This extract from a protections decision of the Fair Wrk Commission deals with the issues of dismissals, the general protections and casual employees.
“[20] Unlike unfair dismissal applications, casual employees are not excluded from making
s.365 General Protections (involving dismissal) applications and there is no requirement for an
applicant to have served a minimum employment period. As such, the question of whether or
not Ms Cooley-Cartan’s casual employment was regular and systematic is of limited weight in
this decision however, for completeness, I am satisfied that prior to September 2025 Ms CooleyCartan was a long-term Casual employee who had a reasonable expectation of ongoing
employment however in September 2025, she resigned, thus bringing the employment
relationship to an end. I accept that a new casual employment relationship began in December
2025. To be clear, it is this second employment relationship, beginning December 2025 that is
the subject of this decision.
[21] Ms Cooley-Cartan says that she was dismissed because she made inquiries with Lanspa
about her employment. Lanspa on the other hand argue that Ms Cooley-Cartan was a casual
employee, and as such there was no guarantee of ongoing employment. Lanspa say that Ms
Cooley-Cartan was not dismissed, rather she was not offered any more shifts because there was
a downturn in business resulting in there being insufficient shifts to offer her.
[22] I do not accept Lanspa’s argument with respect to her casual status. Just because casuals
are not guaranteed ongoing work, does not mean there is a loophole that means casuals cannot
be dismissed. It simply means that there is no expectation of continuing work.
[23] Furthermore, I have not been convinced that Ms Cooley-Cartan was not offered further
shifts simply because of a downturn in business. Ms Cooley-Cartan provided evidence of work
that had been assigned to her being reallocated to other therapists and of Lanspa seeking
additional therapists to fill gaps at times that Ms Cooley-Cartan was available to work. Lanspa
on the other hand relied on general assertions that it was a quiet period and provided no direct
evidence of their claim that there were no shifts available.
[24] Viewed objectively, even if it was genuinely the case that there was no work for Ms
Cooley-Cartan at that time, I have not been convinced that this would have necessitated Ms
Cooley-Cartan being removed from Fresha or the group chat. It seems to me that Lanspa could
simply have left things as they were, noting as they had, that there may be less shifts available
due to a downturn in work. Had they taken this approach, Ms Cooley-Cartan would have been
able to pick up any shifts that did become available. Ms Cooley-Cartan made several requests
along these lines, however, Lanspa chose not to do this and instead took the very deliberate
action of removing Ms Cooley-Cartan from Fresha and the group chat completely, resulting in
there being no way for her to be assigned shifts. I have not been convinced that this action was
simply “administrative” and find that removing Ms Cooley-Cartan from Fresha was conduct on
their part that had the clear intention of bringing the employment relationship to an end.
[25] Furthermore, there is a clear inconsistency in Lanspa’s argument and Ms Distor’s
evidence, which confirmed that Ms Cooley-Cartan having lodged an application with the
Commission was a factor in the decision to offer her no further shifts.
[26] The question for the Commission in this decision is whether Ms Cooley-Cartan was
dismissed within the meaning of the Act. I am not required to make any findings as to why Ms
Cooley-Cartan was dismissed, rather the focus of this decision is whether the employment
relationship ended because of Lanspa’s actions.
[2026] FWC 2031
5
[27] The application of these matters to the facts of a particular case was explained by Deputy
President Lake in Fathers v Global Line Marking Services Pty Ltd, in reasoning with which I
concur:
“[3] Section 386(1) of the Act relevantly provides that a person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b)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.
[4] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman
v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an
employee’s to be terminated at the initiative of the employer. In short, it is not sufficient
to simply demonstrate that the employee did not voluntarily leave their employment.
[5] While it may be that some action on the part of the employer is intended to bring the
employment to an end, it is not necessary to show the employer held that intention. It is
sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring
the employment relationship to an end. Put another way, did the employer’s conduct
have the probable result of bringing about the end to the employee’s employment or
leaving the employee with no effective or real choice but to resign? It is necessary to
conduct an objective analysis of the employer’s conduct to determine if it was of such a
nature that resignation was the probable result or that the employee had no effective or
real choice but to resign. All the circumstances – including the conduct of both the
employer and employee – must be examined. In other words, it must be shown that “the
act of the employer results directly or consequentially in the termination of the
employment and the employment relationship is not voluntarily left by the employee.
That is, had the employer not taken the action it did, the employee would have remained
in the employment relationship.” (Footnotes omitted)
[28] In Dorine Torres-Carne v Darwin Aboriginal and Islander Women’s Shelter
(DAIWS), Deputy President Sams explained the key considerations when deciding whether a
casual employee had been “dismissed” within the meaning of the Act;
“[53] At the outset, let me say that there is often a tension between the statutory
protections from unfair dismissal (s 384) afforded to a regular and systematic casual
employee with the ordinary well-understood rights of a casual employee to refuse casual
engagements, and alternatively, the employer’s right not to offer shifts to a casual
employee. That is not to say that an employer cannot refuse to offer further shifts
(effectively terminating the employment relationship) for poor performance,
misconduct or other valid reasons; see: Selvachandran v Peteron Plastics Pty Ltd (1995)
62 IR 371 (‘Selvachandran’). That said, each case will turn on its particular facts and
circumstances.
[2026] FWC 2031
6
[54] On the other hand, the statutory protections from unfair dismissal afforded to a
regular and systematic casual employee must include the full gamut of the matters the
Commission is required to take into account under s 387 of the Act, including affording
the employee procedural fairness when the employer decides to no longer offer the
employee further casual shifts.”
[29] The Deputy President then followed and applied the findings of the Full Court of the
Industrial Relations Court in Mohazab v Dick Smith Electronics Pty Ltd in which it was held
that,
“… a termination of employment at the initiative of the employer may be treated as a
termination in which the action of the employer is the principal contributing factor
which leads to the termination of the employment relationship”, with the enquiry to be
undertaking in these proceedings surrounding whether “the act of the employer results
directly or consequentially in the termination of the employment and the employment
relationship is not voluntarily left by the employee. That is, had the employer not taken
the action it did, the employee would have remained in the employment
relationship.”[21]
[30] The statutory test of whether an employee has been dismissed relates to termination of
the employment relationship, not termination of the contract of employment.
15 It is clear from
the evidence that Lanspa made the decision to stop offering Ms Cooley-Cartan shifts. I am
satisfied that it was this decision that led to the ending of the employment relationship and that
had Lanspa not made this decision, Ms Cooley-Cartan would have remained in the employment
relationship.
[31] For the reasons set out above, I am satisfied that Ms Cooley-Cartan was dismissed by
Lanspa within the meaning of the Act. Lanspa’s jurisdictional objection is dismissed. I order
accordingly. The matter will be listed for a conference in accordance with s 368 of the Act.”
Celestine Cooley-Cartan v Lanspagroup Pty Ltd. [2026] FWC 2031 delivered2 June 2026 per Durham C