1
Fair Work Act 2009
s.365—General protections
Joshua Lourensz
v
The Trustee for Lifestyle Industries Trust
(C2024/5695)
DEPUTY PRESIDENT MASSON MELBOURNE, 6 NOVEMBER 2024
Application to deal with contraventions involving dismissal - jurisdictional objection - whether
Applicant dismissed - jurisdictional objection dismissed - found that Applicant was dismissed
within the meaning of s 386(1) of the Fair Work Act.
[1] On the 14 August 2024, Mr Joshua Lourensz (the Applicant) lodged an application
pursuant to s 365 of the Fair Work Act 2009 (the Act) in which he asserts that the termination
of his employment on 14 August 2024 by The Trustee for Lifestyle Industries Trust (the
Respondent) contravened his 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 application.1
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 Act.2 Consequently, the
issue for determination is whether the Applicant was dismissed from his employment within
the meaning of s 386 of the Act.
[3] Following allocation of the matter to my Chambers, Directions were issued on 13
September 2024 for the filing of material in relation to the jurisdictional objection. Both parties
filed material in accordance with the Directions. At the hearing, the Applicant appeared and
gave evidence. The Respondent was represented by Mr Troy Plummer of Irwell Law who was
granted permission to appear pursuant to s 596(2)(a) of the Act. Mr Plummer called the
following witnesses to give evidence for the Respondent:
• Damian Clemens – Director of Respondent
• Katherine Clemens – Business Manager for Respondent
Background and evidence
[4] The Respondent is engaged in the provision of a children’s acrobatic and parkour
coaching service that operates in Melbourne. It employs on average 14-16 staff, two of whom
[2024] FWC 3065
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3065
2
are permanent employees with the balance employed on a casual basis. According to Mr
Clemens, the majority of staff are young adults who attend school or university, although there
are three employees who are over the age of 40.3 The Applicant commenced casual employment
as an ‘Acro Coach’ with the Respondent on 19 February 20244 and was covered by the Fitness
Industry Award 20205 and was on a base hourly rate of pay of $28.26.
[5] Mr Clemens states that on commencement, the Applicant informed he and Ms Clemens
that the Applicant was only available to work on Tuesdays and Wednesdays because of his
work commitments with two other jobs he held. Mr Clemens further states that while he had
never promised the Applicant shifts every week, the Respondent tries to roster its coaches on
for 1-2 shifts per week where possible. Depending on availability and how things are going
operationally, there may be more work. After completing his initial training, Mr Clemens states
the Applicant started on one shift per week but was able to be offered two shifts per week after
approximately six weeks.6
[6] The Applicant states that on commencement of employment he advised Mr Clemens
that he was only available to work Tuesdays and Wednesdays but after the first week he says
he advised Mr Clemens that he was available to work additional shifts. The Applicant agrees
that he worked one shift per week for the first six weeks and after that period he started working
two shifts per week on Tuesday and Wednesday which he says remained unchanged from week
to week except for March when he was ill and unable to attend work. The Applicant further
states that he spoke with Mr Clemens in April 2024 about his keenness to work more shifts
including working a holiday program. This subsequently occurred and he was given a school
holiday program at the end of Term 2 in place of his normal shifts. He states he also completed
two training sessions on a Friday and Saturday and that Mr Clemens was aware of his
willingness to work shifts on days other than Tuesday and Wednesday.7
[7] Mr and Mrs Clemens, when questioned on the Applicant’s availability, could not recall
the Applicant advising that he was available on days other than Tuesday and Wednesday. Both
could however recall the Applicant advising that he was able to work at any time on Tuesday
and Wednesday and not just in the evening. The Applicant agreed that he had never put anything
in writing regarding his increased availability and that his advice to Mr Clemens on his
increased availability only occurred through conversations in the wake of his losing one of his
other casual jobs at JB Hi-Fi.
[8] Mr Clemens explained that as the Respondent has many casual employees, the roster
can be quite fluid, that as Director he has to continually ensure there is the right balance of
coaches on every shift and that he prefers to have a senior coach overseeing junior coaches.
