1
Fair Work Act 2009
s.365—General protections
Ashleigh Anderson
v
SRJ Industries Pty Ltd
(C2024/489)
DEPUTY PRESIDENT DOBSON BRISBANE, 30 APRIL 2024
Application to deal with contraventions involving dismissal – whether applicant dismissed for
the purposes of s.386 - jurisdictional objection – no dismissal -jurisdictional objection upheld
– application dismissed
[1] Ms Ashleigh Anderson (the Applicant) lodged a general protections application
involving dismissal to the Fair Work Commission (the Commission) on 26 January 2024. The
Applicant claimed that adverse action was taken against her by SRJ Industries Pty Ltd (the
Respondent) under s.340 of the Fair Work Act 2009 (Cth) (the Act).
[2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed.
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.
[3] Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v
Milford,1 the Commission must determine whether the Applicant was dismissed before it can
exercise powers under s.368 of the Act to deal with a dispute about whether the Applicant was
dismissed in contravention of the general protections provision.
[4] On 16 February 2024, my Chambers issued directions for the filing of material. The
directions required, among other things, that the Applicant file any submissions, evidence and
witness statements that she intended to rely on in reply to the Respondent’s Submissions by no
later than 4:00pm on 1 March 2024. The Applicant failed to do so. On 5 March 2024, my
Chambers wrote to the Applicant seeking an explanation for her failure to file her material. The
Applicant replied that same day advising that there were no witnesses to the incident and that
her employment was terminated.
[5] On 7 March 2024, my Chambers responded to the Applicant advising that she had not
provided a witness statement from herself, and that if she sought to have anything considered
she must serve her statement on the Respondent. The correspondence further stated that
attendance at the hearing on 20 March was not optional. On 11 March 2024 with no context,
the Applicant provided a document entitled ‘General Protections claim discrimination’. My
Chambers wrote to the parties, serving a copy of the Applicant’s document on the Respondent
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DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1117
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and informing that it was assumed that the document is to form the basis of the Applicant’s
submissions and noted that they had been filed 10 days late, without explanation and without a
request for an extension.
[6] The Directions also included the date and time that the matter would be heard. Further,
a notice of listing was issued to the parties on 20 February 2024, repeating the date and time
for the hearing and containing instructions on how to attend.
[7] The matter was heard by video using Microsoft Teams on 20 March 2024. Mr Regan
Flemming, Director of the Respondent, attended on behalf of the Respondent. By 10:06am, the
Applicant had not joined the hearing. My chambers sent an email to the Applicant, copied to
the Respondent, stating the following:
“The Hearing was scheduled to commence at 10:00am.
You have not yet joined the hearing. Please urgently contact chambers if you are having difficulty joining.
If you do not attend, the hearing will proceed in your absence and a decision will be made without further
reference to you.”
[8] My Associate also twice attempted to contact the Applicant on the contact number
provided on her Form F2. A 10 second voicemail to text message was left advising the
Applicant to urgently attend to her emails. The Applicant failed to attend the hearing.
[9] The Applicant contacted my Associate at noon on 20 March 2024 and informed she had
forgotten about the hearing and had been working. The Applicant was advised to write to the
Commission to provide her reasons in writing and was informed that the Decision had been
reserved. On 22 March 2024, the Applicant wrote to my Chambers explaining that she had been
at work and requested information regarding the outcome of the Hearing.
[10] My chambers wrote to the Applicant informing that the decision had been reserved and
would be issued in due course.
Background
[11] The Respondent is a barber and hairdressing company who offers hairdressing services.
[12] The Applicant commenced employment with the Respondent on or around 30 October
2023 and at the time her employment came to an end on 22 January 2024, she was engaged as
a casual barber.
[13] On 22 January 2024, upon return to work at the Willows worksite after taking time off
for moving, the Applicant spoke with the assistant manager of the Respondent regarding the
Applicant’s home situation. The conversation deteriorated and the Applicant left the premises.
The assistant manager requested the area manager for the Respondent attend the Willows site.
The Applicant returned to the premises and commenced work. The assistant manager and the
area manager expressed concerns to the Applicant regarding the Applicant’s emotional state.
