Mr Kane Poulter v JA & JA Concreting Pty Ltd as Trustee for the Teusner Family Trust - [2025] FWC 1441

[2025] FWC 1441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Kane Poulter
v

JA & JA Concreting Pty Ltd As Trustee For The Teusner Family Trust

(U2025/3724)

COMMISSIONER REDFORD

MELBOURNE, 30 MAY 2025

Application for an unfair dismissal remedy; Respondent alleged no dismissal; objection dismissed

An application has been made by Mr Kane Poulter (Mr Poulter) pursuant to s 394 of the Fair Work Act 2009 (the Act) seeking relief in respect of unfair dismissal. The application was filed on 26 March 2025. It is directed against Mr Poulter’s former employer, JA and JA Concreting Pty Ltd ATF The Teusner Family Trust (JA Concreting).
JA Concreting objects to the application on the basis it says Mr Poulter was not dismissed.
If Mr Poulter was not dismissed, he cannot make out that he was unfairly dismissed within the meaning of s 385 of the Act. In these circumstances his application must be dismissed. If he was dismissed within the meaning of the Act, his application for relief can proceed.
A hearing was conducted to determine that question. The hearing occurred on 23 May 2025. I granted both parties permission to be represented by a lawyer or a paid agent pursuant to s 596 of the Act – Mr Poulter was represented by Mr Dircks and JA Concreting, by Mr Hawkins.
Evidence was given by Mr Poulter and, for JA Concreting, by Mr Brendan Caspar, who is a project manager with JA Concreting and at all relevant times was Mr Poulter’s manager and direct report.