This is to ensure that as far as possible staff feel supported and that clients are receiving the best
possible service and experience.8 He further states that the Applicant, who is less experienced,
had not yet been promoted to a senior coach and had been working on a Wednesday night with
‘Tahlia’ who is a senior coach. As Tahlia is no longer available to work Wednesday evenings,
Mr Clemens says he then stepped in to fill the senior coach role on Tuesday and Wednesday
evenings. He says that in doing so he took the opportunity of using those evenings as an
opportunity to train and develop more junior coaches.9 The Applicant confirmed that Mr
Clemens started training a younger coach and at times this took place on the Applicant’s shifts.10
[2024] FWC 1965
3
[9] The Applicant states that he called Mr Clemens on 26 July 202411 requesting leave to
attend his sister’s World Championship competition participation later in 2024. He says that at
or about the same time he also went in to the ‘Deputy’ app, which is used by the Respondent
for rostering, to update his required leave. In doing so he says he noted that he was rostered to
work for the next two weeks but on checking the roster again on 29 July 2024 he saw that his
shifts had been removed.12
[10] Having stepped in to fill the senior coach role on Tuesday and Wednesday evenings and
using that as an opportunity to develop junior coaches, Mr Clemens says it was not possible for
reasons of reduced student numbers to continue rostering the Applicant on Tuesday and
Wednesday evening shifts. Mr Clemens agreed that the Applicant had notified him on or about
26 July 2024 that he would be travelling overseas for a couple of months towards the end of the
year which Mr Clemens says necessitated the training up of other coaches to provide coverage.
In these circumstances, Mr Clemens states that it was not possible to provide the Applicant with
shifts on the Tuesday and Wednesday evening, at least for an interim period while he (Mr
Clemens) finished training up junior and intermediate staff or that the Applicant’s availability
to work on different days opened up.13
[11] Mr Clemens clarified during cross-examination that there had been typically three
coaches on Tuesday and Wednesday evenings including himself as the senior coach after Tahlia
was no longer available those nights. With the drop in student numbers, he says he could simply
not justify retaining three coaches on those evenings and given he was training up more junior
coaches on those evenings he made the decision to cut the Applicant’s shifts in late July 2024.
He further stated that the drop in student numbers had affected all casual employees in terms of
hours of work although no documentary evidence was advanced in support of this claim.
[12] Flowing from the above, Mr Clemens states that the Applicant was not offered shifts on
Tuesday and Wednesday evenings after 24 July 2024. This prompted the Applicant to contact
Mr Clemens by text message on 29 & 30 July 2024 to query why he had not been rostered to
work on 30 July 2024. Mr Clemens responded on the morning of 30 July 2024 that the Applicant
was not needed because class numbers were down, that he (Mr Clemens) needed to put a
training module through with a new junior coach and that the Applicant should have checked
the roster earlier as it had been like that for a few weeks.14 The Applicant then replied by text
message on 30 July 2024 expressing confusion at Mr Clemens’ explanation given that class
numbers had been down for a few weeks when the Applicant had been working. The Applicant
also expressed the opinion to Mr Clemens that he did not think it was fair for him to lose a shift
because someone else was getting trained up. Mr Clemens responded shortly after by explaining
that the Respondent was trialling different combinations to find out who the best leaders were
for Monday, Tuesday, Wednesday and Thursday evenings.15
[13] Mr Clemens agreed during cross-examination that the Applicant had been rostered to
work in the two-week period after 26 July 2024 and that he had cut those rostered shifts on or
about 29 July 2024. He rejected that the shifts were removed for any reason other than his need
to train up junior coaches combined with the reduced student numbers which he reviewed two
weeks into Term 3 (late July 2024). In light of both these factors Mr Clemens stated that he
could not justify maintaining the Applicant on Tuesday and Wednesday nights at that time. He
conceded however that his initial response to the Applicant that the roster had been like that for
[2024] FWC 3065
4
a few weeks was incorrect and accepted that the roster had in fact been changed on or about 29
July 2024.
