Ms Alana Weir v Add Staff Recruitment Pty Ltd, Aserve Victoria Pty Ltd
[2025] FWC 443
•14 FEBRUARY 2025
| [2025] FWC 443 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Alana Weir
v
Add Staff Recruitment Pty Ltd, Aserve Victoria Pty Ltd
(C2024/8894)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 14 FEBRUARY 2025 |
Application to deal with contraventions involving dismissal - jurisdictional objection - whether Applicant dismissed - jurisdictional objection dismissed - found that Applicant was dismissed within the meaning of s 386(1) of the Fair Work Act.
On the 5 December 2024, Ms Alana Weir (the Applicant) lodged an application pursuant to s 365 of the Fair Work Act 2009 Cth (the Act) in which she asserts the termination of her employment on 14 November 2024 by Add Staff Recruitment Pty Ltd (the First Respondent) and Aserve Victoria Pty Ltd (the Second Respondent) contravened her workplace rights. In its Form F8A responses, the First and Second Respondent both raised a jurisdictional objection to the application, that the Applicant was not dismissed within the meaning of s 386 of the Act.
The jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application.[1] Where there is a dispute about whether a person was dismissed, the Fair Work Commission (Commission) must determine that point before exercising its powers under s 368 of the Act.[2] Consequently, the issue for determination is whether the Applicant was dismissed from her employment within the meaning of s 386 of the Act.
Directions were issued on 17 January 2025 requiring the filing of material by the First Respondent and Applicant in relation to the jurisdictional objection. Both parties filed material in accordance with the Directions. At the hearing on 10 February 2025, the Applicant appeared and gave evidence and was represented by Mr Sam Nottle of Jewell Hancock Employment Lawyers who was granted permission to appear pursuant to s 596(2) of the Act. The First Respondent was represented by Mr Jordon Carlisle of Master Electricians Australia who called Ms Melissa Stanford (Director) to give evidence on behalf of the First Respondent.
Background and evidence
The First Respondent engages staff and places them with clients predominantly in the electrotechnology, construction and trades sector. The majority of the First Respondent’s clients are in Queensland. The Applicant was engaged by the First Respondent under a written contract of employment as a casual employee (the Contract of Employment) and commenced her first assignment with the Second Respondent on 17 January 2024 in the role of Project Coordinator.[3] The assignment conditions identified the Applicant’s place of work with the Second Respondent as being in Footscray, Victoria. The Contract of Employment included the following relevant terms;
“2.Employment Status and Engagement
2.1You are employed as a casual on-hire employee, which means that:
…
d) the termination of an Assignment for whatever reason does not of itself constitute the termination of your employment;
e) we do not guarantee or commit to offer you any Assignment(s), or to do so with any particular frequency or regularity, or on any particular terms . However, this Agreement applies to any Assignment(s) that we engage you to perform, until the end of that Assignment;
f) you are not obliged to accept or agree to work on an Assignment that is offered to you. If you do accept or agree to work on an Assignment then the terms of the SAC issued to you by us in relation to that Assignment will apply to you in addition to the terms of this Agreement;
…”[4]
On 11 November 2024, the Applicant’s assignment with the Second Respondent was terminated by the Second Respondent. The Applicant says this led her to believe her employment with the First Respondent ended at the same time. She received payment of her salary up till 14 November 2024.[5] Ms Stanford states that the Applicant had a telephone conversation with ‘Nayara’ from the First Respondent on 15 November 2024 during which Nayara was said by Ms Stanford to have told the Applicant that the First Respondent would keep an eye out for similar jobs and be in contact, while noting that it did not have a large client base in Melbourne.[6] The Applicant denies that Nayara made the comments attributed to her by Ms Stanford.[7]
On 20 November 2024, the Applicant states she had a telephone conversation with Ms Stanford during which Ms Stanford advised her that the First Respondent did not have any other work for her at that time, that they would keep an eye out for roles, but that the First Respondent’s client base was mostly in Queensland. Ms Stanford did not disagree with this evidence. In acknowledging Ms Stanford’s advice, the Applicant states that she understood that the lack of any work confirmed she had been dismissed.[8] The Applicant states that in these circumstances she requested an employment separation certificate (the Separation Certificate) which Ms Stanford agreed would be provided.
