Fair work cases; the essence of a dismissal

The essence of an unfair dismissal case in the Fair Work Commission is that the employee was dismissed, and sometimes this is not an easy issue to determine, thus:

Extract from

“A threshold issue to determine is whether the Applicant has been dismissed from his employment.

[70] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[71] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[72] The Respondent contends the Applicant engaged in repudiatory conduct which it accepted, and therefore there was no dismissal within the meaning of s.386.

[73] In Earney v Australian Property Investment Strategic Pty Ltd 47, Hargrave J summarised the legal principles which are to be considered when assessing whether there has been repudiation of an employment contract, as determined by Ross J in Whittaker and Unisys Australia Pty Ltd48, as follows:

(1) The term repudiation is used in a number of senses. Relevantly, the High Court has recently stated that repudiation:

may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations. It be may termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.

(2) It is not necessary to prove a subjective intention to repudiate. The test is an objective one.

(3) Whether there has been repudiation is a question of fact.

(4) Repudiation is not to be inferred lightly. It is a serious matter.

(5) Repudiation may be evidenced by a single act or by an accumulation of conduct in circumstances where no individual act on its own constitutes a repudiation.

(6) Repudiation does not bring an end to a contract. It is necessary for the innocent party to elect to accept the repudiation.

(7) Repudiatory conduct may be ‘cured’ by the party in breach, but only prior to the acceptance of the repudiation. Accordingly, once the innocent party has elected to terminate the contract for breach, it cannot thereafter be cured.

(8) In the context of employment contracts, a significant diminution in remuneration, status or responsibility may constitute a repudiation. Whether or not this is so is a question of fact in each case.

(9) There may be a significant diminution in status or responsibility, even where the employee retains the same remuneration and title.

(10) However, there are circumstances where a considerable change in the nature of an employee’s duties may not amount to a repudiation. Although an employer cannot usually force changes of status and responsibility upon an employee, the circumstances of a particular case may permit a degree of flexibility in approach, with each party being required to provide ‘some reasonable give and take’. In such cases, repudiation may not be inferred in the absence of serious non-consensual intrusions upon the status or responsibilities of the employee. 49

[74] Over the period of 22 July 2021 to 26 October 2021, the Applicant continued to submit notifications to the Allocator regarding his availability, with the last message indicating that he was available for the period of 28 October 2021 to 31 October 2021.

[75] Taking into consideration that repudiation is not to be inferred lightly, when viewed objectively, I do not consider that the Applicant engaged in conduct evincing an intention to no longer be bound by the contract of employment. Nor do I accept the Applicant abandoned his employment.

[76] Even if the Applicant had abandoned his employment, this does not automatically end the employment relationship. In those circumstances, it is a matter for an employer to form that view and take further action to bring about the end of the employment relationship. 50

[77] Accordingly, I find it was the act of the Respondent in sending the correspondence on 27 October 2021 that brought about the termination of the Applicant’s employment.

[78] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.386 of the FW Act.”

Keighran v Sydney International Container Terminals Pty Limited  [2022] FWC 2511  delivered 19 September 2022 per Ryan C