1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Ellen Pope
v
The Trustee For Macmillan And Company Family Trust
(C2023/3414)
DEPUTY PRESIDENT WRIGHT SYDNEY, 24 AUGUST 2023
Application to deal with contraventions involving dismissal – jurisdictional objection –
whether applicant dismissed – jurisdictional objection dismissed.
Introduction and outcome
[1] Ms Ellen Pope made an application to the Fair Work Commission (Commission) under
s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute
arising out of allegations that she had been dismissed from her employment with Macmillan
Holdings Pty Ltd ATF Macmillan and Company Family Trust trading as Gathering Events
(Gathering Events) in contravention of Part 3-1 of the FW Act.
[2] Gathering Events has objected to the application on the ground that Ms Pope was not
dismissed from her employment.
[3] Before dealing with the dispute under s.368, I must be satisfied that Ms Pope was
dismissed.
[4] In summary, I have found Ms Pope was dismissed by Gathering Events on 24 May 2023
within the meaning of s.365 of the FW Act.
[5] The application was filed on 13 June 2023 and as such is within the timeframe required
by s.366(1)(a) of the FW Act.
[2023] FWC 2130
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2130
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Directions and hearing
[6] The matter was listed for directions on 14 July 2023.
[7] On 21 July 2023, Ms Pope filed submissions and evidence.
[8] On 28 July 2023, Gathering Events filed submissions and evidence.
[9] The matter was listed for hearing on 9 August 2023.
Factual background
[10] The facts which led to the alleged dismissal are largely agreed between the parties and
mainly comprise of email correspondence and text messages, the contents of which speak for
themselves. I have set out the facts which are relevant to my consideration of this matter below.
[11] Ellen Pope commenced employment with Gathering Events in around February 2022.
[12] Gathering Events is a mobile events company which operates in Sydney, Brisbane and
Melbourne.
[13] Throughout her employment with Gathering Events, Ms Pope was employed on a casual
basis and had an amicable relationship with her employer until the events which led to the
alleged dismissal.
[14] On 7 May 2023 the following text exchange took place between Ms Pope and Gathering
Events Director Jennifer MacMillan from 11.25pm to 11:38pm:
Ms Pope: Hi Jen, sorry to text so late. I’m worried I might be coming down with a
cold; I’m having some mild symptoms which I’m hoping will clear after
a night’s rest but I wanted to alert you ASAP in case they get worse. :(
I’ll also do a RAT test in the morning.
Ms MacMillan: Ok, I’m disappointed to kind of find out now and try to replace you
somehow. I guess I’ll try to do that now.
Ms Pope: Hmm to clarify I’ve only just started getting a sniffle etc, I’m sure I’d be
fine to work at this point. I just thought it would be better to let you know
now rather than wait for more obvious symptoms. I’m ok to come in,
wearing a mask, but if I wake up coughing or sneezing, that might not
be so good.
Ms MacMillan: It’s ok. I just got a message from you and am now up trying to find a
solution. I can’t wait to hear from you in a few hours once you have done
a text.
Ms Pope: (thumbs up emoji) all good I’ll let you know first thing
[2023] FWC 2130
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[15] At 11:34pm that evening, during this text exchange, Ms Pope received an email from
Gathering Events advising that a shift from 12pm-2pm on 31 May 2023 was cancelled.
[16] On 8 May 2023 at 6.55am Ms MacMillan sent Ms Pope the following text:
Your shifts have now been cancelled and I have been up all night trying to
replace you as you can imagine.
[17] The cancelled shifts that Ms MacMillian referred to were scheduled for 8, 9 and 31 May
2023.
[18] Ms Pope responded at 7:23am as follows:
Sorry to hear that you had a bad night. I have just gotten up and am not feeling
well so yes I think it’s best that I don’t work sick. Especially considering the
customer demographic which is older.
[19] Ms Pope was unable to work from 8-11 May 2023 inclusive.1
[20] On 12 May 2023 at 12.06pm Ms Pope received a text from her manager, Ms Annabelle
Whitty which said, among other things:
Just calling to see if you’re available for a shift this afternoon, service starts at
3-5 in Wahroonga.
[21] As Ms Pope was already doing seasonal work that day, she responded that she was not
available.
[22] On 15 May 2023 an email exchange occurred between Ms Pope and Ms MacMillan
which was not provided to the Commission by either party.
[23] On 18 May 2023 at 6.17pm Ms Pope sent the following email to Ms MacMillan:
Hi Jen,
Can I ask whether you plan to offer me more shifts?
