1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Scott Modra
v
Cre8ive Coffee Roasters Pty Ltd
(C2024/232)
COMMISSIONER DURHAM BRISBANE, 3 MAY 2024
Application to deal with contraventions involving dismissal – jurisdictional objection –
whether employee dismissed – initial resignation accepted – terminated at the employer's
initiative – jurisdictional objection dismissed.
[1] On 12 January 2024, Mr Scott Modra (Applicant/Mr Modra) made a General
Protections application to the Commission under section 365 of the Fair Work Act 2009 (the
Act). Mr Modra alleges that he was dismissed by Cre8ive Coffee Roasters Pty Ltd
(Respondent) on 22 December 2023 in contravention of his workplace rights.
[2] The Respondent opposed the application, by way of raising a jurisdictional objection
that the Applicant was not dismissed.
[3] A person may only apply to the Commission for the Commission to deal with the dispute
under section 365 of the Act if the person has been dismissed. The decision of the Full Court
of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford states that determining
if an Applicant has been dismissed is an antecedent issue.1 Therefore, a jurisdictional objection
based on the Applicant not being dismissed must be decided before the Commission exercises
its conciliatory powers under section 368 of the Act.2
Hearing of the Jurisdictional Objection
[4] On 19 January 2024, I issued Directions for the parties to file their material in relation
to the jurisdictional objection.
[5] On 25 March 2024, the question of whether the Applicant was dismissed was dealt with
at a jurisdictional objection hearing.
[6] The Applicant gave oral evidence but did not call any witnesses. The Applicant filed
his own witness statement, along with a witness statement from Ms Jessica Wijaya. He also
annexed a written resignation, SMS correspondence between him and the Respondent, his
employment contract and various pay slips.
[2024] FWC 1160
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1160
2
[7] Mr Dan Norris (Owner of the Respondent) gave oral evidence and called one witness,
Ms Erin Schranz. Mr Norris also provided witness statements for himself and Ms Schranz as
well as Bryon van Zul, Darren Niol, Julia Bonelli and Taylor Matthews, who are all employees
of the Respondent.
[8] Prior to the hearing of the matter, my Chambers constructed a paginated Court Book
consisting of submissions and evidence of the parties. References to evidence are by way of the
relevant page number in the court book.
Evidence of the Respondent
[9] The written evidence of the Respondent can be simply summarised to state that the
Applicant resigned and the Respondent accepted,3 the position was advertised online,4 but the
Applicant agreed to remain employed for a two week period in which he would train up a new
employee and was then paid out all his entitlements.5 The witness statements tendered by the
Respondent also indicate that customers were informed of the Applicant resigning by way of
social media and email.6
[10] I note that many of the Respondents witness statements were identically written. This
suggests to me that the statements were prepared by one person and the witnesses simply read
and signed them. As such, they will be weighted accordingly.
[11] During oral evidence, Mr Norris indicated that he was paying the Applicant as per
normal for two weeks after the verbal resignation of October 26, 2023, and following this, the
Applicant was being paid via Annual Leave until his accrued leave was paid out in the pay
cycle 16 – 22 December 2023. This seems to be close to correct, as the Applicant’s pay slips
indicate that he was paid as per usual up until 17 November 2023,7 at which point the Applicant
began taking Annual Leave.
Evidence of the Applicant
[12] The written evidence of the Applicant states that he did in fact resign on October 26
2023, the same date that a verbal agreement was reached to train his replacement and then take
annual leave until his accrued time off had been depleted.8 The Applicant then states that the
Respondent unilaterally ended the employment relationship by paying out the Applicant’s leave
balance, indicated by the pay slip dated 16 – 22 December 2023.9 SMS correspondence between
the Applicant and the Respondent indicated that the Applicant did not want the employment
relationship to end before he had the chance to use all of his accrued annual leave.10
[13] During his oral evidence, the Applicant raised a few further points.
[14] The first is that he worked a shift in December 2023. The Respondent did indicate that
the Applicant came in for a singular shift but did not confirm when this was. The pay slip from
25 November – 1 December 2023 indicates that one shift was paid as base salary in this period.11
Therefore, I accept the Applicant worked one shift during this period.
[15] The second point raised by the Applicant was that the evidence of Ms Tayla Matthews
should be treated cautiously, as she could not possibly be aware of the contents of her statement
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since she was not yet employed at that time. Further, the Applicant only interacted with her on
one occasion when he worked the abovementioned single shift in late November or early
December 2023. Given that the witness statement of Ms Matthews is identical to others, I do
not need to make a finding of fact in relation to whether Ms Matthews was aware of the contents
within her witness statement.
