Mr Ethan Shea v CareFlight Limited
[2025] FWC 1211
•22 MAY 2025
| [2025] FWC 1211 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ethan Shea
v
CareFlight Limited
(U2025/672)
| COMMISSIONER RIORDAN | SYDNEY, 22 MAY 2025 |
Application for an unfair dismissal remedy – jurisdictional objection – Applicant not dismissed
On 20 January 2025, Mr Ethan Shea (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant alleges that he was unfairly dismissed by CareFlight Limited (the Respondent) on 2 January 2025.
In its Form F3 – Employer response to unfair dismissal application, the Respondent raised a jurisdictional objection on the grounds that the Applicant was not dismissed from his casual position and remains an active employee of the Respondent.
A Jurisdictional Hearing was conducted in this matter by Video via Microsoft Teams on 29 April 2025.
This decision determines the jurisdictional objection only.
Relevant Provisions of the Act
Section 394 of the FW Act provides that:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Section 385 provides the meaning of ‘unfairly dismissed’ as follows:-
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
The meaning of ‘dismissed’ is provided at s.386 of the FW Act:
“386 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.
(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 her remuneration or duties; and
(ii) he or she 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.”
Respondent’s Submissions
The Respondent submitted that the Commission does not have jurisdiction to deal with the Application as the Applicant was not dismissed from his employment.
The Respondent noted that in accordance with s.386 of the FW Act, a dismissal occurs only if an employer has terminated the employee’s employment at its initiative or if the employee was forced to resign due to conduct by the employer amounting to a constructive dismissal. The Respondent submitted that neither scenario applies in this case.
The Respondent submitted that:
“• Mr Shea remains an active casual employee whose shifts were adjusted due to operational reasons and his own stated unavailability.
· No termination notice was issued by CareFlight.
· Any removal of shifts and IT access restrictions were part of an operational review related to a potential conflict of interest and were not a dismissal.”
Nature of Casual Employment – No Guarantee of Ongoing Work
The Respondent submitted that the Applicant was employed as a casual Logistics Coordinator and signed a casual employment contract that explicitly states:
“• Each shift is a separate engagement, and CareFlight has no obligation to provide ongoing work.
· Shift allocation is determined based on operational needs.
· Casual employment is distinct from permanent employment and does not include entitlements such as notice of termination.”
The Respondent annexed a copy of the Applicant’s casual employment contract to its materials.[1]
The Respondent submitted that between June 2024 and December 2024, the Applicant worked an irregular pattern of shifts, ranging from 5 to 20 shifts per month, which demonstrated the nature of his casual engagement. In support of this submission, the Respondent annexed copies of the Applicant’s payslips from June 2024 to January 2025.[2] The Respondent submitted that in accordance with the FW Act, an employee engaged on a casual basis does not have an expectation of regular, ongoing employment.
No Formal Termination by CareFlight
The Respondent submitted that it at no stage issued a formal termination letter or otherwise advised the Applicant that his employment was terminated. The Respondent submitted that it remained open to discussions with the Applicant about his availability and ability to continue working in a casual capacity, subject to resolving the conflict of interest concerns that had arisen in light of the Applicant’s new role with St John Ambulance (SJA).
The Respondent submitted that any decision to adjust the Applicant’s shifts was based on:
“• His own stated intention to focus on his new full-time role at SJA; and
· The operational review of a conflict of interest.”
The Respondent submitted that the Applicant was not removed from the system as an employee and was still eligible to receive shifts, subject to the resolution of these matters.
The Applicant’s Own Actions and Statements
The Respondent submitted that on 31 December 2024, the Applicant was contacted by his manager to discuss his reduced availability. The Respondent submitted that it was only at this point that the Applicant disclosed his full-time role at SJA.
The Respondent submitted that on 2 January 2025, during a meeting with his manager and senior coordinator, the Applicant:
“• Acknowledged that working for SJA presented a potential conflict of interest.
· Indicated that he would not be undertaking upcoming shifts to prepare for his new role.
· Stated that he would be submitting a formal resignation to HR.”
The Respondent submitted that following this meeting, the Applicant:
“• Held a farewell event and informed colleagues of his departure.
