1
Fair Work Act 2009
s.604 - Appeal of decisions
City of Sydney RSL & Community Club Limited
v
Mrs Roxana Balgowan
(C2017/4535)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER SAUNDERS
MELBOURNE, 16 JANUARY 2018
Appeal against decision [2017] FWC 3798 and order [PR594678] of Commissioner
Cambridge at Sydney on 27 July 2017 in matter number U2017/4635; casual employment;
whether casual employee was dismissed; whether proposed alteration to shifts, work location
and duties performed by a casual employee was a repudiation of the contract of employment
by the employer; whether there was a constructive dismissal; appeal upheld; decision and
order quashed; stay order set aside; question whether there was a termination of the
employment at the employer’s initiative remitted to another member for determination.
[1] City of Sydney RSL & Community Club Limited (Appellant) lodged an appeal, for
which permission is necessary, on 16 August 2017 against a decision1 (Decision) and order2
(Order) of Commissioner Cambridge in which the Commissioner determined that Mrs
Roxana Balgowan (Respondent) had been unfairly dismissed and ordered compensation be
paid to the Respondent in the amount of $13,566.00, subject to appropriate taxation, within 21
days.
[2] In our decision3 of 25 October 2017 we were persuaded that an arguable case of
appellable error had been established and that the appeal enlivened the public interest and
consequently, we granted permission to appeal (PTA decision). Subsequently, the parties to
the appeal gave their consent4 for the appeal to be conducted without holding a hearing and it
appeared to us that the appeal could be adequately determined without the parties making oral
submissions. We decided to determine the appeal on the papers after allowing the parties to
make written submissions.
1 [2017] FWC 3798
2 PR594678.
3 [2017] FWCFB 5537
4 Telephone call on 28 November 2017 from Respondent confirming her consent to having matter dealt with on the papers
and email from the Appellant dated 29 November 2017 confirming its consent.
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DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2017fwc3798.htm
[2018] FWCFB 5
2
[3] The background to this appeal, a relevant summary of the decision the subject of the
appeal and a summary of the grounds of appeal are set out in our PTA decision and need not
be repeated here.5
[4] We have decided to uphold the appeal on the repudiation grounds advanced by the
Appellant and to quash the Decision. Our reasons for doing so are set out below as is our
decision on a rehearing of the application.
Consideration
[5] Section 394(1) of the Fair Work Act 2009 (Act) provides that a person who has been
dismissed may apply to the Commission for an order granting an unfair dismissal remedy.
Self-evidently, a person who has not been dismissed cannot apply for an unfair dismissal
remedy. The meaning of “dismissed” is to be found at s.386, which relevantly provides:
“(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.”
[6] In its employer response to the Respondent’s unfair dismissal remedy application
lodged on 1 May 2017, the Appellant raised a jurisdictional objection on the ground that the
Respondent was not dismissed and asserted that the Respondent “verbally resigned her
position during a disciplinary meeting on 10 April 2017”. The Respondent contested the
assertion that she had resigned during the 10 April 2017 meeting. It seems to us evident on the
face of the Decision that the Commissioner did not expressly determine this issue. This is
apparent from [30] of the Decision which is as follows:
“[30] The employment of the applicant ceased at the end of the meeting of 10 April,
and this was adequately confirmed by the applicant returning her work uniform to the
employer. There was considerable contest about exactly what was, and was not, said
by the two women during the meeting of 10 April. In particular, the applicant was
adamant that she did not use the word “resign”, while Ms Faaui was equally resolute
about the applicant providing a verbal resignation during the meeting. Whether or not
the word “resign” was actually uttered by the applicant is not a question that has
necessarily required determination.”
[7] Nor did the Commissioner determine that the Appellant terminated the Respondent’s
employment directly. Instead, the Commissioner proceeded to consider the concept of
constructive dismissal. The Commissioner determined ultimately that there had been a
repudiation by the Appellant of the contract of employment which the Respondent was
entitled to accept and did accept, thereby bringing the contract of employment (and
presumably the employment relationship under it) to an end, with the consequence that it was
5 [2017] FWCFB 5537 at [3] – [20]
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the action of the Appellant which brought the employment to an end, and so the Respondent
was constructively dismissed.
