1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Brodie Harrison
v
D & D Demolition Pty Ltd
(C2024/6304)
COMMISSIONER TRAN MELBOURNE, 13 FEBRUARY 2025
Application to deal with contraventions involving dismissal – Jurisdictional objection – Not
dismissed – Jurisdictional objection dismissed - Proceed to conference under s 368
[1] Mr Brodie Harrison has applied to the Fair Work Commission for the Commission to
deal with contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) in
relation to his employment with D&D Demolition Pty Ltd (the respondent/employer).
[2] Before the Commission can exercise its jurisdiction to deal with a dispute about
contraventions involving dismissal, it must first find – as a matter of fact – that a dismissal
occurred.1
[3] Mr Harrison says that he was dismissed because he was removed from the WhatsApp
messaging service group work chat and by text message on 15 August 2024.
[4] D&D Demolition say that they did not dismiss Mr Harrison. They say Mr Harrison
says that he was injured at work, applied for WorkCover and stopped attending work. They
say that they continue to have work for him.
[5] I issued Directions to the parties on 23 October 2024. Neither party filed any
materials. Neither party provided reasons for their failure to comply with my Directions when
asked prior to the hearing date.
[6] I held a hearing on 17 December 2024. Mr Brodie did not initially attend the hearing
but joined it after my chambers contacted him. No one attended the hearing on behalf of
D & D Demolition.
[2025] FWC 436
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 436
2
[7] When my chambers contacted D&D Demolition at the time of the hearing, reception
staff informed us that the contact person – Ms Donna Stijakovic, Director – was on leave. Ms
Stijakovic had not sought for the hearing to be adjourned nor did she ask to be excused from
attending the hearing. Given that I had no materials and no contact from the respondent, but
they had been provided with an opportunity to submit their materials, I considered that it was
appropriate to determine the matter in the respondent’s absence.
[8] At the hearing, Mr Harrison made submissions and gave oral evidence. I provided Mr
Harrison with a further opportunity to provide supporting documentation that he referred to in
his oral evidence. I also gave D&D Demolition a further opportunity to put materials in reply
to Mr Harrison’s materials.
Mr Harrison’s Case
[9] Mr Harrison says that he was dismissed by text message and because he was deleted
from the WhatsApp chat where he learned of where he was to attend for work each day. He
says that each night, a message is sent out to everyone with all the information they need for
the job the next day. He says he was deleted from the chat before the work message for the
next day was sent out. Mr Harrison says he has never been added back to the chat. Mr
Harrison says no one from the Employer contacted or notified him; WhatsApp provided him
with a notification that he was deleted from the work chat group and he was then unable to
see any prior chats. Mr Harrison also said that he had messages between him and management
that said he did not have a job but he did not receive any formal termination.
[10] Mr Harrison referred to documentation, which I gave him an opportunity to provide to
me after the conclusion of the hearing. Mr Harrison provided my chambers with screenshots
of text messages exchanged between him and a person he had saved into his phone and named
“Aleks Deejay Consulting.” During the hearing, Mr Harrison had explained that Aleks is the
project manager but that he did not know Aleks’ family name. Based on the text messages
provided, it is clear that Aleks is the main person with whom Mr Harrison communicated
about his employment with the Employer.
[11] On Wednesday 14 August 2024 at 7:08pm, Mr Harrison sent Aleks a text message to
say that he was unwell and had been in hospital the night before. He said he needed to get the
“incident report paperwork” done. This related to an injury.
[12] On Thursday 15 August 2024 at 7:29am, Aleks replied to say:
“Fair enough man, yeah I have to keep going running the business under a lot of
pressure at the moment. Had to put someone else on, can't keep up with jobs at
the moment. It's been unfortunate.”
[2025] FWC 436
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[13] Mr Harrison replied:
“I'm a bit unsure what you mean by that I've been off because of a workplace
related injury?”
Mr Harrison’s text message continued about issues with his hand and being sick with
influenza A.
[14] To that, Aleks replied,
“Dj advised me it’s not going to work mate. Unfortunately we had to hire someone else.
All the best.”
Written submissions of the respondent
[15] Ms Stijakovic provided brief written submissions in two emails to chambers. The first
email was on Wednesday 18 December 2024 and the second email was on Friday 20
December 2024. The second email was after the deadline of noon on Thursday 19 December
2024 that I had provided the employer to submit its materials.
[16] Despite this, I am of the view that it is appropriate to accept those submissions. Even
with that material, I have little information to assist me in making a determination. Further, as
D&D Demolition had not attended the hearing, it is appropriate in the interests of procedural
fairness to allow those submissions. D&D Demolition did not provide any documents nor
attempt to give any evidence (in the form of an affidavit, statutory declaration, witness
statement or similar).
[17] In relation to failing to comply with directions, Ms Stijakovic said that she was not
aware that she had to provide additional details other than the employer response form. While
I accept that parties may be unfamiliar with Commission processes, the Directions that were
sent on 23 October 2024 set out what was required of both parties. In addition, my chambers
sent an email after relevant deadlines were missed. D&D Demolition did not respond to that
email.