· Contacted Jodie Mills (General Manager, Northern Territory) querying if she knew his last day was 2 January 2025.
· Contacted payroll to confirm his final pay and stated his last working day was 24 January 2025.
· Did not clarify his position or dispute his departure until lodging this claim.”
The Respondent annexed to its materials a copy of the farewell event information and summary of the phone discussions with Ms Mills.[3]
The Respondent submitted that, given these clear and repeated actions, it appears that the Applicant intended to resign from the Respondent to work with SJA. However, the Respondent submitted that until the Applicant clarifies his position, his employment with the Respondent has not yet ended.
(My emphasis)
Conflict of Interest Review – A Justified Operational Measure
The Respondent submitted that it had legitimate business reasons to assess whether the Applicant’s full-time employment at SJA created a conflict of interest. The Respondent submitted that a conflict of interest does not need to be actual; a perceived conflict alone is sufficient to warrant review.
The Respondent submitted that the Applicant was:
“• Informed that a review was required and that CEO approval was needed for him to continue working in a casual capacity.
· Asked to provide further information to assist in the review but failed to do so and continues to do so.
· Notified that his IT access was temporarily restricted while the review was ongoing.”
(My emphasis)
The Respondent submitted that this was not a termination action, but a reasonable operational decision pending further assessment.
Procedural Fairness and Good Faith
The Respondent submitted that it engaged with the Respondent regarding his employment status and provided opportunities for clarification.
The Respondent submitted that the Applicant was:
“• Advised he remained an active employee and could discuss his ongoing availability.
· Given a clear process to resolve the conflict of interest but chose not to engage.”
The Respondent submitted that the Applicant’s failure to provide the necessary information and his own statements led to his absence from shifts, not any action by the Respondent amounting to dismissal.
The Claim Should Be Dismissed
The Respondent submitted that the Applicant was not dismissed within the meaning of s.386 of the FW Act.
The Respondent submitted that it took reasonable and lawful actions to address a potential conflict of interest and was prepared to continue engaging the Applicant in casual shifts.
The Respondent submitted that the Applicant’s own statements and actions, including indicating his departure, advising colleagues of his farewell, and confirming his final pay, support the position that the Applicant voluntarily ceased his employment with the Respondent.
The Respondent submitted that its jurisdictional objection should be upheld, and the Applicant’s unfair dismissal application be dismissed in full.
Applicant’s Submissions
While the Applicant did not dispute that he was a casual employee of the Respondent, the Applicant submitted that he was employed on a regular and systematic basis, averaging 37 hours per week, having commenced employment as a full-time employee in October 2022 and transitioned to casual in June 2024.
Objection – Not Dismissed
The Applicant submitted that the Respondent’s actions do not support their jurisdictional objection.
The Applicant submitted that he is very clear that a verbal dismissal occurred on 2 January 2025, and that the Respondent then engaged in actions to support that dismissal.
The Applicant submitted that the parties agree that a removal of shifts occurred, and that IT access restrictions were put into place. However, the Applicant submitted that the Respondent has attempted to claim that these were part of an “operational review” whilst the Applicant’s view was that they were actions as a result of his dismissal.
Dismissal
The Applicant submitted that all of the Respondent’s actions are consistent with dismissal of the Applicant on 2 January 2025.
The Applicant submitted that on 30 December 2024 at 12:56pm, the Operations Manager of the Respondent and the Applicant’s direct manager, Ms Nic Habgood, spoke with the Applicant by phone to discuss his availability for shifts. The Applicant submitted that he disclosed during this conversation that he had secured a role as a dispatcher with SJA to ensure transparency regarding his availability of shifts. The Applicant submitted that during that telephone conversation, Ms Habgood suggested there was a conflict of interest.
The Applicant submitted that when he asked for more information about the conflict of interest, Ms Habgood advised they would discuss it at the Applicant’s next shift.
The Applicant submitted that on 2 January 2025 at approximately 10:15am, whilst he was working, Ms Habgood approached his desk and called him into an informal meeting. The Applicant submitted that as he walked into the meeting room, Ms Habgood announced that joining the meeting was Senior Logistics Coordinator, Alex Young.