If not, can you please fill out the attached separation certificate; I need it in order to
apply for Centrelink.
Regards,
Ellen
[24] On 18 May 2023 at 6.21pm Ms MacMillan sent the following reply to Ms Pope:
Hi Ellen,
So I take it your (sic) quitting?
[2023] FWC 2130
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I have offered you events but you have declined all of them?
Kind regards,
Jen MacMillan
[25] Gathering Events then sent two invitations to Ms Pope’s inbox at 6.24pm.
[26] On 18 May 2023 at 7.51pm Ms Pope sent the following email to Ms MacMillan:
Hi Jen,
The morning after my last completed shift, my accepted shifts (events on the 8th, 9th and
31st of May) were cancelled.
Since then, you have not invited me to any shifts, until 6:24pm today after I emailed
asking you whether you planned to offer me more shifts.
My enquiry was not a resignation and prior to it I had no invites that I could accept or
decline. Thanks for inviting me to shifts.
Regards,
Ellen
[27] According to Ms Pope, on 19 May 2023 at 8.30am one of the offered shifts was removed
from Ms Pope’s calendar. At 4.45pm, Ms Pope saw her psychologist who wrote a letter saying
Ms Pope was not in a fit mental state to accept any shifts until there had been a resolution. At
6.22pm Ms Pope emailed Ms MacMillan saying she would not be able to accept the remaining
shift.
[28] On 22 May 2023, Ms Pope and Ms MacMillan had a telephone conversation. According
to Ms Pope, Ms Macmillan told Ms Pope to email Ms MacMillan if she wanted more shifts and
that if she did Ms MacMillan would need to discuss this with Ms Whitty. Ms MacMillan told
Ms Pope nothing had changed about Ms Pope being prioritised and that Gathering Events had
a lot of shifts but they were unpredictable.2 Ms MacMillan’s version of this conversation was
similar to Ms Pope’s however Ms MacMillan says she expressly offered Ms Pope more shifts.3
[29] On 22 May 2023, Ms Pope emailed Ms MacMillan at 5.03pm saying she would consider
what they had discussed and would get back to her.
[30] On 24 May 2023 at 1.14pm, Ms MacMillan sent a separation certificate to Ms Pope by
email with no further explanation which stated that Ms Pope’s employment ceased on 24 May
2023. The separation certificate does not provide a reason for separation, so it does not indicate
whether the employment was terminated by Ms Pope or Gathering Events.
[2023] FWC 2130
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[31] Gathering Events did not offer Ms Pope and Ms Pope did not request any further shifts
after the separation certificate was issued.
Submissions
Ms Pope
[32] Ms Pope submitted that on 18 May 2023 at 6.17pm she emailed Ms Macmillan asking
her to fill out a separation certificate if Gathering Events did not plan to offer Ms Pope more
shifts. On 24 May 2023, Ms MacMillan replied by sending Ms Pope a separation certificate. In
doing so, Gathering Events directly and consequentially caused the termination of Ms Pope’s
employment.
[33] The conclusion that Ms Pope’s employment was terminated at Gathering Events’
initiative is supported by the fact that after 25 May 2023, Gathering Events ceased
communication with Ms Pope and did not reply to Ms Pope’s emails.
Gathering Events
[34] Gathering Events submitted that it filled out the separation certificate for Ms Pope at
Ms Pope’s request so she could claim Centrelink payments. Ms Pope’s request for the
separation certificate suggested that Ms Pope wanted to cease employment with Gathering
Events. Gathering Events respected this decision and acted accordingly.
[35] Ms Pope is offered work on a shift-by-shift basis. Ms Pope was never dismissed, as she
is a casual staff member. After Ms Pope requested the separation certificate, Gathering Events
continued to extend invitations for shifts to Ms Pope.
[36] On 18 May 2023, immediately after her request, Gathering Events offered Ms Pope
more shifts which she declined the next day. Gathering Events again offered Ms Pope
opportunities for work on 22 May during a phone conversation.
[37] Gathering Events understands that a separation certificate is generally requested by an
employee who is intending to end their employment relationship and seek financial support
from government programs like Centrelink. Gathering Events believed it was assisting Ms Pope
in her intentions by providing the separation certificate in a timely manner, six days after her
request.
[38] Compliance with a casual worker’s request for a separation certificate should not be
misconstrued as a dismissal. It was issued in good faith, with the intention to assist Ms Pope in
receiving her welfare payments from Centrelink. This act of assistance should not be interpreted
as initiating termination of availability for shifts.
