1
Fair Work Act 2009
s.365—General protections
Ben Hendrie
v
Eagle Contractors Pty Ltd
(C2023/3624)
DEPUTY PRESIDENT ANDERSON ADELAIDE, 28 JULY 2023
Application to deal with contraventions involving dismissal – jurisdiction – whether dismissed
– dismissal found – jurisdictional objection dismissed
[1] On 21 June 2023 Ben Hendrie (Mr Hendrie or the applicant) made a general protections
application to the Commission under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging
contraventions of the FW Act associated with his alleged dismissal.
[2] Mr Hendrie’s application is against his former employer Eagle Contractors Pty Ltd
(Eagle Contractors, the respondent or the employer), which he alleges committed the
contraventions.
[3] The respondent opposes the application. It filed a response on 5 July 2023 raising a
jurisdictional issue. It claims that Mr Hendrie was not dismissed.
[4] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain
Pty Ltd v Milford1 requires applications under s 365 to be within jurisdiction before the
Commission can exercise powers conferred by s 368. It is thus necessary to determine the
jurisdictional issue if Mr Hendrie’s application is to proceed further.
[5] I issued directions on 19 July 2023.
[6] I heard the jurisdictional matter on 25 July 2023.
[7] Mr Hendrie was self-represented. Eagle Contractors was represented by its Managing
Director, Ms Danielle Tregeagle.
[8] I heard evidence from both Mr Hendrie and Ms Tregeagle.
[9] I have redacted certain content in this decision from publication where potential
prejudice outweighs the case for publication. The unredacted decision has been sent to the
parties.
[2023] FWC 1845
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1845
2
Facts
[10] Eagle Contractors is a small private family business in the road transport industry based
in Adelaide.
[11] Mr Hendrie commenced working in the business as a casual employee on 25 October
2022.
[12] Operationally, Mr Hendrie reported to Michael Disibio.
[13] In early May 2023 a customer made a complaint to Eagle Contractors to the effect that
a female employee of the customer had been sent an explicit photograph from a device the
customer believed to be Mr Hendrie’s.
[14] On 10 May 2023 the employer advised Mr Hendrie that an investigation into the
complaint had commenced. During the investigation, Mr Hendrie was placed on ‘yard’ duties
and taken away from work with the customer.
[15] On 10 May 2023 Mr Hendrie denied the allegation that he had sent the photograph. He
told Mr Disibio (by text) that he was “utterly disgusted” that the employer would think he would
do such a thing. Mr Disibio replied that the employer needed to ask questions and follow due
process.2
[16] The investigation took longer than expected as the employer sought evidence from the
customer and the customer’s staff member (who had taken leave).
[17] The longer the investigation took, the more concerned Mr Hendrie became about losing
his job.
[18] On 14 May 2023 Mr Hendrie (by text) told Mr Disibio, in relation to possible fake social
media accounts:3
“Doesn’t really matter though does it. Danielle [Ms Tregeagle] already clearly stated
that doesn’t matter if it has my name on any of it I will no longer be employed by eagles
despite the fact I provided my evidence…”
“…I know what exactly is going to happen tomorrow and what the outcome of my
employment with eagles will be…
[19] On 15 May 2023, after being rostered in the yard, Mr Hendrie asked (by text) “so am I
actually coming in to wash excavators or am I just coming in to be fired?”. Mr Disibio replied
“…you are coming in to wash excavators…”.4
[20] On 17 May 2023, aware that the employer had met with the customer, Mr Hendrie
messaged Mr Disibio as follows:5
“What happened with [customer] meeting? Doubt it matters anyway I probs don’t have
a job with eagles anymore especially with me not coming in on Tuesday.”
[2023] FWC 1845
3
[21] On 22 May 2022 Mr Hendrie (by text) again expressed concern to Mr Disibio about the
time taken to investigate and his fear that he would be dismissed. The text exchange included:6
“Mr Hendrie: Can I please get a response at least send me an actual letter of
employment termination and why. I need that to be able to try and get
back on Centrelink.
Mr Disibio: You need to get off it bro, we have not sacked you, we have told you that
85 times, you need to calm down or leave. You knock back shifts not
us…
Mr Hendrie: I’ve only ever not worked because of being sick or my young kids being
sick. I still deserve to get a response about the accusations and what the
outcome is and not to mention [the customer] was 80% of my shifts.
Mr Disibio: Once we know, you will know, they are still investigating…”
[22] Mr Hendrie’s last shift working for Eagle Contractors was on 31 May 2023. He was
paid for this shift the following week (6 June 2023). He was not rostered after 31 May.