The Applicant submitted that Ms Habgood and Mr Young congratulated him on his new role with SJA. The Applicant submitted that Ms Habgood then said words to the effect of “there is a conflict of interest between CareFlight Coordination and SJA Coordination”. The Applicant submitted that he challenged this statement, bringing up a colleague as an example of an employee who held dual roles. The Applicant submitted that Ms Habgood was dismissive of this, and discussed that this required CEO approval and advised of a “longstanding arrangement” with that other employee.
The Applicant submitted that the Respondent then “essentially forced [him] to give up his shifts for 4 January and 5 January 2025”.
The Applicant submitted that they briefly discussed that they may be able to redeploy him to an alternate role, but no further discussion on this matter occurred.
The Applicant submitted that Ms Habgood also discussed with him that there had been some issues between them, with the Applicant having previously complained about Ms Habgood.
The Applicant submitted that the meeting ended with an acknowledgement that Ms Habgood would send the relevant section of the Code of Conduct, and no other actions were agreed.
(My emphasis)
The Applicant submitted that in light of the above matters, during that meeting of 2 January 2025, he was terminated by the Respondent.
The Applicant submitted that the Respondent has relied on the unresolved issue of the alleged conflict of interest to suggest that his employment was in ‘limbo’. However, the Applicant submitted that the actions of the Respondent during and after the meeting of 2 January 2025 indicate that he was indeed terminated at that meeting.
The Applicant submitted that no-one took minutes during the meeting. The Applicant submitted that the minutes issued to him later had been written after the fact, and there is no indication or confirmation that they are an accurate account, or who prepared them.
The Applicant submitted, importantly, he had agreed with Ms Habgood and Mr Young that the roles were similar but requested clarification from both of them as to the actual conflict of interest.
Further, the Applicant noted at that meeting that other employees also held dual roles at SJA and CareFlight and that the Respondent had no issue with this. The Applicant submitted that whilst he was told such arrangements required CEO approval, he was not offered a way to resolve the matter at that meeting or subsequently.
The Applicant submitted that at the meeting of 2 January 2025, “[he] explicitly expressed his intention to remain employed casually at CareFlight”.
The Applicant submitted that:
“The meeting demonstrated a finality. It concluded with Nic shaking [his] hand and thanking him for his service.”
Post-termination
The Applicant submitted that after the meeting of 2 January 2025, he was perplexed and sat down at his desk. The Applicant submitted that he refreshed his browser and noticed that despite having scheduled shifts on 4, 5 and 12 January, he had immediately been removed from the roster, his shifts had been cancelled by the Respondent, and his name had been greyed out.
The Applicant submitted that later that same day, Ms Habgood found him, tapped him on the shoulder and said “thank you for everything”.
The Applicant submitted that when he finished his shift, Mr Young said “thanks for everything”, referring to a goodbye.
The Applicant submitted that he said to four other employees, “apparently today is my last day because of Nic”.
The Applicant submitted that the following day, 3 January 2025, he contacted Ms Jodie Mills, the General Manager of the Respondent, who confirmed that she was aware of the conversation regarding the conflict of interest. However, when the Applicant asked Ms Mills what the conflict of interest was, “[Ms Mills] only replied insofar as to deflect the conversation and advise the Applicant to contact Debbie of the HR team”.
The Applicant submitted that he called Ms Debbie Barnes on 3 January 2025 and informed her that he had two roles – as a casual employee at CareFlight and as a full-time employee at SJA. He further asked where he stood and a brief conversation followed, during which he again raised the double standard he faced in light of a colleague also holding dual employment. The Applicant submitted that, importantly, Ms Barnes actually asked him whether he intended to resign, and he advised ‘no’ he did not. He said that Ms Barnes again sought to confirm whether he ‘felt’ he had to resign, to which he said that he advised he did not want to resign and expressed that he had been terminated.
The Applicant submitted that he discovered on 6 January 2025 that his access to email, the rostering system and the intranet were disabled by the Respondent.
The Applicant submitted that on 7 January 2025, Ms Barnes sent him an email stating that “The offboarding process was actioned, hence why your access was disabled”. The Applicant submitted that, generally, ‘offboarding’ is consistent with termination.
