which I made Ex Tempore on 13 June 2025 with minor amendments for grammatical accuracy. Ms Wendy Bazley (the Applicant/Bazley) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 15 April 2025. Ms Bazley claimed that adverse action was taken against her by Kare Qld Pty Ltd T/A Without Limits Disability Support Services (the Respondent/Kare) under s.340 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Respondent raised a jurisdictional objection that Ms Basley was not dismissed. For Ms Bazley to be eligible to make a claim under s.365 of the Act, Ms Bazley will need to establish that she 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 an Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Ms Bazley was dismissed in contravention of the general protections provisions.

• [4] Neither party sought leave to be represented in accordance with my directions of 13 May 2025 and subsequently both parties self-represented.

• [5] Having sought the views of the parties, I determined that the matter would proceed as a determinative conference.

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

• [7] 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.

• [8] Section 386(2) goes on to say:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season;

• [9] Kare is a business that provides disability support services pursuant to participants in the National Disability Insurance Scheme (NDIS) in Bundaberg and its surrounds.

• [10] While I may not summarise all of the material in this matter in detail in my decision, I have nonetheless considered all of the submissions made by the parties and all of the evidence in my determination of this matter and the conclusions I have reached. I briefly note that Ms Bazley relevantly submitted that:

• • In late 2024, Ms Bazley arranged a doctor's appointment for one of Kare's high needs clients who had been complaining of pain following unsuccessful treatment with a massage therapist she had arranged in a neighbouring town;[2]

• • The client was prescribed a low dose of strong pain relief medication and this later led to concerns being raised by the client's brother and criticism from Kare who chastised Ms Bazley for allowing the prescription. Despite this however, the client continued to report pain and Ms Bazley provided additional relief with the application of muscle liniment regularly to his neck and shoulders;[3]

• • On 15 and 16 December 2024, Ms Bazley and another support worker, accompanied two clients on a respite trip to Bundaberg, one of which was the high needs client referred to in the preceding paragraphs. Whilst there, Ms Bazley arranged for her client to receive a massage to deal with his chronic pain and at the same time also arranged for herself to have a massage at the same facility for her own back pain, in the room next door, from which she claims to be able to hear her client and remain available to assist if required;[4]

• • Ms Bazley was sometime later advised that this was inappropriate and viewed as a personal financial gain as it was booked during working hours. Ms Bazley offered to reimburse the cost however was advised not to worry about that. Ms Bazley claims to have not benefited financially beyond the massage she received to deal with her pain, and she claims she did not believe that this was inappropriate given the circumstances;[5]

• • Ms Bazley believes her behaviour was unreasonably scrutinised following this and the oversight she was afforded was disproportionate and heightened.[6]

• • Ms Bazley contends the dismissal has caused her significant financial and emotional hardship as well as impacting negatively on her health.[7]

• [11] Ms Bazley relies on the Full Bench decision in Khayam v Navitas English[8] to submit that the commission should consider the totality of the employment relationship to determine whether the contract was genuinely time limited. I reject the Applicant's characterisation of Khayam v Navitas English in that case can be distinguished from this one. In Kayam, the employee was offered a number of subsequent employment contracts whereas in the present matter, Ms Bazley's engagement on fixed term employment as a Support Worker had come to an end, and whilst she was working as a casual Team Leader on a fixed term contract, it was uncontested that her employment had continued on.

• [12] Finally, the Applicant contends that her employment continued 3 months further than the alleged fixed term contract had expired and the exception to s.386 (expiry of a genuine fixed term contract) does not apply given the employment was not truly limited to a fixed term and the termination did not occur automatically.

