Yun-Fen Hsieh v Hobiz Pty. Ltd
[2025] FWC 659
•5 MARCH 2025
| [2025] FWC 659 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 365—General protections
Yun-Fen Hsieh
v
Hobiz Pty. Ltd.
(C2024/8586)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 5 MARCH 2025 |
Application to deal with contraventions involving dismissal — jurisdictional objection — whether Applicant was dismissed — jurisdictional objection dismissed.
Dispute and outcome
Ms Yun-Fen Hsieh (the Applicant) applied under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a general protections dispute involving dismissal. The Applicant submitted that Hobiz Pty Ltd (the Respondent) had contravened the general protections provisions in Part 3-1 of the Act on the basis that the Respondent had, by declining to permit her to return from parental leave, taken adverse action against her because of her pregnancy. The Applicant considered her employment had been terminated at the Respondent’s initiative.
The Respondent objected to the application on the basis that there had not been a dismissal. The Respondent pressed that it had not provided the Applicant with notice of termination of employment, and it was the Respondent’s belief that the Applicant was still on parental leave, therefore proving it not possible to provide the Applicant with any jobs during that period.
The Respondent’s objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[1] Section 365 relevantly provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a)a person has been dismissed; and
(b)the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with
the dispute.
Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[2] Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from her employment within the meaning of s 386(1)(a) or/and (b) of the Act.
Given the factual dispute over whether the Applicant was or was not dismissed, the matter proceeded to hearing on 25 February 2025, with the assistance of a Mandarin interpreter for the Applicant. It was noted at the commencement of the hearing, that the Respondent had not filed any evidence or submissions in support of its case and therefore relied upon its Form F8A Response.
Having considered the evidence of the parties and their submissions, I have found that the Applicant was dismissed. It follows that the matter will now be listed for conference.
My detailed reasons follow.
Background
In respect of the broader context leading to the cessation of the Applicant’s employment, evidence was received from the Applicant and Mr Tan, a Director of the Respondent.
Mr Tan was permitted to provide viva voce evidence in respect of the content of the Form F8A Response. This is the case notwithstanding that the Respondent did not comply with directions to file materials and, in addition, the Commission had accommodated a request by the Respondent for an adjournment. In this regard, I note the following.
The matter was allocated to Chambers on 17 January 2025.
On 20 January 2025, Chambers sent directions and listed the matter for a jurisdictional hearing to take place on 10 February 2025. A Notice of Listing was sent to the parties.
On 21 January 2025, Chambers received an adjournment request from Mr Tan of the Respondent seeking to have the matter listed on 24 February 2025 due to Mr Tan’s travel arrangements.
On 21 January 2025, Chambers advised the parties that I had refused the adjournment request as the Respondent provided no evidence of unavailability nor explanation as to the necessity of Mr Tan’s attendance.
On 23 January 2025, Chambers received evidence of Mr Tan’s travel arrangements and on that same day, Mr Tan was directed to further address the relevance of his attendance.
On 23 January 2025, Chambers received a response from Mr Tan stating:
I take this very seriously and would give me best to attend to this matter. As I am the main person attending to this hearing, I am afraid the internet will be unstable whilst I am in China.
Chambers thereafter advised parties that the matter would be adjourned, and the hearing relisted for 0900hrs on 25 February 2025. Directions were amended and the Respondent’s submissions were due to be filed at 1600hrs on 19 February 2025.
On 20 February 2025, having received no contact or submissions from the Respondent, non-compliance directions were sent to parties advising that the matter would proceed on the basis that the Respondent had not filed supportive materials.
2.1 The Applicant
The Applicant gave evidence that she had commenced with the Respondent as a customer service representative in or around August 2022 on a part-time basis.