The Applicant submitted that the Respondent has asserted that on 7 January 2025, it provided him with an excerpt from the Conflict of Interest Policy, as requested in his email dated 3 January 2025, along with a summary of the 2 January 2025 meeting. The Respondent has indicated that it gave the Applicant until 8 January 2025 to provide further information. However, the Applicant noted that he has produced this email as an attachment to his witness statement, and at no point does the Respondent indicate that the Applicant should respond, provide further information or provide any deadline for him to do so. The Applicant submitted, rather, the email states that during the meeting, the Applicant implied that he would be submitting his resignation. The Applicant submitted that this simply did not occur; he did not resign. Rather, he submitted that he has continuously and explicitly told the Respondent that he did not resign and does not wish to resign, and made multiple formal written requests for documentation and clarification regarding the conflict of interest, relevant CareFlight policies, and his employment status. The Applicant submitted that these requests were not responded to adequately or in a timely manner.
The Applicant submitted that the Respondent’s own communications reveal the intent of the Respondent to dismiss the Applicant, and it cannot be overlooked that the Respondent sent an email on 10 January to all staff advising that the Applicant had ceased employment with Respondent.
Response to the Respondent’s Submissions
Nature of Casual Employment
The Applicant submitted that, whilst the Respondent has alleged that there was no guarantee of ongoing work as the Applicant was a casual employee, they have failed to consider that the Applicant was a regular and systematic casual, given regular employment.
The Respondent has submitted that the Applicant was given work between June 2024 and December 2024, of between 5-20 shifts per month. However, the Applicant submitted that the pattern of shifts is irrelevant, rather it is relevant that he was given ongoing work.
The Applicant noted that the Respondent had also provided in its Form F3 that the Applicant had recently been working an average of 13 shifts per month. The Applicant submitted that the Respondent runs a 24/7 roster, for which the Applicant would submit his availability and the Respondent would roster him accordingly. The Applicant submitted that for him not to have ongoing work was odd, and for him not to have been given any shifts between 2 January 2025 and present was odd and in conflict with the established nature of the employment relationship.
Termination
The Applicant agreed with the Respondent’s submission that it did not issue a termination letter. However, the Applicant submitted that he has a distinct version of events that demonstrate that he was indeed verbally terminated. Whilst the Applicant submitted that he was terminated at the meeting of 2 January 2025, if the Commission rejects that submission, the Applicant sought to rely on the Respondent’s conduct following that meeting, which he submitted points to a termination at the initiative of the employer.
Whilst the Respondent alleged that the Applicant was not removed from the system and is still eligible to receive shifts, the Applicant submitted that the Respondent has made no attempt to roster him since 2 January 2025, or to resolve the so called “conflict of interest concerns”.
The Applicant’s Actions
The Applicant submitted that the Respondent’s account of the meeting on 2 January 2025 was untrue. The Applicant submitted that at no point did he acknowledge a potential conflict of interest, indicate that he would not be undertaking upcoming shifts, or state that he would be submitting a resignation in any capacity.
The Applicant stated:
“There was no farewell event as the Respondent claims, but a small out of work hours catch up with colleagues, and this in fact supports that employment ended, and is not continuing as the Respondent claims.”
The Applicant acknowledged that he contacted the payroll team to confirm his final pay, as he was led to believe he was dismissed, and as he was entitled to do. The Applicant submitted that he did not express to the payroll team that he was resigning.
Conflict of Interest Review
The Applicant denied:
· that he was informed that a review was required and that CEO approval was needed for him to continue working in a casual capacity;
· that he was asked to provide further information to assist in the review but failed to do so;
· that he was notified that his IT access would be temporarily restricted whilst the review was ongoing; or
· that he was given a clear process to resolve the alleged conflict of interest, and chose not to engage in that process.
The Applicant submitted that the Respondent has not provided any evidence in support of the above matters.
Conclusion
The Applicant maintained that he was dismissed by the Respondent.
The Applicant submitted that, based on the circumstances outlined above, the Respondent’s jurisdictional objection should be dismissed.
Respondent’s Submissions in Reply
The Respondent maintained its position that the Commission lacks jurisdiction to hear this matter, on the grounds that the Applicant was not dismissed from his employment within the meaning of s.386 of the FW Act.
The Respondent responded to matters raised in the Applicant’s materials as follows.
