FWC examines when routine documentation becomes proof of dismissal
The Fair Work Commission (FWC) recently dealt with determining whether providing an employment separation certificate constituted a dismissal under the Fair Work Act 2009 (the Act).
A worker filed a general protections dismissal application on December 5, 2024, claiming her employment ended after her labour hire assignment finished in November 2024. The labour hire employer maintained that she remained employed as a casual worker despite issuing a separation certificate citing "shortage of work."
The jurisdictional objection required the FWC to determine if the worker was dismissed within the meaning of section 386(1) of the Act before proceeding with the general protections application.
A labour hire company specialising in electrotechnology, construction and trades employed the worker as a casual project coordinator in January 2024, placing her at their client's worksite in Footscray, Victoria.
Her employment contract contained specific provisions about assignment endings: "the termination of an Assignment for whatever reason does not of itself constitute the termination of your employment." The company's client base operated predominantly in Queensland.
After the client ended her assignment on November 11, 2024 (with payment until November 14), she spoke with the labour hire company's director about future work possibilities. The director informed her about the limited Victorian opportunities given their Queensland-focused operations.
Following this conversation, the worker requested an employment separation certificate for Centrelink purposes. The company's accounts officer provided this on November 21, 2024, marking "shortage of work" as the reason for employment ending.
The FWC noted in its decision: "It was open for [the employer] to have identified on the Separation Certificate that the reason for separation was due to [the worker] having left 'voluntarily'. It did not do so and the person who prepared the Separation Certificate was not called to give evidence."
Significantly, the FWC found: "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 company argued that the worker remained in their system as a casual employee. Their only contact after providing the certificate was a January 17, 2025 email about Queensland-based opportunities, sent after she had filed her application.
The FWC observed this timing and lack of contact: "The absence of such contact with an ongoing 'employee', even a casual employee, is strongly suggestive of the employment relationship having ended."
The decision elaborated: "More is required than the mere cessation of an assignment to conclude that the employment relationship with [the employer] had also ended."
The FWC ruled that the employer's actions constituted a dismissal under section 386(1)(a) of the Act.
The decision stated: "I accept that [the employer] may not have intended to dismiss [the worker]. I find however in all the circumstances considered above that the action of [the employer] in preparing and providing [the worker] with the Separation Certificate had the effect of communicating to [the worker] that her employment had ceased by reason of a shortage of work and not voluntarily."
The FWC emphasised: "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 employer] are dispelled by a plain reading of the Separation Certificate."
Having found the worker was dismissed within the meaning of section 386(1)(a), the FWC dismissed the jurisdictional objection. The matter was set to be listed for a conference under section 368 of the Act to determine whether the dismissal contravened Part 3-1 of the legislation.