The area manager requested the Applicant have a meeting with them in private to assess her
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emotional situation. The Applicant allegedly abused the area manager, who stood the Applicant
down.
[14] The Applicant took this as a termination of her employment and left the work keys at
another Willows site of the Respondent. In response to the return of the keys the area manager
for the Respondent removed several of the Applicant’s upcoming shifts from the digital roster.
The Applicant then returned her work uniforms to the city worksite.
Applicant’s Submissions
[15] The Applicant did not file formal submissions with the Commission in response to
directions which required the Applicant to file her submissions and evidence by 1 March 2024.
[16] On 11 March 2024, the Applicant emailed a document provided to the Commission
entitled ‘General Protections claim discrimination’2 which is assumed to form the basis for the
Applicant’s submissions. The Respondent did not object to the Applicant admitting this
document in the interests of advancing the matter, however the Respondent noted that they
contested the information provided by the Applicant in both the original F8 application form,3
the amended F8 application form4 and the Applicant’s evidence.5 Further, I note that the
document was filed 10 days after the Applicant was directed to do so and 2 days after the
Respondent’s opportunity to file material in reply.
[17] The Applicant provided that she had been employed as a casual barber but was
anticipating a full-time contract.6 The Applicant had informed the Respondent that she was
without a home and may require time off work to organise accommodation at the start of her
employment. The Applicant requested and was granted 2 days off work to organise her
accommodation.7
[18] The Applicant contended that upon her return to work she learned that the Respondent
had told other employees her private information. The area manager for the Respondent
requested a private meeting with the Applicant which the Applicant contends consisted of the
Respondent instructing the Applicant “to sort myself out,” and that “I needed to go home,” “be
more positive” and “smile more.” The Applicant contends further that she was “terminated on
the spot”.8
[19] The Applicant contended that she believed the termination was discriminatory against
her on the basis of religion for being an Orthodox Christian and on the basis of disability for
ADHD and autism. The Applicant elaborated that she has religious tattoos and that she wore a
hat to over them as opposed to wearing a scarf. The Applicant also alleged that the area manager
for the Respondent had criticised the Applicant for ‘jiggling your leg during haircuts’ on the
day of the termination which the Applicant believed was discriminatory against her ADHD.9
[20] The Applicant also contended she was ‘dismissed on the spot due to personal living
circumstances and cultural differences (homelessness/social origin, even though the employer
was aware of her living situation/circumstances before commencement of employment,
cognitive disability, autism and ADHD’ and that ‘After my termination and when the Fair Work
claim had been lodged, the store was closed for a number of days. There was signs on the store
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stating to unforeseen circumstances, the store will be closed for approximately one week
(sic).’10
[21] The Applicant informed the Commission that she was unable to provide witnesses as
the only witnesses would have been clients, which the Respondent does not keep records of.11
[22] The Applicant did not appear at the hearing, respond to requests from my Chambers to
attend or provide further submissions.
Respondent’s Submissions
[23] The Respondent filed submissions on 23 February 2024 and included witness statements
from the following:
• Regan Fleming – Director of the Respondent (two statements)12
• Tracey Camilleri – Townsville Area Manager for the Respondent13
• Chantalle Blechen – Assistant Manager for Willows, a site of the Respondent14
• Heather Davidson – Business Manager for the Respondent.15
[24] The Respondent provided submissions in response to the Applicant’s document on 13
March 2024.16
[25] The Respondent submitted that the Applicant had not been dismissed and had instead
abandoned her employment. The Respondent therefore submitted that the Commission’s
jurisdiction to deal with a dispute pursuant to s365 of the Act had not been enlivened.17
[26] The Respondent submitted that the Applicant had not been dismissed and remained on
the payroll and ‘scheduling program “deputy” with a forwarding shift.’ The Respondent
submitted that they only withdrew the Applicant’s scheduled shifts upon the Applicant
returning her keys and work uniforms.
[27] The Respondent also submitted that their evidence reflects that the Applicant had not
been discriminated against on the basis of her religion or disability and that instead they
provided particular support for the Applicant.
