Yuri Humeniuk v Sculpture by the Sea Incorporated [2025] FWCFB 212

[2025] FWCFB 212

Yuri Humeniuk v Sculpture by the Sea Incorporated [2025] FWCFB 212 | Case summary | Zoe

[50]

[19] Mr Humeniuk sought to rely upon further evidence on appeal in the form of two witness statements.

[20] First, Mr Humeniuk sought to tender a further witness statement made by him dated 16 June 2025. In summary, the witness statement addresses two matters: that Mr Humeniuk had accepted further engagements with Sculpture by the Sea after 25 March 2024 and that Sculpture by the Sea had work available which could have been allocated to Mr Humeniuk after 3 September 2024. The Full Bench declined to accept the further witness statement of Mr Humeniuk. As to the first matter, the issue of whether Mr Humeniuk accepted further work after 25 March 2025 arose in cross-examination of Ms Corti during the hearing at first instance. Mr Humeniuk had the opportunity to seek to call further evidence in relation to that matter at that time and did not do so. It is not now appropriate to permit evidence on that issue to be admitted on appeal, particularly as it is likely to produce a further factual dispute which would need to be resolved. As to the second matter, we do not consider that evidence as to the availability of work which could have been undertaken by Mr Humeniuk later in 2024 and in 2025 is relevant to whether he was dismissed in September 2024. That question turns on the inferences to be drawn from the conduct of the parties at that time in light of the circumstances that existed, and were known to the parties, at that time.

[21] Second, Mr Humeniuk sought to rely on a witness statement of his solicitor, Rohan Burn. The witness statement of Mr Burn set out various events relating to a "facilitated discussion" which took place on 5 February 2025 involving the Commissioner and the parties and their representatives. The content of the witness statement is relevant to a contention advanced by Mr Humeniuk that the decision of the Commissioner should be quashed as a result of the involvement of the Commissioner in the facilitated discussion or, at least, that permission to appeal should be granted to consider that question. As a result, the Full Bench determined that it was appropriate to admit the witness statement of Mr Burn as further evidence on appeal under s 607(2) of the Act other than one part of the statement which purported to set out part of what the Commissioner said during the discussion.

[70]

[33] Mr Humeniuk relies on an amended notice of appeal which contains four grounds. The grounds may be summarised as follows:

(a) Ground 1 contends that the Commissioner acted on a wrong principle by failing to consider whether there had been a termination at the employer's initiative for the purposes of s 386(1)(a) because the decision not to engage Mr Humeniuk for the 2024 Bondi exhibition had the "consequence" of bringing the employment relationship to an end.

(b) Ground 2 contends that the Commissioner committed an error of law by requiring Mr Humeniuk to establish that there was a "binding contract" or an "enforceable contract" for him to perform work on the 2024 Bondi exhibition for there to have been a termination at the employer's initiative.

(c) Ground 3 contends that the Commissioner took into account a number of irrelevant considerations by considering whether Ms Corti's decision to not offer Mr Humeniuk work was reasonable, the content of the 25 March 2024 email, the tone of Mr Humeniuk's communications and Mr Humeniuk's asserted failure to set up a meeting with Ms Corti.

(d) Ground 4 contends that the Commissioner made errors of fact by accepting Ms Corti's oral evidence that the work performed by Mr Humeniuk after 25 March 2024 had been accepted prior to that date and that there was no further work to offer Mr Humeniuk after 3 September 2024.

[34] It is to be observed that ground 4 sought to rely on the further evidence contained in Mr Humeniuk's witness statement of 16 June 2024. As the Full Bench determined not to admit Mr Humeniuk's statement, ground 4 falls away.

[35] Each of grounds 1 to 3 seek to identify errors of approach or principle in the reasoning of the Commissioner which resulted in him concluding that Mr Humeniuk had not been dismissed. It is common, and understandable, for an appeal to be framed in that manner. The identification of errors in the approach adopted in the decision at first instance may be instructive as to whether the conclusion reached is correct. Whether errors can be identified in the reasoning at first instance may also be relevant to whether permission to appeal should be granted for the purposes of s 604(1) and (2) of the Act. However, the question of whether a person "has been dismissed" for the purposes of s 365(a) is a matter upon which the jurisdiction of the Commission depends and is a question amenable to one correct answer.[15] As such, if permission to appeal is granted, the question on appeal is whether the Commissioner was correct to find that Mr Humeniuk was not dismissed.

