Hannah Slee v Brimbank City Council - [2025] FWC 2945

[2025] FWC 2945

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Hannah Slee
v

Brimbank City Council

(C2025/5524)

COMMISSIONER YILMAZ

MELBOURNE, 2 OCTOBER 2025

Application to deal with contraventions involving dismissal - jurisdictional objection - whether Applicant dismissed – no dismissal.

On 5 June 2025, Ms Hannah Slee (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Brimbank City Council (the Respondent). In her application, Ms Slee alleges contraventions of s.346 of the Act in respect to protection of industrial activities.

The Respondent objects to the application on the basis that Ms Slee was not dismissed.

Whether Ms Slee was dismissed within the meaning of s.386 of the Act is in dispute. An application under s.365 of the Act can be made where a person has been dismissed and alleges their dismissal is in contravention of their general protections. Before the Fair Work Commission (the Commission) can deal with the application in accordance with s.368, it must determine if the Applicant was dismissed within the meaning of s.386 of the Act.

Ms Slee was represented by the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Respondent was self-represented.

Was the Applicant dismissed?

The Applicant’s submissions

Ms Slee is a casual employee that first worked for the Respondent on 6 October 2023 in the position of Duty Manager in Leisure Services and occasionally worked shifts as a Lifeguard. On commencement of employment Ms Slee submits that she input her availability to work on the rostering app, Human Force. She added that she was not available to work on Tuesday, Friday and before 4pm on Sundays. Based on her availability and availability of the work she was rostered variable days and hours each week. Ms Slee added that she often worked one Sunday evening per fortnight. Ms Slee described the various communication channels, some of which provided the opportunity to pick up extra shifts by swapping with staff.

Ms Slee submits that on 18 March 2025 she commented on a message about communications relating to enterprise agreement negotiations on Slack, an internal communication tool used by the Respondent to communicate announcements to staff. Following this post, she says she was no longer offered any casual shifts. She further submits that on 1 June 2025, she posted a message on Slack about bargaining and an ASU advertisement, which was removed after 8 minutes. The following day, on 2 June 2025, she received an email from management advising her that since she has not worked since 16 March 2025 it is deemed that she is an inactive staff member. Access to Slack and to the Respondent’s facilities was removed. Ms Slee contends that this action was a dismissal of her employment. Ms Slee attached the message received on 2 June 2025 and it reads:

‘Our records show that you have not worked as a Lifeguard/ Duty Manager for an extended period, with the last shift you worked being on the 16 March…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 2945
Decision Date: 2 OCTOBER 2025

CaseChat Overview and Summary

In the matter of Hannah Slee v Brimbank City Council, the Fair Work Commission was tasked with determining whether the Applicant, Ms Slee, had been dismissed within the meaning of the Fair Work Act 2009. Ms Slee, a casual employee, lodged an application alleging that her dismissal was in contravention of her general protections. The Respondent, Brimbank City Council, objected on the grounds that Ms Slee had not been dismissed. The central legal issue was whether Ms Slee’s employment had indeed been terminated, thus rendering the application valid under s.365 of the Act.

The Commission examined the facts presented by both parties. Ms Slee argued that her lack of shift offers and subsequent removal from certain communication channels and facilities were indicative of a dismissal, which she believed was retaliatory for her union activities. Conversely, the Council maintained that Ms Slee had not been dismissed; rather, her status was changed to "inactive" due to her not being rostered for work for an extended period, in line with Council policy. This policy dictates that casual employees who are not engaged for three months have their access temporarily disabled. The Council further asserted that Ms Slee remained on its payroll and could still be offered shifts.

The Commission concluded that Ms Slee had not been dismissed as per the Act, because her employment was not terminated by the Council's actions. The designation of Ms Slee as "inactive" did not constitute a dismissal as it did not terminate her employment. Instead, it aligned with Council policy and allowed for potential future engagement. The Commission noted that Ms Slee had not been removed from the payroll and retained access to other communication channels. Therefore, the application was not properly made, as it failed to satisfy the requirement that Ms Slee had been dismissed. The Commission, however, left open the possibility of amending the application date if Ms Slee could demonstrate that her employment had indeed been terminated by the Council.

The Commission ordered that Ms Slee must inform the Commission by a specified date whether her employment had been dismissed. If confirmed, the application date would be amended accordingly. If Ms Slee had re-engaged and become an active casual again, the application would be dismissed.

Orders