Clarification Regarding the Meeting on 2 January 2025
The Respondent acknowledged that a meeting took place between the Applicant, his manager Ms Habgood, and Senior Coordinator Mr Young on 2 January 2025. The Respondent submitted that the purpose of this meeting was to discuss the Applicant’s recently disclosed full-time employment with SJA and potential conflict of interest implications.
The Respondent submitted that at no point during this meeting was the Applicant dismissed. The Respondent expressly denied that any comments made during the meeting, including expressions of appreciation for the Applicant’s past contributions, were intended to convey a termination of employment.
The Respondent submitted that the Applicant’s own statement reflects that the meeting concluded with an action for the Respondent to provide the Applicant with a copy of the relevant section of the Code of Conduct. The Respondent submitted that this confirms that the meeting was exploratory, not disciplinary nor determinative.
The Respondent submitted that the Applicant’s interpretation of casual remarks of thanks as a dismissal is not supported by the substance or purpose of the discussion.
Post-Meeting Actions Clarified
The Respondent clarified that removal of the Applicant from the roster and temporary suspension of IT access were interim operational decisions pending the outcome of the conflict of interest review, no steps indicating termination. The Respondent submitted that these measures were precautionary, intended to maintain operational integrity while the conflict of interest was assessed, and did not signify the conclusion of the Applicant’s employment.
The Respondent submitted that it provided the Applicant with the relevant policy documents and invited further engagement to resolve the matter. It submitted that at no stage did it close the door to the Applicant’s ongoing casual engagement, subject to resolving the conflict issue.
Conflict of Interest Process
The Respondent submitted that, contrary to the Applicant’s claims, the Respondent had clearly communicated that continuation of dual roles required CEO approval due to potential conflicts of interest with his CareFlight and SJA operational roles.
The Respondent submitted that the Applicant was requested to provide further information to assist with this review but did not do so. The Respondent remained of the view that its actions were reasonable, proportionate, and in line with internal policies and procedures.
The Respondent denied that there was any double standard applied to the Applicant and submitted that the other employee referred to by the Applicant was considered able to hold dual roles with organisations because he followed the correct procedure to resolve the potential conflict of interest that arose in his circumstances.
The Respondent reiterated that no final determination had been made regarding the conflict of interest matter or the Applicant’s employment status at the time he lodged this application.
Casual Nature of Employment
The Respondent restated that the Applicant was engaged as a casual employee under a contract which expressly stated that:
“• Each engagement is on a shift-by-shift basis.
· No guarantee of ongoing work is provided.
· Shifts are allocated according to operational needs.”
The Respondent submitted that, whilst the Applicant refers to a regular pattern of shifts, the casual nature of his engagement remains relevant, and his employment continued subject to availability and operational requirements.
No Resignation, No Dismissal
The Respondent accepted that the Applicant did not tender a formal resignation.
Further, the Respondent submitted that it did not affect a dismissal.
The Respondent submitted that the Applicant has referenced post-meeting interactions (including internal communications about rosters and offboarding processes) which were operational and administrative, not indicative of termination.
The Respondent maintained that the Applicant’s status as an employee remains open pending further clarification of the conflict of interest matter.
Conclusion
The Respondent maintained that the Applicant was not dismissed, and that he remains employed by the Respondent on a casual basis subject to operational requirements and the resolution of conflict of interest considerations which remain unresolved.
The Respondent maintained its jurisdictional objection and requested that the Commission dismiss the Applicant’s unfair dismissal application in full.
Consideration
I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses.
I refer to the following emails exchanged between the parties in relation to the conflict of interest issue:
(a) On Friday, 3 January 2025, the Applicant wrote to Ms Habgood and Ms Barnes as follows:
“Dear Debbie and Nic,
Thank you, Debbie, for taking the time to discuss the conflict of interest concerns regarding my role as a Logistics Coordinator at CareFlight and my upcoming position at St John NT earlier today.
While I appreciate the clarifications provided, I would like to formally request the following to ensure I have a complete understanding of the situation:
1. A detailed written explanation of the alleged conflict of interest, including specific references to any applicable policies, guidelines, or precedents.
2. A copy of the minutes or summary of the 2nd of January meeting with Nic and Alex, to confirm my understanding of what was discussed and decided.
