[2023] FWC 795
The attached document replaces the document previously issued with the above code on 14
April 2023.
• Paragraph [12], [18] [29] amended.
Associate to Deputy President Lake
Dated 28 April 2023
1
Fair Work Act 2009
s.394—Unfair dismissal
Adam MacNamara
v
Wilson S Farm Fresh Fruit & Veg
(U2022/10381)
DEPUTY PRESIDENT LAKE BRISBANE, 14 APRIL 2023
Application for an unfair dismissal remedy – jurisdictional objection – whether casual
employee was dismissed –Applicant not dismissed – jurisdictional objection upheld–
application dismissed.
[1] Mr Adam MacNamara (the Applicant) has made an application pursuant to s.394 of
the Fair Work Act 2009 (the Act) in which he seeks an unfair dismissal remedy with respect to
his dismissal from his employment with Wilson’s Farm Fresh Fruit & Veg (the Respondent).
The Applicant was employed as a casual farm hand/delivery driver.
[2] In its Form F3 – Employer Response, the Respondent raised a jurisdictional objection
on the ground that the Applicant was not dismissed and later raised in their submissions by their
Representative that the Applicant had no reasonable expectation of ongoing employment on a
regular and systematic basis.
[3] Directions were issued for filing of materials, and the matter was listed for hearing at
Brisbane on 14 March 2023. The Applicant appeared on his own behalf at the hearing, and the
Respondent was represented by Mr Damien Martin of Swanick Murray Roche Lawyers.
[4] It is not in dispute that:
• the application was made within time (s.396(b)) and;
• the dismissal did not involve a genuine redundancy (s.396(d)).
[5] The Small Business Fair Dismissal Code does apply (s.396(c)), however the Applicant
had been working with the Respondent for 8 years. This was not in contention. These matters
were not raised by the parties and I find that these issues are not a point of contention.
[2023] FWC 795
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 795
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SUMMARY OF EVIDENCE
Relevant facts
[6] The Applicant has been employed as a casual employee working as a Farm
Hand/Delivery driver for the Respondent. The Respondent is a small lettuce farm in Nankin,
Queensland. The Respondent is run through a partnership structure which had broken down
because of personal matters.
[7] The Applicant had worked for the Respondent as a casual employee from 8 July 2014
to 6 June 2018. The Respondent states the Applicant had undertaken other jobs between 6 June
2018 to 23 April 2019 and resumed back to his employment with the Respondent on 24 April
2019 to 12 September 2022.
[8] The Applicant receives his roster through text from one of the former partners of the
Respondent’s business. The Applicant stopped receiving shifts on 15 September 2022 from the
Respondent ‘due to drastic drop in orders (icebergs [lettuce] being cheap)’. The Applicant
followed up with the Respondent’s on 19 September 2022.
[9] The Respondent states that on 20 September 2022 that he had entered the Respondent’s
property unannounced and collected his rubber boots and did not speak to anyone despite the
Respondent being present. The Respondent had assumed the Applicant would not return to
work and therefore resigned.
[10] The Applicant then sent a response on 10 October 2022 at 4.53pm stating that another
worker had been offered hours of work and requested a separation certificate as soon as
possible. The Applicant received a separation certificate which lists his termination on 12
September 2022.
Applicant’s Submissions
[11] The Applicant’s position was the following:
a) He worked for the Respondent on a regular basis for nearly 8 years on a roster which
was flexible but was working around the same amount of hours per week. The Applicant
received his final roster on 11 September 2022. The Applicant was informed by text on
15 September 2022 that his 2 following shifts had been cancelled and the Respondent
would get back to him once work picked up. The Applicant did not receive a roster for
2 weeks, and states that another employee had been receiving shifts.
b) On 10 October 2022, the Applicant states that he contacted his employer to ask for a
separation certificate which he received on 20 October 2022.
Respondent’s Submissions
[12] The Respondent’s position was the following:
[2023] FWC 795
3
a) The Applicant had no reasonable expectation of ongoing employment on a regular
and systematic basis and cannot bring an unfair dismissal claim. Alternatively, the
Applicant ended their employment on their own volition rather than due to an active
or constructive step taken by the Respondent.
b) The Respondent’s downturn in trade was a result of the influx of cheap iceberg
lettuce into the market thus severely impacting the Respondent’s business which is
strongly linked to the supermarket chains. The supermarkets significantly reduced
their orders of lettuce from the Respondent as a result. The temporary lapse in work
for the Applicant was genuine. The Respondent hoped the glut in iceberg lettuce
would come to an end and orders for their lettuce would slowly return to normal.
The Respondent had no reason to permanently end the Applicant’s employment and
had offered further employment to the Applicant when the downturn in trade was
improving and replanting staff were required.
c) Other matters raised by the Applicant which he alleges have contributed towards the
termination of his employment have no basis.
[13] The Respondent’s argued that it was the downturn in trade that was the reason for
dismissal and had offered further employment to the Applicant when the market conditions
recovered.
RELEVANT LEGISLATION
Was the Applicant unfairly dismissed?
[14] Section 385 of the Act provides that a person has been unfairly dismissed if the
Commission is satisfied that:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code:
see section 388.”
[15] Section 386(1) of the Act relevantly provides that a person has been dismissed if:
[2023] FWC 795
4
(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.
