Fair work cases; what is a dismissal?

Curiously the legal issues of whether an employee has been dismissed, and when, are disputed reasonably often in the unfair dismissal jurisdiction of the Fair Work Commission.

“A remedy for unfair dismissal is only available if the Commission is satisfied that an employee has been dismissed. 1 Relevantly, under section 386(1) of the Act, a person has been dismissed if their employment has been terminated on the employer’s initiative.2 This means that termination is brought about by an employer without the agreement of the employee. Termination of employment can occur at the initiative of the employer even if not done by the employer, if the action of the employer is the principal contributing factor which brings an end to the employment relationship.3

In the context of casual employment, it is also often necessary to consider whether there has been a termination of the employment relationship as opposed to termination of the contract of employment operative immediately before the cessation of the employment. 4 This is because the contract of employment and the employment relationship are not always one and the same.”

Solde v The Trustee for Infinity Green Family Trust trading as Caulfield Manor Supported Residential Service (2021) FWC 847 delivered 17 February 2021 per McKinnon C