According to the Applicant, having embarked on a period of parental leave, she had expressed her intention to return to the workplace almost four months prior to the conclusion of her parental leave. An abridged version of the Applicant’s evidence on this point follows:
a) on 12 August 2024, the Applicant ‘scheduled manager, Jeff in his office’ and had informed him face to face that she would be returning to the workplace by the end of 2024;
b) on 26 August 2024 the Applicant had, in the Respondent’s WhatsApp group, informed the members of the group that she should be returning to work before the end of 2024 (only to be later removed from all of the Respondent’s WhatsApp groups by Louie Tan, the contact person of the Respondent);
c) on 29 October 2024, the Applicant messaged her manager, ‘Jeff’, and asked what days they required more staff so that she could arrange for childcare for her children;
d) on 13 November 2024, the Applicant called her manager, ‘Jeff’, and confirmed that she would be returning to her position one to two days per week from December and he is said to have said ‘no problem’ and that the Respondent was short staffed; and
e) on 25 November 2024, the Applicant sent a text message to her manager, ‘Jeff’, inquiring about the upcoming roster and received no reply.
The Applicant noted that insofar as the publication of rosters was concerned, the Respondent always published the roster later in the week for the upcoming week. The Applicant further noted that most of the front-end employees were engaged on a casual basis. She therefore proposed that it was not impossible to roster her for some shifts in what was considered to be the busiest period at a car rental company.
The Applicant stated that on 26 November 2024, she received the following text message from ‘Jeff”:
Hi Amber
I hope you’re doing well. My apologies for the delayed reply, we’ve been quite busy lately with many managed damaged vehicles.
After prolonged discussions with the management team, we’ve decided that, at this stage, we won’t be requiring another front-end staff member. With everyone staying in Perth for the Christmas and Chinese New Year Period, our current front-end roster is sufficient to cover the workload.
That said, if the situation changes, such as someone resigning, we’d be more than happy to revisit this with you. At the same time, we completely understand if you find another opportunity in the meantime, and we wish you all the best in your job search.
That you so much for following up with us and we’ll definitely reach out if things change and I also ask for your understanding on this matter.
In the meantime, take care ya[3]
To access her roster the Applicant said she used the ‘Connecteam app’. The Applicant stated that after having received the text message from ‘Jeff’, she was ‘kicked out’ off Connecteam and was unable to log-in. This was the case despite the Connecteam application working well throughout her parental leave.
In response to the content in the Respondent’s Form F8A, where the Respondent had stated ‘the Applicant’s return to work will be open for discussion once her 12-months maternity leave finishes’,[4] the Applicant asked ‘Did they ever speak to me? Except I only received the message written that they don’t require another front-end staff member for the period after my maternity leave finished’.[5]
Included in the Applicant’s evidence were screenshots of advertisements that the Applicant had asserted were placed by the Respondent to attract further staff. The Applicant stated that the Respondent posted hiring advertisements for the same position she held on the following dates: (a) 2 October 2024; (b) 15 October 2024; (c) 29 October 2024; and (d) 15 January 2025.
2.2 The Respondent
The following information has been extracted from the Respondent’s Form F8A.
The Respondent asserted that the Applicant was still on a period of parental leave, which had commenced on 21 December 2023. The Respondent stated that the Applicant was entitled to 12 months parental leave and that the Respondent was waiting for her 12 months parental leave to finish.
On that basis the Respondent pressed that it had no reason to give notice of termination, and it had neither communicated nor provided written notice, dismissing the Applicant.
Regarding the evidence provided by Mr Tan at hearing, an abridged version follows:
a) ‘Jeff’ was one of four managers within the car rental business and had been with the Respondent for some four years;
b) ‘Jeff’s’ duties included staffing, rostering, and reporting, with some issues being passed to upper management to decide;
c) the Respondent had pre-planned staffing for the whole of Christmas 2024 and the Chinese New Year period, as it was a very busy time, and the Respondent did not want a repeat of the stress which had occurred in 2023 when pre-planning was not undertaken for the Christmas period;
d) the December 2024 and January 2025 period had already been taken up;
e) the Respondent is always advertising for positions to attract new talent;
f) the Applicant did not specify a return-to-work date;
g) the Applicant was not provided with a letter and did not hear from anyone in the company that can make the decision that she had been dismissed or fired; and
h) the Applicant had a relationship (history of working) with the other director of the Respondent and could have contacted him or Mr Tan directly about the issue.