Background
[16] Considering the written and oral evidence of the parties, I consider the following to be
an accurate background:
• At some point in 2023, the Applicant was the former owner of Cre8ive Coffee Roasters
and sold the business to Mr Norris, the current owner of the Respondent.
• On 26 July 2023, the Applicant entered into a full-time employment contract with the
Respondent for the position of Production Manager. This seemed to be, in part, for the
purposes of providing guidance to the new owner and assisting in a smooth business
transition.
• On 26 October 2023, the Applicant verbally resigned from his position and the
Respondent accepted. The parties are in agreement that the Applicant was to stay on to
train a new employee. The length of time the Applicant was to stay on for seems to be
in dispute.12 It also seems to be in dispute whether there was an agreement as to whether
the Applicant would use up their leave once the new employee was trained, or whether
their leave balance would be paid out.
• On the pay cycle beginning 25 November 2023, the Applicant begins to take
predominantly Annual Leave, being about 3 weeks from the Applicant’s verbal
resignation.
• Somewhere between 25 November and 1 December 2023, the Applicant worked a
singular shift for the Respondent.
• On 18 December 2023, the Applicant submits a formal resignation letter, indicating that
9 February 2024 will be his last day of employment.13 On the same day, a SMS message
from the Respondent indicates that the Applicant has approximately 7.5 weeks of
Annual Leave accrued.14 This indicates that 9 February 2024 is the date that roughly
coincides with the depletion of the Applicant’s leave balance.
• On 19 December 2023, the Respondent sends an SMS to the Applicant seeking to end
the employment relationship immediately by paying out the balance of the Annual
Leave accrued, citing pay and processing difficulties if the Applicant was to use the
remainder of their Annual Leave.15
• Over the coming days, an SMS exchange ensues where the Applicant pushes back on
this request to end the employment relationship immediately, citing timeline and tax
issues from the amount of pay that would be withheld with a lump sum.16
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• In the pay cycle of 16 – 22 December 2023, the Applicants pay slip included a lump
sum payout of the accrued Annual Leave,17 effectively ending the employment
relationship.
Relevant Legislation
[17] Section 365 of the Act provides 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.
[18] The term ‘dismissed’ is defined under section 386(1) of the Act:
(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.
Case Law
[19] Although applied under the previous Act, the following approach of the Full Bench of
the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd18 remains
relevant to the consideration of section 386(1) of the Act:
“[21] In this Commission the concepts have been addressed on numerous occasions and
by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd19 a Full Bench said:
‘[13] It is plain that the Full Court in Mohazab20 considered that an important
feature in the question of whether termination is at the initiative of the employer
is whether the act of an employer results directly or consequentially in the
termination of the employment and that the employment relationship is not
voluntarily left by the employee. However, it is noted that the Full Court
described it as an important feature. It plainly cannot be the only feature. An
example will serve to illustrate this point. Suppose an employee wants a pay rise
and makes such a request of his or her employer. If the employer declines and
the employee, feeling dissatisfied resigns, can the resignation be said to be a
termination at the initiative of the employer? We do not think it can and yet it
can be said that the act of the employer i.e. refusing the pay rise, has at least
consequentially resulted in the termination of the employment. This situation
[2024] FWC 1160
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may be contrasted with the position where an employee is told to resign or he or
she will be terminated. We think that all of the circumstances and not only the
act of the employer must be examined. These in our view, will include the
circumstances giving rise to the termination, the seriousness of the issues
involved and the respective conduct of the employer and the employee.’21
[20] There is also a decision of the Commission which presents some similar issues to this
matter before me. In Nohra v Target Australia Pty Ltd (Target),22 Commissioner Roberts said:
‘[10] ….In brief, Ms Nohra’s letter of resignation shows on its face that she did
not intend the employment relationship to end almost immediately but rather,
for it to end prospectively on 3 December 2010. Target’s action in purporting to
accept the resignation but making it immediate was indisputably a termination
at the initiative of the employer. Ms Nohra’s resignation letter was highly
conditional and may, or may not, have constituted a constructive dismissal. That
issue does not matter at this time as Target intervened to actively terminate the
employment relationship immediately. Even if Ms Nohra was voluntarily
standing on a metaphorical high ledge announcing that she would jump from
employment in about seven months’ time, it was Target that then pushed her.”23
[21] I am, of course, bound by the authority of the Full Court of the Federal Court of Australia
and the Full Bench of this Commission and its predecessor. Although I am not strictly bound
by the decision of Commissioner Roberts in Target, the decision is logical and pertinent.