The evidence

There were concerns expressed on behalf of Mr Poulter that the evidence should be focused on the question before the Commission – whether he was dismissed – and not traverse into “extraneous matters” relating to the merits of the application[1]. There was agreement between the parties that the hearing should proceed on that basis. For this reason, it appears there was objection taken to, and no reliance placed upon, any evidence as what may have transpired prior to the matters that appeared to lead directly to the breakdown in this employment relationship, beginning on 13 March 2025.
I will note however, that the consequence of the parties having adopted this position is that there is no evidence before me, at this stage, of any problem in the employment relationship prior to 13 March 2025 and thus I must view the events that occurred on and after that date in isolation from anything that may have occurred previously.
Copies of a number of text message exchanges were tendered by both parties as part of their evidence. Some of this evidence had time and date stampings on them and some did not. Generally, the evidence was not presented in a way that made it easy to follow. For example, I suspect that some messages were sent at a particular date and time but not received by the recipient until a later date and time. In these circumstances, the Commission has done its best to understand the timeline as to the communications which occurred between the parties between 13 March 2025 and 25 March 2025. As will become evident, any minor discrepancy in the formulation of this timeline does not impact on the key findings I have made about the conduct of the parties, as they relate to the question before me.
The evidence may be summarised as follows:
a.Mr Poulter began working for JA Concreting in January 2024. A slight discrepancy exists as to whether the employment commencement date was 31 January 2024 or 29 January 2024. Nothing turns on this discrepancy in relation to the matter before me.
“Hey Kane hope your shoulder appointment was ok yesterday, just following up what happened on Thursday when you didn’t turn up to work. We still haven’t heard from [sic] and are planning for the week ahead. Are you planning on returning or contacting us? At this stage we will plan for you not being around next week. Please let us know where you are at.”
“Hey sorry about last Thursday. I was crook in the gets only just come good yesterday and have been away. I’ll be in tomorrow.”
“Crook or not there is an expiation [sic] that you communicate with us. Leaving till Monday is not good enough especially when we know you communicated with one of the boys on Thursday during the day.”
“Kane, Yes, as I said in Saturday’s txt msg we have not heard from you, and as such have not planned for you to be in this week. I can look for later in the week which we haven’t finalised but we have pushed a job back and approached sub contractors to cover the jobs so we were not left short.
You still have not addressed the issue that You did not show up to work Thursday, didn’t let us know but were able to txt other workers on Thursday and didn’t contact us till Monday 12 pm. This is simply not acceptable.
Call me tomorrow to resolve this issue and explain your side of events. I’m happy to be corrected if there is something we’ve misinterpreted.”
“I have not been provided any work or pay for several days now. I have got advice on this. Because I am fulltime permanent I can’t be stood down without pay. If you have no work for me for a period of days then I can be told to stay home but as long as I am ready, willing and able to work you have to pay me. To stand me down without pay is tantamount to dismissal and is a fundamental breach of my contract of employment. We can fix this by you paying for all the days when I have not been provided work and not paid, when I was available, and you committing to not stand me down again”.
“Mon 17th i sent you a msg explaining why i took thursday 13^th march off. I apologised for not msging you too let you no that that day i wasnt coming in because i had gastro and was to sick. I also sent Shona a msg saying i was taking Friday 14^th march off for a hospital appointment, i also wrote i was taking off the Mon 17^th off as we had a family reunion in Moama. i told shona in that msg i would be back too work on Tuesday 18^th March. I sent shona that msg on Monday 10^th march. You told me too have 4 days off last week with no pay and now its Sunday night At 8:40pm at night you havnt uploaded were I’m working tomorrow on clock shark or replied to my last msg I sent 2 days ago about you not providing me work last week as i am fulltime permanent.”
(a)In the afternoon of 24 March 2025, Mr Caspar began replying to Mr Poulter’s messages sent earlier at different times.
(b)In the afternoon of 24 March 2025 Mr Caspar sent a message to Mr Poulter in response to his message sent days earlier which had forwarded a copy of the message he had sent “Shona” (referred to above). He said[14]:
“Yes I’m aware of your annual leave and doctor on the 14/3 and 17/3. However as I’ve started [sic] the fact you didn’t show up on the 13/3 and never let us know what was happening we didn’t plan for you. I clearly stated this in my message on Saturday 15/3 that we didn’t know where you were and couldn’t plan as such.
As far as we knew you had abandoned your position as seam [sic] consistent with the ignoring of our calls and messages but contacting other workers on the 13/3 and mentioning to other employees that you were looking for another job.
Please let me know your intentions of returning”.
(c)Mr Poulter’s reply to this message was “that’s a lie, or something is someone else who said this or are you making this up [sic]”. During the hearing it was able to be ascertained that this message, sent by Mr Poulter to Mr Caspar was sent at 5:48PM on Monday 24 March 2025[15].
(d)At about the same time, Mr Caspar sent Mr Poulter another message, this perhaps in response to his message sent the previous evening (Sunday 23 March 2025). This message said[16]:
“Dear Kane,
Thank you for reaching out and sharing your concerns. I want to start by acknowledging your position and your understanding of your rights as a full-time employee under the Fair Work Act. I appreciate your readiness to resolve the issue constructively.
I do want to clarify that the reason you were not rostered or paid for the period from 18/3 to 21/3 was due to the lack of communication following your missed shift on 13/3. Unfortunately, we did not receive any notification or explanation for your absence until the 17/3 despite us reaching out on 3 occasions. This made it difficult to plan and allocate work for the following days which was stated in my message to you on the 14/3 to which you failed to respond to.
You were asked to call on 18/3 so we could discuss the situation and find a resolution, but we’ve not heard back from you until the 23/3 at 8:47pm. Please understand that our intention was not to stand you down or withhold pay unfairly, but rather to ensure clarity around your availability and our operational planning.
That said, we’re committed to doing the right thing and want to resolve this matter in a fair and respectful way. We’d also like to make sure something like this doesn't happen again, and that expectations are clear on both sides. Is your intention to return to your position?
Please get in touch at your earliest convenience so we can talk this through and reach a fair outcome.”
(e)At around this time, Mr Caspar and Mr Poulter also spoke on the phone. It appears this was a somewhat heated conversation. It appears Mr Poulter sought to create a transcript of this conversation in a text message sent the following day, which is dealt with below.
(f)After the phone conversation, Mr Caspar sent Mr Poulter another message which said[17]:
“Hi Kane,
Just wanting to reach out to kindly ask if you could confirm whether you are planning to return to work. There’s clearly been a breakdown in communication, and we’re keen to move forward with clarity on both sides. From our side we had no idea where you were after failing to turn up Thursday and planned accordingly. We were awaiting your call 18/3 to resolve the situation.
While we firmly reject the claims you’ve made regarding bullying, we are open to addressing any concerns you may have in a constructive and respectful way.
Please let us know your intentions at your earliest convenience.
We have shifts available tomorrow onwards, please confirm?”
(g)Mr Poulter sent a reply to this message which said “I won’t be in tomorrow”[18].
“Brendan last night when we spoke on the phone, i asked you oif you where going to pay me for the days you had no work for me. You said “you wont pay me for those days”, i then replied well you have to pay me for those days as im Full time permanent. You said thats fine you can quit if you want. After that you were taking over me you brought when i was sick i talked to an Emplyoee telling them i was saying i wanted to leave the Company i toild you were lying and making up stories and asked you who said this too you you replied I’m not going to say there name. I found the Conversation to be aggressive by you you were talking over me you were not trying resolved anything, i found the Conversation as you were talking down to me and trying to bully me. So i hanged up the phone call. I have had advice that you standing me down without pay is a major breach of my employment contract. You need to pay me pay lieu and my holiday pay. The fact that you have asked me to not come too work because jobs were pushed back in February till now and then taken it of my annual leave is also wrong and that needs to be repaid.”