[14] During cross-examination, the Applicant agreed that he was not at the level of a senior
coach, agreed that the Respondent needs to develop its staff and that he had routinely witnessed
changes in rosters within his mother’s gymnastic coaching business in which he had previously
worked. Despite his experience working in his mother’s business, the Applicant confirmed that
it had not occurred to him that the decline in the Respondent’s student numbers would
potentially impact on shifts offered to him. Further, he did not accept that his notified absence
for a two-month period towards the end of 2024 would have created a gap in the roster that
required additional staffing. That was he says because of the contradiction between Mr
Clemens’ stated rationale for cutting his shifts, that of reduced student numbers, and then
arguing he needed to train up a replacement to cover the Applicant’s absence.
[15] On 5 August 2024, the Applicant sent a further text message to Mr Clemens querying
when he would be rostered on again. Mr Clemens responded that there were no shifts available
at that time. This prompted the Applicant to send a follow up message to Mr Clemens at 9.55pm
on 6 August 2024 in the following terms;
“Look Damion I don’t mean to possibly sound rude or pushy here but the fact that I have
gone from two set shifts a week where we were considering upping the hours as well to
nothing all of a sudden is concerning. So have I basically lost my job or will I be getting
shifts in the coming weeks? Because it still doesn’t make sense after what you have
said.”16
[16] Having not received a reply to his 6 August 2024 message, the Applicant sent a follow
up text message to Mr Clemens on 12 August 2024 querying whether Mr Clemens had seen his
earlier message. Mr Clemens then responded on 13 August 2024 in the following terms;
“Josh, yes, I got your prior message
As with anything to do with our formula of which coaches we have on to run our business,
it’s all fluid and based on best fit at any one time
If work is available casuals get work if required to have more hours they get more hours
At this stage, I don’t have any work for you on a Tuesday and a Wednesday
That may not always be the case
I understand that you have small availability based on all the other work that you do
Damian”17
[17] Mr Clemens was questioned about the delay in his response and his failure to
specifically answer the Applicant’s question raised in the 6 August 2024 text message on
whether he (the Applicant) still had a job. Mr Clemens explained his delayed responses as being
due to his visual impairment and that he had previously informed staff that the best way for
them to contact him is by email where his wife can respond to enquiries or by phone.18 He
accepted during cross-examination that in responding to the Applicant on 13 August 2024, he
failed to allay the Applicant’s concerns over his employment when he responded that there were
no shifts available at that time but that may change. He rejected that his response was intended
to terminate the Applicant’s employment.
[2024] FWC 1965
5
[18] The Applicant was also cross-examined in relation to the 6 & 13 August 2024 text
message exchange. He was questioned why he did not seek to clarify Mr Clemen’s apparent
belief expressed in his 13 August 2024 message that the Applicant had limited shift availability.
The failure on the part of the Applicant to clarify his availability was in circumstances where
the Applicant had given evidence that he had previously advised Mr Clemens that he was
available on other days. The Applicant explained his failure to correct or challenge Mr Clemens
understanding of the Applicant’s limited availability as being due to the emotions he was
suffering, which arose from his belief that he had been dismissed.
[19] Following receipt of Mr Clemens’ 13 August 2024 text message, the Applicant
immediately queried in reply on 13 August 2024 why he had been ‘kicked out of Deputy’ which
is the app used by the Respondent for the purpose of rostering staff. Mr Clemens then provided
a further delayed response on 26 August 2024. It was put to Mr Clemens during cross-
examination that while claiming in his response on 26 August 2024 that he had only just got
the message, he had in fact read the 13 August 2024 text message from the Applicant on the
day it was sent by the Applicant. Mr Clemens accepted he may have opened the message when
the message was first received but went on to explain that because he uses a ‘voice over app’
to convert text messages to audible messages because of his vision impairment, he may not
have listened to the message on the 13 August 2024. He maintained that he did not listen to the
earlier messages from the Applicant until immediately before responding to him on 26 August
2024. His 26 August 2024 response to the Applicant was in the following terms;
“Sorry just saw this message. Deputy charges us for the number of users we have active
at any given time so when people are away for periods or not rostered we make them
inactive so we’re not charged”19
[20] Ms Clemens who is the Business Manager for the Respondent and is responsible for
managing employee contracts and rostering of staff says that on commencement of
employment, the Applicant was told that any matters relating to his contract, wages or rostering
were to be raised directly with her. She explained that because of Mr Clemens’ visual
impairment, she had complete control over the Deputy rostering app.20 She says that she noticed
in August 2024 that the Respondent’s monthly Deputy invoice21 (for July 2024) of $299.20 was
high compared to previous periods. In response to this and in order to save money, she decided
to reduce the Respondent’s plan and to also ‘archive’ employees who were not going to be
rostered for shifts in the coming weeks.
