1
Fair Work Act 2009
s.365—General protections
Shana Fernando
v
Just Brewing Pty Ltd
(C2024/2977)
DEPUTY PRESIDENT MASSON MELBOURNE, 25 JULY 2024
Application to deal with contraventions involving dismissal - jurisdictional objection - whether
Applicant dismissed –jurisdictional objection upheld – found that Applicant was not dismissed
within the meaning of s 386(1) of Act – application dismissed.
[1] On the 7 May 2024, Ms Shana Fernando (the Applicant) lodged an application pursuant
to s. 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her
employment on 8 April 2024 by Just Brewing Pty Ltd (the Respondent) contravened her
workplace rights. In its Form F8A response the Respondent raised a jurisdictional objection to
the application, that being the Applicant was not dismissed within the meaning of s 386 of the
Act.
[2] The Respondent’s jurisdictional objection is significant because the Applicant must
have been dismissed in order to make a general protections dismissal dispute application1.
Where there is a dispute about whether a person was dismissed, the Commission must
determine that point before exercising its powers under s. 368 of the Act2. Consequently, the
issue for determination is whether the Applicant was dismissed from her employment within
the meaning of s. 386 of the Act.
[3] Following allocation of the matter to my Chambers, Directions were issued on 12 June
2024 for the filing of material in relation to the jurisdictional objection. The Respondent filed
its material in accordance with the Directions, but the Applicant failed to file any material in
reply. The hearing to deal with the jurisdictional objection was listed for 25 July 2024. At the
hearing, Geoff Manson (Director) appeared on behalf of and gave evidence for the Respondent.
The Applicant appeared on her own behalf.
Background and evidence
[4] The Respondent is the employing entity for employees engaged across four separate
businesses in the Latrobe Valley, Victoria including Coffee Lane Warragul, Coffee Corner
Traralgon, Good Brew Sale and Good Brew Newborough. The Respondent employs 8 full-time
employees and has a casual workforce of approximately 32 employees. The Applicant
commenced employment with the Respondent on 19 February 2024 as a casual ‘kitchen and
[2024] FWC 1965
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1965
2
coffee all-rounder’. Under her contract of employment, the Applicant was engaged to work at
the Coffee Lane Warragul outlet, was paid at the Fast Food Employee Level 1 classification
under the Fast Food Industry Award 20203 (the Award) and was paid an hourly rate (for
Monday to Friday) of $30.914. The Applicant estimated that prior to 1 April 2024 she had
regularly worked up to 20 hours per week. The Applicant was also offered shifts at the Good
Brew Newborough café on occasions according to Mr Manson, a claim the Applicant rejected.
She stated that she had not worked any shifts at the Good Brew Newborough café.
[5] Mr Manson states that on or about 1 April 2024, the Applicant changed her availability
such that she was unavailable on Tuesdays and Wednesdays, could only work 2 x 4 hour shifts
per week or 1 x 7 hour shift per week and would only be available every second week. While
agreeing that her availability was reduced, she rejected that she was only available every second
week. Mr Manson states that the Applicant’s altered availability limited the shifts that the
Respondent was able to offer her at the Coffee Lane Warragul café due to other permanent and
casual staff having been rostered to work at the outlet at the times the Applicant was available.
In any case Mr Manson further states that the Applicant had access to its ‘Deputy’ App such
that she could pick and place her name against shifts that matched her availability. Mr Manson
also explained that the Deputy app was linked to payroll and that in order for an employee to
paid correctly, their rostered/worked shifts needed to be put into Deputy.
[6] The Applicant acknowledged that the Deputy App was the means by which employees
placed their names against available shifts. She also stated that while she was aware of the
Deputy App, she did not use it. Rather, she worked shifts as instructed by her sister who was a
manager at the Coffee Lane Warragul outlet up until 5 May 2024. Neither party led evidence
as to how the Applicant’s shifts were input into the Deputy App prior to 8 April 2024 although
both parties accepted that it was possible the Applicant’s sister had input the Applicant’s shifts
into the Deputy App on the Applicant’s behalf. The Applicant stated that her sister ceased to
roster her after her availability changed in early April 2024 and that she also lost access to the
Deputy App and to the Group Messenger Chat maintained for the Coffee Lane Warragul café
employees in early April 2024, points disputed by Mr Manson. The date of the alleged loss of
access to the Deputy App was unclear. For his part, Mr Manson stated that he was unaware of
how the Applicant had input her shifts into the Deputy App and assumed she had accessed and
managed it herself.
[7] Following the Applicant filing her general protections application, telephone
discussions and text message exchanges were initiated by Mr Manson with the Applicant
between 17 & 24 June 2024 in which Mr Manson sought to understand the Applicant’s concerns
and also attempted to accommodate her limited availability. Despite requests by Mr Manson to
the Applicant for confirmation of her availability to work at the Coffee Lane Warragul café
including her availability to work on 24 June 2024, the Applicant advised via text on 24 June
2024 that she would not be returning to the Coffee Lane Warragul café and requested that she
be rostered for work at the Good Brew Newborough café. Mr Manson states that there are
currently no shifts available at the Good Brew Newborough café that suit the Applicant’s
availability. Mr Manson also states that the Respondent has at no stage dismissed the Applicant
and that she remains a casual employee of the Respondent.
[8] The Applicant agreed that Mr Manson had sought to arrange further shifts for her at the
Coffee Lane Warragul café in their communication in the period between 17-24 June 2024. She
[2024] FWC 1965
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also agreed that she had advised Mr Manson that she would no longer work at the Coffee Lane
Warragul café. She explained her reasons for this as being due to the Good Brew Newborough
café being closer to her home and that her relationship with her sister who also worked at the
Coffee Lane Warragul café was poor and she felt other staff at that café took her sister’s side.