On 21 November 2024, Ms Anna Taylor, Accounts Officer with the First Respondent, sent an email to the Applicant attaching the Separation Certificate dated the same day.[9] The Separation Certificate stated in Section 3 that the Applicant started working for the First Respondent on 17 January 2024 and her employment ceased on 14 November 2024. Section 4 of the Separation Certificate listed eight options for an employer to indicate why the employment had ended. Those options were;
Shortage of work
Unsuitability for this type of work
End of season or contract
Redundancy
Unsatisfactory work performance
Misconduct as an employee
Employee ceasing work voluntarily
Other
The First Respondent identified the reason for separation as being because of a ‘shortage of work’. The Applicant states the answers provided by the First Respondent in the Separation Certificate confirmed her belief that her employment had ended.[10]
Ms Stanford states the Applicant remains a casual employee of the First Respondent.[11] She also confirmed a placement offer had been made to the Applicant on 17 January 2024 for two Queensland roles.[12] She conceded that apart from that email, there had been no further contact with the Applicant after the Separation Certificate was provided. Ms Standford states that the First Respondent only issues employment separation certificates if requested to do so by a candidate and that they are not regularly issued as candidates often have secured employment with other employers.[13]
Has the Applicant been dismissed?
The issue to be determined in this matter is whether the Applicant has been dismissed from her employment. The circumstances in which a person is taken to be dismissed are set out in s 386 of the Act. Section 386(1) relevantly 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.
…
Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. I understand from the Applicant’s case that she contends she was dismissed within the meaning of the first limb of s 386(1), being she was dismissed at the initiative of the First Respondent. The Applicant does not argue that she resigned due to conduct, or a course of conduct engaged in by the First Respondent.
In pressing its jurisdictional objection, the First Respondent contends the terms of the Applicant’s Contract of Employment make clear that cessation of an assignment does not lead automatically to a conclusion that employment with the First Respondent also ceased. It further argues the Applicant remains a casual employee, was offered further assignments on 17 January 2024 and the Separation Certificate was only provided because of the request by the Applicant which it says was consistent with its normal practice of only providing such certificates when requested by a candidate. The First Respondent contends the Applicant was not dismissed by it, but if a termination of employment had occurred it was at the initiative of the Applicant.
To objectively assess whether the Applicant was dismissed at the initiative of the First Respondent it is necessary for me to consider all the circumstances surrounding the dismissal. These may be summarised as follows;
· The Applicant’s assignment with the Second Respondent ended on 11 November 2024, although she received payment of her salary up until 14 November 2024. The Applicant believed the cessation of her assignment with the Second Respondent also ended her employment relationship with the First Respondent;
· The Applicant was subsequently advised by Ms Stanford in a telephone conversation on 20 November 2024 that there were no other roles available at that time, the First Respondent would keep an eye out for any placement opportunities but that the majority of the First Respondent’s clients were based in Queensland. The Applicant acknowledged Ms Stanford’s advice;
· During the conversation with Ms Stanford, the Applicant requested the Separation Certificate, which Ms Stanford agreed to provide. The Applicant’s request for the Separation Certificate was made to assist with a claim for Centrelink benefits and arose from her belief that she had been dismissed by the First Respondent;
· The Separation Certificate was provided to the Applicant on 21 November 2024, stating the reason for employment separation was a shortage of work. The Separation Certificate did not state the Applicant had ceased work voluntarily, that being an option the First Respondent could have identified on the Separation Certificate as the reason for separation;
· The Applicant remains on the First Respondent’s system as a casual employee;
· The Applicant filed her general protections application on 5 December 2024;
· An email was sent to the Applicant by the First Respondent on 17 January 2025 identifying two Queensland opportunities for her consideration; and
· Apart from the 17 January 2025 email sent to the Applicant, no other contact was made by the First Respondent with the Applicant following the 21 November 2024 email sent to her with the Separation Certificate.