[39] Gathering Events believed it was required to issue Ms Pope with the separation
certificate under its HR policies and Services Australia's rules and guidelines. Gathering Events
was not told to retract the separation certificate, or asked if it had any more shifts.
[2023] FWC 2130
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[40] Finally, Gathering Events submitted that the combination of Ms. Pope's sickness, her
declining a shift after recovery, and her request for a separation certificate suggest a decision
on her part to end her engagement with Gathering Events, not a dismissal initiated by Gathering
Events. Gathering Events acted within the confines of its policies, regulations, and fair work
practices throughout its interactions with Ms. Pope.
Legislation
[41] The application has been brought under s.365 of the FW Act which 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] The issue between the parties which the Commission has been asked to determine is
whether Ms Pope was dismissed by Gathering Events. The dictionary at clause 12 of the FW
Act refers to section 386 for the definition of “dismissed”.
[43] Section 386 of the FW Act 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
(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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified
period of time, for a specified task, or for the duration of a specified season,
and the employment has terminated at the end of the period, on completion of
the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any
reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her
remuneration or duties; and
[2023] FWC 2130
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(ii) he or she remains employed with the employer that effected the
demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of the
person under a contract of that kind is, or was at the time of the person’s
employment, to avoid the employer’s obligations under this Part.
[44] Section 15A of the FW Act is relevant to the application because it contains the
definition of casual employee. Section 15A provides:
15A Meaning of casual employee
(1) A person is a casual employee of an employer if:
(a) an offer of employment made by the employer to the person is made
on the basis that the employer makes no firm advance commitment to
continuing and indefinite work according to an agreed pattern of work
for the person; and
(b) the person accepts the offer on that basis; and
(c) the person is an employee as a result of that acceptance.
(2) For the purposes of subsection (1), in determining whether, at the time the
offer is made, the employer makes no firm advance commitment to
continuing and indefinite work according to an agreed pattern of work for
the person, regard must be had only to the following considerations:
(a) whether the employer can elect to offer work and whether the person
can elect to accept or reject work;
(b) whether the person will work as required according to the needs of the
employer;
(c) whether the employment is described as casual employment;
(d) whether the person will be entitled to a casual loading or a specific rate
of pay for casual employees under the terms of the offer or a fair work
instrument.
Note: Under Division 4A of Part 2-2, a casual employee who has
worked for an employer for at least 12 months and has, during at
least the last 6 months of that time, worked a regular pattern of
hours on an ongoing basis may be entitled to be offered, or request,
conversion to full-time employment or part-time employment.
(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm
advance commitment to continuing and indefinite work according to an
agreed pattern of work.
(4) To avoid doubt, the question of whether a person is a casual employee of
an employer is to be assessed on the basis of the offer of employment and
the acceptance of that offer, not on the basis of any subsequent conduct of
either party.
[2023] FWC 2130
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(5) A person who commences employment as a result of acceptance of an offer
of employment in accordance with subsection (1) remains a casual
employee of the employer until:
(a) the employee’s employment is converted to full-time or part-time
employment under Division 4A of Part 2-2; or
(b) the employee accepts an alternative offer of employment (other than
as a casual employee) by the employer and commences work on that
basis.
Consideration
[45] Ms Pope alleged that she was injured in her employment and then terminated by
Gathering Events because she was ill and because she made enquiries about her employment.
However, these claims cannot be determined until the Commission deals with the matter under
s.368, and only if the Commission issues a certificate of attempted conciliation under s.368(3).
Under s.368, the Commission may deal with the matter in numerous ways including by
mediation or conciliation, or by making a recommendation or expressing an opinion.
[46] If there is a dispute as to whether the alleged dismissal the subject of the application has
occurred, this is a preliminary issue which, according to the Federal Court Full Court decision
in Coles Supply Chain Pty Ltd v Milford,4 “must be resolved before the powers conferred by s
368 can be exercised at all”.5
[47] In this regard, the Full Bench in Lipa Pharmaceuticals Ltd v Mariam Jarouche6 stated,
Where the respondent to a s 365 application contends, in its response to the application
or otherwise, that the application was not validly made because the applicant was not
dismissed, this must be determined prior to the Commission ‘dealing’ with the dispute
under s 368 including by conducting a conciliation conference.7
[48] As Gathering Events has claimed that Ms Pope was not dismissed, I must find that a
dismissal occurred before conducting a conciliation conference or otherwise dealing with this
matter under s.368.
Casual employment
[49] The effect of Gathering Events’ submissions is that Ms Pope was not dismissed because
she was employed on a shift-by-shift casual basis, or in the alternative, the employment ceased
at the initiative of Ms Pope.