[8] It may be inferred from the Commissioner’s analysis that he ultimately accepted that
the Respondent had resigned on 10 April 2017 in response to the Appellant’s repudiation of
the contract of employment. This seems to us apparent from [31] of the Decision which is as
follows:
“[31] On any version of the event, the applicant rejected the changes that Ms Faaui
imposed on the employment. Consequently, the question that does require resolution is
whether the applicant was entitled to reject the changed employment conditions
imposed by Ms Faaui during the meeting on 10 April. Therefore, although the
employer may not have taken any action to overtly dismiss the employee, but instead
it changed the employment circumstances, could such changes permit the applicant to
appear to resign on the basis of a rejection of the changes to the employment? These
circumstances are comprehended by what is often described as a constructive
dismissal, in that it is asserted that even if it was not the conscious intention of the
employer to have the applicant resign from employment, it was the action or actions of
the employer that essentially compelled the applicant to resign.”
[9] The distinction between a dismissal falling under s.386(1)(a) and one falling under
s.386(1)(b) is sought to be explained in the Explanatory Memorandum to the Fair Work Bill
2008 as follows:
“Clause 386 – Meaning of dismissed
1528. This clause sets out the circumstances in which a person is taken to be
dismissed. A person is dismissed if the person’s employment with his or her employer
was terminated on the employer’s initiative. This is intended to capture case law
relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g.,
Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they
resigned from their employment but were forced to do so because of conduct, or a
course of conduct, engaged in by their employer. Conduct includes both an act and a
failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of
constructive dismissal, and allow for a finding that an employee was dismissed in the
following situations:
where the employee is effectively instructed to resign by the employer in
the face of a threatened or impending dismissal; or
where the employee quits their job in response to conduct by the employer
which gives them no reasonable choice but to resign.”
[10] It seems clear from the above 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).
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[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.’’6
[12] Importantly, in Mohazab the Court did not decide that the termination of employment
in that case was at the initiative of the employer because there had been a constructive
dismissal. Indeed, the Court expressly observed that it was “. . . unnecessary to consider
whether the facts fall within or without the notion of constructive dismissal.”7
[13] As s.386(1)(b) is intended to capture or reflect the common law concept of
constructive dismissal and as the Commissioner concluded that “the applicant was
constructively dismissed” because she had accepted the Appellant’s repudiation of the
contract of employment and thereby brought the contract and the employment under it to an
end,8 we consider that when read in its entirety the Commissioner concluded that the
Respondent had been dismissed within the meaning of s.386(1)(b) of the Act.
[14] We turn now to consider the Commissioner’s analysis and the question of repudiation.
The Respondent’s submissions did not grapple with this issue. In essence, the Respondent
maintained that she did not resign but that the Respondent “ended my employment by telling
myself that the club was not offering myself any shifts at the club”.9 The Respondent is
therefore putting that her employment was terminated at the initiative of the Appellant. This is
not unimportant and because of the basis on which the Commissioner decided the issue of
whether there had been a dismissal, limited as it was to constructive dismissal, the question
whether there was otherwise a termination of the Respondent’s employment at the
Appellant’s initiative was neither considered nor decided.
[15] So far as is presently relevant, the Appellant contended that there was no repudiation
by it of the contract of employment and consequently the Commissioner erred in concluding
to the contrary and in concluding that the Respondent had been constructively dismissed.10 As
will be apparent from our discussion below, we agree.
[16] It is plain, for the purposes of identifying the relevant employer conduct as required by
s.386(1)(b), that the Commissioner considered that the Appellant’s conduct, involving an
alteration to the Respondent’s shifts, work location, duties and consequently remuneration,
6 (1995) 62 IR 200 at 205
7 Ibid at 208
8 [2017] FWC 3798 at [39]
9 Respondent's outline of submissions on appeal dated 6 December 2017 at [5]
10 Outline of the Appellant’s appeal submissions dated 22 November 2017 at [5] – [15]
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was “a repudiation of the employment”.11 The Commissioner’s analysis is encapsulated in the
following paragraphs of the Decision:
“[36] In the present case, the applicant rejected the changes to the employment that
were imposed by Ms Faaui during the meeting held on 10 April. The basis for the
applicant’s rejection of the changed employment circumstances was neatly
summarised by the hand written notes that were made by Ms Faaui at the time, and
which included; “Roxy resigned stating that she would not have enough shifts.”
[37] The change that Ms Faaui imposed upon the applicant’s employment involved her
removal from all rostered shifts that involved work in the “change box”. This
alteration was said to have been necessary because of the second instance involving
cash handling discrepancy, and the need to have the applicant undergo training to
improve her cash handling procedure. However, this change would result in a
reduction of at least about 75% in the applicant’s remuneration. Further, although
there was contest as to whether any mention was made of having the applicant
undergo training in cash handling, the reduction in remuneration was recorded by the
notes made by Ms Faaui to be for a period of “up to 3 months”.
