1
Fair Work Act 2009
s.394—Unfair dismissal
Sarah Tipper
v
SBS Traffic (NSW) Pty Ltd
(U2024/9415)
COMMISSIONER CRAWFORD SYDNEY, 26 NOVEMBER 2024
Unfair dismissal application – jurisdictional objections – minimum employment period not
completed –– no dismissal – jurisdictional objections upheld – application dismissed.
BACKGROUND
[1] SBS Traffic (NSW) Pty Ltd (SBS Traffic) operates a traffic control business in Sydney.
Sarah Tipper performed work for SBS Traffic as a casual employee at various times from 2020
until August 2024. Ms Tipper filed an unfair dismissal application on 13 August 2024 which
alleged she had been dismissed by SBS Traffic on 7 August 2024. SBS Traffic filed a response
to the application on 19 September 2024 which alleges Ms Tipper had resigned from her
employment and was not “dismissed” within the meaning of s.386 of the Fair Work Act 2009
(FW Act). SBS Traffic subsequently raised an argument that Ms Tipper had not completed the
minimum employment period prescribed in s.383 of the FW Act and hence was not a person
protected from unfair dismissal.1 This decision concerns the jurisdictional objections raised by
SBS Traffic which must be determined before the merits of Ms Tipper’s application can be
considered.2
[2] I issued directions for the filing of material regarding SBS Traffic’s jurisdictional
objections. The parties agreed with my view that it was appropriate to conduct a determinative
conference rather than a hearing. Ms Tipper represented herself at the determinative conference
on 21 November 2024. Mike Glisic (Director) represented SBS Traffic.
MATERIAL FILED
Ms Tipper
[3] Ms Tipper relied on evidence contained in her Form F2 unfair dismissal application. I
marked the application Exhibit A1. Ms Tipper provided further information about her alleged
dismissal in an email to the Commission dated 23 August 2024. I marked this email Exhibit
A2.
[2024] FWC 3279
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3279
2
[4] Ms Tipper sent further emails to the Commission on 20 September 2024 which
contained further evidence about her alleged dismissal and had screenshots of text messages
attached. The text messages capture the end of the employment relationship between Ms Tipper
and SBS Traffic. Mr Glisic and Ms Tipper exchanged the following text messages on
Wednesday, 7 August 2024:
Mr Glisic: “Thurs 6:00am start. Mike & Sarah. Pluim Group. Rodborough rd French’s
Forest. Please confirm.”
Ms Tipper: “Sorry iv already agreed with lack for tomorrow.”
Mr Glisic: “No worries.”
Ms Tipper and Mr Glisic exchanged the following text messages on Monday, 12 August 2024:
Ms Tipper: “Hey can I get a separation certificate cause iv heard from others iv
apparently quit.”
Mr Glisic: “Sure.”
Ms Tipper and Mr Glisic exchanged the following text messages on Tuesday, 13 August 2024:
Ms Tipper: “I need that separation certificate.”
Ms Tipper: “Hi Mick, just would like to clear the air here. I did not voluntarily cease
employment. I had a rostered shift with my primary employer Lack group for the
previous Thursday. I discussed this collision with you when I commenced working with
you again. You were fine with it. However after advising you I had a rostered shift for
the previous Thursday you went ahead and told your leadership team I quit. A straight
up lie. I did no such thing and I will be claiming unfair dismissal expect to hear from
fair work. I have all the communication saved to prove the truth I have just written.”
Mr Glisic: “I never told anyone that you quit so don’t know who told you that but you
were fed incorrect information. You are the one that asked for a separation certificate
and I have sent you that. You are welcome to go to Fair Trading.”
I marked Ms Tipper’s emails, and the screenshots of text messages, Exhibit A3.
[5] Ms Tipper filed a witness statement on 24 October 2024. Ms Tipper gave evidence she
had a break from working for SBS Traffic from late January 2024 to the end of June 2024 to
deal with some serious personal matters. Ms Tipper acknowledged she requested a separation
certificate from Mr Glisic in March 2024. Ms Tipper said she needed the separation certificate
to access social assistance services and payments during a very challenging period. Ms Tipper
provided evidence about the events leading to the end of her employment with SBS Traffic and
acknowledged requesting a separation certificate on 12 August 2024. Ms Tipper stated that she
made this request because she was told by other employees that she would not be offered any
further shifts. I marked Ms Tipper’s statement Exhibit A4.
[2024] FWC 3279
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[6] Ms Tipper was cross-examined on her evidence during the determinative conference
and answered some questions from me.
[7] Ms Tipper provided oral submissions at the end of the determinative conference. Ms
Tipper argued that she remained a casual employee of SBS Traffic during the period that she
stopped working from around January to June 2024. Ms Tipper states that she was dismissed
by SBS Traffic because Mr Glisic decided to not offer her any further shifts after she was unable
to work on Thursday, 8 August 2024.
SBS Traffic
[8] SBS Traffic relied on the following two separation certificates issued to Ms Tipper:
• A separation certificate dated 27 March 2024. The certificate states Ms Tipper was
employed by SBS Traffic from 13 October 2022 to 12 March 2024. The certificate
states Ms Tipper left the employment voluntarily. I marked this certificate Exhibit
R1.
• A separation certificate dated 12 August 2024. The certificate states Ms Tipper was
employed by SBS Traffic from 25 June 2024 to 12 August 2024. The certificate states
Ms Tipper left the employment voluntarily. I marked this certificate Exhibit R2.
[9] SBS Traffic relied on seven payslips it issued to Ms Tipper for pay periods falling from
24 June 2024 to 11 August 2024. I marked the payslips Exhibit R3.
[10] Mr Glisic was not required for cross-examination in relation to the evidentiary
documents he filed.