• [13] While I may not summarise all of the material in this matter in detail in my decision, I have nonetheless considered all of the submissions made by the parties and all of the evidence in my determination of this matter and the conclusions I have reached. I briefly note that Kare relevantly submitted that:

• • Ms Bazley had not worked as a casual or independent contract support worker for at least 12 months at the time of termination;[9]

• • Ms Bazley was engaged as a Casual Team Leader from 19 July 2024 to 31 December 2024, however she continued in the role beyond this date;[10]

• • After considerable consideration,[11] Kare terminated Ms Bazley on 21 March 2025 giving her 7 days' notice despite Ms Bazley's casual employment status. That consideration included:[12]

• Ms Bazley performed work in Eidsvold some 200 kms from the company office in Bundaberg;
• Having no team leader presents difficultly in communication in a rural area;
• Logistics of having a section of the business operating remotely with no team leader and support to clients limited to 10-15 hours per week wasn't viable;
• Kare had provided Ms Bazley a laptop, printer and consumables to carry out the work as a team leader and requested it be returned; and

• o Kare was aware that Ms Bazley had an ABN and had used that to receive payments as a support worker before being contracted to Kare and while on contract with Kare.[13]

• • Kare also informed Ms Bazley that in good faith, it would inform the clients that although Kare could no longer support them, it would permit Ms Bazley to support them directly as an independent support worker and that this has occurred and Ms Bazley has resumed supporting them in that capacity in April 2025.[14]

• [14] In considering the material before me I find that:

• (a) It was uncontested that Ms Bazley was initially engaged as a casual support worker on 7 May 2024 on a fixed term basis with a nominal expiry date of 13 August 2024;[15] (First Contract)

• (b) It was uncontested that on 17 July 2024, Ms Bazley entered into a Casual Contract Work Agreement with Kare at her request, that was to commence on 19 July 2024 with hours that would vary from time to time. This letter states that Ms Bazley will have her invoices paid weekly. This contract signed by the parties but was never performed because the Casual Team Leader role was taken up pursuant to the Third Contract on the day this would have taken effect. I accept that Ms Bazley had an ABN, and the parties intended that this would be an independent contractor role;[16] (Second Contract)

• (c) It was also uncontested that on 17 July 2024, Ms Bazley also entered into an agreement engaging her as a Casual Team Leader with Kare to commence on 19 August 2024 with no minimum or maximum hours per week. This Agreement was for a fixed period with an end date of 31 December 2024;[17] (Third Contract)

• (d) The parties agreed that at a staff Christmas party, Ms Bazley asked to return to a wage-based arrangement and believes this was agreed to verbally however no new contract was made;[18]

• (e) It was uncontested that Ms Bazley continued to work in the Casual Team Leader role beyond the end date of 31 December 2024;[19]

• (f) Kare contacted Ms Bazley on Wednesday 19th March to advise her that one of Ms Bazley's clients had requested that Ms Bazley no longer provide him support with effect that week. Kare attempted to explain the reasons why he had advised Kare of his decision. [20] At hearing, Ms Bazley gave evidence that she was told that this client had raised complaints about her but she didn't become aware that this client had decided not to have Ms Bazley as his support worker, until she received the letter of termination. At hearing, Ms Bazley also gave evidence that this was the client she had said she could no longer provide support too because of the distance required to travel to him;

• (g) It was uncontested that Ms Bazley informed Kare by email in the late evening on 20 March 2025, that following a break down in communications between the parties, that she wished to step down from her Team Leader role, that it was not financially viable for her to continue supporting one of her clients because of the travel involved and that due to family circumstances she wished to reduce her working hours with one particular client to 2 hours (she suggested the other hours required to support that client should be assigned to a different support worker). Ms Bazley sought that her weekly hours be reduced to 2 x 2 hour shifts and 1 x 4 hour shift totalling 8 hours per week. At hearing Ms Bazley gave evidence that the Team Leader role involved a great deal of additional duties and given her personal circumstances, she was no longer able to perform those duties;[21] and

• (h) On 21 March 2025, Kare wrote to Ms Bazley terminating her employment due to the client terminating her support of him combined with Ms Bazley unilaterally reducing her availability for existing work.[22]

• [15] 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.[23] It is sufficient that the employer's conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[24]

• [16] All of the circumstances - including the conduct of both the employer and employee - must be examined.[25]

• [17] I accept that the previous contract as a casual support worker had come to an end (First Contract). I accept that a Second Contract was entered into between the parties as a casual support worker contract role, and that contract engaged Ms Bazley as an independent contractor not as an employee.