[38] As previously mentioned, if upon objective analysis, the actions of the employer
which involved changes to the employment were so egregious as to represent the
repudiation of the employment, then the applicant would be able to treat the
employment to be at an end. On any reasonable and objective contemplation, an
indefinite reduction in remuneration of at least 75% would represent a repudiation of
the employment which the applicant could properly reject.
[39] Consequently, it was the actions of the employer which brought the employment
to an end. The decision by the employer to remove the applicant from regularly
rostered engagements in the “change box” resulted in a 75% reduction in remuneration
for the applicant. The applicant was entitled to reject an alteration to the employment
of such significance, and to treat the actions of the employer as a repudiation of the
employment. Therefore the applicant was constructively dismissed.”12 [Endnotes
omitted]
[17] That which will constitute repudiation was considered by the High Court of Australia
in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd13 (Koompahtoo) in which
Gleeson CJ, Gummow, Heydon and Crennan JJ said as follows:
“In its letter of termination, Koompahtoo claimed that the conduct of Sanpine
amounted to repudiatory breach of contract. The term repudiation is used in different
senses. First, it may refer to conduct which evinces an unwillingness or an inability to
render substantial performance of the contract. This is sometimes described as conduct
of a party which evinces an intention no longer to be bound by the contract or to fulfil
it only in a manner substantially inconsistent with the party's obligations. It may be
termed renunciation. The test is whether the conduct of one party is such as to convey
to a reasonable person, in the situation of the other party, renunciation either of the
11 Ibid at [38]
12 [2017] FWC 3798 at [36] – [39].
13 (2007) 233 CLR 115
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contract as a whole or of a fundamental obligation under it. (In this case, we are not
concerned with the issues that arise where the alleged repudiation takes the form of
asserting an erroneous interpretation of the contract. Nor are we concerned with
questions of inability as distinct from unwillingness.) Secondly, it may refer to any
breach of contract which justifies termination by the other party. It will be necessary to
return to the matter of classifying such breaches. Campbell J said this was the sense in
which he would use the word “repudiation” in his reasons. There may be cases where
a failure to perform, even if not a breach of an essential term (as to which more will be
said), manifests unwillingness or inability to perform in such circumstances that the
other party is entitled to conclude that the contract will not be performed substantially
according to its requirements. This overlapping between renunciation and failure of
performance may appear conceptually untidy, but unwillingness or inability to
perform a contract often is manifested most clearly by the conduct of a party when the
time for performance arrives. In contractual renunciation, actions may speak louder
than words.
In the past, some judges have used the word “repudiation” to mean termination,
applying it, not to the conduct of the party in default, but to the conduct of the party
relying upon such default. It would be better if this were avoided.
. . .
For present purposes, there are two relevant circumstances in which a breach of
contract by one party may entitle the other to terminate. The first is where the
obligation with which there has been failure to comply has been agreed by the
contracting parties to be essential. Such an obligation is sometimes described as a
condition. In Australian law, a well-known exposition was that of Jordan CJ in
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd who, in comparing conditions
and warranties, employed language reflected in many statutory provisions. The
widespread statutory adoption of the distinction between conditions and warranties, or
essential and inessential terms, is an established part of the background against which
the common law has developed. The Chief Justice of New South Wales said
(references omitted):
“In considering the legal consequences flowing from a breach of contract, it is
necessary to remember that (i) the breach may extend to all or to some only of
the promises of the defaulting party, (ii) the promises broken may be important
or unimportant, (iii) the breach of any particular promise may be substantial or
trivial, (iv) the breach may occur or be discovered (a) when the innocent party
has not yet performed any or some of the promises on his part, or after he has
performed them all, and (b) when the innocent party has received no
performance from the defaulting party, or has received performance in whole
or in part; and to remember also that the resultant rights of the innocent party
and the nature of the remedies available to him may depend upon some or all
of these matters.
The nature of the promise broken is one of the most important of the matters. If
it is a condition that is broken, ie, an essential promise, the innocent party,
when he becomes aware of the breach, has ordinarily the right at his option
either to treat himself as discharged from the contract and to recover damages
for loss of the contract, or else to keep the contract on foot and recover
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damages for the particular breach. If it is a warranty that is broken, ie, a non-
essential promise, only the latter alternative is available to the innocent party:
in that case he cannot of course obtain damages for loss of the contract.
