These passages from a recent case decided by the Fair Work Commission deal with the legal considerations at play in determining whether a casual employee has been dismissed (referred to in the decision as the “non-allocation of work ”and can therefore pursue an unfair dismissal case.
“Consideration re dismissal
[35] I reject Mr Timmins’ argument that, on 17 August 2024, he accepted the non-allocation of work to him as repudiatory conduct entitling him to bring his employment contract to an end. Mr Timmins was a casual employee of Alpha. He had no contractual entitlement to be offered, or work, any particular hours or shifts each week. I accept that Mr Timmins worked an average of about 43 hours per week in 2023/2024, but this did not give rise to any obligation on the part of Alpha, or a right on the part of Mr Timmins, to work regular or systematic hours of work into the future.
[36] Mr Timmins contends that the text message he received from Ms Mortiss on 7 April 202412 is evidence of an agreement that he would be given regular and systematic hours of work into the future, including beyond 29 June 2024. The text message from Ms Mortiss does not constitute evidence of any such agreement. The text message is limited to another site where Alpha intended to “slot” Mr Timmins in for shifts as a security officer once a particular project finished. The text does not make any reference to an ongoing commitment to provide such work for Mr Timmins. I consider the text message to be a typical communication to a casual employee such as Mr Timmins concerning work which may be available for him in the future. The text message does not contain any promissory language or text suggesting the existence or a right or obligation concerning hours of work for Mr Timmins.
[37] Having regard to all the circumstances, I am satisfied that Mr Timmins’ employment with Alpha was not terminated on Alpha’s initiative. There was no action on the part of Alpha which was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment of Mr Timmins. Alpha’s conduct in the relevant period included informing Mr Timmins, on 2 July 2024, that Alpha expected to have “more K9 working coming up shortly in Newcastle”, providing documents and information to Mr Timmins in response to a number (but not all) requests made by him for payslips and other information, and an invitation by Ms Mortiss, on 16 August 2024, to “chat” with Mr Timmins to discuss how they could resolve the issues being raised by Mr Timmins. This conduct suggests that Alpha wished for its employment relationship with Mr Timmins to remain on foot.
[38] Although Mr Timmins was not offered any shifts by Alpha in the period from 30 June 2024 to 17 August 2024 and this was a significant change from the average of 43 hours he was working for Alpha prior to 30 June 2024, I accept Ms Mortiss’ evidence that there were good reasons for that change and those reasons did not include the fact that Mr Timmins had raised concerns with Alpha about not being provided with payslips, not being paid in accordance with the Security Award, superannuation, and not wanting to be paid cash. It was Mr Timmins’ choice not to put the Uni Guard app on his mobile phone. As a consequence, Mr Timmins was not offered security officer work at sites where Alpha’s client required the use of the Uni Guard app. I accept Ms Mortiss’ evidence that the Maitland Council waste site was a site where Maitland Council were insisting, by 2 July 2024, that Alpha meet its commitment for its security officers to use the Uni Guard app every 30 minutes for patrols. All other security officers employed by Alpha were willing to, and did, download and use the Uni Guard app on their personal mobile phones for security patrol work. Some of those security officers were offered shifts by Alpha at the Maitland Council waste site after 29 June 2024. I do not accept Mr Timmins’ contention that other security officers were offered work by Alpha at the Maitland Council waste site because they were willing to be paid in cash by Alpha. I accept Ms Mortiss’ evidence that the need to use the Uni Guard app on the Maitland Council waste site was the reason such work was offered to other security officers and not to Mr Timmins after 29 June 2024. This is consistent with the contemporaneous text message sent to Mr Timmins on 2 July 202413 and Ms Mortiss’ oral evidence about her discussions with representatives of Maitland Council. It also rings true that a client, such as Maitland Council, who has had thefts from its premises would want to see evidence that security officers were present at, and moving around, its site during a shift. The Uni Guard app allows such information to be provided to the client in a transparent and timely manner. I also accept Ms Mortiss’ evidence that Alpha did not have any security officer shifts involving a security dog available for Mr Timmins in the period between 30 June 2024 and 17 August 2024. On 2 July 2024, Mr Sefton expected to have such work available,14 but the expected work did not eventuate. Alpha had some security officer work available at an Orica site, but this work did not involve a security dog and Ms Mortiss understood from what Mr Timmins had told her that he wanted to do canine security work, albeit Mr Timmins had done some work for Alpha on sites where a security dog was not required for a particular period of time.15 Alpha arranged for some of its permanent employees to work at the Orica site.