The characterisation of the case by the Applicant

During the hearing, there was possibly some confusion on the part of JA Concreting about the way in which Mr Poulter characterised the dismissal of his employment. This was despite the fact that, even in his Application, Mr Poulter said “there was a dismissal in that the respondent breached the employment contract by not providing work or pay”[20]. In his Outline of Submissions, filed on 12 May 2025, Mr Poulter said[21].
“This is not a case under s 386(1)(b) where the applicant resigned because he was forced to do so because of the conduct, or course of conduct, engaged in by his employer.”
It was also said:
“Our basic submission is that an employer does not have the right to stand an employee down without pay at common-law[22] … The employer had repudiated the contract of employment, and the applicant accepted the repudiation[23].
Despite these submissions, which were repeated and expanded upon for Mr Poulter at the hearing, JA Concreting appeared to attempt to insist that I should be more concerned with the second limb of s 386(1) of the Act, and whether this is a case of “forced resignation”. In its written submissions, JA Concreting suggested that the Application is “silent on the matter of when and how the ‘termination’ actually occurred, leaving the Respondent in the position to guess the case that is against them …”, and “the Respondent is forced to interpret the application to be one of constructive dismissal”[24].
There is no evidence before me that Mr Poulter resigned. He does not contend he resigned or was forced to resign. He argues, as many have done before him, that his dismissal was at the initiative of his employer because it, by its conduct, repudiated his employment contract and brought his employment relationship to an end.

Taking into account that JA Contracting was represented during this proceeding by a legal practitioner, in my view, it should have been apparent to it that Mr Poulter claimed his dismissal occurred as a result of conduct engaged in by his employer that amounted to a repudiation of contract and that he was not claiming he was forced to resign. I do not accept that JA Contracting was ever “guessing” as to the nature of the case put against it – it was clear enough from the Application itself. JA Contracting was undoubtedly afforded procedural fairness in meeting the case put against it – both by being provided with written submissions for Mr Poulter to this effect well before the hearing, by being afforded the opportunity to make oral closing submissions and, as the objector, an oral reply.

Consideration – has Mr Poulter been “dismissed” within the meaning of s 386(1)(a) of the Act?

