Three workers claim unfair dismissal, but messages told another story
The Fair Work Commission (FWC) recently handled applications from three workers alleging termination in violation of the Fair Work Act 2009's general protections provisions. The workers claimed unfair dismissal and sought remedies under section 365 of the Act.
This case centered on worker classification and what constitutes dismissal under Australian employment law.
The workers maintained they were employees entitled to protections, while the business argued they were independent contractors who voluntarily ended their working arrangements.
Neither the workers nor their representatives appeared at the scheduled hearing, leaving the Commission with only the employer's evidence to consider.
The employer, who operated Glenwood Caravan Park, objected on the grounds that the workers were engaged as independent contractors, not employees, and therefore could not have been "dismissed" as defined in section 386 of the Fair Work Act.
Additionally, the employer maintained that each worker had voluntarily terminated their relationship.
The Commission explained that for a valid application under section 365, specific criteria must be met: there must be an employment relationship between the parties, and the employment must be terminated either on the employer's initiative or through forced resignation due to employer conduct.
The case was heard after the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 came into effect on August 26, 2024, which introduced new provisions regarding employment classification. The Deputy President noted this timing was significant to how the case would be assessed.
The Commission issued directions for both parties to file evidence and submissions and scheduled a hearing for March 5, 2025.
However, the workers neither filed any materials nor attended the hearing, while the employer submitted statements and attended as required.
Given these circumstances, Deputy President Roberts made a practical decision to proceed on the assumption that the three workers were employees, without making a final determination on that point, to examine whether dismissals had actually occurred.
The uncontested evidence provided by the employer's representative established the circumstances of each worker's departure.
The first worker attended the employer's office around noon on November 15, 2024, stating she was terminating her contract effective immediately.
The second worker sent a text message later the same day advising she was terminating her contract effective immediately and enclosing her final invoice. The message stated: "Hi Tracy here is my invoice for this week to be paid. I will not be returning."
The third worker sent a text message on November 19, 2024, to cancel her contract. Her message indicated that after careful consideration, she had "decided to resign from (her) position effective immediately" and would not be returning for the rest of the week.
Copies of these text messages were submitted as evidence, providing documented proof of the workers' intentions to end their working arrangements.
The FWC said that Section 386 of the Fair Work Act specifies two scenarios where a person is considered dismissed. The first is when the person's employment with his or her employer has been terminated on the employer's initiative.
The second is when 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.
Based solely on the evidence before the Commission, Deputy President Roberts concluded that each worker decided to bring their relationship with the employer to an end.
The decision stated: "There is no evidence to show the relationships were brought to an end on the [employer's] initiative or that [the workers] were forced to 'resign' because of conduct or a course of conduct engaged in by the [employer]."
The Deputy President therefore determined: "I am not able to conclude that [the workers] were dismissed for the purposes of s.386. It follows that the applications were not validly made and must, in each case, be dismissed."
