Hugh Mooney v Unite Resourcing, Jamie O'Regan
[2025] FWC 165
•17 JANUARY 2025
| [2025] FWC 165 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Hugh Mooney
v
Unite Resourcing, Jamie O’Regan
(C2024/7938)
| COMMISSIONER LIM | PERTH, 17 JANUARY 2025 |
Application to deal with contraventions involving dismissal – jurisdictional objection – was the employee dismissed – employee was dismissed – objection dismissed – application to proceed.
Introduction
This is an edited version of my decision delivered ex tempore and recorded in transcript on 17 January 2025.
Mr Hugh Mooney has applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth). Mr Mooney alleges that his former employer Unite Resourcing and Mr Jamie O’Regan dismissed him in contravention of Part 3-1 of the Act. The Respondents object to Mr Mooney’s application on the basis he was not dismissed.
Before Mr Mooney’s application can proceed, I must determine whether Unite Resourcing dismissed him. In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court held that where there is a question over jurisdiction – as is the case here – the Commission must determine the jurisdictional issue before exercising its powers under s 368 of the Act.[2]
I conducted a determinative conference to hear evidence on the jurisdictional issue on Friday, 17 January 2025. Mr Mooney represented himself and gave evidence in support of his case. Mr John Drennan, Chief Executive Officer, attended on behalf of the Respondents.
At the end of the determinative conference, I informed the parties of my decision that Mr Mooney has been dismissed. I then conducted a conference under s 368 of the Act.
2. What happened?
The facts of this matter are short and uncontroversial. Mr Mooney’s employment with Unite Resourcing commenced on 31 October 2024. On Monday, 4 November 2024, Mr O’Regan sent an email to Mr Mooney stating:
“Hi Hugh,
Please be advised that you are no longer required to return to site.
If you would like to discuss this further, please feel free to arrange a visit to our office at your convenience. I am also available for a call during standard business hours.
Best,
Jamie”[3]
Mr Mooney responded with, “No [dramas], see you in court”.[4]
Mr Drennan then emailed Mr Mooney:
“Don’t be so silly Hugh – I would advise you to review your contract and top making idle threats.
As per Jamie’s note – You are most welcome to come and see me personally at our offices.
You will be paid for all work completed and based on feedback I have received you will not be engaged via Unite Resourcing for any future work.
Best Regards,
John Drennan”[5]
Did Unite Resourcing dismiss Mooney?
‘Dismissed’ is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides:
“Meaning of dismissed
(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.”
The definition of dismissal in s 386(1) of the Act has two parts. The first deals with ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct or a course of conduct’.
In Mohazab v Dick Smith Electronics Pty Ltd,[6] a decision made prior to the passage of the Act, the Full Court of the Industrial Relations Court of Australia considered the meaning of ‘termination at the initiative of the employer’. The Full Court stated:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (“David Graphics”), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee who resigned because “he felt he had no other option”. His Honour described those circumstances as:-
“... a termination of employment at the instance [of] the employer rather than of the employee”.
and at 5: -
“I agree with the proposition that termination may involve more than one action.
But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” (our emphasis added)”
Unite Resourcing’s Form F8 provided the following statements:
(a)Mr Mooney was engaged as a casual employee with no reasonable expectation of continuous or ongoing work. He was also engaged for three days with appropriate notice provided.[7]
(b)“[Mr Mooney] was advised that as a casual employee that his services were no longer required for any future periods of engagement”.[8]
Unite Resourcing’s written submissions provided the following in support of its contention that Mr Mooney was not dismissed, “Mr Mooney was informed on 4 November 2024 that he was no longer required to attend site. He was provided one day’s pay in lieu of notice as specified in his agreement. These actions were compliant with the contractual obligations and the Fair Work Act 2009”.[9]
Unite Resourcing’s written submissions go on to state, “The decision to terminate Mr Mooney’s employment was made based on operational requirements and aligned with the terms of his casual employment agreement. Casual employees, by definition, are not guaranteed ongoing work, and the notice period was consistent with his contract and the Fair Work Act.”[10]
And lastly, “The termination of Mr Mooney’s casual employment was conducted professionally, with payment in lieu made instead of the 1 day notice period.”
During the determinative conference, Mr Drennan provided evidence and submissions consistent with the written submissions.
Given the above statements from Unite Resourcing, it is a mystery how they press their jurisdictional objection that Mr Mooney was not dismissed.
Unite Resourcing relies on clause 3.1 of Mr Mooney’s employment contract, which provides that they do not give casuals any advance commitment to continuing and indefinite work and that Unite Resourcing is not required to offer any further work. This is not some loophole that means casuals cannot be dismissed. It simply means that there is no expectation of continuing work.
It is clear from the undisputed evidence and from Unite Resourcing’s own submissions that Mr Mooney’s employment ended at Unite Resourcing’s initiative. Unite Resourcing dismissed Mr Mooney.
As noted in [5] of this Decision, as a conference has been conducted in accordance with s 368 of the Act, the Commission’s function in this matter is now concluded.
COMMISSIONER
Appearances:
H Mooney, Applicant.
J Drennan for the Respondent.
Determinative Conference details:
2025.
Perth
17 January.
[1] [2022] FCAFC 152.
[2] Ibid [51].
[3] Digital Court Book page 7.
[4] Ibid.
[5] DCB page 8.
[6] [1995] IRCA 625.
[7] DCB page 36 at 1.2.
[8] Ibid at 1.4.
[9] DCB page 56 at [1].
[10] DCB page 57.
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