Consideration
[22] The relevant consideration in this jurisdictional objection can be boiled down to this:
was the Applicant dismissed pursuant to section 386(1)(a) or (b) of the Act? This is to say, was
the Applicant terminated at the employer’s initiative or did they resign as a result of conduct,
or the course of conduct engaged by the Respondent?
[23] Considering all the evidence and relevant case law objectively, I accept that the
Applicant was dismissed within the meaning of section 386(1)(a) of the Act, insofar as the
ultimate termination of the employment was at the employer’s initiative. I state why below.
[24] It is uncontroversial, and in fact accepted by both parties that the Applicant verbally
resigned on 26 October 2023. It is also uncontroversial that there was an agreement for the
Applicant to stay on as an employee until a new employee had been found and trained.
[25] Although in dispute, I accept that it was agreed that the Applicant would be able to take
his accrued Annual Leave, as opposed to having it paid out in a lump sum by the Respondent.
[26] The conduct of the Respondent in paying the Applicant Annual Leave whilst he
remained employed from 18 November 2023 until the week ending 22 December 2023 is
indicative that there was a pre-existing arrangement between the parties for the Applicant to
use up his leave rather than have it paid out in a lump sum. Otherwise, why would the
Respondent not just pay out the leave closer to the supposed 2 week notice period.
[2024] FWC 1160
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[27] What I believe to have happened next based on the evidence is that the Respondent, at
some point during late November and early December 2023, realised that he would no longer
need the Applicant in his employ and decided it would be pragmatic to pay out his leave. As is
clearly evidenced by the SMS correspondence, the Applicant did not consent to this.
[28] As discussed in the Target decision, in a situation where there is a consented resignation,
but the employer then turns around and terminates the employment relationship on their
initiative, the employee was dismissed within the meaning of 386(1)(a) of the Act. Logically,
this makes sense, since the Applicant did not consent to how exactly the employment
relationship ended and it was entirely of the Respondents volition to do so.
[29] I do not accept that it was agreed between the parties that 2 weeks’ notice was the
relevant notice period, for the reasons at paragraph 26 of this decision. The Applicant’s
subsequent conduct in making a written and formal resignation to take effect on 9 February
2024 also indicates that no such agreement was met.
[30] In summary, in answering the question of whether termination is at the initiative of the
employer, the Applicant did not voluntarily leave the employment relationship. Although he
did as of 26 October 2023 when he handed in his resignation, his ultimate departure from the
Respondents employ was not on the terms he believed to be agreed upon.
Conclusion
[31] Given my findings, the Applicant has been dismissed within the meaning of section
386(1) of the Act, meaning the Respondents jurisdictional objection is dismissed.
[32] The Applicant is therefore entitled to have the Commission deal with the dispute
according to sections 365 and 368 of the Act.
[33] As a result, the dispute will now proceed to a conciliation conference with the parties to
explore the resolution of the matter. A Notice of Listing will follow forthwith.
COMMISSIONER
Appearances:
S. Modra for himself.
D. Norris for the Respondent.
Hearing details:
E FAIR W K CO AUSTRALIA ISSION THE SEAL OF
[2024] FWC 1160
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2024
Brisbane
25 March
Printed by authority of the Commonwealth Government Printer
PR774505
1 [2020] FCAFC 152 at [67].
2 Ibid at [65].
3 Court Book, page 56.
4 Ibid, pages 57-59.
5 Ibid.
6 Ibid, pages 62-66.
7 Ibid pages 36-39.
8 Ibid, page 19.
9 Ibid, page 44.
10 Ibid, pages 15-18.
11 Ibid, page 41.
12 Ibid, page 56.
13 Ibid, page 14.
14 Ibid, page 15.
15 Ibid pages 15-17.
16 Ibid.
17 Ibid page 44.
18 (2006) 58 AILR 100.
19 Print S5904, 12 May 2000 per Polites SDP, Watson SDP and Gay C.
20 Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200.
21 See above n 19, at [13].
22 [2010] FWA 6857.
23 Ibid, at [10].
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa6857.htm