A number of matters tell in favour of a finding that the Applicant was not dismissed. These matters are the express terms of the Contract of Employment, the maintenance of the Applicant on the First Respondent’s list of current casual employees, the First Respondent’s practice of providing employment separation certificates if requested to do so by a candidate to assist them secure Centrelink benefits, and the email of 17 January 2025 in which two roles were raised for the Applicant’s consideration.
Dealing firstly with the Applicant’s Contact of Employment, clauses 2.1(d)-(f) state the cessation of an assignment does not automatically lead to a termination of the employment relationship and further casual assignments may be offered to and of course declined by a candidate. Conversely, the end of an assignment does not mean it can be assumed the employment relationship remains on foot. The language in clause 2.1(d) of the Contract of Employment is significant where it states that ‘the termination of an assignment for whatever reason does not of itself constitute the termination of employment’. Use of the underlined words does not of itself indicates that more than the mere cessation of an assignment is required to establish that the employment relationship ended. It is apparent that all of the circumstances of an alleged dismissal must be considered objectively to determine whether the employment relationship has ended, and whether it was at the employer or candidates’ initiative.
The Applicant gave evidence that she believed the end of the assignment with the Second Respondent also ended her employment with the First Respondent, that belief formed despite the clear language of the Contract of Employment. Absent other factors pointing to the cessation of her employment with the First Respondent, there was no basis for the Applicant to conclude that her employment had ended with the First Respondent on cessation of her assignment with the Second Respondent. Such a conclusion was contrary to the clear terms of the Contract of Employment. More is required than the mere cessation of an assignment to conclude that the employment relationship with the First Respondent had also ended.
The First Respondent contends that it had no intention of bringing the employment relationship to an end on cessation of the Applicant’s assignment with the Second Respondent and points to the maintenance of the Applicant’s details in its system. Further evidence of the continuation of the employment relationship is said by the First Respondent to be found in the two opportunities presented to the Applicant on 17 January 2025. While both of these factors support a finding that the casual employment relationship remained on foot after 14 November 2024 the following causes me to place limited weight on these factors. Firstly, aside from the 17 January 2025 email, no other contact was made by the First Respondent with the Applicant after she was sent the Separation Certificate. Secondly, the two roles presented to the Applicant were Queensland roles which were clearly not suitable given the Applicant’s residence and family are located in Melbourne. Finally, the 17 January 2025 email was sent after the general protections application was filed.
Turning to the Separation Certificate, the First Respondent states it was provided in response to a request from the Applicant, and says it was provided to assist the Applicant make a Centrelink application. It further argues that in providing the Separation Certificate, it was not its intention to terminate the employment relationship. The difficulty with this submission is that the Separation Certificate confirms the very thing the First Respondent claimed did not occur, that is the termination of the Applicant’s employment. It is clear and unambiguous in the Separation Certificate that the employment relationship had ended. Moreover, it is also clear that the termination arose from a ‘shortage of work’ and not voluntarily. It was open for the First Respondent to have identified on the Separation Certificate that the reason for separation was due to the Applicant having left ‘voluntarily’. It did not do so and the person who prepared the Separation Certificate was not called to give evidence. In these circumstances, substantial if not decisive weight is to be given to the clear language in the Separation Certificate.
The First Respondent further submits the fact that Applicant requested the Separation Certificate tells in favour of a finding that a termination of employment, if it did occur, was at the Applicant’s initiative. Whether an employment separation certificate is provided at the request of an employee or at the initiative of an employer is not in my view determinative of whether the termination of employment was a resignation or a dismissal at the employer’s initiative. The First Respondent’s submission is rejected for the reasons that follow.