Regan Fleming’s Witness Statement
[28] Regan Fleming provided a witness statement as the Director of the Respondent. Regan
Fleming noted that he had spoken with the Applicant on the morning of 22 January 2024 after
the Applicant had first left the work premises. He noted that the Applicant was seriously
distressed and was concerned she might injure clients while working with scissors.18
[29] Regan Fleming then contacted the area manager who informed him that they had been
alerted that the Applicant ‘should not be working that day due to her emotional state’ and they
were going to let the Applicant know and work her shift. Regan Fleming directed to stand the
Applicant down for the day.19
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[30] Regan Fleming stated that after the Applicant left her keys at the Willows site and
returned her uniforms to the city site, he formed the view that the Applicant had ‘no intention
of coming back to work’.20
[31] Regan Fleming noted that the direction to stand the Applicant down was informed by
concerns from other experiences assisting people with autism and two previous incidents with
the Applicant where health issues had rendered her unable to work. The Respondent had made
other accommodations for the Applicant previously.21
Heather Davidson’s Witness Statement
[32] Heather Davidson is employed with the Respondent as the business manager. As part of
her role, she facilitated accommodations and adjustments to work patterns. She offered these to
the Applicant, who denied any adjustments. Ms Davidson stated that she had several years of
experience working directly with individuals with disabilities and had received specialised
training.22
[33] On 20 December 2023 the Applicant reportedly had a serious mental health incident
which Ms Davidson assisted with, providing a direct intervention and mental health support.
Ms Davidson stated that she offered to help connect the Applicant with mental health services
and the Applicant declined, stating she had her own contacts. Ms Davidson stated that she made
sure the Applicant was safe and that she remained available to support the Applicant. On that
day, Ms Davidson stated that the Respondent had closed the store early and one of the other
employees drove the Applicant home. Ms Davidson also contended that this incident was
demonstrative of the Respondent’s wish to support the Applicant, not to judge her. 23
Tracey Camilleri’s Witness Statements
[34] Tracey Camilleri is employed with the Respondent as the Townsville area manager. As
part of her role, she managed the sites and rosters where the Applicant worked.24
[35] On 22 January 2024 Ms Camilleri was notified of the confrontation between the
Applicant and the assistant manager at Willows, by text message by the 2IC in the Willows site
that the Applicant worked in. The 2IC told her that the Applicant had arrived at work and was
visibly upset. The 2IC advised the area manager that when she asked the Applicant how she
was, the Applicant became abusive towards her. The 2IC asked the area manager to come to
the store to help her.
[36] Ms Camilleri further stated that she rang the Director of the Respondent, Mr Fleming,
to let him know what was happening and that she would go over to the Willows site to talk to
the Applicant. She also advised Mr Fleming of the text messages that the Applicant had sent
her over the few days previously. In those messages Ms Camilleri stated that the Applicant had
told her she could not work as she was scared that she would “hurt someone.”25 The Director
told Ms Camilleri that the Applicant had also called that morning to say she wasn’t doing well.26
[37] Upon entering the Respondent’s Willows site Ms Camilleri approached the Applicant
for a meeting, noting that the Applicant seemed visibly upset, her hands and legs were shaking.
Ms Camilleri says she could see that clients were noticing and notes that some clients had asked
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that the Applicant not cut their hair. After the Applicant finished the haircut she was performing,
Ms Camilleri asked the Applicant to go “out the back” so they could talk. The Applicant
responded saying “no, I’m going to do another haircut”. Ms Camilleri states when the Applicant
finished that haircut, Ms Camilleri again asked her to come out the back to talk and not to start
another haircut. They moved into the back area and had a meeting. In the meeting Ms Camilleri
claims that the Applicant swore at and abused her while Ms Camilleri attempted to calm her
down then ultimately informed the Applicant that she felt it would be best that the Applicant
went home for the day to calm herself down. The Applicant then collected her tools and left.27
[38] After the Applicant went home, Ms Camilleri found the Applicant’s salon keys on the
till. She confirmed with the other staff whether the Applicant had made any representations
about returning or quitting but was informed the Applicant had not spoken to the other staff.
