1
Fair Work Act 2009
s.365—General protections
Jessica Luna Quinones
v
Innovative Business Group Pty Ltd and Vella Transport Administration
Pty Ltd
(C2024/3734)
COMMISSIONER MCKINNON SYDNEY, 27 SEPTEMBER 2024
Application to deal with contraventions involving dismissal – whether dismissed
[1] Mrs Jessica Luna Quinones was employed under a casual labour hire arrangement by
Innovative Business Group Pty Ltd (IBG) to work as a Forklift Driver for Vella Transport
Administration Pty Ltd (Vellex) from 17 November 2023 until 31 May 2024. She was not
employed directly by Vellex.
[2] On 5 June 2024, Mrs Quinones applied in time for the Commission to deal with a general
protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act).
Mrs Quinones alleges that she was dismissed by IBG in contravention of the general protections
because 10 days after Vellex were advised by IBG that Mrs Quinones was pregnant, she was
told there was “no more work”.
[3] An application under section 365 of the Act can only be made by, or on behalf of, a
person who has been “dismissed”. A person has been dismissed if their employment has been
terminated on the initiative of the employer or they resigned but were forced to do so because
of conduct by the employer.1
[4] Mrs Quinones did not resign from her employment. The question is whether, as a casual
employee of a labour hire business, Mrs Quinones has been terminated at the initiative of IBG
such that she has been “dismissed” in the sense contemplated by s.386(1)(a) of the Act.
[5] I find that Mrs Quinones was dismissed by IBG on 31 May 2024. These are my reasons
for decision.
Was Mrs Quinones dismissed?
[6] On 21 May 2024, IBG advised Vellex that Mrs Quinones was pregnant.
[7] On Thursday 30 May 2024, Mr Robert Wong of Vellex sent an email to Ms Simone
Hage and Mr Matthew Fernandez of IBG. The email stated:
[2024] FWC 2702
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 2702
2
“Hi Simone and Matt,
Unfortunately freight volumes have dropped to a level necessitating Vellex to
restructure our current levels of agency staff in the mornings. Please see below for our
restructure.
We no longer require the following staff after Friday afternoon meaning Friday is their
last workday at Vellex until volumes increase again. Please advise them after their shift
and not before.
Jessica Luna
[another employee - name redacted]
[another employee - name redacted]
Regards,
Robert Wong.”
[8] On Friday 31 May 2024, Mrs Quinones received a text message from Ms Hage at IBG.
The message stated:
“Hi Jessica
Rob has just called me to advise that Vellex are very quiet and due to this he needs to
put some people off until they pick up again.
So unfortunately there is no work at Vellex until they pick up. It usually picks up again
in July / August. I will let you know when they need you again.
Simone”.
[9] The following text message exchange with Mrs Quinones then took place:
Mrs Quinones: “Hi Simon [sic], are you trying to tell me that I won’t be back
next week?
Ms Hage: “Yes, maybe for 4 weeks. There are a few of you. He said it is
too quiet.”
“And senior management have told him he needs to cut staff.”
“This happens every year around EOFY so hopefully we can get
you back in July. It is very quiet everywhere atm.”
Mrs Quinones: “Is this because of that or because of my pregnancy?”
“Because it has been quiet before and they had kept me here even
if it was less hours.”
Ms Hage: “No it is quiet and you know that. [Name redacted] and [Name
redacted] aren’t pregnant and they have been put on standby as
well.”
Mrs Quinones: “Who is [Name redacted]?”
Ms Hage: “He is one of our casuals.”
“I will let you know when they pick up again.”
[2024] FWC 2702
3
Mrs Quinones: “I am one of the casuals who has been there the longest, it doesn’t
seem fair to me, they should remove the newest ones.”
Ms Hage: “You can’t work 5am or 6am. He is making this decision based
on the needs of the business.”
“He has done his best to keep everyone happy and he has been
very accommodating with your change of hours to suit your
family. He said he will have you back when it picks up.”
“This is normal with Vellex every year. It is very quiet in June.”
“I will let you know as soon as they pick up again.”
Mrs Quinones: “Can you relocate me somewhere else?”
Ms Hage: “I will do my best but it’s very very quiet everywhere. Vellex are
not the only company who are putting people off.”
[10] On 26 June 2024, there was a further text message exchange between Ms Hage and Mrs
Quinones. Ms Hage asked Mrs Quinones if she was available for a shift that afternoon at Vellex.
Mrs Quinones sought clarification of the role and advised that she would like to do it but that
she was too far away and could not make it. Ms Hage sought clarification of Mrs Quinones’s
availability for work. She then stated:
“The job I offered you earlier was at Vellex as stated above. That was the same company
you worked at before, so I assumed you would know what the role was about. I will let
you know if we have any other roles available after 3pm.”
[11] According to IBG, its contract of employment between Mrs Quinones and IBG states as
follows:
“Under this Agreement the Innovative Group is engaging you as a casual employee and
will endeavour to provide you with assignments at The Innovative Group clients. Each
assignment will be a separate and discrete period of employment with no firm advance
commitment.”
[12] The full terms of the employment contract are not in evidence. On the available
materials, the end of Mrs Quinones’s assignment with Vellex on 31 May 2024 brought her
casual employment with IBG to an end. Although Mrs Quinones remained registered on the
books of IBG as a potential candidate for future employment, she was no longer an employee
of IBG.
[13] I find that Mrs Quinones’s employment was terminated at the initiative of IBG on
31 May 2024 in response to instructions given to IBG by Vellex that it needed to cut staff,
including Mrs Quinones, on 30 May 2024.
[2024] FWC 2702
4
Disposition
[14] The jurisdictional objection is dismissed and the matter will now be listed for
conference.
COMMISSIONER
Hearing details:
Determined on the papers.
Printed by authority of the Commonwealth Government Printer
PR779732
1 Fair Work Act 2009 (Cth), ss 12 and 386.
WORK R WORK MMISSION THE F AUSTRALIA THE SEAL