There could be a number of circumstances where an employee was unambiguously dismissed at the initiative of an employer and subsequently requested an employment separation certificate. For example, a request may have been made by an employee immediately following and in response to having been advised of their dismissal. There may have been a delay or a failure of an employer to provide an employment separation certificate, prompting a request from a former employee. There could also be other reasons for a request by a former employee including administrative oversight by the employer, individual error or a belligerent refusal by the employer to issue such a certificate. The fact that an employee might request an employment separation certificate in any of these (or other) circumstances does not mean the termination of employment was necessarily at the employee’s initiative. Of course, it may also be the case that a request for an employment separation certificate does evidence a resignation on the part of an employee. As to the authorities referred to by the First Respondent going to the request for or provision of an employment separation certificate, the following may be said.
In Lawson v Environet Australia Pty Ltd[14] Commissioner Saunders (as he then was) recorded that the employer complied with Mr Lawson’s repeated requests to send a separation certificate, the employer having formed a view that Mr Lawson would not be returning to the workplace following an earlier workplace confrontation between Mr Lawson and his manager. Arising from that confrontation there was a dispute over whether Mr Lawson had been stood down for a few days or dismissed. Ultimately, the Commissioner found in considering all the circumstances surrounding the alleged dismissal that the termination of employment had not been at the initiative of the employer. The fact that Mr Lawson requested an employment separation certificate while supportive was not determinative of that conclusion.
In Cody Myers-Raab v CoreStaff VIC Pty Ltd[15] Commissioner Mirabella was dealing with a former employee of a labour hire firm whose assignment had concluded. Like the present matter before me, the contract of employment of Mr Myers-Raab also made clear that the end of an assignment did not mean that the casual employment had been terminated. Mr Myers-Raab also believed that cessation of his assignment ended his employment with CoreStaff. Unlike the present case however, CoreStaff quickly clarified with Mr Myers-Raab that he remained employed at the conclusion of his assignment and immediately offered him alternate assignments. Mr Myers-Raab declined the offered assignments and responded that he was ‘not very interested in employment with CoreStaff because of the way everything has been handled’. In all those circumstances, the Commissioner found that in requesting an employment separation certificate, Mr Myers-Raab ‘was making a unilateral subjective decision to treat his employment as being at an end.’[16]
In Tull v Central Queensland Development Ltd[17] Deputy President Lake observed in the circumstances of the matter before him that the question as to whether there was a dismissal of the Applicant is determined by the party that initiates the creation of a separation certificate. To the extent that statement is advanced as a general proposition, I respectfully disagree for the reasons set out above at [20]. My view finds clear support in the comments of Deputy President Anderson in Hendrie v Eagle Contractors Pty Ltd[18] where the following was said by the Deputy President;
“
…
[49] I do not accept the employer’s submission that Mr Hendrie ended the relationship on his own initiative on 9 June 2023 when asking for an Employment Separation Certificate.[50] Whilst there may be some circumstances where an employee asking for an Employment Separation Certificate is evidencing an intention to terminate an employment relationship on their own initiative, this is not such a case.
[51] Mr Hendrie was asking for an Employment Separation Certificate in order to access unemployment benefits because he believed that he had been dismissed moments earlier and because the government agency (Centrelink) required that very certificate to do so. Where an employee requests an Employment Separation Certificate believing that their employment has already been ended by their employer’s conduct then the mere asking for the Certificate is not a termination on the employee’s initiative.
[52] The surrounding circumstances clearly support a finding of dismissal.
…
”
The above single member authorities reveal the need to consider all the circumstances surrounding an alleged dismissal in seeking to objectively determine whether a dismissal was at the employer’s initiative. The cases do not stand for a general proposition that where an employee requests an employment separation certificate, that constitutes a resignation.
I now turn to the matters that the Applicant submits tell in favour of a finding that the Applicant was dismissed within the meaning of s 386(1) of the Act.