Ms Camilleri changed the rosters for the coming days to get coverage for shifts the Applicant
would have otherwise worked, concerned the Applicant would need some time off. Later, one
of the staff from the city site called Ms Camilleri and was told that the Applicant returned her
work uniforms and had gone into the backroom and ripped up Christmas party photos featuring
the Applicant and Ms Camilleri and thrown them in the bin. Ms Camilleri maintained that at no
point did she dismiss the Applicant or make representations that would indicate to the Applicant
that she was dismissed.28
[39] In a further statement in response to the Applicant’s submissions, Ms Camilleri asserted
that the Respondent was not aware of the Applicant’s religion and as such did not discriminate
against her on the basis of religion. Ms Camilleri also asserted that the Respondent had actively
made provisions to support the Applicant through her disabilities and homelessness, including
in making rostering provisions and in providing support during and after shifts where the
Applicant had mental health issues.29
Chantelle Blechen’s Witness Statement
[40] Chantelle Blechen is employed with the Respondent as the assistant manager at the
Willows site. As part of her role, she was responsible for the Willows site on the Applicant’s
alleged termination date.30
[41] On 22 January 2024 Ms Blechen observed that the Applicant looked ‘unsettled’ and
attempted to speak to the Applicant about her time off organising accommodation. The
Applicant reportedly ‘went off at’ Ms Blechen before leaving the Willows site. Ms Blechen
then reported this to the area manager and another staff member for assistance, stating that she
didn’t think the Applicant was in the right mental state to be working. The Applicant returned
to the Willows site around half an hour later.31
[42] Ms Blechen provided that clients had made complaints about the Applicant to her and
requested not to be served by the Applicant. The area manager then instructed Ms Blechen to
ask the Applicant to go into a meeting in the back of the store, to which the Applicant reportedly
yelled to her [Ms Blechen] that she “would do the next client first’. The area manager told Ms
Blechen that she would send the Applicant home and ask her to come back when the Applicant
felt well enough. After the haircut of the client was finished, the Applicant went into a meeting
with the area manager and upon return did not speak to any of the staff and left the premises.32
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Consideration
[43] Section 365 of the Act requires a person to be dismissed to be eligible to make a General
Protections application involving dismissal.
[44] The word dismissed is defined in s.386 of the Act. It provides as follows:
“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
(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”.
[45] 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.33 In short, it is not sufficient to
simply demonstrate that the employee did not voluntarily leave their employment.34
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[46] 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.35 It is
sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the
employment relationship to an end.36
[47] All the circumstances – including the conduct of both the employer and employee –
must be examined.37 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.
[48] On the Respondent’s evidence38 the Applicant had been told to go home for the day
after behaving in an aggressive and rude manner towards the area manager. This conduct is
consistent with the uncontested evidence of Ms Camilleri and Ms Blechen, and I accept that
this is what occurred. The Respondent argued that the Applicant had resigned from her
employment by collecting her tools and leaving her keys at the “till” on the way out and that
she returned her uniforms to another site of the Respondent, in the city that afternoon.39
[49] The Applicant did not contest the evidence of the Respondent, nor did she put any
probative evidence before the Commission to support her contention that she had been
dismissed by the Respondent. There is nothing in the materials before me which supports the
Applicant’s belief that the employment was terminated at the Respondent’s initiative other than
the Applicant’s assertions.
[50] Further, in the evidence of the Applicant (which was contested by the Respondent), the
Applicant makes a number of inconsistent statements. When referring to the discussion she had
with the Respondent on the 22nd of January 2024, the Applicant states that the area manager
told her to go home, sort herself out, smile more, be more positive and stop being negative.40
These statements are inconsistent with the Applicant’s further claim that she was terminated on
the spot. The Respondent’s statements, on the contention of the Applicant, are statements that
clarify the expectations of the Respondent as to the Applicant’s future conduct. If the
Respondent had decided to terminate the Applicant’s employment, there would be no need to
discuss any expectations as to the Applicant’s future conduct.
