Nicole Gunning v Indie Education
[2025] FWC 292
•7 FEBRUARY 2025
| [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 Applicant emailed the principal as follows:
Shannon,
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.
Regards Nicky
Although there was a lack of clarity in the Applicant’s submissions as to how and when the Applicant’s employment came to an end, the Applicant ultimately 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.
Evidence and submissions
The Applicant’s evidence was that she was not a ‘day-to-day’ casual employee. The Applicant said she had initially worked on the Respondent’s junior campus in term 1 of 2024 and moved to the senior campus in term 2 to replace a teacher who had resigned in the second week of that term. She said she was asked to return at the beginning of term 3 and worked five days per week. The Applicant said she had discussions with the Respondent’s representatives and had an expectation that she would also work in term 4. She said she had specific timetabled classes, prepared her own lessons and was required to attend staff meetings which was not required of ‘day-to-day’ casual employees.
The Applicant said she informed the Respondent that she could fulfil all of her duties. She said she attempted to contact the Respondent about her return to work and was given false information about the risk assessment process that would permit her to return to work. The Applicant said she was told alternately that the principal was conducting the risk assessment and that the HR department was undertaking the process. She said she was told it was unlikely she would be able to return to work until she could bear weight on her leg but said that decision was taken without any consultation with her or regard to a medical clearance that she had obtained.
The Applicant also provided a letter from her physiotherapist dated 27 August 2024 saying that the Applicant was ‘now able to weight bear as tolerated in a CAM walker without the use of crutches’ and was ‘keen to return to work’.
The Applicant submitted that her employment status was other than as a ‘day-to-day’ casual and that her employment was brought to an end by the Respondent on 27 August for reasons related to her temporary disability.
The Respondent referred to and relied on a letter of engagement dated 28 June 2023 addressed to the Applicant. The letter stated, amongst other things:
We are pleased to offer you casual employment in the position of Casual Relief Teacher with us at Albury Wodonga Community College Limited (AWCC) (the Company) on the terms and conditions set out in this letter.
….
1.1. Your employment will be Casual Relief Teacher.
1.2. Each occasion that you work will be a separate contract of employment which ceases at the end of that engagement.
1.3. As a casual worker, your hours may vary depending on business needs. We do not guarantee how long you’ll be employed for, or the days or hours you’ll work. We do not commit to providing you with continuing and indefinite work with an agreed pattern of work. You may accept or refuse work that we offer you.
…..
3.1. You will be paid at the Full day rate of $580.00, including the applicable casual loading at the percentage set out in your industrial instrument. This loading is paid instead of personal leave and annual leave.
….
7.1. The terms and conditions referred to in this letter constitute all of the terms and conditions of your employment and replace any prior understanding or agreement between you and the employer.
The Respondent’s evidence was that following the Applicant’s injury they had conducted an assessment of the inherent requirements of the Applicant’s role and had consulted with the Applicant’s treating practitioner. The Respondent determined that whilst the Applicant was unable to bear weight on her leg, it presented an ongoing safety risk for the Applicant to attend work. Evidence was also presented to the effect that the Respondent was open to have the Applicant return to work as a casual once she had full medical clearance.
Two medical certificates were put in evidence by the Respondent. The first dated 31 July 2024 indicated that the Applicant was capable of light duties without weight bearing on her right leg. The second, dated 6 August 2024, said that the Applicant was ‘currently non-weight bearing with crutches’ and ‘is able to go back to her full teaching duties.’
Mr. Martin gave evidence for the Respondent as to his interactions with the Applicant’s treating medical practitioner. His evidence was that on or about 9 August 2024 he provided the practitioner with the details of the Applicant’s duties which gave rise to concerns on the part of the Respondent as to whether the Applicant was capable of returning to work. He said the practitioner contacted him again on 29 August 2024 seeking further updates on the Applicant’s condition as he (the practitioner) had not had any further consultation with the Applicant since before the conversation with Mr. Martin on 9 August. Mr. Martin was not cross-examined. I accept his evidence.
The Respondent submitted that it had acted in accordance with its duty of care obligations under relevant workplace health and safety legislation and had come to a view, based on the available medical information, that the Applicant could not be returned to work as at 27 August 2024. They said that the email of 27 August was entirely consistent with the Applicant’s status as a casual employee and did not bring the employment relationship to an end, particularly given the email referred to the Applicant resuming work at a later point and potentially working on one of the Respondent’s other campuses (Kincaid Street).
