1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Alana Weir
v
Add Staff Recruitment Pty Ltd, Aserve Victoria Pty Ltd
(C2024/8894)
DEPUTY PRESIDENT MASSON MELBOURNE, 14 FEBRUARY 2025
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 5 December 2024, Ms Alana Weir (the Applicant) lodged an application pursuant
to s 365 of the Fair Work Act 2009 Cth (the Act) in which she asserts the termination of her
employment on 14 November 2024 by Add Staff Recruitment Pty Ltd (the First Respondent)
and Aserve Victoria Pty Ltd (the Second Respondent) contravened her workplace rights. In its
Form F8A responses, the First and Second Respondent both raised a jurisdictional objection to
the application, that the Applicant was not dismissed within the meaning of s 386 of the Act.
[2] The 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 Fair Work Commission (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 her employment within
the meaning of s 386 of the Act.
[3] Directions were issued on 17 January 2025 requiring the filing of material by the First
Respondent and Applicant in relation to the jurisdictional objection. Both parties filed material
in accordance with the Directions. At the hearing on 10 February 2025, the Applicant appeared
and gave evidence and was represented by Mr Sam Nottle of Jewell Hancock Employment
Lawyers who was granted permission to appear pursuant to s 596(2) of the Act. The First
Respondent was represented by Mr Jordon Carlisle of Master Electricians Australia who called
Ms Melissa Stanford (Director) to give evidence on behalf of the First Respondent.
Background and evidence
[4] The First Respondent engages staff and places them with clients predominantly in the
electrotechnology, construction and trades sector. The majority of the First Respondent’s clients
are in Queensland. The Applicant was engaged by the First Respondent under a written contract
of employment as a casual employee (the Contract of Employment) and commenced her first
[2025] FWC 443
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 443
2
assignment with the Second Respondent on 17 January 2024 in the role of Project Coordinator.3
The assignment conditions identified the Applicant’s place of work with the Second
Respondent as being in Footscray, Victoria. The Contract of Employment included the
following relevant terms;
“2. Employment Status and Engagement
2.1 You are employed as a casual on-hire employee, which means that:
…
d) the termination of an Assignment for whatever reason does not of itself
constitute the termination of your employment;
e) we do not guarantee or commit to offer you any Assignment(s), or to do so
with any particular frequency or regularity, or on any particular terms .
However, this Agreement applies to any Assignment(s) that we engage you
to perform, until the end of that Assignment;
f) you are not obliged to accept or agree to work on an Assignment that is
offered to you. If you do accept or agree to work on an Assignment then the
terms of the SAC issued to you by us in relation to that Assignment will apply
to you in addition to the terms of this Agreement;
…”4
[5] On 11 November 2024, the Applicant’s assignment with the Second Respondent was
terminated by the Second Respondent. The Applicant says this led her to believe her
employment with the First Respondent ended at the same time. She received payment of her
salary up till 14 November 2024.5 Ms Stanford states that the Applicant had a telephone
conversation with ‘Nayara’ from the First Respondent on 15 November 2024 during which
Nayara was said by Ms Stanford to have told the Applicant that the First Respondent would
keep an eye out for similar jobs and be in contact, while noting that it did not have a large client
base in Melbourne.6 The Applicant denies that Nayara made the comments attributed to her by
Ms Stanford.7
[6] On 20 November 2024, the Applicant states she had a telephone conversation with Ms
Stanford during which Ms Stanford advised her that the First Respondent did not have any other
work for her at that time, that they would keep an eye out for roles, but that the First
Respondent’s client base was mostly in Queensland. Ms Stanford did not disagree with this
evidence. In acknowledging Ms Stanford’s advice, the Applicant states that she understood that
the lack of any work confirmed she had been dismissed.8 The Applicant states that in these
circumstances she requested an employment separation certificate (the Separation Certificate)
which Ms Stanford agreed would be provided.
