Rata Bauer v MI Scaffold Pty Ltd - [2025] FWC 889

[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…

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 889
Decision Date: 28 MARCH 2025

CaseChat Overview and Summary

This case involves an application made by Mr Rata Bauer under section 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 and alleges he was dismissed on 7 November 2024 as a consequence of raising a complaint or enquiry. MI objected to the jurisdiction of the Fair Work Commission on the basis that Mr Bauer was not dismissed and that he had abandoned his employment instead. The Commission had to determine whether Mr Bauer was an employee who was dismissed before it could exercise powers under section 368 of the Act to deal with a dispute about whether Mr Bauer was dismissed in contravention of the general protections provision.

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.

Orders