The term “dismissed” is defined by s 386(1), which provides as follows:
(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 first limb of s 386(1) is concerned with whether an action on the part of the employer was the principal contributing factor which resulted, directly or indirectly, in the termination of the employment relationship[25]. The termination of the employment relationship may be distinguished with the termination of the contract of employment[26].
Mr Poulter argues, in effect, that the principal contributing factor which resulted in the termination of his employment was conduct engaged in by JA Concreting which amounted to a repudiation of his contract of employment. He also argues, by implication, that he accepted the repudiation and thus the contract, and the relationship, has ended.
In Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited[27], the High Court outlined the test in relation to repudiation as follows (references omitted)[28]:
“The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it … Secondly, it may refer to any breach of contract which justifies termination by the other party.”
It is well established that the failure to provide work, where a contractual obligation to provide work exists, or the failure to pay wages, where there is an obligation to do so, can amount to a repudiation of the contract of employment by an employer[29].
JA Concreting submitted that “temporary, non rostering does not of itself repudiate the contract”, and referred me to the decision of Hunt C in Kee v Century Yuasa Better P/L[30]. This written submission was not expanded upon at hearing. I note in any event that the Commissioner’s decision in that matter concerns a “heat of the moment” resignation and is not authority for the proposition that the failure to provide work or pay wages, or “temporary non-rostering” cannot amount to the repudiation of an employment contract. Once again, Mr Poulter does not contend that he resigned – whether in the heat of the moment or otherwise. As with the case in relation to the submissions made on behalf of JA Concreting in relation to s 386(1)(b) I note (and do so further below) that its insistence on making submissions about matters not at issue before me has not assisted JA Concreting in this matter. What may have been of assistance were submissions as to whether I should consider JA Concreting’s conduct to be such as to convey to a reasonable person, in the situation of Mr Poulter, renunciation either of his contract of employment as a whole or of a fundamental obligation under it. In the absence of a cogent submission from JA Concreting about this matter, I am required to decide the question based on the evidence of the parties and the submissions made by Mr Poulter.
It was clear on the evidence in this matter that when Mr Caspar prepared the roster for the week beginning 17 March 2025, he made a conscious decision not to include Mr Poulter and by so doing, JA Concreting did not offer Mr Poulter any work during that week, nor did it pay him.
Mr Caspar suggested he thought Mr Poulter may have abandoned his employment. The basis of his assumption was that Mr Poulter did not turn up to work on 13 March 2025, did not notify JA Concreting of his absence and did not respond to text messages sent to him that day querying where he was.
An abandonment of employment may exist where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it[31].
The evidence does not support the proposition that Mr Poulter abandoned his employment. On 10 March 2025 Mr Poulter notified JA Concreting that he would be “back at work on the Tuesday” – meaning Tuesday 18 March 2025. Presumably, this was reflected in the calendar Mr Caspar was looking at on 11 March 2025, when he queried with Mr Poulter the reason for his notified absence on 14 March 2025. On Monday 17 March 2025 Mr Poulter explained in a text message to Mr Caspar that he had not notified of his absence or responded to text messages on 13 March 2025 because he was “crook”. He also queried with Mr Caspar about where he was working the following day and in response, Mr Caspar confirmed that he was not rostered – not being offered work – for that day, or thereafter for the week. This decision was made simply on the basis Mr Poulter had not attended work, without explanation, on a single day, after this failure (reasonable or not) had been explained and where Mr Poulter had said he would be available for work (on Tuesday). Mr Caspar was far too quick to assume that Mr Poulter no longer intended to perform his duties under his contract of employment and had renounced it. It was an unreasonable assumption.
It is plain that Mr Poulter was not stood down by JA Concreting in a manner authorised by his contract of employment or the Act. There was no evidence the failure to offer him work in the circumstances was authorised by his contract of employment. While stand down may be permitted pursuant to s 524 of the Act in circumstances where an employee cannot usefully be employed due to industrial action, a breakdown of machinery or equipment or a stoppage of work for any cause for which the employer cannot reasonably be held responsible, there is no evidence before me those circumstances existed with respect to Mr Poulter or JA Concreting. Mr Poulter was not stood down consistent with s 524 of the Act.
In circumstances where the failure to offer Mr Poulter work or to pay him was not as a result of his abandonment of his employment, and not a lawful stand down, Mr Poulter submits that the conclusion which must be reached is that JA Concreting breached his contract in a manner that repudiated it. I agree with this conclusion.
Mr Poulter’s conduct, in filing his application in the Commission seeking relief in respect of unfair dismissal amounted to an acceptance of the repudiation of his contract. In this regard, I adopt the reasoning of a Full Bench of this Commission in NSW Trains v James[32] that the filing of such an application in these circumstances can amount to the acceptance of repudiatory conduct, giving rise to the termination of the employment contract.
JA Concreting submitted I should have regard to the oft-quoted part of the decision of a Full Bench of this Commission in Bupa Aged Care Australia P/L v Tavassoli[33] in which the Bench explains the circumstances in which there may be a dismissal at the initiative of the employer notwithstanding a “heat of the moment” resignation[34]. It said that, as there was no such “determination or declaration” made by Mr Poulter in this matter (to resign), “limb (a) is not possible for the Applicant to rely on”[35]. This submission overlooks the fact that there can be a dismissal within the meaning of s 386(1)(a) in circumstances where an employer engages in repudiatory conduct, and the repudiation is accepted by the employee (as I have explained above). I therefore do not accept this submission.
I find Mr Poulter’s employment was terminated at the initiative of his employer, JA Concreting, within the meaning of s 386(1)(a) of the Act.