The question whether a term in a contract is a condition or a warranty, ie, an
essential or a non-essential promise, depends upon the intention of the parties
as appearing in or from the contract. The test of essentiality is whether it
appears from the general nature of the contract considered as a whole, or from
some particular term or terms, that the promise is of such importance to the
promisee that he would not have entered into the contract unless he had been
assured of a strict or a substantial performance of the promise, as the case may
be, and that this ought to have been apparent to the promisor. If the innocent
party would not have entered into the contract unless assured of a strict and
literal performance of the promise, he may in general treat himself as
discharged upon any breach of the promise, however slight. If he contracted in
reliance upon a substantial performance of the promise, any substantial breach
will ordinarily justify a discharge. In some cases it is expressly provided that a
particular promise is essential to the contract, eg, by a stipulation that it is the
basis or of the essence of the contract; but in the absence of express provision
the question is one of construction for the Court, when once the terms of
contract have been ascertained. In general, Courts of common law have been
more ready than Courts of Equity to regard promises as essential. This is in
part due to the fact that Courts of common law are in the main concerned with
ordinary commercial contracts in which it is common to find provisions which
are intended to be strictly and literally performed. It is now provided by s 13 of
the Conveyancing Act 1919 (taken from the Judicature Act 1873 , 36 and 37
Victoria, Ch 66, s 25(7)) that stipulations in contracts, as to time or otherwise,
which would not before the commencement of the Act have been deemed to be
or to have become of the essence of such contracts in a Court of Equity shall
receive in all Courts the same construction and effect as they would have
heretofore received in such Court. This serves to make equitable liberality of
construction supersede common law strictness, so far as is consistent with
apparent intention, in fields where equity and common law overlap; but it does
not affect the principle that effect must be given to the apparent intention of the
parties as disclosed in the contract.”
What Jordan CJ said as to substantial performance, and substantial breach, is now to
be read in the light of later developments in the law. What is of immediate significance
is his reference to the question he was addressing as one of construction of the
contract. It is the common intention of the parties, expressed in the language of their
contract, understood in the context of the relationship established by that contract and
(in a case such as the present) the commercial purpose it served, that determines
whether a term is “essential”, so that any breach will justify termination.
The second relevant circumstance is where there has been a sufficiently serious breach
of a non-essential term. In Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha
Ltd, the English Court of Appeal was concerned with a stipulation as to seaworthiness
in a charterparty. Breaches of such a stipulation could vary widely in importance.
They could be trivial or serious. The Court of Appeal held that to the accepted
distinction between “conditions” and “warranties”, that is, between stipulations that
were in their nature essential and others, there must be added a distinction, operative
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within the class of non-essential obligations, between breaches that are significantly
serious to justify termination and other breaches. This was a recognition that, although
as a matter of construction of a contract it may not be the case that any breach of a
given term will entitle the other party to terminate, some breaches of such a term may
do so. Diplock LJ said that the question whether a breach by one party relieves the
other of further performance of his obligations cannot always be answered by treating
a contractual undertaking as either a “condition” or a “warranty”. Of some stipulations
“all that can be predicated is that some breaches will and others will not give rise to an
event which will deprive the party not in default of substantially the whole benefit
which it was intended that he should obtain from the contract; and the legal
consequences of a breach of such an undertaking, unless provided for expressly in the
contract, depend upon the nature of the event to which the breach gives rise”.14”
[Footnotes omitted]
[18] The question whether there has been a repudiation of the contract of employment is
determined objectively, it is unnecessary to show a subjective intention to repudiate15 and is a
question of fact not law.16 Relevantly, for present purposes, repudiation may exist where an
employer reduces the wages of an employee without the employee’s consent17 or where there
is a serious non-consensual intrusion on the nature of the employee’s status and
responsibilities in a way which is not permitted by the contract.18 Similarly, if an employer
seeks to bring about a change in the employee’s duties or place of work which is not within
the scope of the express or implied terms of the contract of employment, the conduct may
evince an intention to no longer be bound by those terms. Therefore, in these circumstances if
an employee does not agree to the change, which if agreed would amount to a variation of the
contract, the employee may claim to have been constructively dismissed.
[19] Conduct of an employer which repudiates the contract of employment does not by that
act alone bring the contract of employment to an end. A repudiation of the contract by the
employer gives the employee who is not in breach the option to decide whether to continue,
that is to affirm the contract, or to treat the contract as at an end by accepting the
repudiation.19
[20] As repudiation in the second sense referred to by the High Court in Koompahtoo
involves conduct in breach of the contract of employment it is plainly necessary to identify
the term or terms of the contract said to exist and which it is said has or have been breached.
