1
Fair Work Act 2009
s.365—General protections
Deidre Michele Tull
v
Central Queensland Indigenous Development Ltd
(C2023/2736)
DEPUTY PRESIDENT LAKE BRISBANE, 15 SEPTEMBER 2023
Application to deal with contraventions involving dismissal – jurisdictional objection –
applicant not dismissed – separation certificate – jurisdictional objection dismissed – matter
to proceed to conference.
[1] Ms Deidre Tull (the Applicant) lodged a general protections application involving
dismissal to the Fair Work Commission (the Commission) on 12 May 2023. The Applicant
claimed that adverse action was taken against her by Central Queensland Indigenous
Development Ltd (the Respondent) under ss.344 and 352 of the Fair Work Act 2009 (Cth) (the
Act).
[2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed.
The Respondent states that the Applicant is currently on a period of unpaid sick leave and may
return to work when fit to do so.
[3] For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant
will need to establish that she was dismissed in accordance with the definition in s.386 of the
Act.
[4] The matter was heard by video using Microsoft Teams on 15 August 2023.
Background
[5] The Applicant commenced employment with the Respondent on 22 March 2017,
initially in the Respondent’s Drug and Alcohol Support team, and then in the position of
Placement Support Officer. The Applicant was engaged on a part-time basis.
[6] In January 2023, the Respondent commenced an informal performance review of the
Applicant. On 2 March 2023, the Applicant went on a period of personal leave until 10 March
2023.
[7] On 13 March 2023, the Applicant was invited by her supervisor, Ms Melissa Harris, to
attend a meeting to discuss concerns relating to the Applicant’s performance. This meeting
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DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2168
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occurred on 15 March 2023, and was attended by the Applicant, Ms Harris and the Applicant’s
manager, Ms Michelle Leggett. At the meeting, the Applicant was issued with a formal
performance improvement plan. Following the meeting, the Applicant met with the
Respondent’s Acting Chief Executive Officer, Mr Daniel Yasso, and informed him that she was
unable to continue working with her manager and was going to go home. Mr Yasso encouraged
the Applicant not to resign.
[8] The Applicant stated that she left work at approximately 2:00pm on 15 March 2023.
The Respondent contended that this instead occurred at 2:00pm on 16 March 2023. The
Applicant did not return to work after leaving on 15 or 16 March 2023. The Respondent
contended that around this time, the Applicant informed other employees of the Respondent
that she had resigned.
[9] On 17 March 2023, the Applicant submitted a medical certificate to the Respondent.
The certificate stated that the Applicant was unfit for work from 17 March 2023 to 5 May 2023.
[10] On 21 March 2023, the Applicant completed a two-day theoretical traffic control course
through an entity separate to the Respondent. The Applicant informed Mr Yasso that she had
completed this course, and Mr Yasso offered for the Respondent to cover the Applicant’s costs
associated with the course.
[11] On 24 March 2023, the Applicant was informed by Mr Yasso that her desk had been
cleaned out, and that she would be paid the equivalent of 3 weeks’ wages. The Applicant stated
that she informed Mr Yasso that she had not resigned.
[12] Approximately one week later, Mr Yasso called the Applicant to ask if she was going
to come to the office. The Applicant informed him that she would not be returning to the office.
[13] The parties agreed that after the Applicant left work on 15 or 16 March 2023, she was
using her personal and annual leave, and that the Applicant’s leave would be exhausted on 18
April 2023.
[14] On 21 April 2023, three days after the Applicant’s leave entitlements were exhausted,
the Applicant called the Respondent’s Corporate Finance Officer, Ms Deborah Ahmann. The
Applicant stated that she contacted Ms Ahmann to enquire about her payslips. During this call,
Ms Ahmann informed the Applicant that a separation certificate would be completed for the
Applicant. The separation certificate was then issued to the Applicant by the Respondent dated
26 April 2023.
[15] The origin of the separation certificate is a point of contention between the parties. The
Applicant submitted that she expressed surprise at Ms Ahmann’s mention of the certificate, and
accordingly, asked Ms Ahmann what would be recorded as the reason for the separation. The
Applicant stated that Ms Ahmann replied, “the usual reason”. The Applicant submitted that
upon being informed that a separation certificate was being prepared, she considered that the
employment relationship had ended at the initiative of the Respondent.
[16] The Respondent submitted that the separation certificate was issued at the Applicant’s
request. The Respondent maintained that this was consistent with its submission that the
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Applicant had told other employees that she was resigning when she left work on 16 March
2023. The Respondent rejected that it terminated the employment relationship by referring to
or issuing the separation certificate.