[71]

[36] Mr Humeniuk's written submissions raise a further issue concerning the "facilitated discussion" in which the Commissioner participated on 5 February 2024. In his written submissions, Mr Humeniuk contends that the Commissioner exceeded his powers under s 368 of the Act by conducting a conference prior to determining the jurisdictional objection raised by Sculpture by the Sea. He also contends that the present circumstances provide an opportunity for the Full Bench to consider when an apprehension of bias arises as a result of a member participating in conciliation after the commencement of arbitration. The issue is not addressed in any of the grounds recorded in the notice of appeal but is raised as a reason why permission to appeal should be granted. To the extent that Mr Humeniuk seeks permission to appeal on the basis that the Commissioner's decision is affected by error by reason of the "facilitated discussion", we do not accept that an arguable case of appealable error is raised which would justify permission to appeal being granted in relation to that ground.

[37] The Commissioner conducted a hearing in relation to the jurisdictional objection on 23 December 2024. The witness statement of Mr Burn indicates that, on 21 January 2025, solicitors for Sculpture by the Sea emailed the Commissioner's chambers to request assistance from the Commission to facilitate settlement discussions between the parties. The request was made jointly by the parties. The "facilitated discussion" was subsequently arranged to take place on 5 February 2025. The parties and their representatives then participated in a conference process involving the Commissioner on that date. Mr Burn's statement indicates that the Commissioner participated by way of attending a joint session, followed by private discussions separately with the parties. The "facilitated discussion" lasted for more than two hours, but the parties were unable to reach a resolution.

[38] Two issues are raised by Mr Humeniuk. The first is whether an apprehension of bias arises with respect to the Commissioner determining the jurisdictional objection by reason of his participation in the "facilitated discussion". There is no absolute rule that a member of the Commission who has conducted a conference, or another type of discussion aimed at resolving a dispute, cannot then arbitrate or decide the matter.[16] A member may be disqualified if a reasonable apprehension of bias arises as a result of participating in a conference, for example, if the member has been told something in conference that might influence, or appear to influence, their decision or has themselves said something that exhibits prejudgement.[17] If that occurs, the member is disqualified from further dealing with the matter and must recuse themselves.[18] There is nothing before the Full Bench to suggest that anything occurred in the "facilitated discussion" that gives rise to a reasonable apprehension of bias in relation to the Commissioner determining the jurisdictional objection or actual bias on the part of the Commissioner.

[39] In any event, a party to civil proceedings may waive an objection to a judge or tribunal member who would otherwise be disqualified on the ground of actual bias or a reasonable apprehension of bias.[19] Mr Humeniuk plainly waived any capacity he might have had to object to the Commissioner determining the jurisdictional objection. The "facilitated discussion" took place as a result of a joint request by Mr Humeniuk and Sculpture by the Sea. Furthermore, even after the "facilitated discussion" was unsuccessful, Mr Humeniuk did not object to the Commissioner deciding the jurisdictional objection. Mr Humeniuk was represented by counsel and solicitors. He cannot now complain about the Commissioner's decision on the basis that he participated in the "facilitated discussion" having made no objection at the time or prior to the Commissioner's decision being handed down.

[40] The second issue raised by Mr Humeniuk is whether the Commissioner exceeded his powers under s 368 of the Act by participating in the "facilitated discussion" prior to deciding the jurisdictional objection. The Full Court of the Federal Court has determined that, where objection is made to an application under s 365 of the Act on the basis that there had been no dismissal, that dispute must be resolved before the powers conferred by s 368 can be exercised.[20] The powers under s 368(1) involve dealing with the dispute (other than by arbitration). It is unnecessary to express a concluded view as to whether, by participating in a discussion at the joint request of the parties prior to deciding the jurisdictional objection, the Commissioner exceeded his powers. Even if he did, Mr Humeniuk does not explain how that would deprive the Commissioner of authority to determine the jurisdictional objection (leaving aside any question of bias, or a reasonable apprehension of bias, which might arise from participation in a conference or discussion process). We do not consider that any error in the Commissioner's ultimate decision can be established on that basis.