[21] According to Ms Clemens, she ‘archived’ the Applicant around 10 August 2024 as there
were no shifts for the Applicant at that time and his last shift had been on 24 July 2024.22 As a
result of changes to the Respondent’s Deputy plan and ‘archiving’ of staff, the invoice23 for
August 2024 reduced to $181.50. A comparison of the July and August Deputy Invoices reveals
that there were 34 employees registered by the Respondent on Deputy in July at a monthly cost
of $8 per employee while the August Deputy invoice was for 30 employees at $5.50 per
employee. The difference between July and August 2024 in terms of the number of ‘active’
employees in Deputy is explained by the ‘archiving’ of employees including the Applicant and
Ms Clemens in August 2024.
[2024] FWC 3065
6
[22] Ms Clemens was cross-examined on the ‘archiving’ in Deputy of two particular
employees in August 2024. She explained that one employee was archived while on maternity
leave while the Applicant was ‘archived’ because he had not been rostered for two weeks and
was unlikely to be rostered for shifts during August based on advice from Mr Clemens. She
could not however identify any other employee who was ‘available’ for shifts during August
who had been ‘archived’ in that period. This was despite Mr Clemens’ earlier evidence during
cross-examination that all casual employees had been affected in terms of available shifts by
the downturn in student numbers. Nor could she explain why another particular employee had
not been ‘archived’ in either July or August despite that employee being on leave and
unavailable for any shifts for three months between mid-June and mid-September 2024.
[23] When pressed, Ms Clemens confirmed that she ‘archived’ the Applicant on her own
initiative in response to advice from Mr Clemens that he did not have any shifts for the
Applicant at that time. Ms Clemens was also asked about the Applicant’s roster availability and
confirmed that she was of the understanding that he was only available for shifts on Tuesdays
and Wednesdays although she recalled the Applicant had advised Mr Clemens at an earlier
point that he could work during the day as well as the evening on those day. She further states
that she was unaware of the text message from the Applicant to Mr Clemens about his Deputy
access having been removed and that she had not received any email or phone contact from the
Applicant. She maintained that the Applicant’s ‘archiving’ in Deputy was done solely for the
purpose of reducing costs and expressed shock that such action had caused the Applicant to
believe he had been dismissed.24 She agreed however, during cross-examination, that archiving
the Applicant without any communication with him was a mistake and apt to create an
impression in the Applicant’s mind that his employment was at risk.
[24] The Applicant explained that his removal from Deputy along with Mr Clemens
responses to his messages, both in terms of the substance of the responses and the at times
delayed responses, confirmed in his mind that that he had been dismissed. He also says he is
now aware that one of the more junior coaches has been rostered to work the Tuesday and
Wednesday shifts he had previously been rostered to work. As to the timing of his general
protections application, the Applicant states he thought he had to file his application within two
weeks of his last shift.25 The Applicant agreed however during cross-examination that he had
not been explicitly told by the Respondent at any time that he would not be offered any more
shifts.
Has the Applicant been dismissed?
[25] The issue to be determined in this matter is whether the Applicant has been dismissed
from his 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.
[2024] FWC 1965
7
[26] 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 he claims to have been dismissed within the meaning of the
first limb of s. 386(1), that being he was dismissed at the Respondent’s initiative.
[27] 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 the Applicant contends
that he was dismissed by the Respondent, evidence of which he says can be seen in various
actions of the employer. This includes the removal of rostered shifts from the Applicant after
26 July 2024 without prior explanation, his loss of access to the Deputy rostering app from 10
August 2024 without any notice or discussion, the failure of the Respondent to respond in a
timely manner or clarify his employment status despite requests by the Applicant for such
clarity on 6 August 2024 and the failure of the Respondent to provide any indication to the
Applicant of when further shifts might be available. These actions occurred against a
background of the Applicant claiming to have advised the Respondent of his increased shift
availability shortly after commencing employment and having been consistently rostered to
work two shifts per week (on Tuesdays and Wednesdays) between March – July 2024, aside
from school holiday periods and when unavailable for shifts due to illness.
