Maria Finlay v Basso WA Pty Ltd
[2025] FWC 491
•19 FEBRUARY 2025
| [2025] FWC 491 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Maria Finlay
v
Basso WA Pty Ltd
(C2024/7133)
| COMMISSIONER SCHNEIDER | PERTH, 19 FEBRUARY 2025 |
Application to deal with contraventions involving dismissal
Ms Maria Finlay (Ms Finlay or the Applicant) has made an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving her alleged dismissal by Basso WA Pty Ltd T/A Doralane Pastries (the Respondent).
The Respondent has raised a jurisdictional objection to the application stating that Ms Finlay was not dismissed as required under the Act. Accordingly, the Commission must determine if Ms Finlay was dismissed before the matter may proceed.
Background
On 17 October 2024, the parties were directed to attend a case management conference on 23 October 2024. The Respondent failed to attend the conference as directed.
On 8 November 2024, a notice of listing was issued which directed the Respondent to file submissions, statements, and any other evidence it sought to rely on in support of its objection by 20 November 2024. The notice of listing confirmed that a Hearing, to deal with the jurisdictional objection, would be held on 6 December 2024.
On 22 November 2024, a notice of noncompliance was issued to the Respondent for failing to comply with the Commission’s directions through not filing the material requested. Ms Amanda Basso (Ms Basso) of the Respondent contacted my Chambers on the morning of 22 November 2024. Following a conversation with my Associate on 22 November 2024, I issued a revised notice of listing. The Hearing was rescheduled to 13 December 2024 and the Respondent was provided with an additional week (to 29 November 2024) to provide submissions. The Respondent failed again to comply with the revised directions and did not file any materials by 29 November 2024.
Due to the repeated conduct of the Respondent in failing to comply with the Commission’s directions, I reserved my decision regarding the objection, to be determined on the papers, and the Hearing was vacated. The submissions of Ms Finaly were accepted on 5 December 2024.
Legislation
Section 365 of the Act provides as follows:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The meaning of “dismissed” is provided at section 386 of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his 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 his remuneration or duties; and
(ii) he or he 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.”
This decision deals only with the jurisdictional objection to be determined.
Submissions and Evidence
On 11 October 2024, Ms Basso filed an Employer Response Form on behalf of the Respondent in reply to the application. On the Employer Response Form, Ms Basso confirmed that there was a jurisdictional objection, being that Ms Finlay was not dismissed. When prompted to explain the jurisdictional objection, Ms Basso wrote the following:
“Maria was not dismissed she put in a false claim for workers compensation & this lead me to rearrange her hours & work load and we no longer had a job for her we moved staff around to cope. I sent her an email not to attend work & she still showed up and I said you shouldn’t be at work.”
Despite being offered the opportunity, on numerous occasions, to provide further submissions or evidence to support the jurisdictional objection, the Respondent failed to do so.
Ms Finlay submits that she was dismissed at the initiative of the Respondent. Ms Finlay provided an email, sent to her from the Respondent’s business account, on 17 September 2024. The email reads:
“I also would like to let you know that you are a casual and there will be no further work for you at this stage. I feel this is the best way forward for my company. I have moved a few people around and there is no longer a position for you”.
The email in question was signed off by Ms Basso and “Terry”. Ms Finlay submits that this email was a termination of her employment at the initiative of the Respondent.
Ms Kellie Coutts (Ms Coutts), who was also employed by the Respondent provided an email in support of Ms Finlay which stated that the Respondent had let Maria go and there was no longer any work for her. Ms Coutts states that Ms Finlay’s position was filled with a new employee the following week.
When Ms Basso contacted the Commission in response to the noncompliance notice, her email, in part, read:
“She was let go because there was no more work for her I rearranged things for her and she didn't end up turning up for work. This is very unfair. The bakery is closed at the moment due to a fire. Not sure when it'll reopen…” (emphasis added)
Consideration
Central to the consideration in this case is the operation of section 386(1) of the Act. The word dismissed is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act. Section 386(1) of the Act reads:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”
This definition contains two elements. The first concerns 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.
The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.[1] In determining whether there has been a termination at the Respondent’s initiative, the reference to termination is in reference to that of the employment relationship, not the contract. [2]
Having considered the submissions and materials of the parties, I find that the Ms Finlay was dismissed at the initiative of the Respondent consistent with the test under the first limb, at section 386(1)(a) of the Act.
The screenshot of the email from the Respondent provided by Ms Finlay demonstrates that the Respondent had the clear intention of ending the employment relationship between the parties. The email clearly states that the Respondent will not be providing the Applicant with any further casual shifts.
The subsequent email from Ms Basso to my Chambers makes such a conclusion clear, the Applicant was “let go”.
It follows that Ms Finlay has been dismissed at the initiative of the Respondent and therefore within the meaning contained in the Act.
Conclusion
Having determined that the Applicant was dismissed at the initiative of the Respondent, the jurisdictional objection is dismissed. The parties will be contacted regarding the future programming of the matter in due course.
COMMISSIONER
[1] [2017] FWCFB 3941.
[2] [2023] FWC 1352, [44].
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