[50] In submitting that Ms Pope was offered work on a shift-by-shift basis, Gathering Events
described the common law position with respect to casual employment whereby each time an
employer offers work to an employee and the employee accepts work, a new contract of
employment is created between the employer and employee.8 The common law position is
modified by s.15A of the FW Act which provides that a person’s status as a casual employee is
assessed on the basis of the offer of employment and the acceptance of that offer, not on the
basis of any subsequent conduct of either party.
[2023] FWC 2130
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[51] Neither party provided evidence about the offer of employment, or the acceptance of
that offer. Neither party disputed Ms Pope’s status as a casual employee.
[52] In Khayam v Navitas English Pty Ltd t/a Navitas English9 the majority acknowledged
the conventional understanding of casual employment that if a casual employee completes their
engagement on a particular day and is never again engaged by the employer, contractually the
employment has come to an end by agreement rather than by any act by the employer to
terminate the contract. The majority explained, however, that if the cessation of casual
employment is incapable of ever being characterised as a dismissal under s 386(1)(a) of the FW
Act this would be inconsistent with casual employees being able to make an application for an
unfair dismissal remedy.10
[53] The majority goes on to explain how the ending of a contract of employment could be
characterised as dismissal as follows:
(1) The analysis of whether there has been a termination at the initiative of the employer
for the purpose of s 386(1)(a) is to be conducted by reference to termination of the
employment relationship, not by reference to the termination of the contract of
employment operative immediately before the cessation of the employment. This
distinction is important in the case of an employment relationship made up of a
sequence of time-limited contracts of employment, where the termination has
occurred at the end of the term of the last of those contracts. In that situation, the
analysis may, depending on the facts, require consideration of the circumstances of
the entire employment relationship, not merely the terms of the final employment
contract.
(2) As stated in Mohazab, the expression “termination at the initiative of the employer”
is a reference to a termination that is brought about by an employer and which is not
agreed to by the employee. In circumstances where the employment relationship is
not left voluntarily by the employee, the focus of the inquiry is whether an action on
the part of the employer was the principal contributing factor which results, directly
or consequentially, in the termination of the employment.11
…
[54] Although Khayam dealt with the issue of whether there had been a termination at the
initiative of the employer for the purpose of s 386(1)(a) where the termination occurred at the
end of a sequence of time-limited contracts of employment, the findings are applicable to an
ongoing casual employment relationship comprised of separate contracts of employment
offered on a per shift basis.
[55] In Ms Pope’s case, each shift she performed for Gathering Events represented a distinct
contract of employment, however each of these contracts when viewed together create an
ongoing employment relationship from when Ms Pope commenced employment in around
February 2022.
[56] The parties’ conduct between 7 May and 24 May 2023 shows that there was an ongoing
employment relationship during that period although Ms Pope did not perform any work for
Gathering Events. This employment relationship was demonstrated by the content of the text
messages exchanged between the parties on 7 and 8 May 2023, the content of the emails
[2023] FWC 2130
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exchanged on 18 May 2023, the telephone conversation between Ms Pope and Ms MacMillan
on 22 May 2023 and the fact that Gathering Events offered shifts to Ms Pope on 12 and 18 May
2023.
[57] Taking into account the the circumstances of the entire employment relationship and the
principles expressed by the majority in Khayam, I do not accept Gathering Event’s submission
that Ms Pope, as a casual employee, could not be dismissed because of the nature of her
engagement on a shift-by-shift basis.
[58] It is not in dispute that Ms Pope’s employment with Gathering Events ceased on 24 May
2023. This is asserted in Ms Pope’s application and in the separation certificate issued by
Gathering Events to Ms Pope on 24 May 2023. The fact that Gathering Events did not offer,
and Ms Pope did not request further shifts, after 24 May 2023 is consistent with the employment
relationship ending that day.
[59] In the circumstances I find that Ms Pope and Gathering Events were in an employment
relationship from about February 2022 and that the relationship ceased on 24 May 2023.
Which party initiated the termination?
[60] What is in dispute between the parties is whether the termination of the employment
relationship was initiated by Ms Pope or Gathering Events.
[61] Gathering Events is correct in asserting that Ms Pope requested the issuing of a
separation certificate. However, the email from Ms Pope on 18 May 2023 makes it clear that
she was requesting the separation certificate if Gathering Events was not planning to offer Ms
Pope more shifts. Put another way, Ms Pope did not require the separation certificate if
Gathering Events was planning to offer her more shifts.