3. Clarification on whether the removal of my shifts is temporary or permanent, and the reasoning behind this decision.
Additionally, I seek clarity on the following:
· The Secondary Employment Policy (HR-065-02) explicitly states it applies to permanent and maximum term employees. Given my classification as a casual employee, I would like confirmation on whether and how this policy applies to my circumstances.
· The policy includes exemptions for clinical staff. Could you please clarify the criteria used to determine these exemptions and why similar considerations do not apply to my role?
Given these factors, I believe further clarity is necessary to ensure a fair and transparent process. I would like to reiterate my commitment to maintaining transparency and adhering to CareFlight’s policies and values. My goal is to resolve this matter collaboratively, in line with the organisation’s standards of fairness and equity.
To ensure this process moves forward efficiently, I kindly request a response to the points outlined above by Wednesday, 8 January 2024. If any further information is required from me, please do not hesitate to reach out.
Kind regards,
Ethan Shea
Logistics Coordinator
CareFlight”
(b) On Monday, 6 January 2025, the Applicant further wrote to Ms Habgood and Ms Barnes stating:
“Dear Debbie and Nic,
Further to my email dated 3 January 2025, regarding unresolved matters related to the conflict of interest concerns raised. Some points outlined below are being reiterated due to a lack of clarity provided in relation to Point 1, which pertains to access to my work emails.
I kindly request clarification on the following:
1. I note I have been removed from the LCU roster and no longer have access to my work emails. Please advise why this occurred.
2. A written explanation of the alleged conflict of interest, including:
· Specific references to relevant policies, guidelines, or precedents.
3.
A copy of the minutes or a detailed summary of the 2 January meeting with Nic and Alex, outlining discussions and decisions made.4.
Clarification on the Secondary Employment Policy (HR-065-02), specifically:
· How it applies to casual employees, given the policy explicitly mentions permanent and maximum-term employees.
· Any additional considerations that might justify its application to my role.
5.
An explanation for the exemption granted to clinical staff under the Secondary Employment Policy, including:
· Why similar exemptions do not apply to my role as a Logistics Coordinator.
As stated in my prior correspondence, I kindly request a response by Wednesday, 8 January 2025.
Please feel free to contact me directly should you require further information or clarification.
Kind regards,
Ethan Shea”
(My emphasis)
I note that the Applicant has not mentioned the belief that he was dismissed on 2 January 2025 in this email. In fact, he questions why he has been removed from the roster, not that he was dismissed. I have taken this into account.
(c) On Wednesday, 8 January 2025, Ms Van-Cuylenburg wrote:
“Hi Ethan,
Happy New Year! I hope you’re doing well.
I’ve just returned from leave, and the below matter has come to my attention. First, congratulations on your new role with SJA—well done! I hope your first week is off to a great start.
I haven’t seen any formal correspondence notifying us of your new position. Could you please send that through so I can review it alongside your concerns mentioned below (it hasn’t been forwarded to me as yet)?
Additionally, I’d like to discuss the potential conflict of interest outlined. Since SJA is a direct competitor for CareFlight contracts, I’m keen to understand how you plan to manage this situation if you choose to remain a casual employee with us. I’d appreciate hearing your thoughts on this.
I’m happy to arrange a time to chat if that’s easier, or you’re welcome to respond via email if it’s more convenient given your workload.
Thanks, Ethan—I look forward to hearing from you soon.
Cheers,
TezTerri Van-Cuylenburg
Head of Human Resources
CareFlight”
(My emphasis)
I note the wording of the highlighted paragraph. It invites the Applicant to respond to the perceived conflict of interest issue. The sentence raises his ongoing employment – not his termination. I have taken this into account.
(d) On Thursday, 9 January 2025, the Applicant wrote to Ms Van-Cuylenburg as follows:
“Dear Terri,
Happy New Year! I hope you’re doing well, and thank you for your kind words regarding my new role with St John Ambulance.
Before I provide the requested formal correspondence regarding my employment with St John Ambulance, I would like to draw your attention to item 1 from my emails dated 3 January 2025 and 6 January 2025. I am requesting specific clarification on this point.