[7] On 21 November 2024, Ms Anna Taylor, Accounts Officer with the First Respondent,
sent an email to the Applicant attaching the Separation Certificate dated the same day.9 The
[2025] FWC 443
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Separation Certificate stated in Section 3 that the Applicant started working for the First
Respondent on 17 January 2024 and her employment ceased on 14 November 2024. Section 4
of the Separation Certificate listed eight options for an employer to indicate why the
employment had ended. Those options were;
Shortage of work
Unsuitability for this type of work
End of season or contract
Redundancy
Unsatisfactory work performance
Misconduct as an employee
Employee ceasing work voluntarily
Other
[8] The First Respondent identified the reason for separation as being because of a ‘shortage
of work’. The Applicant states the answers provided by the First Respondent in the Separation
Certificate confirmed her belief that her employment had ended.10
[9] Ms Stanford states the Applicant remains a casual employee of the First Respondent.11
She also confirmed a placement offer had been made to the Applicant on 17 January 2024 for
two Queensland roles.12 She conceded that apart from that email, there had been no further
contact with the Applicant after the Separation Certificate was provided. Ms Standford states
that the First Respondent only issues employment separation certificates if requested to do so
by a candidate and that they are not regularly issued as candidates often have secured
employment with other employers.13
Has the Applicant been dismissed?
[10] The issue to be determined in this matter is whether the Applicant has been dismissed
from her 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.
…
[11] Section 386(2) of the Act sets out circumstances where an employee has not been
dismissed, none of which are presently relevant. I understand from the Applicant’s case that
she contends she was dismissed within the meaning of the first limb of s 386(1), being she was
dismissed at the initiative of the First Respondent. The Applicant does not argue that she
resigned due to conduct, or a course of conduct engaged in by the First Respondent.
[2025] FWC 443
4
[12] In pressing its jurisdictional objection, the First Respondent contends the terms of the
Applicant’s Contract of Employment make clear that cessation of an assignment does not lead
automatically to a conclusion that employment with the First Respondent also ceased. It further
argues the Applicant remains a casual employee, was offered further assignments on 17 January
2024 and the Separation Certificate was only provided because of the request by the Applicant
which it says was consistent with its normal practice of only providing such certificates when
requested by a candidate. The First Respondent contends the Applicant was not dismissed by
it, but if a termination of employment had occurred it was at the initiative of the Applicant.
[13] To objectively assess whether the Applicant was dismissed at the initiative of the First
Respondent it is necessary for me to consider all the circumstances surrounding the dismissal.
These may be summarised as follows;
• The Applicant’s assignment with the Second Respondent ended on 11 November 2024,
although she received payment of her salary up until 14 November 2024. The Applicant
believed the cessation of her assignment with the Second Respondent also ended her
employment relationship with the First Respondent;
• The Applicant was subsequently advised by Ms Stanford in a telephone conversation
on 20 November 2024 that there were no other roles available at that time, the First
Respondent would keep an eye out for any placement opportunities but that the majority
of the First Respondent’s clients were based in Queensland. The Applicant
acknowledged Ms Stanford’s advice;
• During the conversation with Ms Stanford, the Applicant requested the Separation
Certificate, which Ms Stanford agreed to provide. The Applicant’s request for the
Separation Certificate was made to assist with a claim for Centrelink benefits and arose
from her belief that she had been dismissed by the First Respondent;
• The Separation Certificate was provided to the Applicant on 21 November 2024, stating
the reason for employment separation was a shortage of work. The Separation
Certificate did not state the Applicant had ceased work voluntarily, that being an option
the First Respondent could have identified on the Separation Certificate as the reason
for separation;
• The Applicant remains on the First Respondent’s system as a casual employee;
• The Applicant filed her general protections application on 5 December 2024;
• An email was sent to the Applicant by the First Respondent on 17 January 2025
identifying two Queensland opportunities for her consideration; and
• Apart from the 17 January 2025 email sent to the Applicant, no other contact was made
by the First Respondent with the Applicant following the 21 November 2024 email sent
to her with the Separation Certificate.
[14] A number of matters tell in favour of a finding that the Applicant was not dismissed.
