Carol Hemi v In2 Staffing Solutions Pty Ltd
[2025] FWC 233
•24 JANUARY 2025
| [2025] FWC 233 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Carol Hemi
v
In2 Staffing Solutions Pty Ltd
(C2024/7421)
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 24 JANUARY 2025 |
Application to deal with contraventions involving dismissal – no jurisdiction. Ms Hemi was not dismissed within the meaning of s. 386 of the Fair Work Act
Ms Carol Hemi has made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) seeking the Fair Work Commission (the Commission) deal with a dispute over a dismissal alleging contraventions of Part 3-1. The application is brought against In2 Staffing Solutions Pty Ltd (the respondent). The respondent contends that the Commission has no jurisdiction to deal with the dispute because Ms Hemi was not dismissed.
In Coles Supply Chain v MilfordColes Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591 at [64] – [65] the Full Court of the Federal Court of Australia made it clear that the Commission only has power to deal with a dispute under s. 365 if it is validly made. An application to deal with a dispute over a dismissal will not be validly made if there was no dismissal. The Court also made clear at [67] that where a question arises as to whether there has been a dismissal the Commission must resolve that question before proceeding to deal with the dispute.
Whether someone has been dismissed under the Act is to be determined by reference to ss. 12 and 386. Section 12, the Dictionary, defines the expression dismissed by referring to s. 386. Section 386(1) reads:
(1) 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.
(2) However, a person has not been dismissed if:
(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; or
(b)the person was an employee:
(i)to whom a training arrangement applied; and
(ii)whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c)the person was demoted in employment but:
(i)the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
The parties were unrepresented. The matter was dealt with in conference on 22 January 2025. Prior to the conference I was provided with written material from each party. At the conference the parties provided written material and further submissions on the circumstances relevant to the both the jurisdictional issue and the claim under s. 365. This decision deals with the jurisdictional objection being whether Ms Hemi was dismissed.
Background
The respondent is a labour hire company. It provides labour to clients who seek to supplement their workforces on a short term basis. Ms Hemi was employed as a casual employee in July 2021 having applied for casual work depending on assignments offered and her availability. During her employment Ms Hemi worked on 12 assignments performing labouring work including in pick packer and production roles in warehousing and manufacturing environments. That work was performed for clients of The respondent on assignment. The assignments varied in length from 1 day up to 3 months.
The last assignment worked was from 5 September 2024 to 23 September 2024. In the week of 16 September 2024 Ms Hemi was absent from work due to a domestic violence incident. On 23 September 2024 Ms Hemi requested 5 days family and domestic violence leave. The request was made by telephone and the company responded by text message with “Ok”. On 24 September 2023 Ms Hemi was informed by text message that there was no need to return to the assignment she was on because she had been replaced. The respondent explains that this was because the assignment finished on 30 September 2024 and as Ms Hemi was on leave, she was no longer required on that assignment and a replacement was found.
On 25 September 2024 at 2.46 pm Ms Victoria Burakowski who is a Director of the respondent rang Ms Hemi. There is a contest between Ms Hemi and Ms Burakowski about what was said in this conversation. Ms Hemi believed that during that call she was dismissed. Ms Burakowski denies that she dismissed Ms Hemi. It is agreed that during the call there was a discussion about whether Ms Hemi was entitled to family and domestic violence leave. Ms Hemi states that Ms Burakowski told her that she was not entitled to leave because she no longer worker for the company. Ms Hemi took this as Ms Burakowski dismissing her. Ms Burakowski insists that she did not dismiss Ms Hemi but was only explaining that she believed that Ms Hemi was not entitled to the leave and said that it didn’t matter anyway because she had time to deal with the domestic violence issue because she had been taken off her current assignment.
At 4.37 pm, following the phone call, Ms Hemi requested a separation certificate to take to an appointment with Centrelink the following day. The certificate was issued on 26 September 2024. The certificate indicated that Ms Hemi started employment on 5 September 2024 and ceased on 23 September 2024. It stated the reason for the separation was “Shortage of work”.
On 1 October 2024 Ms Hemi applied for work through another agency. She received 6 weeks work through that agency in the months of October to December 2024.
Ms Hemi filed her application under s. 365 on 14 October 2024. The application was provided to the respondent at 11.51 am on 21 October 2024. Ms Burakowski said that as the application was sent to an administration email address ([email protected]) it was not brought to her attention until days later.
At 12.18 pm on 21 October 2024 the respondent sent Ms Hemi a text message offering her work starting on 22 October 2024. Ms Hemi did not reply. Ms Hemi said she did not reply because she had commenced these proceedings against In2 Staffing Solutions.
On 31 December 2024 the respondent made a further offer of work to Ms Hemi, this time by telephone. Ms Hemi declined the offer stating that she the current proceedings were ongoing.
At the conference on 22 January 2025 the respondent made a further offer to provide Ms Hemi with work. Ms Hemi declined the offer. She said she did not want to work for the company.
Consideration
The question that arises here is whether Ms Hemi was dismissed. She will have been dismissed if her employment with the respondent has been terminated on the employer’s initiative within the meaning of s. 386(1)(a). There is no suggestion that Ms Hemi resigned and s. 386(1)(b) does not apply. A further question may arise under s. 386(2)(a) as to whether Ms Hemi was employed under a contract of employment for a specified period, for a specified task, or for the duration of a specified season, and her employment has terminated at the end of the period, on completion of the task, or at the end of the season. The specified task being the assignment that she was working on that came to an end on 30 September 2024. If the employment ended on the completion of that task, then Ms Hemi has not been dismissed.
On the first question, whether the dismissal ended at the initiative of the employer I find that it did not. The relevant facts are those surrounding the events on 24, 25 and 26 September 2024. On 24 September 2023 the respondent let Ms Hemi know that as she had indicated that she wanted 5 days’ leave there was no need to return to her current assignment the reason being that the assignment finished on 30 September 2024. The next day Ms Hemi spoke with Ms Burakowski. There were differences in the account given of this conversation. Ms Hemi asserts that this is when she was dismissed. I prefer Ms Burakowski’s account. Ms Burakowski had a better recollection of what was said and that the discussion was about entitlement to family and domestic leave. I find that Ms Burakowski did not say that Ms Hemi was dismissed but that she was not required for work while she attended to the domestic violence incident. This was consistent with the nature of her employment as a casual employee who was provided work as it became available. Ms Burakowski was just indicating that work would not be available in the short term.
The reason for the lack of work was that Ms Hemi was available for the rest of the current assignment and that more work would need to be found on a further assignment.
Ms Hemi may have taken the view that she had been dismissed but that view was not justified. Ms Hemi’s request for a separation certificate was consistent with her view. However, the separation certificate that was provided is consistent with Ms Burakowski’s account. It indicates that the separation was directed at the assignment that Ms Hemi had been working on and the work for that assignment had come to an end. The dates on the certificate and the indication that the reason was shortage of work are consistent with the respondent’s account that Ms Hemi had completed work on that assignment but that didn’t mean that she was dismissed in the sense that she would not receive work on other assignments.
Consequently, there was no dismissal within the meaning of s386(1) and the issue of whether the exclusion under s. 386(2)(a) does not arise.
As I am not satisfied that the Ms Hemi was dismissed within the meaning of s. 386(1) the jurisdictional prerequisite in s. 365(a) has not been met and the present application cannot proceed. I note Ms Hemi has not accepted work since October 2024. The respondent has stated that it is willing to provide further work to Ms Hemi and my decision does not stop that from happening.
The application under s. 365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms Hemi for the applicant.
Ms Burakowski for the respondent
Hearing details:
2025.
Sydney:
16 January.
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