The Applicant’s employment status
The Applicant’s letter of engagement describes the employment offer as being for casual employment in the position of ‘casual relief teacher’ (CRT). The letter also refers to the terms and conditions of employment as being those set out in an enterprise agreement called the Albury Wodonga Community College Enterprise Agreement 2022-2025[2] (Agreement), unless the more generous provisions in the letter apply[3].
The Agreement provides for four types of employment: full-time, part-time, casual and fixed term[4]. Clause 21.5 provides:
21.5 Casual employment
(a) Casual employment means employment on a day-to-day basis:
(i) for a period of not less than two hours for each engagement and not more than four consecutive weeks, or
(ii) for up to one full Company school term, by agreement between the Company and the Employee.
(b) The rates of pay for a casual Employee are contained in Schedule B (Employee Salaries) plus 25%.
(c) A casual Employee is not entitled to any of the following benefits under this Agreement:
(i) notice of termination of employment;
(ii) redundancy;
(iii) remuneration packaging;
(iv) annual leave;
(v) annual leave loading;
(vi) paid public holidays;
(vii) paid personal/carer's leave;
(viii) paid compassionate leave;
(ix) paid family and domestic violence leave;
(x) paid parental leave;
(xi) pro rata payment of salary inclusive of annual leave;
(xii) infectious diseases leave;
(xiii) examination leave and study assistance;
(xiv) military reserve leave; and
(xv) qualification conferral leave.
(d) Casual conversion -The right for casual employees to become permanent employees is provided for in the NES.
The term ‘casual relief teacher’ is not defined in the Agreement. Only one reference to that term appears in the Agreement and it is in Schedule B. That Schedule sets out the rates of pay for CRTs and specifies that they are to be paid for the full day rate even if they work less than 7.6 hours.
The reference in the Agreement to casual employment being employment on a ‘day-to-day basis’ provides some limited assistance as to the nature of casual employment under the Agreement. The balance of the clause makes it clear however that casual employment under the Agreement is to be distinguished from permanent employment and involves the payment of a loading and the non-payment of various entitlements that are payable to permanent employees.
Section 15A of the Act sets out the meaning of the term ‘casual employee.’ That section was first introduced in March 2021 and was later amended by the Fair Work Legislation Amendment(Closing Loopholes No. 2) Act 2024. The amendments commenced operation on 26 August 2024. Part 18 to schedule 1 of that Act includes the transitional provisions that are to apply in relation to those amendments. That Part includes, relevantly, the following:
102 Application of amendments
Application of definition of casual employee
(1) Section 15A of the amended Act applies on and after commencement in relation to employment relationships entered into before, on or after commencement.
(2) Despite subclause (1), for the purposes of applying section 15A of the amended Act on and after commencement in relation to employment relationships entered into before commencement:
(a) conduct of an employer and employee that occurred before commencement is to be disregarded for the purposes of applying subsections 15A(2) and (3) in relation to that employee; and
(b) if an employee’s contract of employment immediately before commencement included a term of a kind referred to in subsection 15A(4) - that subsection is taken not to apply in relation to the employee for the remainder of the term of that contract.
Continuing casual employees
(3) For the purposes of subclause (1), an employee who was, immediately before commencement, a casual employee of an employer within the meaning of section 15A as in force at that time, is taken to be a casual employee of the employer within the meaning of section 15A of the amended Act on and after commencement.
The effect of subclause (3) above, is that ‘a person who was a casual employee of an employer under the definition as it existed prior to the commencement of the amendments is deemed to remain a casual employee of that employer within the meaning of s 15A as amended[5]’.
Section 15A of the Act, prior to the amendment, was in the following terms:
15A Meaning of casual employee
(1) A person is a casual employee of an employer if:
(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
(b) the person accepts the offer on that basis; and
(c)the person is an employee as a result of that acceptance.
(2) For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:
(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;
(b) whether the person will work as required according to the needs of the employer;
(c) whether the employment is described as casual employment;
(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.
Note: Under Division 4A of Part2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment.
(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
(4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.
(5) A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:
(a) the employee’s employment is converted to full-time or part-time employment under Division4A of Part 2-2; or
(b) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.