These matters are the express terms of the Contract of Employment, the maintenance of the
[2025] FWC 443
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Applicant on the First Respondent’s list of current casual employees, the First Respondent’s
practice of providing employment separation certificates if requested to do so by a candidate to
assist them secure Centrelink benefits, and the email of 17 January 2025 in which two roles
were raised for the Applicant’s consideration.
[15] Dealing firstly with the Applicant’s Contact of Employment, clauses 2.1(d)-(f) state the
cessation of an assignment does not automatically lead to a termination of the employment
relationship and further casual assignments may be offered to and of course declined by a
candidate. Conversely, the end of an assignment does not mean it can be assumed the
employment relationship remains on foot. The language in clause 2.1(d) of the Contract of
Employment is significant where it states that ‘the termination of an assignment for whatever
reason does not of itself constitute the termination of employment’. Use of the underlined words
does not of itself indicates that more than the mere cessation of an assignment is required to
establish that the employment relationship ended. It is apparent that all of the circumstances of
an alleged dismissal must be considered objectively to determine whether the employment
relationship has ended, and whether it was at the employer or candidates’ initiative.
[16] The Applicant gave evidence that she believed the end of the assignment with the
Second Respondent also ended her employment with the First Respondent, that belief formed
despite the clear language of the Contract of Employment. Absent other factors pointing to the
cessation of her employment with the First Respondent, there was no basis for the Applicant to
conclude that her employment had ended with the First Respondent on cessation of her
assignment with the Second Respondent. Such a conclusion was contrary to the clear terms of
the Contract of Employment. More is required than the mere cessation of an assignment to
conclude that the employment relationship with the First Respondent had also ended.
[17] The First Respondent contends that it had no intention of bringing the employment
relationship to an end on cessation of the Applicant’s assignment with the Second Respondent
and points to the maintenance of the Applicant’s details in its system. Further evidence of the
continuation of the employment relationship is said by the First Respondent to be found in the
two opportunities presented to the Applicant on 17 January 2025. While both of these factors
support a finding that the casual employment relationship remained on foot after 14 November
2024 the following causes me to place limited weight on these factors. Firstly, aside from the
17 January 2025 email, no other contact was made by the First Respondent with the Applicant
after she was sent the Separation Certificate. Secondly, the two roles presented to the Applicant
were Queensland roles which were clearly not suitable given the Applicant’s residence and
family are located in Melbourne. Finally, the 17 January 2025 email was sent after the general
protections application was filed.
[18] Turning to the Separation Certificate, the First Respondent states it was provided in
response to a request from the Applicant, and says it was provided to assist the Applicant make
a Centrelink application. It further argues that in providing the Separation Certificate, it was not
its intention to terminate the employment relationship. The difficulty with this submission is
that the Separation Certificate confirms the very thing the First Respondent claimed did not
occur, that is the termination of the Applicant’s employment. It is clear and unambiguous in the
Separation Certificate that the employment relationship had ended. Moreover, it is also clear
that the termination arose from a ‘shortage of work’ and not voluntarily. It was open for the
First Respondent to have identified on the Separation Certificate that the reason for separation
[2025] FWC 443
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was due to the Applicant having left ‘voluntarily’. It did not do so and the person who prepared
the Separation Certificate was not called to give evidence. In these circumstances, substantial
if not decisive weight is to be given to the clear language in the Separation Certificate.
[19] The First Respondent further submits the fact that Applicant requested the Separation
Certificate tells in favour of a finding that a termination of employment, if it did occur, was at
the Applicant’s initiative. Whether an employment separation certificate is provided at the
request of an employee or at the initiative of an employer is not in my view determinative of
whether the termination of employment was a resignation or a dismissal at the employer’s
initiative. The First Respondent’s submission is rejected for the reasons that follow.
[20] There could be a number of circumstances where an employee was unambiguously
dismissed at the initiative of an employer and subsequently requested an employment separation
certificate. For example, a request may have been made by an employee immediately following
and in response to having been advised of their dismissal. There may have been a delay or a
failure of an employer to provide an employment separation certificate, prompting a request
from a former employee. There could also be other reasons for a request by a former employee
including administrative oversight by the employer, individual error or a belligerent refusal by
the employer to issue such a certificate. The fact that an employee might request an employment
separation certificate in any of these (or other) circumstances does not mean the termination of
employment was necessarily at the employee’s initiative. Of course, it may also be the case that
a request for an employment separation certificate does evidence a resignation on the part of an
employee. As to the authorities referred to by the First Respondent going to the request for or
provision of an employment separation certificate, the following may be said.