• [18] I do not accept that Third Contract for the Casual Team Leader role was a fixed term role that ended on 31 December 2024, quite simply because it is uncontested that this role did not end then, instead it continued on until it came to an end on 28 March 2025. The Third Contract did not come to an end by effluxion of time. It could not have, because on 1 January 2025, Ms Bazley was no longer employed on a fixed term basis. The fixed term period of her contract had come and gone and yet her employment continued. Ms Bazley's contract was no longer susceptible to the effluxion of time because the agreed fixed term had passed, it had instead become one of ongoing employment. Therefore, it is clear on the evidence that with the exception at s.386(2) ruled out, I must decide whether the employment of Ms Bazley came to an end at Kare's initiative.

• [19] Repudiation is a question of fact.[26]

• [20] I acknowledge Ms Bazley unilaterally refused to perform the leadership duties of her team leader role and to reduce hours of work. The question is whether Ms Bazley repudiated her employment contract based on a refusal to perform it. In Koompahtoo the High Court found

"A refusal to perform can arise from the words or conduct of the party ... The test applied to determine if there has been a repudiation by a refusal to perform is whether the conduct of the employee is such as to convey to a reasonable person, in the employers position, a renunciation either of the contract as a whole or of a fundamental obligation under it."[27]

• [21] I am satisfied that Ms Bazley, in writing to her employer to say she will no longer perform the leadership duties of the role, has evinced an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the employee's obligations. I note that the reason for the conduct is immaterial.[28]

• [22] Further, where there is a partial refusal there is a requirement to establish the seriousness of that breach.[29] Whilst it is possible, that repudiation constituted a partial refusal, the Team Leader role is a Team Leader role because of its leadership responsibilities.[30] Finally, a serious breach or repudiation does not automatically terminate an employment contract.[31] An election to terminate is necessary by the innocent party. In this case, I am satisfied that Kare elected to do so and that the repudiatory conduct of Ms Bazley resulted in her employment contract as a Casual Team Leader coming to an end.

• [23] The next question to be resolved is whether the earlier employment contracts remained on foot such that employment relationship should have continued in another role. I previously found that the Second Contract, was a contract for an Independent Contractor. If the parties are going to rely on the arrangements that would be in place if the Casual Team Leader contract were brought to an end, then it would be this contract which would be in place. This is clearly not an employment contract and therefore I must conclude that when the Casual Team Leader contract came to an end, Ms Bazley's employment relationship with Kare also came to an end. I note that it was uncontested by the parties that the Independent Contractor arrangement (Second Contract) was put in place at the request of Ms Bazley. The Independent Contractor arrangement signed on 17 July 2024, ended the employment relationship. It was recommenced with the Third Contract. When the Third Contract came to an end, the Employment relationship therefore also came to an end.

• [24] Ms Bazley's employment came to an end as a result of her unilateral repudiation of a material aspect of the employment contract she was party to. That repudiation was accepted by Kare however the employment relationship itself also came to an end as a consequence of Ms Bazley's actions rather than her employer. The jurisdictional objection is upheld, and the application is dismissed.

[1] [2020] FCAFC 152.

[8] Khayam v Navitas English Pty Ltd [2017] FWCFB 5162.

[10] DCB p.11 at [5]; See also DCB p.30.

[15] Digital Court Book (DCB) p.39, Exhibit R1.

[18] DCB p.11 at [5]; See also DCB p.30.

[21] Ibid; See also DCB p.48, Exhibit R3.

[23] 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] IRCA 625; (1995) 62 IR 200.

[24] 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 3941 at [31].

[25] Whirisky v DivaT Home Care [2021] FWC 65 0at [77].

[26] English and Australian Copper Co Ltd v Johnson [1911] ArgusLawRp 106; (1911) 13 CLR 490 at [497].

[27] Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) HCA 147; 233 CLR 115; 241 ALR 88 at [44].

[28] Noonan v Victorian Railways Commissioners [1907] HCA 48; (1907) 4 CLR 1668 at [1680], [1682], [1685].

[29] Ibid.

[30] Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; (1989) 85 ALR 183; (1989) 63 ALJR 372; [1989] ANZ ConvR 196; (1989) NSW ConvR 55-469; (1989) Q ConvR 54-317; (1989) V ConvR 54-337; [1989] HCA 23; BC8995703.

[31] Visscher v Guidice [2009] HCA 34; (2009) 258 ALR 651.

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