As was observed in North v Television Corporation Ltd:20
“Until the terms of the contract are known and identified it is impossible to say
14 Ibid at [44] – [49]; see also Fishlock v The Campaign Palace Pty Ltd (2013) 234 IR 1 at [116] – [130]
15 See for example Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311 at [32] – [41] and Fishlock v The Campaign
Palace Pty Ltd (2013) 234 IR 1 at [126]
16 See Woods v W M Car Services (Peterborough) Ltd [1982] ICR 693 at 698,699-700, 701-702
17 See for example Rigby v Feredo Ltd [1988] ICR 29 and Brockton Holdings No V Pty Ltd v Kara Kar Holding Pty Ltd
(1994) 57 IR 288
18 See for example Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311 at [41] – [46], [68] and Fishlock v The Campaign
Palace Pty Ltd (2013) 234 IR 1 at [126]
19 See Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 at 450 – 453, 461 – 463, 465 – 467; Byrne v Australian
Airlines Ltd (1995) 185 CLR 410 at 47 – 428; Visscher v Giudice (2009) 239 CLR 361 at [53] – [55]
20 (1976) 11 ALR 599
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whether or not any particular conduct is … a breach of such gravity or importance as
to indicate a rejection or repudiation of the contract.”21
[21] It was not controversial in the proceedings before the Commissioner (nor before us)
that the Respondent was a casual employee, albeit one engaged on a regular and systematic
basis. In describing that the Respondent was engaged for an average of approximately 30
hours per week, and that she performed work which included duties as a bar attendant, cafe,
cashbox and gaming floor services and that part of her role involved the Respondent
performing cash handling duties,22 the Commissioner appears to have assumed, without
proper analysis, that the “employment conditions” described above or at least some of them
were terms of a contract of employment of an ongoing nature which could only be altered by
agreement. This we think is plain from [31] of the Decision wherein the Commissioner makes
reference to the question whether the Respondent was entitled to reject “the changed
employment conditions imposed” by the Appellant, with the consequence that although the
Appellant “may not have taken any action to overtly dismiss” the Respondent, “but instead it
changed the employment circumstances”, so as to raise the question whether “such changes
permit the” Respondent “to appear to resign on the basis of a rejection of the changes in the
employment” and that “these circumstances are comprehended by what is often described as a
constructive dismissal”.
[22] The assumption made by the Commissioner that the particular “employment
conditions” identified by him as being contractual terms is respectfully erroneous because it
ignores fundamentally the casual nature of the Respondent’s employment.
[23] Although the notion of casual employment developed by reference to the
characteristic that a casual employee was someone who had occasional or irregular work, this
is plainly no longer the case. Casual employees now frequently work for a single employer on
regular hours over extended periods. Casual employees may be used in the short term or for
much longer or extended periods; they may be employed as a casual employee on a regular
and systematic basis with an expectation of continuing employment on that basis; or they may
be called upon to work as a casual employee infrequently or irregularly and have no
expectation of being engaged otherwise. That this is so is plainly recognised in s.384(2) of the
Act which describes the method by which a period of service as a casual employee is counted
towards an employee’s period of employment for the purposes of ascertaining whether an
employee has completed a period of continuous service with the employer at the time of his or
her dismissal so as to meet the minimum period of employment identified in s.383 of the Act.
[24] The general contractual characteristics of casual employment is that a person who
works over an extended period of time as a casual employee will be engaged under a series of
separate contracts of employment on each occasion a person undertakes work, however they
will not be engaged under a single continuous contract of employment.23 There are some,
albeit rare, cases where a casual employee has been found to have been engaged under a
single continuing contract of employment,24 but the accepted orthodoxy of casual
employment is the notion that each engagement is under a separate contract rather than a
21 Ibid at 609
22 [2017] FWC 3798 at [5]
23 See Predl v DMC Plastering Pty Ltd [2014] FCCA 1060
24 See AJ Mills & Sons Pty Ltd v Transport Workers’ Union of New South Wales [2009] NWSIRComm 135; (2009] 187 IR
56, which involved a casual engagement requiring a racing steward to attend throughout the year.
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continuing contract of employment. True it is that service rendered under a series of separate
casual employment contracts may be regarded as continuous in respect of statutory
entitlements such as long service leave, certain entitlements prescribed under the National
Employment Standards and accident compensation legislation, and as is evident from the
above for the purposes of assessing whether a particular employee had been engaged for the
minimum employment period for the purposes of making an unfair dismissal remedy
application under the Act. But such recognition of casual service does not alter the
fundamental contractual character of regular casual employment as a series of engagements,
each under a separate contract of employment.