[51] In the Respondent’s uncontested evidence, the Respondent’s director, area manager,
assistant manager and colleague all gave evidence that they had been aware of the Applicant’s
personal difficulties for some time and had collectively made efforts to support the Applicant
throughout this time. The Respondent noted the shortage of barbers and the evidence, which I
accept, was that they were in dire need of the Applicant’s skills and were willing to
accommodate the Applicant’s difficulties to ensure she remained in their employ. The
Respondent provided copies of text messages between the Respondent and the Applicant, to
demonstrate the support that had been provided to the Applicant.
[52] Fundamentally this matter turns on what was said to the Applicant on the morning of 22
January 2024, that caused her to go home. Ms Camilleri’s evidence was that the Applicant was
very distressed that morning and after trying to calm her down, told her to go home for the day.
Whether or not the termination was at the initiative of the employer turns on an assessment of
what was said and the circumstances surrounding it.
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[53] The Applicant in recounting what happened in the material she had provided, claims she
was “terminated on the spot.” 41 Ms Camilleri says that she told the Applicant to “go home for
the day.” I accept the evidence given by Ms Camilleri that the Applicant was distressed, and
that the Respondent had supported the Applicant throughout the 3-month period of her
employment. Taking into account the evidence of the staff at the Willows site, I prefer Ms
Camilleri’s view that she did say those words “for the day” to the Applicant when she was
asked to go home. It is these three critical words, in the context of the immediate situation as
well as the events leading up to it, that determine the termination was not initiated by the
Employer.
[54] On the basis of all of the uncontested evidence before me and the weight that can be
placed on that evidence in circumstances where the Applicant did not attend her hearing to put
her case or to be cross examined or to contest the Respondent’s case, I find that the employment
came to an end as a result of the Applicant handing back her keys and uniforms after being told
to go home for the day.
[55] It follows that there was not a dismissal within the meaning of s.386(1) of the Act
because there was not a termination of the Applicant’s employment at the Respondent’s
initiative.
Conclusion
[56] I am satisfied that the Applicant is not a person who has been dismissed within the
meaning of s.386(1) of the Act. As a consequence, I am satisfied that the Commission does not
have jurisdiction to deal with the Applicant’s purported unfair dismissal application.
Accordingly, the application is dismissed. I order accordingly.
DEPUTY PRESIDENT
Appearances:
The Applicant did not appear.
Regan Fleming on behalf of the Respondent
Hearing Details:
20 March 2024
Hearing via Microsoft Teams
Brisbane
Printed by authority of the Commonwealth Government Printer
AIR WORT WORK COM boon + AUSTRALIA ISSION THE SEAL OFFLINE
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PR774342
1 [2020] FCAFC 152 [51].
2 Digital Court Book p.2-25.
3 Digital Court Book p.2-23.
4 Ibid.
5 Digital Court Book p.2-25.
6 Digital Court Book p.2-25.
7 Ibid.
8 Digital Court Book p.7 [6].
9 Digital Court Book p.2-25.
10 Ibid
11 Ibid.
12 Digital Court Book p.46-47; 59-50.
13 Digital Court Book p.35-36.
14 Digital Court Book p.41-42.
15 Digital Court Book p.48.
16 Digital Court Book p.49-50.
17 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, (2020) 279 FCR 591; (2020) 300 IR 146 at [67]-[69], [74]-[75]
18 Digital Court Book p.46-47; 49-50.
19 Ibid.
20 Ibid.
21 Ibid.
22 Digital Court Book p.48.
23 Ibid.
24 Digital Court Book p.39-40.
25 Digital Court Book p.35.
26 Ibid.
27 Ibid.
28 Ibid.
29 Ibid.
30 Digital Court Book p.48.
31 Ibid.
32 Ibid.
33 [2017] FWCFB 3941.
34 Ibid.
35 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.
36 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].
37 Whirisky v DivaT Home Care [2021] FWC 650at [77].
38 Digital Court Book p.39-40.
39 Ibid.
40 Digital Court Book p.24 [5]-[6].
41 Digital Court Book p.24-25.
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