[41] For those reasons, permission to appeal should be refused to the extent that Mr Humeniuk contends that error arose as a result of the Commissioner's participation in the "facilitated discussion".

[73]

[43] As has been explained, the question which is raised by grounds 1 to 3 in the notice of appeal is ultimately whether the Commissioner was correct to find that Mr Humeniuk was not dismissed as a result of the email from Ms Corti dated 3 September 2024.

[44] That question requires some reflection on the nature of Mr Humeniuk's engagement as a casual employee and the circumstances in which the employment of an employee is terminated on an employer's initiative for the purposes of s 386(1)(a). The analysis of whether a person's employment "has been terminated on the employer's initiative" has long been understood as being conducted by reference to termination of the employment relationship rather than only termination of the contract of employment.[21] For example, a wrongful dismissal (that is, one which is not authorised by the terms of the contract of employment) terminates the employment relationship notwithstanding that the contract may continue in operation until the employee accepts the repudiation.[22] We note that an employee may also be dismissed within the terms of s 386(1)(a) if the employer repudiates the employee's contract of employment by demoting the employee and the employee accepts the repudiation but continues to be employed under a new employment contract.[23]

[45] In Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161; (2024) 307 FCR 65, the Full Court commented on the distinction between the contract of employment and the employment relationship. That case concerned whether the expiry of a fixed term contract of employment resulted in dismissal. The Full Court observed, albeit in obiter dicta, that "[a]t least for present purposes, distinctions between employment relationships and employment contracts are artificial; the termination of an employment relationship and the termination of an employment contract are the same thing". The Full Court continued that "the reference to "the person's employment with his or her employer [having been] terminated" can only be understood as a reference to the person's contract of employment being brought to an end (or, perhaps in some cases, repudiated)".[24] We do not understand the Full Court to have altered the long-standing understanding of the expression "terminated on the employer's initiative". In our view, the comments of the Full Court are best understood merely as recognising that, most commonly, the termination of the employment relationship and the contract of employment will coincide. That reflects that the employment relationship is contractual in origin such that there can be no employment without a contract of employment.[25]

[46] The concentration on the termination of an existing contract of employment has the potential to cause some uncertainty in the context of casual employment. The Act contemplates that a casual employee is able to apply for an unfair dismissal remedy if the person has completed the minimum employment period as a "regular casual employee" and, during the period of service, had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.[26] That is premised on the casual employee having a "period of service" of at least six months, being the period the employee was employed by the employer.[27] That is, it is contemplated that a casual employee will continue to be employed over a period of time in which they perform work on various occasions for the employer which may, or may not, be regular and systematic.

[47] No issue is raised in this matter as to whether Mr Humeniuk was employed by Sculpture by the Sea throughout 2024 until at least 3 September 2024 or that Mr Humeniuk had not completed the minimum employment period for the purposes of s 384(2)(a) as a "regular casual employee". Mr Humeniuk contends that he was dismissed on 3 September 2024 whereas Sculpture by the Sea asserted that Mr Humeniuk continued to be employed at the time of the jurisdictional objection hearing on 23 December 2024. We consider that it is correct for the parties to understand the relationship created by the contract of employment entered into in January 2024 as providing that Mr Humeniuk remained employed by Sculpture by the Sea on a casual basis until the contract was terminated.

