This extract from a decision of the Fair Work Commission deals with what constitutes a dismissal under the Fair Work Act.
“Consideration
[43] As has been explained, the question which is raised by grounds 1 to 3 in the notice of appeal is ultimately whether the Commissioner was correct to find that Mr Humeniuk was not dismissed as a result of the email from Ms Corti dated 3 September 2024.
[44] That question requires some reflection on the nature of Mr Humeniuk’s engagement as a casual employee and the circumstances in which the employment of an employee is terminated on an employer’s initiative for the purposes of s 386(1)(a). The analysis of whether a person’s employment “has been terminated on the employer’s initiative” has long been understood as being conducted by reference to termination of the employment relationship rather than only termination of the contract of employment.21 For example, a wrongful dismissal (that is, one which is not authorised by the terms of the contract of employment) terminates the employment relationship notwithstanding that the contract may continue in operation until the employee accepts the repudiation.22 We note that an employee may also be dismissed within the terms of s 386(1)(a) if the employer repudiates the employee’s contract of employment by demoting the employee and the employee accepts the repudiation but continues to be employed under a new employment contract.23
[45] In Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161; (2024) 307 FCR 65, the Full Court commented on the distinction between the contract of employment and the employment relationship. That case concerned whether the expiry of a fixed term contract of employment resulted in dismissal. The Full Court observed, albeit in obiter dicta, that “[a]t least for present purposes, distinctions between employment relationships and employment contracts are artificial; the termination of an employment relationship and the termination of an employment contract are the same thing”. The Full Court continued that “the reference to “the person’s employment with his or her employer [having been] terminated” can only be understood as a reference to the person’s contract of employment being brought to an end (or, perhaps in some cases, repudiated)”.24 We do not understand the Full Court to have altered the long-standing understanding of the expression “terminated on the employer’s initiative”. In our view, the comments of the Full Court are best understood merely as recognising that, most
12
commonly, the termination of the employment relationship and the contract of employment will coincide. That reflects that the employment relationship is contractual in origin such that there can be no employment without a contract of employment.25
[46] The concentration on the termination of an existing contract of employment has the potential to cause some uncertainty in the context of casual employment. The Act contemplates that a casual employee is able to apply for an unfair dismissal remedy if the person has completed the minimum employment period as a “regular casual employee” and, during the period of service, had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.26 That is premised on the casual employee having a “period of service” of at least six months, being the period the employee was employed by the employer.27 That is, it is contemplated that a casual employee will continue to be employed over a period of time in which they perform work on various occasions for the employer which may, or may not, be regular and systematic.
[47] No issue is raised in this matter as to whether Mr Humeniuk was employed by Sculpture by the Sea throughout 2024 until at least 3 September 2024 or that Mr Humeniuk had not completed the minimum employment period for the purposes of s 384(2)(a) as a “regular casual employee”. Mr Humeniuk contends that he was dismissed on 3 September 2024 whereas Sculpture by the Sea asserted that Mr Humeniuk continued to be employed at the time of the jurisdictional objection hearing on 23 December 2024. We consider that it is correct for the parties to understand the relationship created by the contract of employment entered into in January 2024 as providing that Mr Humeniuk remained employed by Sculpture by the Sea on a casual basis until the contract was terminated.
[48] The contract has potentially contradictory features. On the one hand, the letter indicates that it provides Mr Humeniuk with “a new contract of employment in the position of Senior installer with Sculpture by the Sea Incorporated”. Clauses 1.1 and 1.2 provide that the employment has a “start date” and the employment will be “on a casual basis, as required”. The contract elsewhere provides for the duties associated with the employment, the rate of pay, hours of work, leave entitlements, payment of expenses and other conditions of employment. Notably, clause 13 provides for a request to be made to convert to full or part time employment after “12 months of regular casual employment” and clause 14 provides for “termination of employment”. Clauses 15.2, 16.4, 16.6 and 19.1 impose obligations with respect to intellectual property, confidential information and receipt of inducements or rewards which continue to apply “during your employment”. Clause 23.1 provides that “[t]he terms and conditions referred to in this letter constitute all of the terms and conditions of your employment”. Each of these provisions contemplate that the contract created an ongoing employment relationship albeit of a casual nature.