[28] The Respondent contends in reply that it has not taken action that made clear that no
further shifts would be offered to the Applicant and importantly, the Applicant was not notified
orally or in writing that he has been dismissed. The Respondent also submits that the Applicant
was a causal employee with limited work availability, should have had no expectation of
guaranteed shifts and that operational circumstances including reduced student numbers and a
need for Mr Clemens to train up junior coaches on a Tuesday and Wednesday evening dictated
a need to cut the Applicant’s evening shifts on those days. Further, any deficiencies in the timing
of Mr Clemens’ responses to the Applicant’s text messages may be put down to Mr Clemens’
visual impairment and not a decision on his part to terminate the Applicant’s employment. As
to the Applicant’s removal from the Deputy app, the Respondent accepts that its communication
was poor but maintains that it ‘archived’ the Applicant for operational reasons as it says it
regularly does with other employees that are unavailable for work or unable to be rostered. The
Applicant fell in the latter category because of his limited availability according to the
Respondent.
[29] I accept that the Applicant was regularly rostered to work on Tuesday and Wednesday
evenings in the period between March and late July 2024 save for a period of illness and when
he was rostered on a school holiday program at the end of Term 2. The Respondent did not
dispute the consistency of those shifts despite arguing the Applicant should not, as a casual
employee, have had an expectation of regular and systematic shifts. While it is true as the
Respondent contends, that the Applicant had no guarantee of regular shifts as a casual employee
given fluctuating operational circumstances, there was nothing that occurred prior to 26 July
2024 that would have dispelled a reasonable expectation on the Applicant’s part of ongoing
shifts. Certainly, there was no discussion with him prior to the removal of his shifts on or about
29 July 2024 that those rostered shifts could not be sustained operationally. This was a
communication failure at the very least that reflects poorly on the Respondent.
[2024] FWC 3065
8
[30] As to the Applicant’s contention that he advised the Respondent shortly after he started
and then again in April 2024 that he had broader shift availability than just Tuesday and
Wednesday, there was nothing in writing to confirm this claim. Both Mr and Ms Clemens had
no recollection of such advice being given beyond each recalling that the Applicant had advised
he was available to work at any time on Tuesday and Wednesday and not just in the evening.
Beyond the Applicant undertaking training on a Friday and Saturday at one point and working
during the school holiday program at the end of Term 2, there is no evidence that the issue of
his broader availability was pursued by the Applicant. Furthermore, his claim to have provided
advice of broader availability was undermined by him not correcting Mr Clemens’ statement in
the 13 August 2024 text message exchange that the Applicant had limited availability. The
Applicant’s explanation of his high emotions as the reason for not correcting Mr Clemens’
statement was unconvincing. I am consequently not persuaded that the Applicant had made it
clear to the Respondent that he was available to work shifts other than on Tuesday and
Wednesday. In these circumstances the Respondent proceeded on the basis that the Applicant
had limited availability, an assumption not corrected by the Applicant when he had the
opportunity to do so.
[31] It follows from the above that that the Respondent proceeded in its rostering of the
Applicant based on his initial advice that he was only available for shifts on Tuesday and
Wednesday. This supports the Respondent’s submission that, based on the Applicant’s stated
availability, there were no shifts available for the Applicant from the end of July 2024 following
a downturn in student numbers and a decision made by Mr Clemens to use Tuesday and
Wednesday evening shifts for the purpose of training up more junior staff.
[32] While no documentary evidence was provided, I accept that student numbers were down
as the Applicant also confirmed that had been the case in the weeks prior to his loss of shifts.
That said, there was no evidence of the actual reduction in student numbers and how that had
more broadly impacted on the availability of shifts for the Respondent’s casual employees who
Mr Clemens claimed were also affected by the student numbers downturn. While the Applicant
did not cavil with the need for Mr Clemens to train and develop more junior staff he took issue
with being a ‘casualty’ of that decision. I found credible the explanation offered by Mr Clemens
that he took over the senior coach role on Tuesday and Wednesday evenings when ‘Tahlia’
moved to a Monday shift and used that as an opportunity to train and supervise junior coaches.