[48] The contract has potentially contradictory features. On the one hand, the letter indicates that it provides Mr Humeniuk with "a new contract of employment in the position of Senior installer with Sculpture by the Sea Incorporated". Clauses 1.1 and 1.2 provide that the employment has a "start date" and the employment will be "on a casual basis, as required". The contract elsewhere provides for the duties associated with the employment, the rate of pay, hours of work, leave entitlements, payment of expenses and other conditions of employment. Notably, clause 13 provides for a request to be made to convert to full or part time employment after "12 months of regular casual employment" and clause 14 provides for "termination of employment". Clauses 15.2, 16.4, 16.6 and 19.1 impose obligations with respect to intellectual property, confidential information and receipt of inducements or rewards which continue to apply "during your employment". Clause 23.1 provides that "[t]he terms and conditions referred to in this letter constitute all of the terms and conditions of your employment". Each of these provisions contemplate that the contract created an ongoing employment relationship albeit of a casual nature.

[49] On the other hand, clause 6.1 provides that "... you will only be employed at such times and for such periods as are necessary to meet our operational needs". There is some ambiguity in the reference to Mr Humeniuk only being "employed" at such times and for such periods as are necessary for Sculpture by the Sea's operational needs. In our view, the better reading of the word "employed" in clause 6.1 is that it refers to the actual performance of work rather than the existence of an employment relationship. That understanding is consistent with the final sentence of clause 6.1 which states that "[w]e are not in a position to guarantee a certain minimum number of hours' employment each week or each month, or work on a continuing basis". That sentence unquestionably uses the word "employment" to refer to the performance of work. In the context of the remaining provisions of the contract, we do not consider that clause 6.1 is inconsistent with the contract creating an ongoing employment relationship.

[50] Clause 1.4 provides that "[e]ach occasion that you work will be a separate contract of employment which ceases at the end of that engagement". The clause is difficult to reconcile with the remainder of the contract which, in our view, plainly contemplates an ongoing employment relationship. However, understood together with clause 1.5 which provides that "as a casual employee, there is no guarantee of ongoing or regular work", the intention appears to be to emphasise that there is no guarantee of particular periods of actual work. The assertion that there is a separate contract for each engagement is not inconsistent with the existence of an umbrella contract providing for ongoing obligations associated with a continuing employment relationship.[28] In any event, in our opinion, when the contract is viewed as a whole, it provides for ongoing employment of a casual nature.

[51] The remaining question is whether the email of 3 September 2024 from Ms Corti to Mr Humeniuk terminated Mr Humeniuk's employment "on the employer's initiative". That question will commonly require consideration of whether the act of the employer resulted directly or consequentially in the termination of the employment and the employment relationship was not voluntarily left by the employee.[29] In other matters, the Commission has framed the inquiry as involving consideration of whether there was some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment to an end.[30]

[52] Mr Humeniuk submits that the Commissioner erred by considering only whether Sculpture by the Sea intended to bring his employment to an end and failed to consider whether the email from Ms Corti had the probable result of bringing the employment relationship to an end. It is correct to say that the Commissioner considered, at a number of points, whether the language of the email evinced "an intention to terminate the relationship".[31] However, we do not accept that the approach of the Commissioner involved error in the circumstances of this matter. This is not a case in which it is alleged that Sculpture by the Sea engaged in conduct which repudiated the contract of employment or forced Mr Humeniuk to resign. Mr Humeniuk's case, as we understand it, is that the email of 3 September 2024 involved an overt termination of his employment.

[53] That submission requires consideration of whether, assessed objectively, Sculpture by the Sea should be understood to have intended to bring the relationship to an end through the email of 3 September 2024. The question of whether a party to a contract of employment has given notice of termination does not depend on the subjective intention or understanding of the employer or employee, but an objective assessment of the intentions of the parties.[32] The question is whether a reasonable person in the position of the parties would have understood Sculpture by the Sea to have terminated Mr Humeniuk's employment through the email of 3 September 2024.

[54] With respect, we disagree with the conclusion of the Commissioner in that regard. The use of the language in the 3 September 2024 email "we would like to take a pause on our working relationship until after this year's Bondi exhibition" would, in the circumstances, be understood by a reasonable person in the position of the parties as conveying an intention to terminate the employment. A number of aspects of the circumstances are significant. Mr Humeniuk had worked on each Bondi exhibition since 2004 (leaving aside the exhibitions which were cancelled as a result of the COVID-19 pandemic) and he had agreed with Mr Marwick to undertake work on the 2024 exhibition. In those circumstances, a reasonable person would understand that Sculpture by the Sea did not wish to engage Mr Humeniuk further, at least for the time being. Similarly, Ms Corti's statement that the pause was prompted by acknowledgement of "your concerns about working with us again, and that you may not want to do so" would suggest to a reasonable person that the "pause" was envisaged to be a cessation of the relationship.