[16] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v
Shahin Tavassoli outlined the relevant authorities with respect to what it means for an
employee’s to be terminated at the initiative of the employer.1 In short, it is not sufficient to
simply demonstrate that the employee did not voluntarily leave their employment.2
[17] While it may be that some action on the part of the employer is intended to bring the
employment to an end, it is not necessary to show the employer held that intention.3 It is
sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the
employment relationship to an end.4 Put another way, did the employer’s conduct have the
probable result of bringing about the end to the employee’s employment or leaving the
employee with no effective or real choice but to resign?5 It is necessary to conduct an objective
analysis of the employer’s conduct to determine if it was of such a nature that resignation was
the probable result or that the employee had no effective or real choice but to resign.6 All the
circumstances – including the conduct of both the employer and employee – must be examined.7
In other words, it must be shown that “the act of the employer results directly or consequentially
in the termination of the employment and the employment relationship is not voluntarily left by
the employee. That is, had the employer not taken the action it did, the employee would have
remained in the employment relationship.”8
[18] I set out my consideration below.
CONSIDERATION
[19] There is no contention that the Applicant was not a regular and systematic casual
employee by the parties. I made an Order requiring the Respondent to produce timesheets of
the Applicant which indicate the Applicant was working consistent hours most week. In
determining whether the Applicant was dismissed or whether the Applicant resigned from his
employment, I am required to consider whether the Applicant had a reasonable expectation of
continuing employment by the employer on a regular and systematic basis.
[20] In Bronze Hospitality Pty Ltd v Hansson (No 2) [2019] FCA 1680 at [43], Jackson J
stated the following:
What the employer tells the employee must be relevant. If the employee in fact has the
necessary expectation, and if what the employer said at the beginning of the employment
was sufficient to make the expectation reasonable, and nothing in the circumstances
indicated that what the employer said was unreliable, implausible or was otherwise to
be disbelieved, then the criterion may be satisfied from that time. If nothing happens
subsequently to show that the expectation will not be fulfilled, then it may subsist, as
a reasonable expectation, throughout the entire period of service as a casual
employee. There is nothing in the legislation which indicates that the employee's
[2023] FWC 795
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expectation cannot be reasonable until a pattern of regular and systematic
employment, such as regular shifts, has in fact emerged.
[21] The Respondent’s position was that there was a downturn in trade and that the temporary
reduction of work was genuine. A downturn in work particularly in agricultural pursuits,
seasonal demand, weather events and a change in consumer preferences would impact of the
expectation of ongoing employment even if they did not occur frequently. Financial information
was provided by the Respondent which had supported this claim.
[22] The Applicant refutes that there was a downturn in trade as the Respondent was a
supplier for Woolworths and there would be work available. Furthermore, the Applicant stated
that in previous downturns there were other tasks or roles he could have performed for the
Respondent.
[23] The Applicant receives his roster through text from one of the former partners of the
Respondent’s business. The Applicant stopped receiving shifts on 15 September 2022 from the
Respondent ‘due to drastic drop in orders (icebergs [lettuce] being cheap), give tomorrow and
Saturday a miss please and will be back in touch when things get busy. Thank you’.
[24] The Applicant sent a text message to the former partner that was responsible for
providing the shifts on 19 September 2022 at 6.38am stating ‘just wondering what’s going on
No roster at, Sorry tapped the wrong button, Yeah no roster at all??? Is that for every one or
just me? Have I done something wrong? Should I be looking for other work? Just want to know
where I stand’.
[25] He also sent the Respondent a text on the same day at 2.25pm stating ‘Hey Darryl, I
messaged Nat this morning but got no reply. Just wanted to know what was going on. I didn’t
receive a roster this week. Was that the same for every one or just me?...’
[26] The former partner of the Respondent stated on the same day at 3.12pm that she ‘would
keep in touch when required when things get busy’.
[27] In order to establish that the Applicant was dismissed, there must be action by the
employer that either intends to bring the relationship to an end or has that probable result. There
must be repudiation of the employer.
[28] The Full Bench decision of City of Sydney RSL v Mrs Roxana Balgowan [2018] FWCFB
5 at 24 states:
“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.”
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.”
[2023] FWC 795
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[29] Generally, downturns in business are valid reasons for dismissal and permanent
employees would be eligible to obtain redundancy. However, the Applicant is a casual
employee and is not entitled to redundancy pay per s123 of the Act.
[30] Casual employees are compensated for the risk of dismissal in cases where a business
is experiencing a downturn by receiving casual loading. Mr McNamara had been offered a full-
time permanent position with the Respondent prior to the downturn which he declined. The
Respondent provided evidence of their financial performance which established that there was
a downturn and was consistent with their submission raised on this point.
[31] The Respondent had not repudiated any employment arrangement between them and
therefore the Applicant was not dismissed within the definition of s.386(1) as a persons
protected from unfair dismissal. I order this Application to be dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR760800
1 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
2 Ibid.
3 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941; see also
Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd
[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
4 Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A
Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [31].
5 O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006) at [23].
6 Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
7 Whirisky v DivaT Home Care [2021] FWC 650 at [77].
8 Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care
Mosman v Shahin Tavassoli [2017] FWCFB 3941 [28].
THE FAIR WORK MISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
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