1
Fair Work Act 2009
s.365—General protections
Hugh Mooney
v
Unite Resourcing, Jamie O’Regan
(C2024/7938)
COMMISSIONER LIM PERTH, 17 JANUARY 2025
Application to deal with contraventions involving dismissal – jurisdictional objection – was
the employee dismissed – employee was dismissed – objection dismissed – application to
proceed.
1. Introduction
[1] This is an edited version of my decision delivered ex tempore and recorded in transcript
on 17 January 2025.
[2] Mr Hugh Mooney has applied to the Fair Work Commission under s 365 of the Fair
Work Act 2009 (Cth). Mr Mooney alleges that his former employer Unite Resourcing and Mr
Jamie O’Regan dismissed him in contravention of Part 3-1 of the Act. The Respondents object
to Mr Mooney’s application on the basis he was not dismissed.
[3] Before Mr Mooney’s application can proceed, I must determine whether Unite
Resourcing dismissed him. In Coles Supply Chain Pty Ltd v Milford,1 the Full Court of the
Federal Court held that where there is a question over jurisdiction – as is the case here – the
Commission must determine the jurisdictional issue before exercising its powers under s 368
of the Act.2
[4] I conducted a determinative conference to hear evidence on the jurisdictional issue on
Friday, 17 January 2025. Mr Mooney represented himself and gave evidence in support of his
case. Mr John Drennan, Chief Executive Officer, attended on behalf of the Respondents.
[5] At the end of the determinative conference, I informed the parties of my decision that
Mr Mooney has been dismissed. I then conducted a conference under s 368 of the Act.
2. What happened?
[6] The facts of this matter are short and uncontroversial. Mr Mooney’s employment with
Unite Resourcing commenced on 31 October 2024. On Monday, 4 November 2024, Mr
O’Regan sent an email to Mr Mooney stating:
[2025] FWC 165
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 165
2
“Hi Hugh,
Please be advised that you are no longer required to return to site.
If you would like to discuss this further, please feel free to arrange a visit to our office
at your convenience. I am also available for a call during standard business hours.
Best,
Jamie”3
[7] Mr Mooney responded with, “No [dramas], see you in court”.4
[8] Mr Drennan then emailed Mr Mooney:
“Don’t be so silly Hugh – I would advise you to review your contract and top making
idle threats.
As per Jamie’s note – You are most welcome to come and see me personally at our
offices.
You will be paid for all work completed and based on feedback I have received you will
not be engaged via Unite Resourcing for any future work.
Best Regards,
John Drennan”5
3. Did Unite Resourcing dismiss Mooney?
[9] ‘Dismissed’ is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act
relevantly provides:
“Meaning of dismissed
(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.”
[10] The definition of dismissal in s 386(1) of the Act has two parts. The first deals with
‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where
the person was forced to do so because of conduct or a course of conduct’.
[2025] FWC 165
3
[11] In Mohazab v Dick Smith Electronics Pty Ltd,6 a decision made prior to the passage of
the Act, the Full Court of the Industrial Relations Court of Australia considered the meaning of
‘termination at the initiative of the employer’. The Full Court stated:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive
description of what is termination at the initiative of the employer but plainly an important
feature is that the act of the employer results directly or consequentially in the termination of
the employment and the employment relationship is not voluntarily left by the employee. That
is, had the employer not taken the action it did, the employee would have remained in the
employment relationship. This issue was addressed by Wilcox CJ in APESMA v David
Graphics Pty Ltd (“David Graphics”), Industrial Relations Court of Australia, NI 94/0174, 12
July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee
who resigned because “he felt he had no other option”. His Honour described those
circumstances as:-
“... a termination of employment at the instance [of] the employer rather than of the employee”.
and at 5: -
“I agree with the proposition that termination may involve more than one action.
But I think it is necessary to ask oneself what was the critical action, or what were the critical
actions, that constituted a termination of the employment.’” (our emphasis added)”
[12] Unite Resourcing’s Form F8 provided the following statements:
(a) Mr Mooney was engaged as a casual employee with no reasonable expectation of
continuous or ongoing work. He was also engaged for three days with appropriate notice
provided.7
(b) “[Mr Mooney] was advised that as a casual employee that his services were no longer
required for any future periods of engagement”.8
[13] Unite Resourcing’s written submissions provided the following in support of its
contention that Mr Mooney was not dismissed, “Mr Mooney was informed on 4 November
2024 that he was no longer required to attend site. He was provided one day’s pay in lieu of
notice as specified in his agreement. These actions were compliant with the contractual
obligations and the Fair Work Act 2009”.9
[14] Unite Resourcing’s written submissions go on to state, “The decision to terminate Mr
Mooney’s employment was made based on operational requirements and aligned with the terms
of his casual employment agreement. Casual employees, by definition, are not guaranteed
ongoing work, and the notice period was consistent with his contract and the Fair Work Act.”10
[15] And lastly, “The termination of Mr Mooney’s casual employment was conducted
professionally, with payment in lieu made instead of the 1 day notice period.”
[16] During the determinative conference, Mr Drennan provided evidence and submissions
consistent with the written submissions.
[2025] FWC 165
4
[17] Given the above statements from Unite Resourcing, it is a mystery how they press their
jurisdictional objection that Mr Mooney was not dismissed.
[18] Unite Resourcing relies on clause 3.1 of Mr Mooney’s employment contract, which
provides that they do not give casuals any advance commitment to continuing and indefinite
work and that Unite Resourcing is not required to offer any further work. This is not some
loophole that means casuals cannot be dismissed. It simply means that there is no expectation
of continuing work.
[19] It is clear from the undisputed evidence and from Unite Resourcing’s own submissions
that Mr Mooney’s employment ended at Unite Resourcing’s initiative. Unite Resourcing
dismissed Mr Mooney.
[20] As noted in [5] of this Decision, as a conference has been conducted in accordance with
s 368 of the Act, the Commission’s function in this matter is now concluded.
COMMISSIONER
Appearances:
H Mooney, Applicant.
J Drennan for the Respondent.
Determinative Conference details:
2025.
Perth
17 January.
Printed by authority of the Commonwealth Government Printer
PR783410
FAIR WORK COMMISSION HE SEAL OF THE
[2025] FWC 165
5
1 [2022] FCAFC 152.
2 Ibid [51].
3 Digital Court Book page 7.
4 Ibid.
5 DCB page 8.
6 [1995] IRCA 625.
7 DCB page 36 at 1.2.
8 Ibid at 1.4.
9 DCB page 56 at [1].
10 DCB page 57.