[55] The email of 3 September 2024 did convey that Sculpture by the Sea might consider employing Mr Humeniuk in the future. Ms Corti proposed that a meeting take place in mid-December or mid-January and that "[h]opefully after these meetings we will all be happy to work together again". The fact that an employer indicates that it might be open to recommencing an employment relationship in the future does not remove the possibility that the employment has been terminated for the time being. Ms Corti's email contemplated that Mr Humeniuk would perform no work at all for at least three or four months in circumstances in which he had been regularly performing work for Sculpture by the Sea up to that point. Whether the parties would "work together again" was said to be dependent on a positive outcome to the meeting envisaged by the email. It was no more than a possibility.

[56] We do not consider that the decision to "pause" the relationship can be said to be consistent with the casual nature of the employment.[33] The fact that Ms Corti conveyed that a decision had been made to "pause" the relationship, in itself, suggests that Sculpture by the Sea did not regard the decision as simply the continuation of the existing casual employment. Furthermore, as we have observed, Mr Humeniuk had been performing work on a regular basis up to that point in time and the decision meant that there would be a period of at least three or four months in which Mr Humeniuk would not be engaged and that whether the employment would resume would depend on a positive outcome to a meeting proposed to be conducted months into the future. Each of those aspects to the email of 3 September 2024 are inconsistent with the relationship as it had existed up to that time.

[57] A number of the matters relied upon by the Commissioner are not, in our opinion, relevant or persuasive. The Commissioner considered Mr Humeniuk's email of 25 March 2024, the tone of his communications and his alleged failure to engage with Ms Corti to set up a meeting and whether the decision to pause the relationship was reasonable.[34] Although whether a reasonable person would have understood Sculpture by the Sea to have terminated the employment must be assessed in light of the whole of the circumstances, we do not consider that those matters assist the analysis. Whether the actions taken by Ms Corti were understandable or reasonable, and whether Mr Humeniuk acted reasonably, is not relevant when assessing whether the inference to be drawn is that Sculpture by the Sea terminated the employment. Indeed, if an employer has good reason to terminate the employment of an employee, that might favour a conclusion that the employer intended to do exactly that. The email of 25 March 2024, if anything, favours a conclusion that Sculpture by the Sea intended to terminate the relationship because Ms Corti conveyed that she understood Mr Humeniuk may not wish to work for Sculpture by the Sea at all in the future. That was emphasised in Ms Corti's email of 10 September 2024.

[58] Finally, we consider that the fact that Mr Marwick had asked Mr Humeniuk to perform work on the Bondi exhibition in 2024, and that Mr Humeniuk had agreed to do so, is relevant to the inferences a reasonable person would draw from the "pause" to the relationship. Contrary to the view formed by the Commissioner, that does not depend upon a determination of whether there was a "binding contract" or an "enforceable contract" to undertake that work. A decision to pause the working relationship which involved an employee not performing work which he had been asked to undertake is relevant to an objective understanding of the intentions of the employer. Similarly, the dispute as to whether there was work available to Mr Humeniuk after September 2024 does not assist. The email of 3 September 2024 conveyed that Mr Humeniuk would not be engaged to perform any work unless there was a positive outcome to the foreshadowed meeting. The decision did not suggest that Mr Humeniuk was not to be engaged to undertake further work because none was available.

[59] For these reasons, the decision of the Commissioner was affected by error of the type identified in grounds 2 and 3 and, in any event, the conclusion of the Commissioner that Mr Humeniuk was not dismissed was wrong.

At a glance

Court

Decision date

Source

Judgment (111 paragraphs)

Yuri Humeniuk v Sculpture by the Sea Incorporated [2025] FWCFB 212 (18 September 2025)

Parties

Legislation Cited (1)

Cases Cited (15)