[21] In Lawson v Environet Australia Pty Ltd14 Commissioner Saunders (as he then was)
recorded that the employer complied with Mr Lawson’s repeated requests to send a separation
certificate, the employer having formed a view that Mr Lawson would not be returning to the
workplace following an earlier workplace confrontation between Mr Lawson and his manager.
Arising from that confrontation there was a dispute over whether Mr Lawson had been stood
down for a few days or dismissed. Ultimately, the Commissioner found in considering all the
circumstances surrounding the alleged dismissal that the termination of employment had not
been at the initiative of the employer. The fact that Mr Lawson requested an employment
separation certificate while supportive was not determinative of that conclusion.
[22] In Cody Myers-Raab v CoreStaff VIC Pty Ltd15 Commissioner Mirabella was dealing
with a former employee of a labour hire firm whose assignment had concluded. Like the present
matter before me, the contract of employment of Mr Myers-Raab also made clear that the end
of an assignment did not mean that the casual employment had been terminated. Mr Myers-
Raab also believed that cessation of his assignment ended his employment with CoreStaff.
Unlike the present case however, CoreStaff quickly clarified with Mr Myers-Raab that he
remained employed at the conclusion of his assignment and immediately offered him alternate
assignments. Mr Myers-Raab declined the offered assignments and responded that he was ‘not
very interested in employment with CoreStaff because of the way everything has been handled’.
In all those circumstances, the Commissioner found that in requesting an employment
separation certificate, Mr Myers-Raab ‘was making a unilateral subjective decision to treat his
employment as being at an end.’16
[2025] FWC 443
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[23] In Tull v Central Queensland Development Ltd17 Deputy President Lake observed in the
circumstances of the matter before him that the question as to whether there was a dismissal of
the Applicant is determined by the party that initiates the creation of a separation certificate.
To the extent that statement is advanced as a general proposition, I respectfully disagree for the
reasons set out above at [20]. My view finds clear support in the comments of Deputy President
Anderson in Hendrie v Eagle Contractors Pty Ltd18 where the following was said by the Deputy
President;
“
…
[49] I do not accept the employer’s submission that Mr Hendrie ended the relationship on
his own initiative on 9 June 2023 when asking for an Employment Separation Certificate.
[50] Whilst there may be some circumstances where an employee asking for an
Employment Separation Certificate is evidencing an intention to terminate an
employment relationship on their own initiative, this is not such a case.
[51] Mr Hendrie was asking for an Employment Separation Certificate in order to access
unemployment benefits because he believed that he had been dismissed moments earlier
and because the government agency (Centrelink) required that very certificate to do so.
Where an employee requests an Employment Separation Certificate believing that their
employment has already been ended by their employer’s conduct then the mere asking
for the Certificate is not a termination on the employee’s initiative.
[52] The surrounding circumstances clearly support a finding of dismissal.
…
”
[24] The above single member authorities reveal the need to consider all the circumstances
surrounding an alleged dismissal in seeking to objectively determine whether a dismissal was
at the employer’s initiative. The cases do not stand for a general proposition that where an
employee requests an employment separation certificate, that constitutes a resignation.
[25] I now turn to the matters that the Applicant submits tell in favour of a finding that the
Applicant was dismissed within the meaning of s 386(1) of the Act.
[26] The Applicant submits that the First Respondent did not offer the Applicant any further
work after the end of her assignment with the Second Respondent. The submission is not correct
given the 17 January 2025 email to the Applicant which presented the Applicant with two
opportunities. I have previously noted that those roles were in Queensland and were presented
after the Applicant filed her general protections application. The absence of roles being offered
to the Applicant in Victoria is however more likely explained by the fact that clients of the First
Respondent were overwhelmingly located in Queensland rather than the First Respondent
having decided to terminate the employment relationship. This matter raised by the Applicant
does not tell in favour of a finding that she was dismissed by the First Respondent.