The Applicant also claimed that despite Mr Manson’s evidence, there were available shifts at
the Good Brew Newborough café as evidenced she said by advertisements on Facebook.
[9] Mr Manson gave evidence that he was unaware of any issues or difficulties between the
Applicant and her sister until his conversation with the Applicant on 17 June 2024. Nor had the
Applicant raised any complaints or concerns prior to 17 June 2024 regarding the Coffee Lane
Warragul café working environment that she referred to. Mr Manson also explained that the
Respondent has certain processes in place dealing with termination of employment including;
resignation letters, pay out of any entitlements, termination of the employee in the payroll
software, advice to the ATO that the employee has ceased employment with the Respondent
and archiving of the employee in the Deputy App. According to Mr Manson none of these steps
had been taken in the case of the Applicant and she remains in the casual pool of employees.
Has the Applicant been dismissed?
[10] The threshold issue to be determined in this matter is whether the Applicant has been
dismissed from her employment. The circumstances in which a person is taken to be
“dismissed” are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:
(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.
[11] Section 386(2) of the Act sets out circumstances where an employee has not been
dismissed, none of which are presently relevant. I discern from the Applicant’s case as
articulated in the proceedings that she claims to have been dismissed within the meaning of the
first limb of s. 386(1), that being she was dismissed at the Respondent’s initiative. It is to that I
now turn.
[12] The Respondent used the Deputy App for the rostering and payroll purposes, which the
Applicant acknowledged she was aware of but claimed not to have used herself, a point Mr
Manson was unaware of. The Applicant claims not to have had access to the Deputy App from
early April 2024 a point disputed by Mr Manson. No relevant evidence was led from either
party that would confirm the alleged loss of access although it may be accepted that up until
early April 2024, the Applicant did not input her own shifts into the Deputy App which suggests
her sister may have done it on her behalf although a definitive conclusion on that point is not
possible.
[13] That the Applicant did not work following 8 April 2024 may be explained by the lack
of available shifts that accommodated her limited availability. It may also be explained by the
[2024] FWC 1965
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Applicant’s sister ceasing to input the Applicant’s shifts into the Deputy App. If the latter
explanation is correct, that may reflect the Applicant’s difficult relationship with her sister who
I note was not called to give evidence by either party. In any case the Applicant bore the
personal responsibility of inputting her name into the Deputy App for shifts she was available
to work. What is clear on the limited evidence before me is that the Applicant did not work any
shifts after 8 April 2024 and took no steps to either input sought shifts into the Deputy App or
seek restoration of her access to the app if she had in fact loss access. That no apparent action
was taken causes me to doubt the accuracy of the Applicant’s version of events following her
last shift on 8 April 2024. To the extent there was any doubt about the Applicant’s willingness
or availability to work shifts at the Coffee Lane Warragul café, those doubts were removed on
24 June 2024 when the Applicant confirmed to Mr Manson that she would not work any shifts
at the Coffee Lane Warragul café.
[14] Termination at the initiative of the employer means a termination brought about by an
employer and which is not agreed to by the employee. In the present case, I am not satisfied
that there was a formal notice of dismissal, or any other action taken by the Respondent that
would indicate that it had made a decision to no longer offer the Applicant casual work. Rather,
the Applicant initially altered her shift availability in April 2024 and then subsequently advised
in June 2024 that she would not work at the Coffee Lane Warragul café which she had been
engaged to undertake work at. I am not satisfied in the circumstances of this matter that there
has in fact been a dismissal. The Applicant was employed as a casual employee and there is
insufficient evidence for me to conclude that at the date of the alleged dismissal the Respondent
had made clear to the Applicant that it would no longer offer her casual engagements.
[15] If it were accepted in the alternative that the employment relationship has been
terminated, for the Applicant to succeed it would require a finding that the action of the
employer was the principal contributing factor that led to the termination of the employment
relationship. I am unable to conclude in the circumstances of this case that the principal
contributing factor to the dismissal of the Applicant was the conduct of the Respondent. Rather,
the principal contributing factor to the termination of employment, if it has occurred, was the
Applicant’s decision communicated on 24 June 2024 to not make herself available for shifts at
the Coffee Lane Warragul café which she had been employed to perform work at. I am
consequently not satisfied that the Applicant was dismissed within the meaning of s 386(1)(a)
of the Act.
[16] It was not contended by the Applicant that she was forced to resign because of conduct,
or a course of conduct engaged in by the Respondent. As such it is unnecessary for me to
consider whether the Applicant was dismissed within the meaning of s 386(1)(b) of the Act.
Conclusion
[17] I have found that the Applicant was not dismissed within the meaning of s 386(1)(a) of
the Act and s 386(1)(b) is not relevant. Accordingly, at the time the Applicant made her
application on 7 May 2024, she was not a person who had been dismissed for the purposes of s
365 of the Act. The respondent’s jurisdictional objection is therefore upheld, and the application
must be dismissed.
[2024] FWC 1965
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[18] The application is therefore dismissed. An order giving effect to this decision will be
separately issued.
DEPUTY PRESIDENT
Appearances:
S Fernando, Applicant.
G Manson for the Respondent.
Hearing details:
2024.
Melbourne:
July 25.
Printed by authority of the Commonwealth Government Printer
PR777506
1 Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.
2 Ibid at [51].
3 MA000003
4 Exhibit R1, Witness Statement of Geoff Manson, Attachment A, Contract Of Employment dated 20 February 2024
OF THE FAIR WORK AUSTRALIA ISSION THE SE
