| [2025] FWC 889 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Rata Bauer
v
MI Scaffold Pty Ltd
(C2024/8368)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 28 MARCH 2025 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant was an employee – jurisdictional objection upheld – application dismissed
This decision concerns an application made by Mr Rata Bauer (Bauer) under s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Bauer was engaged by MI Scaffold Pty Ltd (the Respondent/MI) as a casual Scaffolder on 20 July 2023. In this role he worked primarily on shutdowns projects across various mine sites.
On 7 November 2024, Mr Bauer alleges he was dismissed as a consequence of raising a complaint or enquiry. MI have raised a jurisdictional objection rejecting that Mr Bauer was dismissed and claiming instead that Mr Bauer abandoned his employment. For Mr Bauer to be eligible to make a claim under s.365 of the Act, he will need to establish that he was an employee and was dismissed in accordance with the definition in s.386 of the Act.
Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether Mr Bauer was an employee who was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Mr Bauer was dismissed in contravention of the general protections provision.
Parties were directed to file submissions and evidence. The matter was heard by Video using Microsoft Teams on 17 February 2025. After seeking the views of the parties, the matter proceeded as a determinative conference.
Permission to Appear
Neither party sought leave to be represented at the Hearing. The Applicant and Respondent appeared for themselves.
Background
Mr Bauer had previously worked for MI in 2023 during which time his employment was terminated due to failing a drug and alcohol test.[2] Mr Bauer had also received a final written warning on 21 March 2024,[3] which provided that any further breach of MI’s policies would result in termination.
Mr Bauer alleges that he had sent a number of SMS messages to MI’s office staff regarding the provision of PPE equipment up to 4 November 2024. Following this, on 5 November 2024 Mr Bauer was instructed to raise concerns with his supervisor Mr Mark Bishop in the first instance. Mr Bauer disregarded those instructions, by sending further SMS messages to MI’s office staff on 6 November 2024.
On 7 November 2024, Mr Bauer was informed that he had to pack up his room at the motel as his swing ended that day. Mr Bauer had earlier been reminded of this by SMS from Mr Bishop however, he had left his phone in the work bus and as such didn’t receive the SMS. As Mr Bauer boarded the bus taking staff to the worksite that morning, Mr Oran Brown, another employee of the Respondent, reminded Mr Bauer that…
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- Case
- [2025] FWC 889
- Decision Date
CaseChat Overview and Summary
The court heard evidence from Mr Bauer, Mr Bishop, Ms Benson, Mr Ferriday, and Mr Brown. The court considered the evidence and submissions of the parties and found that Mr Bauer's employment was not terminated by MI on 7 November 2024. The court found that Mr Bauer was a casual employee whose employment ended due to the project he was working on ending and that he failed to report to the office to obtain details of his next project. The court rejected Mr Bauer's evidence as unreliable and contradictory and found that Mr Bishop did not have the authority to terminate Mr Bauer's employment.
In conclusion, the court found that Mr Bauer was not dismissed within the meaning of section 386(1) of the Act and dismissed his application for want of jurisdiction. The Deputy President, Dobson, presided over the case and the matter was heard by Video using Microsoft Teams on 17 February 2025. The applicant and the respondent appeared for themselves. The final orders of the court are not stated in the text.
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Background
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Evidence
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