Kristijan Tasev v Tusk Group Pty Ltd - [2025] FWCFB 99

[2025] FWCFB 99

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Kristijan Tasev
v

Tusk Group Pty Ltd

(C2025/2422)

DEPUTY PRESIDENT MILLHOUSE

COMMISSIONER ALLISON
COMMISSIONER TRAN

MELBOURNE, 15 MAY 2025

Appeal against decision [2025] FWC 795 and order PR785377 of Deputy President Bell dated 28 March 2025 at Melbourne in matter number U2024/12252 – permission to appeal refused

Mr Kristijan Tasev has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision[1] of Deputy President Bell (Decision) delivered on 28 March 2025. The Decision relates to an unfair dismissal application made by Mr Tasev against Tusk Group Pty Ltd (Tusk). In the Decision, the Deputy President found that Mr Tasev was not dismissed by Tusk but voluntarily resigned. As an unfair dismissal application requires a “dismissal” to have occurred, the Deputy President ordered that Mr Tasev’s application be dismissed.

This matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.

Decision under appeal

From around 23 August 2023, Mr Tasev was employed by Tusk, a recruitment and labour hire company, pursuant to an employment contract under which Mr Tasev could be assigned to perform work for Tusk’s clients on an on-hire basis. Mr Tasev was on-hired by Tusk to work on assignment for Toll at a Kmart Distribution Centre. Following an incident with another employee on 7 October 2024, Toll instructed Tusk it did not want Mr Tasev to return to site. From 14 October 2024, Mr Tasev was assigned by Tusk to perform on-hire work at Holman Industries.

Mr Tasev filed an unfair dismissal application against Tusk on 14 October 2024. On 6 November 2024, Holman Industries notified Tusk that it no longer wished Mr Tasev to perform work for it. Tusk attempted to find an alternative assignment for Mr Tasev and on 8 November 2024 contacted Mr Tasev to advise him that it had found an opportunity for him. On 11 November 2024 Mr Tasev emailed Tusk, relevantly stating as follows:

“Thank you for reaching out. While I did attempt to secure a recent job opportunity, it
unfortunately didn’t come through. However, after careful consideration, I am inclined
to decline any future positions for the time being.

I have concerns that accepting another assignment may undermine the seriousness of
my case with Fairwork and jeopardize my standing. My primary focus at this stage is to
ensure that the situation I’ve faced is addressed properly and that the unjust treatment
I’ve experienced is formally acknowledged.

I appreciate your understanding and support in this matter.”

The Deputy President rejected Mr Tasev’s contention that he had been dismissed by Tusk, finding that the terms of Mr Tasev’s employment contract made it clear that a change in assignment did not end his employment relationship with Tusk. Further, upon the conclusion of each assignment, Tusk promptly and successfully found Mr Tasev new work assignments, demonstrating the parties’ ongoing employment relationship. Rather, the Deputy President found that…

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.

Continue reading Kristijan Tasev v Tusk Group Pty Ltd

Details

AGLC: Kristijan Tasev v Tusk Group Pty Ltd [2025] FWCFB 99
Case: [2025] FWCFB 99
Decision Date: 15 MAY 2025

CaseChat Overview and Summary

In the Fair Work Commission, Kristijan Tasev has appealed against a decision of Deputy President Bell, who found that Tasev had not been dismissed by Tusk Group Pty Ltd, but rather had voluntarily resigned. As the unfair dismissal application required a dismissal to have occurred, the Deputy President ordered that Tasev's application be dismissed. Tasev sought permission to appeal this decision. The appeal was listed for permission only. The court considered whether granting permission to appeal would be in the public interest.

The court examined the grounds of appeal which Tasev presented, including that the Deputy President erred in finding no dismissal occurred, failed to recognise Tusk's role in making continued employment untenable, failed to properly consider relevant evidence, and that there were public interest considerations. The court found that Tasev's grounds did not identify an arguable case of appealable error. The Deputy President's findings appeared to be supported by the evidence. Nor had an arguable contention been advanced that the Deputy President erred in finding that Tasev had resigned.

The court also found that the decision did not raise any matter of principle or law of wider application. The matter was determined based on its particular facts and did not manifest any injustice. Because the court was not satisfied that granting permission to appeal would be in the public interest, it refused permission to appeal in accordance with the Fair Work Act.

The court declined to admit fresh evidence presented by Tasev. It found there was not a high degree of probability that there would be a different decision if the evidence was admitted. The court observed that Tasev had not addressed the competency of his unfair dismissal application if he now took the view that he remained an employee of Tusk.

Orders