[11] SBS Traffic relied on a witness statement from Alex Baldacchino (Team Leader) dated
25 September 2024. Mr Baldacchino gave evidence he had not heard Mr Glisic say anything
negative about Ms Tipper and that Mr Glisic did not state Ms Tipper had been dismissed. Mr
Baldacchino was not required for cross-examination. I marked Mr Baldacchino’s statement
Exhibit R4.
[12] SBS Traffic relied on a witness statement from Jeanine Mobbs (Team Leader) dated 25
September 2024. Ms Mobbs gave evidence that she did not hear that Ms Tipper had been
dismissed. Ms Mobbs also gave evidence Ms Tipper had stated to her that she wanted more
shifts with another traffic control company and did not wish to continue working for SBS
Traffic. Ms Mobbs was not required for cross-examination. I marked Ms Mobbs’ statement
Exhibit R5.
[13] Mr Glisic made oral submissions at the end of the determinative conference. Mr Glisic
expressed frustration about having to deal with the case in circumstances in which Ms Tipper
had requested separation certificates on two separate occasions and he had complied with the
requests.
AUTHORITIES – COUNTING OF CASUAL SERVICE
[2024] FWC 3279
4
[14] The Full Bench in Shortland v Smiths Snackfood3 made the following important points
about how periods of casual employment are to be assessed under the FW Act:
• The effect of s.384 of the FW Act is that casual employment does not start and end
with each engagement as understood in the common law.
• It is common for casual employees to transition between intermittent engagements and
regular and systematic engagements during the course of their casual employment.
• A period of continuous service can be made up of a series of periods of service, some
of which count towards the period of continuous service and some which do not.
• A period of continuous service by a casual employee is broken only when the
employer or employee make it clear to the other party that there will be no further
engagements.
CONSIDERATION
[15] I find that Ms Tipper decided to end her first period of casual employment with SBS
Traffic effective 12 March 2024. I feel compelled to rely on the separation certificate provided
by SBS Traffic. This is an important legal document that was relied upon by Ms Tipper to
access social services. The certificate clearly states Ms Tipper’s employment with SBS Traffic
ended on 12 March 2024. I find that Ms Tipper’s period of continuous service was “broken” on
that date.
[16] I accept Ms Tipper had very legitimate reasons for requesting the separation certificate
from SBS Traffic. I accept Ms Tipper was dealing with some very difficult personal
circumstances. I accept that Ms Tipper believes that the separation certificate did not end the
employment relationship, and that the separation certificate was a necessary pre-condition to
enable her to receive support from essential government services. However, the legal effect of
Ms Tipper requesting the separation certificate, and the separation certificate then being
provided by SBS Traffic, was that the employment ended.
[17] I find that Ms Tipper commenced a new period of casual employment with SBS Traffic
on 25 June 2024. I do not consider it is open to conclude that Ms Tipper’s employment
continued during the period that she ceased working for SBS Traffic given what is recorded on
the separation certificate. The further period of casual employment ended on 12 August 2024.
These findings are consistent with the second separation certificate issued by SBS Traffic on
12 August 2024.
[18] My findings above mean that Ms Tipper’s period of employment with SBS Traffic was
less than two months when her employment ended on 12 August 2024. I cannot determine the
precise period of employment because I do not have evidence about whether Ms Tipper was
engaged on a regular and systematic basis from 25 June 2024 to 12 August 2024. Casual service
only counts towards the period of employment if the employee was a regular casual employee
with a reasonable expectation of continuing employment on a regular and systematic basis.4
[2024] FWC 3279
5
[19] Ms Tipper did not contest that SBS Traffic had only nine employees when her
employment ended on 12 August 2024.5 That means Ms Tipper needed to have completed the
longer minimum employment period of 12 months for a small-business employer. In any event,
Ms Tipper would not have competed the shorter minimum employment period of six months
even if SBS Traffic had 15 or more employees when Ms Tipper’s employment ended.
[20] My findings above mean that Ms Tipper was not a person protected from unfair
dismissal because she had not completed the minimum employment period.6 That means Ms
Tipper was not eligible to make an unfair dismissal application.
[21] It is not strictly necessary for me to determine whether Ms Tipper was “dismissed”
within the meaning of s.386 of the FW Act, given I found that she had not completed the
minimum employment period.
[22] However, for completeness, I find that Ms Tipper was not “dismissed” by SBS Traffic.
I find Ms Tipper voluntarily resigned when she requested a separation certificate on 12 August
2024. The evidence falls short of establishing that SBS Traffic “dismissed” Ms Tipper because
Mr Glisic had decided not to offer Ms Tipper any further shifts. I consider Ms Tipper would
have needed to take additional steps prior to requesting a separation certificate to establish that
she was sacked by SBS Traffic, or that she was forced to resign. It is not enough to rely on
hearsay evidence from another employee. Ms Tipper could have sought clarity from Mr Glisic
about whether she would be offered further shifts prior to requesting a separation certificate and
ending the employment.
[23] Ms Tipper’s application is dismissed.
COMMISSIONER
Appearances:
Ms Tipper representing herself.
Mr Glisic representing SBS Traffic.
Determinative conference details:
THE FAIR WOR AIR COMM IVAS EML ISSION THE SEA
[2024] FWC 3279
6
2024.
Sydney (by video via Microsoft Teams).
21 November.
Printed by authority of the Commonwealth Government Printer
PR781681
1 Section 383 of the FW Act.
2 Section 396 of the FW Act.
3 Wayne Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709 at [10] to [13].
4 Section 384 of the FW Act.
5 Form F3 employer response at 1.7.
6 Section 382 of the FW Act.
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5709.htm