That reasoning should have been clearly explained to the Applicant as well as the expected
timeframe of Mr Clemens’ training and development program prior to the roster changes being
made. Mr Clemens’ failure to explain this to the Applicant prior to the removal of the
Applicant’s rostered shifts lends weight to the Applicant’s belief that he had been dismissed,
particularly in circumstances where he had been consistently working Tuesday and Wednesday
evenings for several months.
[33] As to the text message exchanges between the Applicant and Respondent, I accept that
Mr Clemens responses were at times factually incorrect and also tardy with several days
elapsing at times between messages sent by the Applicant and Mr Clemens’ responses. The
delayed responses may be partly explained by Mr Clemens’ visual impairment, his preference
for communication being done over the phone or by email, and his need to use the ‘voice over
app’ to convert text messages to an audible recording. His visual impairment is not a satisfactory
explanation given his responses to the Applicant were at times more immediate. I also take
account of the patently inaccurate statement made by Mr Clemens to the Applicant in the text
[2024] FWC 1965
9
message exchange on 30 July 2024 to the effect that the roster change resulting in the removal
of the the Applicant’s rostered shifts had been in the system for two weeks. That was not correct
as Mr Clemens conceded that the Applicant’s shifts for the two-week period from 30 July 2024
were removed from the roster on or about 29 July 2024.
[34] I am inclined to accept in the above circumstances that a contributing factor to Mr
Clemens’ slow and inaccurate responses to the Applicant was that of ‘avoidance’ of difficult
communication with an unhappy employee. As to the substance of Mr Clemens’ responses,
they were not particularly responsive to the Applicant’s concerns although largely consistent
with the explanations now offered for the Applicant’s loss of shifts. The responses offered by
Mr Clemens in the text messages fell short of assuaging the Applicant’s concerns over his job
security and at no stage did Mr Clemens effectively disabuse the Applicant of his suspicion that
he had been dismissed. The high-water mark of Mr Clemens’ assurances to the Applicant were
in his 13 August 2024 text message when he advised the Applicant that while there were
currently no Tuesday and Wednesday shifts that “may not always be the case”. Such a response
was hardly likely to inspire confidence in the Applicant that further shifts would be offered to
him.
[35] Turning to the Applicant’s access to Deputy being removed on or about 10 August 2024,
Ms Clemens confirmed that ‘archiving’ of the Applicant was a decision she took based on her
attempt to reduce Deputy costs and on advice from Mr Clemens that there were no shifts
available for the Applicant at that point. Ms Clemens’ explanation of her motive to reduce
Deputy costs is supported by her actions and the actual reduction in the Deputy invoice for
August 2024, achieved through both a reduction in the plan cost per ‘active’ employee and a
reduction in the number of ‘active’ employees. What was less convincing was Ms Clemens’
claim that she generally removed employees who were on extended leave or where there were
no shifts rostered. While one employee on maternity leave was ‘archived’ in August, the claim
that she generally ‘archived’ employees who were on extended leave was undermined by the
maintenance of another employee as ‘active’ in Deputy despite her being absent on leave
between June-September 2024. Ms Clemens explained this apparent contradiction as an
oversight. More tellingly in my view, she could not identify any other employee beside the
Applicant that had been ‘archived’ in Deputy despite being available for shifts during August
2024. Ms Clemens attributed this to the Applicant’s limited availability.
[36] The evidence indicates that Mr Clemens has no role in the maintenance of Deputy,
leaving that to Ms Clemens who took steps in August 2024 to reduce the cost of Deputy both
in terms of the plan cost per employee and the number of ‘active’ employees, those actions
taken independently of Mr Clemens. Ms Clemens stated that she made the decision to ‘archive’
the Applicant based on Mr Clemens’ advice that there were currently no shifts available for him
on Tuesday and Wednesday. That action by Ms Clemens was taken without communication
with the Applicant and only became know to the Applicant when he attempted to log in to
Deputy on 13 August 2024. Ms Clemens properly conceded the impact on the Applicant of that
communication failure on her part. Either Ms Clemens or Mr Clemens should have notified the
Applicant in advance of that action, the implications of his access removal and the process of
restoring him as ‘active’ if and when shifts were again available. The fact that such
communication did not occur, along with a loss of shifts and the above-described poor
communication from Mr Clemens, conveyed the impression to the Applicant that he was no
longer employed by the Respondent.
