When is there repudiation? FWC clarifies legal requirements
The Fair Work Commission (FWC) recently dealt with a case involving a worker who filed a general protections application against their employer.
The worker alleged that they were dismissed in contravention of the general protections provisions under the Fair Work Act 2009.
However, the FWC found that the worker had not been dismissed and, therefore, could not pursue their claim under the relevant section of the Act. The case highlighted the importance of understanding the legal definition of dismissal and the specific requirements for bringing a general protections claim before the FWC.
Background of the case
The worker started full-time employment with the employer on 2 October 2023. Shortly after, the worker raised concerns about underpayment, maintenance issues with their work vehicle, and excessive working hours.
Following these complaints, the worker was not allocated further work by the employer, who cited a slowdown in business as the reason.
The worker continued to contact the employer, seeking further work and expressing concerns about the lack of communication, underpayment, and a similar position being advertised on seek.com.au.
Despite these efforts, the worker received no further correspondence from the employer after 19 October 2023.
Was it dismissal?
The central issue in this case was whether the worker had been dismissed within the meaning of section 386(1) of the Fair Work Act.
The FWC noted that "the term 'dismissed' is defined under section 386(1) of the Fair Work Act" and that a person has been dismissed if their employment has been terminated on the employer's initiative or if they were forced to resign due to the employer's conduct.
Based on the evidence presented, the FWC found no indication that the employer had terminated the worker's employment on their own initiative.
Furthermore, there was no evidence to suggest that the worker had resigned from their position. In fact, the worker's own evidence stated that they were "still legally employed" by the employer as of 25 October 2023.
The importance of accepting repudiation
The FWC acknowledged that the employer might have repudiated the worker's contract by failing to provide the contracted full-time hours.
However, it emphasized that "a repudiation of the contract does not bring the contract to an automatic end but gives the affected party the right to terminate the contract."
In this case , the worker did not accept the repudiation or exercise their right to terminate the contract, which would have amounted to a termination at the employer's initiative.
The FWC’s consideration
The Full Court's decision in Coles Supply Chain v Milford played a significant role in guiding the FWC's determination of this case.
The FWC noted that while the Full Court suggested that, in some cases, the FWC might determine when employment ended without deciding whether a dismissal occurred, this case was not an appropriate one for such an approach.
The FWC distinguished the current case from Coles Supply Chain v Milford, stating that "the facts in Coles Supply Chain v Milford are that there was a definitive dismissal, whether by termination at the employer's initiative or by the operation of a policy. The nature of the dispute in that matter revolved around when exactly that dismissal had occurred. In contrast to this current case, there is no evidence indicating that [the worker] has been dismissed at all according to section 386(1) of the Act."
Ultimately, the FWC dismissed the worker's application, as it lacked jurisdiction to hear the matter under section 365 of the Fair Work Act. The FWC explained its decision, stating:
"In determining General Protections applications under s 365 of the Act, I am bound by the authority set by the Full Court of the Federal Court of Australia in Coles Supply Chain v Milford to determine whether dismissal has occurred as an antecedent issue. All other issues fall away if this threshold primary question cannot be satisfied."
The FWC further clarified its position, noting that "for the reasons above, I am not satisfied that [the worker] has been dismissed within the meaning of s 386(1) of the Act. As such, the Commission does not have the jurisdiction to hear the matter under section 365 of the Act. Therefore, I am left no other choice but to dismiss the Application."
However, the FWC did point out that the worker had other options available to them, stating that "it is currently open to [the worker] to lodge a general protections application not involving dismissal under section 372 of the Act."
This decision served as a reminder to both employers and employees that the legal definition of dismissal is crucial in determining the appropriate course of action when disputes arise.