[18] In relation to failing to attend the hearing, Ms Stijakovic “deeply apologised” for the
inconvenience of her absence. The inconvenience is not the Commission’s. It is the
respondent’s, as the matter can be decided in their absence provided they have been given an
opportunity to participate.2
[19] Ms Stijakovic’s reason for not attending the hearing was that she was away on holiday
with limited telephone reception. A Notice of Listing was emailed to the same address from
which we received Ms Stijakovic’s emails. Ms Stijakovic did not, prior to the date of the
hearing, ask for an adjournment on the grounds that she was on leave. It is likely that I would
have granted an adjournment, given the timing (early December, approaching the usual
holiday period). So, I am not persuaded that Ms Stijakovic’s reason for not attending the
hearing was acceptable.
[2025] FWC 436
4
[20] D&D Demolition’s submissions were not particularly helpful. They do little more than
repeat the contents of the F8A, which include statements relating to Mr Harrison’s attendance
at work, his workplace injury and Ms Stijakovic’s view about how this affected “the team.”
Ms Stijakovic says nothing about the screenshots of text messages supplied by Mr Harrison.
Ms Stijakovic does submit, “we have many roles within our company” in support of their
argument that they had not dismissed Mr Harrison.
Relevant Law
[21] The dictionary in section 12 of the Act defines ‘dismissed’ by referring to section 386
of the Act. The only question to be determined in this matter is whether there was a dismissal
within the meaning of s386(1)(a) – whether Mr Harrison’s employment with his employer has
been terminated on the employer’s initiative.
[22] The other subsections of s 386 are not relevant because there is no contention that this
matter relates to:
• Whether a resignation was forced;3
• Whether there was a contact for a specified period of time, task or season;4
• Whether there was a training arrangement;5
• Whether there was a demotion.6
[23] In order for a person’s employment to be ‘terminated on the employer’s initiative’
under s 386(1)(a), there must be some action on the part the employer that
- is intended to bring to the employment to an end7 ; or
- would on any reasonable view, be likely to bring the employment to an end; or
- is the principal contributing factor to the employment ending.8
[24] The Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick
Smith Electronics Pty Ltd (No 2)9 has interpreted the phrase ‘termination at the initiative of
the employer’ and said:
“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.”
[25] The Full Court of the Federal Court decision in Mahony v White10 and Full Benches of
this Commission have affirmed the continued applicability of Mohazab11 to the current s 386.
Consideration
[26] In this matter, there are two relevant actions: the first is Mr Harrison’s removal from
the WhatsApp chat group from which he finds information about where he is to attend work
and the second is a text message on 15 August 2024 from Aleks, the person whom Mr
Harrison usually contacts about his attendance at work.
[27] I do not have any evidence about who controls the members of the WhatsApp Group.
Mr Harrison gave evidence that he was removed from the group before Aleks’ text message
[2025] FWC 436
5
of 15 August 2024 and that he had been messaging Aleks to find out about returning to work.
Mr Harrison’s evidence was not clear about when the removal occurred, although he said that
it was in the weeks before his messages with Aleks. Having reviewed the messages and Mr
Harrison’s evidence, it remains unclear to me the timing of his removal.
[28] I am of the view that I have insufficient evidence to conclude that Mr Harrison’s
removal from the WhatsApp group constituted termination at the employer’s initiative. But
given my finding below about Aleks’ text message of 15 August 2024, it is not necessary to
make a finding in relation to Mr Harrison’s removal from the WhatsApp group.
[29] I find that the text message of Thursday 15 August 2024 that said - “Dj advised me it’s
not going to work mate. Unfortunately we had to hire someone else. All the best.” – is an
action of the employer’s that ended Mr Harrison’s employment. There is very little other way
to read that message. In context, too, the other text messages that Aleks sent to Mr Harrison
lead reasonably to the conclusion that D&D Demolition is terminating Mr Harrison’s
employment. Contrasted with this, Mr Harrison’s text messages seek clarification and ask
about completing an incident reporting form, clearly indicating that he does wish for the
employment to continue.
[30] While D&D Demolition’s submissions state that they have roles within the company,
there is no evidence that they informed Mr Harrison that he could work these roles around the
time that they sent him the text message that said they had to hire someone else and wished
him all the best.
Conclusion
[31] I am satisfied that the D&D Demolition dismissed Mr Harrison within the meaning of
s386(1)(a)of the Act. Accordingly, their jurisdictional objection is dismissed. I will list the
matter for a conference under s 368 of the Act.
COMMISSIONER
Appearances:
Mr Brodie Harrison, for himself
No appearance for the respondent
Hearing details:
MISSION THE SEAL OF THE WORK COM! OF THE FAIR WORK
[2025] FWC 436
6
Tuesday
17 December 2024
Via Microsoft Teams
Final written submissions:
Friday
20 December 2024
Printed by authority of the Commonwealth Government Printer
PR784336
1 Coles Supply Chain v Milford (2020) 300 IR 146 at [67] to [68]
2 See Achilleus Taxation Pty Limited ATF The Achilleus Taxation Trust and another v Hobbs [2012] FWAFB 5679 at [12]
3 386(1)(b)
4 386(2)(a)
5 386(2)(b)
6 386(2)(c)
7 See Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769
8 Khayam v. Navitas English Pty Ltd [2017] FWCFB 5162 at [75]
9 [1995] IRCA 645; (2005) 62 IR 200, at 205 to 206
10 [2016] FCAFC 160, 226 IR 221
11 See Bienias v Iplex [2017] FWCFB 38 at [44]; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [66]; Mihajlovic
v Lifeline Macarthur [2014] FWCFB 1070at [13]
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwafb5679.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb3769.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb38.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1070.htm