[2024] FWC 3065
10
[37] I accept there was an operational rationale for the removal of the Applicant’s shifts and
that there was also no definitive advice to the Applicant that no further casual shifts would be
offered to him. However, there were a range of matters that when taken together lead me to
conclude that objectively considered, the Respondent made clear to the Applicant that no further
shifts would be offered to him. The Respondent did so by removing the Applicant’s rostered
shifts without prior notice or explanation after he had consistently worked those shifts for
several months, by removing his access to the Deputy rostering app without prior notice or
explanation, and through the inaccurate and delayed responses by Mr Clemens to the
Applicant’s employment status concerns. Also important to my conclusion is that the
Respondent gave scant information or assurance to the Applicant about the prospects of further
shifts, could not identify any other employee that had been similarly affected in terms of loss
of shifts despite claiming all casuals were affected. Nor could the Respondent identify any other
employees in similar circumstances to the Applicant, that of being available for shifts yet
‘archived’ in Deputy.
[38] One last point to be made is that despite maintaining that the Applicant has not been
dismissed, there is no evidence that the Respondent has offered any further shifts to the
Applicant since late July 2024. That is partially explained by the Applicant having been
overseas since early October 2024 but in the period between 24 July and the end of September
2024, there is no evidence that the Respondent contacted the Applicant to advise him of
available shifts. It follows from the foregoing that the employment of the Applicant ended at
the initiative of the Respondent within the meaning of s 386(1)(a) of the Act.
Conclusion
[39] I find that the Applicant was dismissed within the meaning of s. 386(1)(a) of the Act. It
is also clear that the Applicant alleges the dismissal contravened Part 3-1 of the Act. The
requirements of s 365 have been met. The respondent’s jurisdictional objection is dismissed.
The application will shortly be listed for a conciliation conference.
DEPUTY PRESIDENT
Appearances:
J Lourensz, Applicant.
T Plummer for the Respondent.
Hearing details:
2024.
Melbourne:
OF THE FAIR WORK AUSTRALIA ISSION THE SE
[2024] FWC 1965
11
31 October.
Printed by authority of the Commonwealth Government Printer
P780979
1 Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.
2 Ibid at [51].
3 Exhibit R1, Witness Statement of Damian Clemens, dated 1 October 2024, at [1]-[2]
4 Exhibit R2, Casual Employment Contract of Joshua Lourensz, dated 19 February 2024, Court Book p.28
5 MA000094
6 Exhibit R1, at [4]
7 Exhibit A1, Witness Statement of Joshua Lourensz, dated 10 October 2024, at [2]-[7]
8 Exhibit R1, at [[6]-[7]
9 Exhibit R1, at [8]-[9]
10 Exhibit A1, at [9]
11 Exhibit A2, Call log of phone call from Applicant to Damian Clemens on 26 July 2024, at Court Book p.10
12 Exhibit A1, at [9]-[12]
13 Exhibit R1, at [10]-[15]
14 Exhibit R4, Text message exchange between Applicant and Damian Clemens, dated 29 & 30 July 2024, Court Book p.45
15 Exhibit R5, Text message exchange between Applicant and Damian Clemens, dated 30 July 2024, Court Book p.46
16 Exhibit R6, Text message exchange between Applicant and Damian Clemens, dated 5 & 6 August 2024, Court Book p.47
17 Exhibit R7, Text message exchange between Applicant and Damian Clemens, dated 13 August 2024, Court Book p.48
18 Exhibit R1, at [5]
19 Text message exchange between Applicant and Damian Clemens, dated 26 August 2024, Court Book p.49
20 Exhibit R10, Witness Statement of Katherine Clemens, at [1] & [5]
21 Exhibit R3, Deputy Invoice dated 31 July 2024, Court Book p.37
22 Exhibit R10, at [8]-[9]
23 Exhibit R3, Deputy Invoice dated 31 August 2024, Court Book p.41
24 Exhibit R10, at [12]-[13]
25 Exhibit A1, at [27]-[30]