Consideration – has Mr Poulter been “dismissed” within the meaning of s 386(1)(b) of the Act?

Above I noted there were at times somewhat confusing efforts made on behalf of JA Concreting to address me on the relevance of the second limb of s 386(1)(b) to this matter – that which deals with forced resignation. In circumstances where Mr Poulter does not claim he was dismissed as a result of a forced resignation; I found none of these submissions to be of assistance in this matter.

Conclusion

Having found as I have that Mr Poulter was dismissed by JA Concreting within the meaning of s 386(1)(a) of the Act, the objection to the application is dismissed, and an Order[36] will be issued to this effect. This matter will now be listed for further programming.

COMMISSIONER

Appearances:

G Dircks, for the Applicant

M Hawkins, for the Respondent

Hearing details:

2025
Melbourne
May 23

[1] Applicant’s Outline of Submissions, March 2025 [58] – [69]

[2] Caspar Witness Statement, Exhibit BC-1, p.5

[3] Poulter Witness Statement, KP5

[4] Poulter Witness Statement, KP6

[5] Ibid KP7

[6] Ibid

[7] Ibid

[8] Ibid, KP8

[9] Ibid

[10] Ibid KP9

[11] Ibid; Caspar Witness Statement, Exhibit BC-1, p.5

[12] Poulter Witness Statement, KP10

[13] Ibid, KP11

[14] Caspar Witness Statement, Exhibit BC-1, p.5

[15] Poulter Witness Statement, KP9

[16] Caspar Witness Statement, Exhibit BC-1, pp. 6 - 7

[17] Ibid p.8

[18] Ibid

[19] Poulter Witness Statement, KP12

[20] Application by Mr Kane Poulter, 26 March 2025, item 2.1

[21] Applicant’s Outline of Submissions [52]

[22] Ibid [32]

[23] Ibid [40]

[24] Respondent’s Outline of Submissions on Jurisdiction [1.3] – [1.4]

[25] Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 [75]

[26] Ibid

[27] [2007] HCA 61; (2007) 241 ALR 88

[28] Ibid [44]

[29] See for example Wood v Wood[2023] FWC 1901 [23]; White v Superior Facilities Pty Ltd [2020] FWC 3035; Police Federation of Australia v Victoria Police Force [2008] AIRC 512 [44]; Department of Justice v Lunn PR974185, (2006) 158 IR 410 [20]; White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266

[30] [2017] FWC 2856

[31] Re Abandonment of Employment[2018] FWCFB 119 [21]

[32] [2021] FWCFB 6022 [71]; cited with approval in Trent Jowett v iDrilling Australia Pty Ltd T/A iDrilling Australia Pty Ltd[2024] FWCFB 262

[33] [2017] FWCFB 3941; Note that the Respondent’s Outline of Submissions on Jurisdiction refer to comments made by a “Full Bench”, but cite [2018] FWC 1074 [9]. This is the single member decision of Cambridge C and appears to have been a citation error.

[34] Ibid [47]

[35] Respondent’s Outline of Submissions on Jurisdiction, [3.2]

[36] PR787648

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