This was the definition of casual employee which applied at the time the Agreement was approved. It is readily apparent from the above and the terms of the Applicant’s letter of engagement that the Applicant would likely be considered a casual employee for the purposes of the Act at all relevant times. Having regard to the terms of the letter of engagement and the provisions of the Agreement itself, I am of the view that the Applicant was clearly a casual employee under the terms of the Agreement. She accepted the offer of employment on the basis of the terms of the letter of engagement which made it clear the Applicant was engaged as a casual, that there was no commitment to continuing and indefinite work and each period of work would be a separate contract of employment that was to cease at the end of each engagement. Although it may have been unlikely as a matter of practice, the Applicant could, under the terms of the contract, accept or refuse the work that was offered.
It was not in issue that the Applicant at all relevant times received the 25% casual loading payable to CRTs under schedule B of the Agreement. There was no evidence that the Applicant was receiving paid personal leave while she was off work with her injury. These are matters which are consistent with her status as a casual employee.
I note that clause 21.5(a)(ii) of the Agreement permits casual employment on a day-to-day basis for up to one term by agreement. On the Applicant’s evidence, after her engagement for the first term at the junior campus (Kincaid), the Applicant had then been engaged in week 2 of term 2 at the senior campus and was then asked to return at the beginning of term 3. That is, it appears that the Applicant worked over a series of periods of employment that consisted of a term or part of a term, during 2024. Ms. Fisher’s evidence, which was not challenged, was that the Applicant was engaged as a CRT during the recruitment process for a full-time teacher. Notwithstanding what the Applicant said was her expectation of future work in term 4, the evidence is not sufficient to conclude that the Applicant’s employment was to extend beyond term 3.
Whatever else might be said about the previous work that had been done in the first two terms, I do not think that the fact that the Applicant had undertaken that work means that she was not a casual employee at the time of the email exchanges on 27 August and 3 September. The evidence does not establish that the Applicant’s terms were consistent with those of a full-time, part-time or fixed term employee as those terms are described in the Agreement. At the relevant time, the Applicant was working on a day-to-day basis for a period that was to conclude at the end of term 3 and she was doing so as a casual employee.
I conclude that at the time of the email of 27 August 2024, the Applicant was engaged as a casual employee under the terms of the Agreement and the letter of offer.
Was the email of 27 August a ‘dismissal’?
In the present circumstances I do not regard the email of 27 August 2024 as a termination on the initiative of the employer for the purposes of s.386(1)(a). The email does 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.
Was the Applicant’s email of 3 September a resignation or ‘forced resignation’ within the meaning of s.386(1)(b)?
In Bupa Aged Care Australia Pty Ltd v. Tavassoli[6] (Bupa) the Full Bench described the test in s.386(1)(b) as follows:
The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether the termination of the employment was the probably (sic) result of the employer’s conduct such that the employee had no effective real choice but to resign.[7]
The Applicant requested an employment separation certificate which was provided on the same day as the request, 3 September 2024. The certificate said the reason for separation was ‘employee ceasing work voluntarily’ and ‘resignation.’ There was no evidence of any challenge to the certificate by the Applicant until the application was filed on 20 September 2024. The Applicant submitted that the email of 3 September 2024 was a forced resignation. Given the Applicant’s contention that the Respondent’s email of 27 August 2024 was a dismissal on the initiative of the Respondent, I have treated this submission as being put in the alternative to the Applicant’s primary submission.
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. I do not think that email satisfies the test in Bupa described above given the Applicant’s status as a casual employee.
It may have been the case that the Applicant was facing some financial difficulties as she had not worked for 6 weeks and had come to a view that she needed to apply for social security payments. However, the Respondent had not told the Applicant that there would be no further work for her. To the contrary, the Respondent had simply advised that the Applicant’s absence had necessitated some temporary arrangements be put in place which meant the Applicant was not going to be provided with shifts at the senior campus in the immediate future. The Applicant was also told that given her advice that she was fit to resume work steps would be taken to facilitate work at another campus. These were not actions by the employer designed to deprive the Applicant of choice and force a resignation.
Conclusion
The Applicant was not dismissed within the meaning of s.386 of the Act.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms D Foster, for the Applicant
Mr J Clarke, for the Respondent
Hearing details:
27 November 2024 via Microsoft Teams
[1] Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche[2023] FWCFB 101.
[2] [2021] FWCA 6656, 11 November 2021.
[3] At 2.1.
[4] At clause 21.1.
[5] Variation on the Commission’s own initiative—Casual employment terms (AM2024/29) [2024] FWCFB 316 at [11].
[6] [2017] FWCFB 3941.
[7] At [47].
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