[39] I am satisfied that Mr Timmins did resign from his employment with Alpha on 17 August 2024. So much is clear from the part of his 17 August email where Mr Timmins informed Ms Mortiss that he had “no interest working for you, that is irreversibly destroyed. I
will obtain work elsewhere or start my own K9 security business.” However, I do not accept that Mr Timmins was forced to resign because of conduct, or a course of conduct, engaged in by Alpha.
[40] I am satisfied that Alpha did not engage in any conduct with the intention of bringing its employment relationship with Mr Timmins to an end. On the basis of the evidence to which I have referred above, I am satisfied that Alpha was willing to discuss with Mr Timmins the issues he had raised and roster him for canine security officer work when such work became available for him. Alpha indicated by its conduct that it wanted the employment relationship with Mr Timmins to remain on foot.
[41] I am also satisfied that termination of Mr Timmins’ employment was not the probable result of Alpha’s conduct such that Mr Timmins had no effective or real choice but to resign. Mr Timmins had a range of real options, other than resignation, available to him. He could have obtained some casual security work through another employer and waited to see what, if any, work was offered to him by Alpha in the future (after 17 August 2024). It is not uncommon for casual employees in many industries to remain on the “books” of various employers and accept the shifts that suit them at particular times. As to the issues raised by Mr Timmins with Alpha concerning his alleged underpayment of wages, superannuation, payslips and the like, there is no reason why Mr Timmins could not have taken up Ms Mortiss’ offer to discuss those issues with her with the objective of resolving them and both being “happy to move forward”. Mr Timmins could also have raised a dispute under the dispute resolution procedure in the Security Award or sought the assistance of the Fair Work Ombudsman, while he remained an employee of Alpha, in resolving his concerns about an underpayment of wages.
[42] Having carefully observed and listened to the evidence given by Mr Timmins, I find on the balance of probabilities that the predominant reason he resigned from his employment with Alpha is because he was very upset at the death of his dog (Ragnar) on 12 August 2024 and he blamed Alpha for that death because he believes that he would have been able to afford the surgery required by Ragnar if Alpha had paid him in accordance with the Security Award. Mr Timmins’ email of 17 August 2024 supports this finding. Further, by the time Ragnar required surgery on 12 August 2024, Mr Timmins had raised a general concern with Alpha that he was not being paid in accordance with the Security Award but he had not articulated the basis of that concern or provided any calculations to support his contention. Had Mr Timmins raised those issues with Ms Mortiss in a calm, measured and detailed way, I am confident that Ms Mortiss would have considered them seriously and carefully and then worked with Mr Timmins to get to the bottom of his concerns. My confidence in this regard is supported by the actions of Ms Mortiss after Mr Timmins’ resignation in conducting a review of the payroll records as they related to Mr Timmins and making a payment of a shortfall of wages into Mr Timmins’ account. Mr Timmins disputes that he has been paid all that he is entitled to, but the actions of Ms Mortiss suggest that there was a willingness to work with Mr Timmins to resolve these issues while the employment relationship remained on foot. I do not accept that Alpha’s conduct in not paying Mr Timmins all his entitlements under the Security Award meant that Mr Timmins had no effective or real choice but to resign.
Conclusion
[43] For the reasons given, Mr Timmins was not dismissed within the meaning of s 386 of the Act. He was therefore not unfairly dismissed.
[44] Mr Timmins’ unfair dismissal application is dismissed.”
Timmins v Alpha K9 Security Pty Ltd [2025] FWC 430 delivered 13 February 2025 per Saunders DP