Further, as Debbie noted in her recent communication, she stated:
“the offboarding process was actioned, hence why your access was disabled.”Please tell me if CareFlight has not terminated my employment. If CareFlight has not terminated my employment, please respond to item 1 from my 3 January and 6 January email, and I will then revert to you regarding the information you have requested.
Thank you, Terri. I look forward to your response.
Kind regards,
Ethan Shea”
(e) On Tuesday, 14 January 2025, Ms Van-Cuylenburg wrote:
“Hi Ethan,
Thank you for your email.
To clarify, your employment with CareFlight remains active, and you have not been offboarded from the HR system. While your IT access was disabled as part of the initial steps of the offboarding process, this process is currently on hold pending the review of your queries.
In the meantime, I again request that you provide notification and any relevant information regarding your successful commencement in the position with St John Ambulance (SJA). Additionally, could you confirm if any discussions were held regarding this new role being a potential conflict of interest with your casual employment at CareFlight? This information is important to ensure clarity and alignment moving forward.
I am reviewing the conflict of interest query from your emails dated 3 January 2025 and 6 January 2025 and will respond separately to provide the specific clarification you have requested.
Thank you for your patience, and I look forward to your response.
Cheers,
TezTerri Van-Cuylenburg
Head of Human Resources
CareFlight”
(My emphasis)
(f) On Wednesday, 15 January 2025, the Applicant wrote:
“Dear Terri,
Thank you for your recent email.
To move forward, I kindly request written confirmation that my employment status with CareFlight remains active and has not been terminated.
Once this is confirmed, I will be in a position to address any further matters.
Thank you for your prompt attention to this request. I look forward to your response.
Kind regards,
Ethan Shea”
(My emphasis)
(g) On Thursday, 16 January 2025, the Applicant further wrote to Ms Van-Cuylenburg as follows:
“Dear Terri,
I hope you’re well.
Further to yesterday’s email, I am following up on my previous email regarding clarification of my current employment status. Specifically, I require a clear and unambiguous explanation regarding:
1. My Removal from the LCU Roster – Please confirm why I was removed from the LCU roster.
2. Announcement of My Departure – Please explain why an internal communication was made announcing my departure from CareFlight.
3. Offboarding Process – Please clarify why the offboarding process was ever initiated, including the disabling of my CareFlight email and system access.
Given the serious implications of these actions on my employment, I kindly request a definitive response by close of business on Friday, 19 January 2025. This clarification is critical for me to fully understand my employment standing with CareFlight and to make informed decisions regarding my next steps.
Please let me know if you need any further information from me.
Thank you for your prompt attention to this matter.
Kind regards,
Ethan Shea”
(h) On Tuesday, 21 January 2025, Ms Van-Cuylenburg wrote to the Applicant providing:
“Hi Ethan,
Thank you for your email.
Please see below clarification regarding the matters you have raised:
1. Removal from the LCU Roster
You were removed from the LCU roster following the meeting you had with Nic and Alex, in which you indicated your intention to submit your resignation. This step was taken as part of CareFlight’s standard practice in such situations to ensure appropriate planning and continuity of operations.
2. Announcement of your Departure
The internal communication announcing your departure was based on your stated intent to resign during the abovementioned meeting. This announcement was made to inform relevant teams of operational changes and ensure a smooth transition process.
3. Offboarding Process
The offboarding process, including the restriction of your IT and system access, was initiated following your meeting and the subsequent understanding that you were planning to leave CareFlight.
As stated in my previous email, your employment with CareFlight remains active, and you have not been offboarded from the HR system. While your IT access was disabled as part of the initial steps of the offboarding process, this process is currently on hold pending the review of your queries and the finalisation of the conflict of interest matter.
I again request that you provide notification and any relevant information regarding your successful commencement in the position with St John Ambulance (SJA) for consideration. Additionally, could you confirm if any discussions were held regarding this new role being a potential conflict of interest with your casual employment at CareFlight? This information is important to ensure clarity and alignment moving forward.
Cheers,
Terri”
(My emphasis)
I have taken into account that the Respondent has categorically stated on a number of occasions that the Applicant had not been dismissed and had sought information from the Applicant as to how he would deal with the conflict of interest issue, including whether he had spoken to SJA about the issue. I have taken this into account.
