Nicole Gunning v Indie Education - [2025] FWC 292

[2025] FWC 292

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Nicole Gunning
v

Indie Education

(C2024/6775)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 7 FEBRUARY 2025

Unfair dismissal – jurisdictional objection – whether applicant dismissed – casual employee – jurisdictional objection upheld – application dismissed.

The Applicant, Ms. Nicole Gunning, has applied under s.365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a dispute relating to her alleged dismissal by Indie Education (Respondent). The Applicant claims that her alleged dismissal by the Respondent was in contravention of Part 3-1, General Protections, of the Act. The Respondent objects to the application on the basis that the Applicant was not dismissed.
Section 386 sets out the circumstances in which an employee is taken to have been dismissed for the purposes of s.365. It provides, relevantly, as follows:
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.

The Respondent’s jurisdictional objection must be determined before the Commission can proceed to deal with the dispute by conducting a conference under s.368 of the Act[1]. This decision deals with that objection.

Factual background

The Applicant was employed by the Respondent as a teacher. The Applicant first commenced her casual work with the Respondent on or about February 2024. On 25 July 2024 the Applicant suffered a non-work-related injury to her ankle which required surgery. The Applicant was temporarily unable to work as a result of the injury.
The Applicant provided the Respondent with a doctor’s certificate at or about early August 2024. The certificate indicated that the Applicant was able to perform some form of light duties without work that involved weight bearing on her right leg. Thereafter the Respondent conducted a form of risk-assessment process which included assessing what if any of the Applicant’s work might involve weight bearing on the right leg. The Respondent contacted the Applicant’s treating medical practitioner on 9 August 2024 to discuss the Applicant’s situation. They provided the practitioner with a list of duties which they believed presented concerns given the Applicant’s limited work capacity.
On 27 August 2024, and prior to the Applicant returning to work, the principal of the campus at which the Applicant was then engaged, emailed the Applicant in the following terms:
Good afternoon Nicky,
Apologies for missing your calls.
Thank you for your regular updates about injury.
Due to the uncertainty around your recovery, we have engaged some staff in the interim.
I will reach out to you once their block concludes and we are seeking assistance.
I will let Renee know that you are available in case she needs someone on Kincaid.
On 3 September 2024 the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 292
Decision Date: 7 FEBRUARY 2025

CaseChat Overview and Summary

Nicole Gunning has applied to the Fair Work Commission (FWC) under section 365 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute relating to her alleged dismissal by Indie Education (Respondent). The Applicant claims that her alleged dismissal by the Respondent was in contravention of Part 3-1, General Protections, of the Act. The Respondent objects to the application on the basis that the Applicant was not dismissed. The Applicant was employed by the Respondent as a teacher and had worked on a casual basis. The Applicant suffered a non-work-related injury to her ankle which required surgery. The Applicant was temporarily unable to work as a result of the injury. The Applicant provided the Respondent with a doctor’s certificate at or about early August 2024. The certificate indicated that the Applicant was able to perform some form of light duties without work that involved weight bearing on her right leg. The Respondent conducted a risk-assessment process which included assessing what if any of the Applicant’s work might involve weight bearing on the right leg. The Respondent contacted the Applicant’s treating medical practitioner on 9 August 2024 to discuss the Applicant’s situation. On 27 August 2024, the Respondent emailed the Applicant in the following terms: "Due to the uncertainty around your recovery, we have engaged some staff in the interim. I will reach out to you once their block concludes and we are seeking assistance." On 3 September 2024, the Applicant emailed the principal as follows: "I am currently unemployed for 6 weeks. I am on the phone to centrelink they are requesting a separation certificate today. Could you have this to me by 3pm." The Applicant submitted that the email of 27 August constituted a dismissal by the Respondent which was effective on and from that date. The Respondent argued that no dismissal occurred on 27 August and that the Applicant’s request for a separation certificate on 3 September constituted a voluntary resignation on the Applicant’s part. The FWC found that the Applicant was engaged as a casual employee under the terms of the Agreement and the letter of offer. The email of 27 August 2024 did no more than indicate to the Applicant that she will not be offered further shifts at the senior campus until such time as the 'block' of work for which other staff had been engaged had been completed and the Applicant’s services were again required. The Applicant was also told that she may be given work at the Kincaid campus. This is entirely consistent with the Applicant’s status as a casual employee. It did not have the effect of terminating the casual employment relationship that existed between the Applicant and the Respondent. The only relevant conduct of the Respondent which might be said to have ‘forced’ the Applicant to send the email and resign was the sending of the email by the Respondent on 27 August 2024 advising that further shifts were not available at that time. The FWC concluded that the Applicant was not dismissed within the meaning of s.386 of the Act and the application is dismissed.

Orders