[62] After receiving Ms Pope’s email, Ms MacMillan replied stating that she had offered Ms
Pope events which Ms Pope declined. Ms MacMillan then offered Ms Pope two shifts. In doing
so, Gathering Events confirmed that it was planning to offer Ms Pope more shifts, thereby
meeting the conditions required by Ms Pope’s email with the result that it was not necessary to
issue the separation certificate.
[63] Ms Pope sent a further email in reply stating that she had not been offered further shifts
since 7 May 2023 and that her first email that evening was not a resignation.
[64] I accept that Ms Pope and Ms MacMillan may have both been confused by the other’s
communication on 18 May 2023, as neither of them correctly represented what had occurred
with respect to offering shifts since 7 May 2023. Ms Pope claimed that no shifts had been
offered while Ms MacMillan’s email suggested that she had offered Ms Pope multiple events
all of which were declined. In fact, Gathering Events had offered Ms Pope one shift, on 12 May
2023.
[65] Despite this possible confusion, it is clear from the text of Ms Pope’s emails that she
was not resigning and that a separation certificate was not required if further shifts were offered.
The following day, Ms Pope advised that she would not accept one of the shifts offered. Then,
[2023] FWC 2130
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three days later, Ms Pope and Ms MacMillan spoke by telephone. Although some of what was
discussed during that telephone call is not agreed by Ms Pope and Ms MacMillan, neither of
them claimed that there was any discussion about the separation certificate. After the telephone
call, Ms Pope emailed Ms MacMillan advising she would consider what they had discussed and
would get back to her.
[66] There was no further contact between Ms Pope and Ms MacMillan until Ms MacMillan
issued the separation certificate two days later, on 24 May 2023, with no further explanation.
[67] Having regard to the email correspondence between the parties on 18 May 2023, and
the fact that there was communication between Ms Pope and Ms MacMillan after that date,
there is no basis for me to find that Ms Pope resigned from her employment or that she otherwise
voluntarily left the employment relationship.
[68] I note the evidence of Ms MacMillan that she believed that she was required to issue the
separation certificate because Ms Pope requested this. As noted above there was no requirement
from Ms Pope that Gathering Events issue the certificate if Gathering Events intended to offer
Ms Pope more shifts. As Gathering Events offered Ms Pope further shifts after receiving her
email on 18 May 2023, it was not required to issue the separation certificate so Ms MacMillan
was mistaken with respect to her belief that there was such a requirement.
[69] If Ms MacMillan was uncertain about whether Ms Pope wished to remain employed
with Gathering Events, Ms MacMillan could have taken steps to verify Ms Pope’s intentions
by contacting Ms Pope after their conversation on 22 May 2023. Ms MacMillan did not do so
but instead nominated the date on which Ms Pope’s employment terminated as 24 May 2023
on the separation certificate without further discussion with Ms Pope, then issued the certificate.
I find that the issuing of the certificate by Ms MacMillan resulted in the termination of Ms
Pope’s employment.
[70] Taking into account the parties’ submissions and the evidence before me, I find that
these actions on behalf of Gathering Events both in recording the termination date of 24 May
2023 on the separation certificate, then issuing the certificate on the same day, were the
principal contributing factors which resulted directly or consequentially, in the termination of
Ms Pope’s employment. Therefore, Ms Pope’s employment was terminated on the initiative of
Gathering Events.
Conclusion
[71] There is no evidence that establishes, and the parties have not submitted, that the
exemptions in s.386(2)(a)-(c) apply. Accordingly, I find that Ms Pope has been dismissed
within the meaning of s.365 of the FW Act.
[72] The jurisdictional objection raised by Gathering Events is dismissed and I order
accordingly.
[73] The matter will shortly be listed for Conference so that the Fair Work Commission can
deal with the matter as required by s.368 of the FW Act.
[2023] FWC 2130
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DEPUTY PRESIDENT
Appearances:
E Pope, Applicant
J Macmillan, Director at the Respondent
Hearing details:
2023
August 9
By Video using Microsoft Teams
Printed by authority of the Commonwealth Government Printer
PR765529
1 Evidence given by Ms Pope at the hearing on on 9 August 2023
2 Form F8 – General protections application involving dismissal, 3.1, 8.
3 Form F8 - Response to general protections application, 3.1.1, 4.
4 [2020] FCAFC 152.
5 Ibid, [67].
6 2023] FWCFB 101.
7 Ibid, [23].
8 Wayne Shortland The Smiths Snackfood Co Ltd [2010] FWAFB 5709, [10].
9 [2017] FWCFB 5162.
10 Ibid, [71].
11 Ibid, [75].
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5709.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