[23] On the morning of 9 June 2023 Mr Hendrie telephoned Ms Tregeagle. He asked if his
job network provider had contacted the employer to help Mr Hendrie apply for a Maritime
Security Information Card as information was needed from the employer. Mr Tregeagle said
that no contact had been made. She then stated that there would be no point doing so. Mr
Hendrie asked why.
[24] There is a dispute as to what was next said.
According to Mr Hendrie:
“Ms Tregeagle: It is best if you no longer work for Eagles.
Mr Hendrie: So you are sacking me.
Ms Tregeagle: I think you can work it out.”
According to Ms Tregeagle:
Ms Tregeagle: “I think you can work out why.”
[25] I prefer Ms Tregeagle’s version. It is more consistent with her evidence (which I accept)
that she was speaking cryptically as she had other employees within earshot, and the fact that
the call concluded with Mr Hendrie hanging up after retorting “so that’s it, I’m fired” (below).
[26] _____________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________Mr Hendrie interpreted Ms Tregeagle’s response as an
inference that Ms Tregeagle believed that he had sent the explicit photograph.
[2023] FWC 1845
4
[27] Mr Hendrie became angry with what was said. He talked over Ms Tregeagle and said
words to the effect, “so that’s it, I’m fired”. He hung up.
[28] Minutes later, Mr Hendrie asked Ms Tregeagle by text for an Employment Separation
Certificate:7
“Seeing that you just fired me over the phone wow! You can email me a letter of
separation detailing that you have fired me and what were the reason or reasons.”
[29] Ms Tregeagle responded immediately by return text:8
“already done and in the post”.
[30] In actual fact, a separation certificate had not been completed nor posted at that time. It
was only over the following days that Ms Tregeagle completed an Employment Separation
Certificate and posted it to Mr Hendrie.
[31] Ms Tregeagle dated the Employment Separation Certificate 31 May 2023. She did so
because that was the last day Mr Hendrie worked a shift. It was posted on or about 13 June
2023.
[32] The Certificate provided eight options for the employer to indicate why Mr Hendrie’s
employment had ended:
“Reason for separation
Shortage of work
Unsuitability for this type of work
End of season or contract
Redundancy
Unsatisfactory work performance
Misconduct as an employee
Employee ceasing work voluntarily
Other”
[33] Of the eight options, Ms Tregeagle marked the box “Misconduct as an employee”. No
other box was marked.
[34] Relevantly, Ms Tregeagle did not mark the box “Employee ceasing work voluntarily”.
[35] Beneath the options and when asked to state the reason(s), Ms Tregeagle wrote:9
“Sending inappropriate texts to customers staff after told not interested causing
emotional harm”.
[36] On 21 June 2023 Mr Hendrie filed these proceedings.
[2023] FWC 1845
5
Submissions
Mr Hendrie
[37] Mr Hendrie submits that he was dismissed because he was not given further work and
that this was because Ms Tregeagle believed he had committed misconduct.
[38] Mr Hendrie says the proof of this is the Employment Separation Certificate sent by Ms
Tregeagle some days later.
Eagle Contractors
[39] Eagle Contractors submit that Mr Hendrie was not dismissed. It submits that he
remained on the books as a casual until he asked for an Employment Separation Certificate. It
says that his employment ended when he asked for the Certificate.
[40] Eagle Contractors submit that the Certificate was worded in the way it was because Ms
Tregeagle believed that stating Mr Hendrie had been dismissed on the Certificate meant that
Mr Hendrie would have immediate access to unemployment benefits.
Consideration
[41] Section 365 of the FW Act 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.”
[42] Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere
allegation that a person has been dismissed will not establish this as fact.10 “Dismissal” for these
purposes (and other purposes of the FW Act) is defined in s 386(1), which provides:
“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
[2023] FWC 1845
6
(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.”
[43] Termination of the employment relationship needs to have occurred as a matter of fact
for there to be a “dismissal”.
[44] That Mr Hendrie was a casual employee does not preclude a finding that he was
dismissed. Whilst a casual employee is a person employed on a series of separate contractual
engagements, the legal concept of dismissal concerns termination of the employment
relationship and not necessarily the ending of a contract. Thus, a casual (especially one
commonly rostered or called on) can have, in the absence of evidence to the contrary, a
continuing employment relationship with their employer from which they can be dismissed.
[45] I find that Mr Hendrie had a continuing employment relationship from which he could
be dismissed.
[46] Was Mr Hendrie dismissed?
[47] For the following reasons, I conclude he was.
