This extract from an unfair dismissal case contains an analysis of the fundamental elements of a dismissal.
“Section 386
[19] In order for an employee to be ‘dismissed’ under s.386, it must be shown that they fall
within one of the two limbs in that section. In some factual situations it might be possible for
both limbs to be engaged.14 In this matter, the essential facts giving rise to the application were
not in dispute and it remains for me to determine whether the requirements of the section have
been satisfied.
[2023] FWC 1901
5
[20] The Applicant last performed work for the Respondent on 3 January 2023. Despite
repeated attempts by the Applicant to contact the Respondent about returning to work or advice
as to whether the Applicant was still employed, the Respondent failed to meaningfully respond
to the Applicant between January 2023 and the filing of the application on 27 April 2023. The
Respondent did not provide the Applicant with any work in that period and did not pay the
Applicant any wages. The Applicant was ready and willing to work and actively seeking a
return to work. It appears the Respondent had formed the view that because of cash flow
problems for the business, the Respondent could simply ignore the Applicant’s messages, not
provide work, and thereby avoid any liability to pay wages to the Applicant.
[21] Section 386(1)(a) provides that a person is dismissed if that person’s employment has
been terminated on the employer’s initiative. The reference to ‘employment’ is taken to be a
reference to the employment relationship rather than the employment contract.15 Thus the focus
is on the termination of the relationship rather than the employment contract, the latter of which
may, in some circumstances, continue even after the relationship is at an end.16
[22] Termination ‘on the employer’s initiative’ is a termination that is brought about by an
employer and which is not agreed to by the employee.
17 If an act of the employer results
‘directly or consequentially in the termination’18 or the employer’s actions are the ‘principal
contributing factor’ which lead to the termination of the employment relationship,
19 the
termination of employment will be ‘on the employer’s initiative.’ In Mohazab the Court also
referred to termination at the employer’s initiative as being action of the employer which, had
it not been taken, the employee would have remained in the employment relationship.20
[23] Here the employment relationship was brought to an end by the action of the Respondent
in not providing work or wages to the Applicant for a period of approximately 16 weeks. The
obligation to provide work and wages is fundamental to both the employment relationship and
the contract of employment. The failure to meet that obligation is also a repudiation of the
contract of employment between the parties. Had the employer not refused to meet that
obligation the employment relationship would likely have continued. The Applicant indicated
in his message of 15 February that he had ‘no intention of resigning.’ However, the failure of
the Respondent to provide work and wages meant that on any objective analysis the
employment relationship had come to an end by 27 April 2023. It had ended because of the
actions of the Respondent employer whose conduct resulted, directly or consequentially, in
bringing the relationship to an end. The Applicant was entitled to regard the employment
relationship as having come to an end. He treated it as having come to an end by filing the
application for unfair dismissal on 27 April 2023. The filing of the application was also an
acceptance by the Applicant of the Respondent’s repudiation of the contract of employment.
[24] The matter bears some similarities with the case of White v. Superior Facilities Pty Ltd.
21
In that case Colman DP concluded that the Respondent employer’s failure to pay wages meant
that the relationship had been brought to an end at the employer’s initiative. Here I also conclude
that the employment of the Applicant was terminated on the employer’s initiative within the
meaning of s.386(1)(a). I conclude that the termination took effect on 27 April 2023.”
Wood v Tricon Security Pty. Limited [2023] FWC 1901 delivered 1 August 2023 per Roberts DP