Consideration
[17] Section 365 of the Act requires a person to be dismissed to be eligible to make a General
Protections application involving dismissal.
[18] Section 386(1) of the Act relevantly provides that 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.
[19] 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
[20] 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
[21] All the circumstances – including the conduct of both the employer and employee –
must be examined.5 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.”6
[22] The question as to whether there was dismissal of the Applicant is determined by the
party that initiates the creation of a separation certificate.
[23] In Lawson v Environet Australia Pty Ltd T/A ESP – Environmental & Safety
Professionals, Commissioner Saunders found that the Applicant’s ongoing refusal to attend
work, coupled with his repeated requests for a separation certificate demonstrated, objectively
that he no longer intended to be bound by his employment contract.7
[24] Similarly, in Myers-Raab v CoreStaff VIC Pty Ltd T/A CoreStaff, Commissioner
Mirabella found that in asking for a separation certificate, the Applicant ‘was making a
unilateral subjective decision to treat his employment as being at an end.’8
[25] In Pope v The Trustee For Macmillan And Company Family Trust, Deputy President
Wright found that the issuing of the certificate, in circumstances where it had not been required
or requested by the Applicant, resulted in the termination of the Applicant’s employment.9
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[26] Deputy President Young in Knott v Mr Godfrey Mantle T/A MGH Employment &
Training Pty Ltd (Mantle Group Hospitality) [2021] FWC 2498 notes at [33]:
“a dismissal takes effect when the employment relationship has ended.10 The
termination of the employment relationship is a different concept from the termination
of an employment contract.11”
[27] It is noted that the Respondent was willing to provide the Applicant her existing role
once she was medically cleared to return to work. However, the Applicant did not want to return
to her role.
[28] Ms Roberts stated that here had been miscommunication and confusion amongst the
internal departments of the Respondent in relation to the Applicant’s employment status, and
that it was “common knowledge” within the Respondent that the Applicant had resigned. Ms
Roberts stated that the Applicant requested a separation certificate to be completed. The
Applicant stated that she did not request a separation certificate.
[29] I find that the issuing of the separation certificate had the probable result of bringing
about the termination of the employment by the Respondent even though they may have not
intended to. 12 The Applicant was still on sick leave until the separation certificate was issued
and this was approved by the Respondent. The issuing of the separation certificate by the
Respondent ended the employment relationship. The Applicant would have still remained in
the employment relationship had the separation certificate not been provided or established that
the Applicant had resigned through providing evidence.
Conclusion
[30] I consider that the communication by the Respondent to the Applicant of the separation
certificate on 21 April 2023, and the subsequent issuing of the certificate terminated the
Applicant’s employment on the initiative of the Respondent.
[31] The Applicant was therefore dismissed in accordance with s.386(1) of the Act. The
exemptions in s.386(2) of the Act do not apply.
[32] The Applicant’s dismissal took effect she was informed by the Respondent of the
decision to issue a separation certificate on 21 April 2023. The application was made on 12
May 2023. The application was therefore made within the 21-day statutory timeframe in
s.366(1) of the Act.
[33] The Respondent’s jurisdictional objection is dismissed. I order accordingly.
[34] The matter will be programmed for conference in accordance with s.368 of the Act.
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc2498.htm
[2023] FWC 2168
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DEPUTY PRESIDENT
Appearances:
Ms E. Hansson of Legal Aid Queensland representing the Applicant.
Ms J. Roberts representing the Respondent.
Hearing details:
15 August 2023
Hearing via Microsoft Teams
Brisbane
Printed by authority of the Commonwealth Government Printer
PR765667
1 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
2 Ibid.
3 Ibid; 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 at [31].
5 Whirisky v DivaT Home Care [2021] FWC 650at [77].
6 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 at [28].
7 Lawson v Environet Australia Pty Ltd T/A ESP – Environmental & Safety Professionals [2017] FWC 838 at [41].
8 Myers-Raab v CoreStaff VIC Pty Ltd T/A CoreStaff [2022] FWC 835 at [23].
9 Pope v The Trustee For Macmillan And Company Family Trust [2023] FWC 2130 at [60]–[70].
10 Siagian v Sanel Pty Ltd [1994] IRCA 2; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878
at [21].
11 Visscher v Guidice and Others (2009) 258 ALR 651 at [53] to [5] per Heydon, Crennan, Keifel and Bell JJ; Metropolitan
Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]-[22]; Khayam v Navitas English Pty Ltd
[2017] FWCFB 5162 at [31]-[50]
12 Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769, [24].
WORK COMMISSION THE SENS
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc650.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc838.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc835.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2130.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4878.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4878.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb3769.htm