[48] Eagle Contractors did not offer Mr Hendrie further work after 9 July 2023. That was the
employer’s decision. The failure to offer work and sending the Employment Separation
Certificate in the terms drafted ended the employment relationship. It was, within the meaning
of s 386(1)(a) conduct on the employers initiative.
[49] I do not accept the employer’s submission that Mr Hendrie ended the relationship on his
own initiative on 9 June 2023 when asking for an Employment Separation Certificate.
[50] Whilst there may be some circumstances where an employee asking for an Employment
Separation Certificate is evidencing an intention to terminate an employment relationship on
their own initiative, this is not such a case.
[51] Mr Hendrie was asking for an Employment Separation Certificate in order to access
unemployment benefits because he believed that he had been dismissed moments earlier and
because the government agency (Centrelink) required that very certificate to do so. Where an
employee requests an Employment Separation Certificate believing that their employment has
already been ended by their employer’s conduct then the mere asking for the Certificate is not
a termination on the employee’s initiative.11
[52] The surrounding circumstances clearly support a finding of dismissal.
[53] Firstly, in the same text message asking for the Certificate Mr Hendrie expressed the
view that the employer had minutes earlier sacked him.
[54] Secondly, the employer could have but did not correct the view expressed by Mr
Hendrie even if it believed it to be erroneous.
[2023] FWC 1845
7
[55] Thirdly, Ms Tregeagle did the very opposite. She responded to Mr Hendrie’s text
message by stating in a reply text that she had already completed the Certificate and posted it.
It matters not that she had not done so; it is clearly established on the evidence that she intended
to do so.
[56] Fourthly, Mr Hendrie was not rostered again after asking for the Certificate.
[57] Fifthly, the employer was aware since Mr Hendrie’s text on 22 May 2023 that if
terminated a certificate would be sought to access unemployment benefits.
[58] Sixthly, in the Certificate the employer expressly stated that Mr Hendrie’s employment
ceased for reason of misconduct.
[59] As to notification, Mr Hendrie was notified in writing when he received the Certificate.
[60] Ms Tregeagle’s evidence that Mr Hendrie misunderstood her cryptic comment in their
9 June 2023 telephone conversation (“I think you can work that out”) as a reference to a finding
of misconduct for which he was being sacked) does not preclude a finding of dismissal
irrespective of whether Mr Hendrie jumped to the wrong conclusion.
___________________________________________________________________________
___________the employer allowed Mr Hendrie’s belief in the fact of dismissal to stand
uncorrected. It was within its power to correct Mr Hendrie’s belief that an adverse finding had
been made against him for which he was being dismissed, if he was mistaken. The employer’s
failure to do so and subsequent conduct plainly brought the employment relationship to an end.
[61] Nor was there any ambiguity in the terms of the Certificate. It expressly stated the fact
of dismissal.
[62] I do not accept that Ms Tregeagle made an error in the Certificate. The evidence suggests
otherwise. Her evidence was that at the time of the 9 June 2023 telephone conversation she
believed it to be more probable than not that Mr Hendrie was responsible for the misconduct
she referenced in the Certificate and that she became certain of that in the days following. In
any event, it is conduct and not intention that determines the fact of dismissal. An employer,
even a small business, advising the fact of dismissal to a government agency carries a high bar
to subsequently establish in Commission proceedings that it did so by mistake. In this matter
there is no objective evidence of mistake.
Conclusion
[63] As I have found that Mr Hendrie was dismissed within the meaning of the FW Act,
application C2023/3624 is within jurisdiction. The jurisdictional objection is dismissed.
[64] The Commission will exercise the powers conferred by s 368. A conference of the
parties will be conducted for the purposes of conciliating the dispute.
[65] An order12 giving effect to this decision will be issued in conjunction with its
publication.
[2023] FWC 1845
8
DEPUTY PRESIDENT
Appearances
Mr B Hendrie on his own behalf
Ms D Tregeagle of Eagle Contractors Pty Ltd
Hearing details:
Adelaide (by video)
25 July
Printed by authority of the Commonwealth Government Printer
PR764617
1 [2020] FCAFC 152
2 A3 page 10
3 A3 page 22
4 A3 page 20
5 A3 page 21
6 A3 page 9
7 R3
8 Recording of Hearing, 25 July 2023 at 1:57:29
9 A5
10 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54]
11 Harmer v The Trustee for the Noonan Family Trust trading as Noonan Builders Pty Ltd [2023] FWC 1760, [62]
12 PR764618
FAIR WORTE THE MISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1760.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr764618.pdf