[25] Understood in this way, for each shift that the Respondent worked as a casual
employee for the Appellant, there was a separate contract of employment. Thus, the number
of shifts that the casual employee might in the future be requested to work, the location at
which that work would be undertaken and the duties to be performed in undertaking that work
in the future, were matters of expectation (and perhaps reasonable expectation), but not terms
of the contract of employment, which were only for the shift on which the Respondent as a
casual employee was engaged. There is nothing in the material before the Commissioner
which would support a contrary conclusion. All of the evidence is suggestive of casual
employment on a regular and systematic basis with a reasonable expectation of ongoing
casual employment on a regular and systematic basis.
[26] As we have already observed, there was no contest as to the Respondent’s status as a
casual employee. There was no written contract of employment. The work the Respondent
performed involved a variety of general hospitality duties including bar attendant, café, cash
box and gaming floor services.25 The Respondent was rostered an average of approximately
30 hours per week but this would fluctuate depending upon the operational needs of the
Appellant as well as the nature of casual employment.26 The Respondent’s evidence was that
she could work between four (4) to six (6) shifts a week, but the number of shifts she would
work would be dependent upon whether she picked up extra unrostered shifts.27 Moreover, we
accept the Appellant’s submission that there was no suggestion that an entitlement to work an
average of 30 hours or to undertake work cash box shifts was an implied term of the contract
of employment.
[27] We would adopt with one modification the observations of Gooley DP in Andrew Kim
v. ORC International Pty Ltd28in which the Deputy President said:
“It is difficult to see how this common law concept of repudiation has any work to do
in relation to casual employees. At common law a casual employee’s contract of
employment ceases at the end of each engagement. An employer of a causal employee
does not repudiate that contract when it fails to offer another shift.”29
[28] The one modification is that it seems to us plainly possible that there can be a
repudiation of a contract of employment governing the engagement of a casual employee
during a shift. A simple example will suffice. There may be a repudiation of an employment
25 [2017] FWC 3798 at [5]
26 Exhibit 4 at paragraph (6), cited in [2017] FWC 3798 at [5]
27 Transcript dated 13 July 2017 at PN62 - PN63
28 [2016] FWC 1029
29 Ibid at [47]
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contract in circumstances where during a casual shift the casual employee is assaulted by his
or her employer or is told by the employer that the casual employee will not be paid for the
hours already worked by that employee.
[29] Since neither the future shifts, weekly hours and duties that the Respondent expected
to work and perform nor the location at which that work would be undertaken were
contractual, it was not open for the Commissioner to conclude that the proposed alteration,
albeit short term, to the number of hours or shifts that the Respondent as a casual employee
would be offered, the location at which work during those hours would be performed or the
duties to be performed was a repudiation by the Appellant of the contract of employment. It
follows that there was not a constructive dismissal.
[30] But that is not the end of the matter. As we have already observed the Commissioner
decided the matter on the question whether there had been a constructive dismissal. The
Commissioner did not consider whether there had otherwise been a dismissal, that is, whether
the Respondent’s employment with the Appellant had been terminated at the Appellant’s
initiative. As we have earlier noted, the Respondent maintains that she did not resign and that
her employment was terminated at the Appellant’s initiative when the Appellant’s
representative (Ms Faaui) told her that it would not offer her “any shifts at the club”. Since
neither party properly addressed that possibility in their written submissions, it is not
appropriate for us to determine that issue by way of a rehearing. In those circumstances we
propose to remit that question to another member of the Commission for determination.
Conclusion
[31] For the foregoing reasons we have determined that the Commissioner erred in his
conclusion that the Respondent had been constructively dismissed. We therefore order as
follows:
1. the appeal is upheld;
2. the decision in [2017] FWC 3798 and order in PR594678 are quashed;
3. The stay order made by Deputy President Clancy on 22 August 2017 in PR595529 is
set aside;
4. the application is remitted to Commissioner Saunders to determine whether the
Respondent was dismissed within the meaning of the Act.
DEPUTY PRESIDENT
Written submissions:
VOISSINNO
http://www.fwc.gov.au/decisionssigned/html/2017fwc3798.htm
[2018] FWCFB 5
12
Appellant’s Submissions dated 22 November 2017.
Respondent’s Submissions dated 6 December 2017.
Appellant’s Submissions in reply dated 13 December 2017.
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PR599153