The Applicant submits that the First Respondent did not offer the Applicant any further work after the end of her assignment with the Second Respondent. The submission is not correct given the 17 January 2025 email to the Applicant which presented the Applicant with two opportunities. I have previously noted that those roles were in Queensland and were presented after the Applicant filed her general protections application. The absence of roles being offered to the Applicant in Victoria is however more likely explained by the fact that clients of the First Respondent were overwhelmingly located in Queensland rather than the First Respondent having decided to terminate the employment relationship. This matter raised by the Applicant does not tell in favour of a finding that she was dismissed by the First Respondent.
More telling than the above is that the First Respondent failed to maintain or make any direct contact (aside from the 17 January 2025 email) with the Applicant after issuing the Separation Certificate. The absence of such contact with an ongoing ‘employee’, even a casual employee, is strongly suggestive of the employment relationship having ended. This tells in favour of the Applicant’s argument that her employment had ended.
The Applicant also relies on the conversation between herself and Ms Stanford on 20 November 2024 during which Ms Stanford advised the Applicant that there were no suitable roles available at that time and that the First Respondent would keep an eye out for suitable roles. Ms Stanford also reinforced that most of the First Respondent’s clients were in Queensland which the Applicant acknowledged during the conversation. Ms Stanford’s advice to the Applicant did not in my view make clear to the Applicant that no further engagements would be offered although the prospect of further engagements was clearly limited given the First Respondent’s business was primarily in Queensland. On balance I do not regard the conversation as telling for or against the dismissal having been at the First Respondent’s initiative.
Returning to the Separation Certificate, the First Respondent argues that Ms Stanford did not resist the Applicant’s request for its provision, that it (the Separation Certificate) was clear and unambiguous in its terms, it stated that the Applicant’s employment had ceased due to a shortage of work and was provided in writing. I agree that all these matters raised by the First Respondent in relation to the Separation Certificate tell strongly in favour of a conclusion that the dismissal took effect on 14 November 2024 and was at the initiative of the First Respondent.
I accept that the First Respondent may not have intended to dismiss the Applicant. I find however in all the circumstances considered above that the action of the First Respondent in preparing and providing the Applicant with the Separation Certificate had the effect of communicating to the Applicant that her employment had ceased by reason of a shortage of work and not voluntarily. The terms of the Separation Certificate were clear and unambiguous. Any doubt arising from other factors raised by the parties telling for and against a finding at the initiative of the First Respondent are dispelled by a plain reading of the Separation Certificate. There was no evidence before me to suggest the Separation Certificate was made in error.
Having regard to the above, I find that the Applicant was dismissed by the First Respondent within the meaning of s 386(1)(a) of the Act.
Conclusion
I have found that the Applicant was dismissed within the meaning of s 386(1)(a). Accordingly, at the time the Applicant made her application on 5 December 2024, she was a person who had been dismissed for the purposes of s 365 of the Act. The jurisdictional objection is therefore dismissed. It is also clear that the Applicant alleges the dismissal contravened Part 3-1 of the Act. As such the matter will shortly be listed for a conference pursuant to s 368 of the Act.
DEPUTY PRESIDENT
Appearances:
S Nottle for the Applicant.
J Carlisle for the First Respondent.
Hearing details:
2025.
Melbourne:
10 February.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.
[2] Ibid at [51].
[3] Exhibit A1, Witness Statement of Alana Weir, dated 31 January 2025, at [6], Annexure AW-2 Contract of Employment
[4] Ibid
[5] Exhibit A1, at [9]-[10]
[6] Exhibit R1, Witness Statement of Melissa Stanford, dated 23 January 2025, at[11]-[12]
[7] Exhibit A1, at [12]
[8] Exhibit A1, at [14]
[9] Exhibit A1, Annexure AW-f, Employment Separation Certificate
[10] Exhibit A1, at [16]
[11] Exhibit R1, at [16], Annexure 3, Alana Weir Employment Details
[12] Exhibit R2, Email from First Respondent to Applicant dated 17 January 2024
[13] Exhibit R1, at [18]
[14] [2017] FWC 848
[15] [2022] FWC 835
[16] Ibid at [23]
[17] [2023] FWC 2168
[18] [2023] FWC 1845
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