Mr Brodie Harrison v D & D Demolition Pty Ltd - [2025] FWC 436

[2025] FWC 436

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Brodie Harrison
v

D & D Demolition Pty Ltd

(C2024/6304)

COMMISSIONER TRAN

MELBOURNE, 13 FEBRUARY 2025

Application to deal with contraventions involving dismissal – Jurisdictional objection – Not dismissed – Jurisdictional objection dismissed - Proceed to conference under s 368

Mr Brodie Harrison has applied to the Fair Work Commission for the Commission to deal with contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) in relation to his employment with D&D Demolition Pty Ltd (the respondent/employer).

Before the Commission can exercise its jurisdiction to deal with a dispute about contraventions involving dismissal, it must first find – as a matter of fact – that a dismissal occurred.[1]

Mr Harrison says that he was dismissed because he was removed from the WhatsApp messaging service group work chat and by text message on 15 August 2024.

D&D Demolition say that they did not dismiss Mr Harrison. They say Mr Harrison says that he was injured at work, applied for WorkCover and stopped attending work. They say that they continue to have work for him.

I issued Directions to the parties on 23 October 2024. Neither party filed any materials. Neither party provided reasons for their failure to comply with my Directions when asked prior to the hearing date.

I held a hearing on 17 December 2024. Mr Brodie did not initially attend the hearing but joined it after my chambers contacted him. No one attended the hearing on behalf of D & D Demolition.

When my chambers contacted D&D Demolition at the time of the hearing, reception staff informed us that the contact person – Ms Donna Stijakovic, Director – was on leave. Ms Stijakovic had not sought for the hearing to be adjourned nor did she ask to be excused from attending the hearing. Given that I had no materials and no contact from the respondent, but they had been provided with an opportunity to submit their materials, I considered that it was appropriate to determine the matter in the respondent’s absence.

At the hearing, Mr Harrison made submissions and gave oral evidence. I provided Mr Harrison with a further opportunity to provide supporting documentation that he referred to in his oral evidence. I also gave D&D Demolition a further opportunity to put materials in reply to Mr Harrison’s materials.

Mr Harrison’s Case

Mr Harrison says that he was dismissed by text message and because he was deleted from the WhatsApp chat where he learned of where he was to attend for work each day. He says that each night, a message is sent out to everyone with all the information they need for the job the next day. He says he was deleted from the chat before the work message for the next day was sent out. Mr Harrison says he has never been added back to the chat. Mr Harrison says no one…

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 436
Decision Date: 13 FEBRUARY 2025

CaseChat Overview and Summary

Mr Brodie Harrison applied to the Fair Work Commission (FWC) for the Commission to deal with contraventions involving his dismissal by D & D Demolition Pty Ltd (D&D) under s 365 of the Fair Work Act 2009 (Cth). The application was made after Mr Harrison was removed from a work WhatsApp chat and received a text message from a D&D representative stating that the company had to hire someone else, which Mr Harrison interpreted as a dismissal. D&D, on the other hand, argued that they had not dismissed Mr Harrison but had instead offered him other roles within the company. The FWC needed to determine whether Mr Harrison was dismissed within the meaning of the Act, and if so, whether the FWC had jurisdiction to deal with the matter.

The primary legal issue the FWC had to decide was whether Mr Harrison's removal from the work WhatsApp chat and the subsequent text message amounted to a dismissal within the meaning of s386(1)(a) of the Act. The FWC had to consider whether D&D's actions were intended to bring Mr Harrison's employment to an end, or whether they were likely to bring the employment to an end, or if they were the principal contributing factor to the employment ending. The FWC also had to determine whether it had jurisdiction to deal with the matter, which required a finding that a dismissal had occurred.

The FWC found that the text message from D&D's representative, stating that they had to hire someone else and wishing Mr Harrison all the best, amounted to a dismissal within the meaning of s386(1)(a) of the Act. The FWC was satisfied that D&D's actions were intended to bring Mr Harrison's employment to an end, or were likely to do so, or were the principal contributing factor to the employment ending. The FWC rejected D&D's argument that they had offered Mr Harrison other roles within the company, as there was no evidence to support this claim. The FWC also dismissed D&D's jurisdictional objection and found that it had jurisdiction to deal with the matter.

The FWC ordered that the matter be listed for a conference under s 368 of the Act to deal with the contraventions involving dismissal.

Orders