[27] More telling than the above is that the First Respondent failed to maintain or make any
direct contact (aside from the 17 January 2025 email) with the Applicant after issuing the
[2025] FWC 443
8
Separation Certificate. The absence of such contact with an ongoing ‘employee’, even a casual
employee, is strongly suggestive of the employment relationship having ended. This tells in
favour of the Applicant’s argument that her employment had ended.
[28] The Applicant also relies on the conversation between herself and Ms Stanford on 20
November 2024 during which Ms Stanford advised the Applicant that there were no suitable
roles available at that time and that the First Respondent would keep an eye out for suitable
roles. Ms Stanford also reinforced that most of the First Respondent’s clients were in
Queensland which the Applicant acknowledged during the conversation. Ms Stanford’s advice
to the Applicant did not in my view make clear to the Applicant that no further engagements
would be offered although the prospect of further engagements was clearly limited given the
First Respondent’s business was primarily in Queensland. On balance I do not regard the
conversation as telling for or against the dismissal having been at the First Respondent’s
initiative.
[29] Returning to the Separation Certificate, the First Respondent argues that Ms Stanford
did not resist the Applicant’s request for its provision, that it (the Separation Certificate) was
clear and unambiguous in its terms, it stated that the Applicant’s employment had ceased due
to a shortage of work and was provided in writing. I agree that all these matters raised by the
First Respondent in relation to the Separation Certificate tell strongly in favour of a conclusion
that the dismissal took effect on 14 November 2024 and was at the initiative of the First
Respondent.
[30] I accept that the First Respondent may not have intended to dismiss the Applicant. I find
however in all the circumstances considered above that the action of the First Respondent in
preparing and providing the Applicant with the Separation Certificate had the effect of
communicating to the Applicant that her employment had ceased by reason of a shortage of
work and not voluntarily. The terms of the Separation Certificate were clear and unambiguous.
Any doubt arising from other factors raised by the parties telling for and against a finding at the
initiative of the First Respondent are dispelled by a plain reading of the Separation Certificate.
There was no evidence before me to suggest the Separation Certificate was made in error.
[31] Having regard to the above, I find that the Applicant was dismissed by the First
Respondent within the meaning of s 386(1)(a) of the Act.
Conclusion
[32] I have found that the Applicant was dismissed within the meaning of s 386(1)(a).
Accordingly, at the time the Applicant made her application on 5 December 2024, she was a
person who had been dismissed for the purposes of s 365 of the Act. The jurisdictional objection
is therefore dismissed. It is also clear that the Applicant alleges the dismissal contravened Part
3-1 of the Act. As such the matter will shortly be listed for a conference pursuant to s 368 of
the Act.
OF THE FAIR WORK AUSTRALIA ISSION THE SE
[2025] FWC 443
9
DEPUTY PRESIDENT
Appearances:
S Nottle for the Applicant.
J Carlisle for the First Respondent.
Hearing details:
2025.
Melbourne:
10 February.
Printed by authority of the Commonwealth Government Printer
PR784361
1 Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.
2 Ibid at [51].
3 Exhibit A1, Witness Statement of Alana Weir, dated 31 January 2025, at [6], Annexure AW-2 Contract of Employment
4 Ibid
5 Exhibit A1, at [9]-[10]
6 Exhibit R1, Witness Statement of Melissa Stanford, dated 23 January 2025, at[11]-[12]
7 Exhibit A1, at [12]
8 Exhibit A1, at [14]
9 Exhibit A1, Annexure AW-f, Employment Separation Certificate
10 Exhibit A1, at [16]
11 Exhibit R1, at [16], Annexure 3, Alana Weir Employment Details
12 Exhibit R2, Email from First Respondent to Applicant dated 17 January 2024
13 Exhibit R1, at [18]
14 [2017] FWC 848
15 [2022] FWC 835
16 Ibid at [23]
17 [2023] FWC 2168
18 [2023] FWC 1845
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc848.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc835.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2168.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1845.pdf