I have taken into account that neither a termination letter nor a resignation letter is in existence between the parties. The Respondent is not some backyard company from regional Australia. It is a sophistication organisation with dedicated HR personnel, performing vital ‘first responder’ work for the Northern Territory Government and its citizens, in competition with SJA.
I have taken into account that Ms Van-Cuylenburg, whom I regard as a witness of credit, has testified that the Applicant remains a casual employee of the Respondent and that, in her opinion, will be offered shifts in the future once the conflict of interest issue has been resolved via the Respondent’s processes.
I have taken into account the post from the Applicant on 4 January 2025 for “farewell drinks” at the Darwin Ski Club on 17 January 2025:
“I’ve organised farewell drinks to catch up with you all and properly say goodbye, as I didn’t get a proper send-off from CareFlight. It would mean a lot if you could make it!
Here are the details:
· Date: Friday, 17th January 2025
· Time: From 5:30 PM onwards
· Location: Darwin Ski Club
Feel free to come for a feed, lots of beers, or just to hang out – it’s super casual, and everyone’s welcome. Please let me know if you can make it so I can let the ski club know a rough idea of numbers ideally.
Looking forward to seeing as many of you as possible!
Cheers
2SheaHappy if you spread the word to people if they’re keen!
Disclaimer: non political farewell drinks, just want the opportunity to say goodbye properly!”
As seen from the above post, the Applicant organised his own “farewell drinks”. The Applicant identified that these drinks were an opportunity to say goodbye to his colleagues. The invitation was broad and non-discriminatory, which would indicate that even the management team were invited to the occasion. I am not aware of any employee inviting the people who have ‘sacked him’ to a self-arranged and booked farewell function. I have taken this into account.
I note that there is conflicting evidence in relation to whether the Applicant floated the idea of his resignation at the meeting on 2 January 2025. I am satisfied and find that he did float the idea at the meeting, but only after it was put to him that his ongoing casual employment was untenable due to a probable conflict of interest. However, I am satisfied that the Conflict of Interest Policy was discussed, that the Applicant asked for a copy of the Policy and that no definitive decisions on either side were taken on the day. I have taken this into account.
I have taken into account that both Ms Habgood and Mr Young thanked the Applicant for “everything that he had done” either in the meeting or during the course of the day on 2 January 2025. I accept that they were of the view that the Applicant was going to resign and that the Applicant was working his last shift.
From my experience, an employee who is terminated in a meeting due to a conflict of interest does not return to the workplace and continue their shift. Employees are usually allowed to collect their personal belongings and are escorted off site – which is a logical scenario. It is not in dispute that the Applicant was allowed to continue the entire shift after the meeting had concluded. I have taken this into account.
I have taken into account that the Applicant submitted his unfair dismissal application to the Commission on 20 January 2025. The Commission advised the Respondent on 21 January 2025 of the application at 9:08am. I note that the Respondent had earlier sent the Applicant an unambiguous email clarifying his employment position. Despite this unambiguous email, the Applicant has continued with his application. I have taken this into account.
I have taken into account the Applicant’s submission that the only outcome of the meeting on 2 January 2025 was that the Respondent would send the Applicant the relevant section of the Code of Conduct Policy relating to Conflict of Interest. On the basis of that submission, I fail to understand how the Applicant could now claim that he was dismissed at that meeting.
Conclusion
I am satisfied and find that the Applicant was not dismissed.
The Applicant was not provided with a termination letter. The Respondent advised the Applicant that his employment was ongoing, by email on 8 January 2025, 14 January 2025 and 21 January 2025. The Applicant was asked to provide information and justification in relation to a perceived conflict of interest but, for reasons known only to himself, the Applicant failed to respond to this request.
I agree with Ms Van-Cuylenburg. I find that the Applicant remains a casual employee of the Respondent. The Respondent is waiting for the Applicant to provide the requested information.
The jurisdictional objection is upheld.
The substantive unfair dismissal application is dismissed.
I so Order.
COMMISSIONER
[1] Respondent’s Outline of Submissions; Annexure K.
[2] Ibid, Annexure L.
[3] Ibid, Annexure J; Annexure N.
Printed by authority of the Commonwealth Government Printer
<PR786900>
0
0
0