Consideration
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section is relevant for present purposes given the acceptance by the Federal Circuit Court[6] and Federal Court[7] that the definition of the word ‘dismissed’ in s 386(1) of the Act, is equally relevant to the meaning of the term as used in s 365 of the Act. The word ‘dismissed’ as defined in ss 12 and 386 of the Act reads:
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.
There are exceptions under s 386(2) regarding when a person has been dismissed; however, those exceptions do not appear relevant to this case.
The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct, or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa),[8] and in Lipa Pharmaceuticals Ltd v Jarouche,[9] where the Full Bench endorsed the principles established in Bupa in respect of s 386(1)(b). In Bupa it was said:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). 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 termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”[10]
While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan considered the operation of s 386(1)(a):
“[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)[11]
The question of whether there has been a termination of employment contract and/or the employment relationship is to be determined objectively.[12] It requires an assessment as to what each party by words and conduct would have led a reasonable person in the position of the other party to believe, in light of the surrounding circumstances.[13]
I have found that the Applicant was dismissed for the following reasons.
First, it is an indubitable fact that the Applicant was on a period of parental leave that was to conclude, on the Respondent’s account, on 20 or 21 December 2024. Further, it appears uncontentious that the Applicant was entitled to parental leave under the National Employment Standards (NES), and that the period of that entitlement was 12 months of unpaid parental leave.[14]
Under s 77 of the Act, an employee whose period of unpaid parental leave has started may reduce the period of unpaid parental leave the employee takes, if the employer agrees. However, the evidence does not support a finding that the Applicant was seeking to reduce the period of her unpaid parental leave but instead, was attempting to return to work at the conclusion of her parental leave.
Section 84 of the Act provides a ‘guarantee’ that on ending a period of unpaid parental leave, an employee is entitled to return to the employee’s pre-parental leave position, or, if that position no longer exists, an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.
The Applicant gave evidence that prior to taking parental leave she worked four days per week and that she sought to return to work on a one to two day per week basis.[15]
Second, I have found that the Applicant was, by her communications with the Respondent, seeking to secure a return-to-work date for the late December 2024 period at the conclusion of her parental leave and to negotiate a reduction in her hours (whether temporary or otherwise) for her recommencement following parental leave.
Third, I have found that the Respondent dismissed the Applicant on 26 November 2024 because of the following conduct.
‘Jeff’ informed the Applicant in writing that there was no work for her to perform over the Christmas and Chinese New Year Period, and that the Respondent’s current front-end roster was sufficient to cover the workload. This was notwithstanding a legislative guarantee that on ending her period of parental leave on 20-21 December 2024, the Applicant was entitled to return to her pre-parental leave position.
Whilst the text message to the Applicant of 26 November 2024 suggested that the Respondent would revisit the Applicant returning to work, it communicated it would do so if the situation changed (namely where someone resigned - therefore presumedly opening up a position), and that again, the Respondent would reach out to the Applicant if things changed. The Applicant’s return to work was therefore conditional on a position becoming available in that period. It was not the case that the Respondent had communicated to the Applicant that her substantive position was available on the conclusion of her parental leave – notwithstanding the ‘guarantee’ as provided under the NES.
As to the authority that ‘Jeff’ had to communicate the message of 26 November 2025, I am of the view that ‘Jeff’, as the Applicant’s Manager, had authority to instruct the Applicant in respect of rostering and whether she returned to work or did not. Whilst Mr Tan gave evidence that only he or the other director of the Respondent could make decisions in respect of a dismissal, I am unpersuaded on the evidence before me that ‘Jeff’ was absent authority to communicate to the Applicant that she would not be returning to work at the conclusion of her parental leave, given the content of the text message discloses that ‘Jeff’ had conferred with the ‘management team’.
‘Jeff’s’ text message of 26 November 2024 is to be considered in light of other conduct that the Applicant asserts occurred at that time.
First, the Applicant levels toward the Respondent the assertion that the Respondent denied her access to Connecteam. The Applicant gave evidence that this software application provided access to rosters, and that whilst the Respondent business sent emails of payslips and rosters, the rosters distributed by email were emailed by way of Connecteam. I am of the view that the removal of the Applicant’s access to Connecteam precluded the Applicant from viewing her roster. The Applicant’s evidence was unchallenged, and I am content to rely upon it as a source of truth.
Second, the Applicant gave evidence that the Respondent removed her from the Respondent’s WhatsApp text message group. Again, there is no evidence to the contrary and I am content to rely on the Applicant’s account.
These steps taken by the Respondent, inclusive of ‘Jeff’s’ text message were inconsistent with maintaining the Applicant’s employment with the Respondent.
Whilst the Respondent placed emphasis on having never expressly communicated to the Applicant that she had been dismissed (in writing or orally), I find that it was the acts of the Respondent which resulted directly or consequentially in the termination of the Applicant’s employment on 26 November 2024.
The Applicant did not voluntarily leave the employment relationship, and it was not the case that the Respondent was simply awaiting the conclusion of the parental leave period, to then place the Applicant on the roster. The conclusion of the parental leave period arose on or around 20 or 21 December 2024, and the evidence fails to demonstrate that the Respondent intended to place the Applicant in her pre-parental leave role.
Conclusion and next steps
The Respondent’s jurisdictional objection that the Applicant was not dismissed and therefore the Commission is absent jurisdiction to deal with the application, is dismissed. Accordingly, an Order[16] issues concurrently with this decision.
It is worth outlining s 370 of the Act, which, in setting out the pre-requisites for the making of a general protections court application, provides an overview of the next steps for the conduct of the Applicant’s application:
A person who is entitled to apply under s 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
The precursor to the issuing of the required certificate under s 368(3)(a) is that the Commission must deal with the dispute by conducting a conference[17] and reach a level of satisfaction ‘that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful’.[18] Hence for present purposes and as a result of my determination, this matter will now be listed for conference in order to explore the possibility of resolution. A notice of listing will be issued shortly.
Finally, while I have determined the Applicant was dismissed by the Respondent and is therefore entitled to apply under s 365 of the Act for the Commission to deal with his dismissal dispute, it should be noted that the Full Court in Coles Supply Chain Pty Ltd v Milford[19] made observations of the following nature regarding s 370 of the Act and the making of a general protection court application:
a) the Act establishes multiple alternate pathways for an applicant and prospective litigants;
b) s 370 of the Act is to be interpreted against the background that while the Commission may determine the question of a person’s entitlement to make an application to it, this may not be conclusive; and
c) this is because a Court may ultimately decline to recognise an ‘application’ or resulting certificate granted by the Commission as valid, if called upon by a Respondent to determine a subsequent objection to the competency of a general protections court application under s 370 of the Act.
DEPUTY PRESIDENT
Appearances:
Y Hsieh, Applicant
L Tan of the Respondent
Hearing details:
2025.
Perth (by video using Microsoft Teams):
25 February.
[1] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37 (Milford).
[2] Ibid 602 [51].
[3] Witness Statement of Yun-Fen Hsieh [1(E)] (Hsieh Statement); Digital Hearing Book, 39, 60 (DHB).
[4] DHB (n 3) 81.
[5] Hsieh Statement (n 3) [3]; DHB (n 3) 39, 60.
[6] Morris v Allied Express Transport Pty Ltd [2016] FCCA 1589, [117].
[7] Milford (n 1) 603 [54].
[8] Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245 (Bupa).
[9] (2023) 324 IR 375, 381 [18].
[10] Bupa (n 8) 268–9 [47].
[11] (2018) 273 IR 126, 130 [10]–[11].
[12] Howard v Falls Creek Ski Lift Pty Ltd T/A Falls Creek Ski Lift Group[2023] FWCFB 154 [30].
[13] Koutalis v Pollett [2015] FCA 1165 [43]-[44]; applied in Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 [30].
[14] Fair Work Act 2009 (Cth) s 70.
[15] Hsieh Statement (n 3) [1(D)]; DHB (n 3) 39.
[16] PR784969.
[17] Fair Work Act 2009 (Cth) ss 368(1), (2).
[18] Ibid s 368(3).
[19] Milford (n 1) 607 [74]-[75].
Printed by authority of the Commonwealth Government Printer
<PR784968>
0
8
0