[49] On the other hand, clause 6.1 provides that “… you will only be employed at such times and for such periods as are necessary to meet our operational needs”. There is some ambiguity in the reference to Mr Humeniuk only being “employed” at such times and for such periods as are necessary for Sculpture by the Sea’s operational needs. In our view, the better reading of the word “employed” in clause 6.1 is that it refers to the actual performance of work rather than the existence of an employment relationship. That understanding is consistent with the final sentence of clause 6.1 which states that “[w]e are not in a position to guarantee a certain minimum number of hours’ employment each week or each month, or work on a continuing
13
basis”. That sentence unquestionably uses the word “employment” to refer to the performance of work. In the context of the remaining provisions of the contract, we do not consider that clause 6.1 is inconsistent with the contract creating an ongoing employment relationship.
[50] Clause 1.4 provides that “[e]ach occasion that you work will be a separate contract of employment which ceases at the end of that engagement”. The clause is difficult to reconcile with the remainder of the contract which, in our view, plainly contemplates an ongoing employment relationship. However, understood together with clause 1.5 which provides that “as a casual employee, there is no guarantee of ongoing or regular work”, the intention appears to be to emphasise that there is no guarantee of particular periods of actual work. The assertion that there is a separate contract for each engagement is not inconsistent with the existence of an umbrella contract providing for ongoing obligations associated with a continuing employment relationship.28 In any event, in our opinion, when the contract is viewed as a whole, it provides for ongoing employment of a casual nature.
[51] The remaining question is whether the email of 3 September 2024 from Ms Corti to Mr Humeniuk terminated Mr Humeniuk’s employment “on the employer’s initiative”. That question will commonly require consideration of whether the act of the employer resulted directly or consequentially in the termination of the employment and the employment relationship was not voluntarily left by the employee.29 In other matters, the Commission has framed the inquiry as involving consideration of whether there was some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment to an end.30
[52] Mr Humeniuk submits that the Commissioner erred by considering only whether Sculpture by the Sea intended to bring his employment to an end and failed to consider whether the email from Ms Corti had the probable result of bringing the employment relationship to an end. It is correct to say that the Commissioner considered, at a number of points, whether the language of the email evinced “an intention to terminate the relationship”.31 However, we do not accept that the approach of the Commissioner involved error in the circumstances of this matter. This is not a case in which it is alleged that Sculpture by the Sea engaged in conduct which repudiated the contract of employment or forced Mr Humeniuk to resign. Mr Humeniuk’s case, as we understand it, is that the email of 3 September 2024 involved an overt termination of his employment.
[53] That submission requires consideration of whether, assessed objectively, Sculpture by the Sea should be understood to have intended to bring the relationship to an end through the email of 3 September 2024. The question of whether a party to a contract of employment has given notice of termination does not depend on the subjective intention or understanding of the employer or employee, but an objective assessment of the intentions of the parties.32 The question is whether a reasonable person in the position of the parties would have understood Sculpture by the Sea to have terminated Mr Humeniuk’s employment through the email of 3 September 2024.
[54] With respect, we disagree with the conclusion of the Commissioner in that regard. The use of the language in the 3 September 2024 email “we would like to take a pause on our working relationship until after this year’s Bondi exhibition” would, in the circumstances, be understood by a reasonable person in the position of the parties as conveying an intention to
14
terminate the employment. A number of aspects of the circumstances are significant. Mr Humeniuk had worked on each Bondi exhibition since 2004 (leaving aside the exhibitions which were cancelled as a result of the COVID-19 pandemic) and he had agreed with Mr Marwick to undertake work on the 2024 exhibition. In those circumstances, a reasonable person would understand that Sculpture by the Sea did not wish to engage Mr Humeniuk further, at least for the time being. Similarly, Ms Corti’s statement that the pause was prompted by acknowledgement of “your concerns about working with us again, and that you may not want to do so” would suggest to a reasonable person that the “pause” was envisaged to be a cessation of the relationship.
[55] The email of 3 September 2024 did convey that Sculpture by the Sea might consider employing Mr Humeniuk in the future. Ms Corti proposed that a meeting take place in mid- December or mid-January and that “[h]opefully after these meetings we will all be happy to work together again”. The fact that an employer indicates that it might be open to recommencing an employment relationship in the future does not remove the possibility that the employment has been terminated for the time being. Ms Corti’s email contemplated that Mr Humeniuk would perform no work at all for at least three or four months in circumstances in which he had been regularly performing work for Sculpture by the Sea up to that point. Whether the parties would “work together again” was said to be dependent on a positive outcome to the meeting envisaged by the email. It was no more than a possibility.
[56] We do not consider that the decision to “pause” the relationship can be said to be consistent with the casual nature of the employment.33 The fact that Ms Corti conveyed that a decision had been made to “pause” the relationship, in itself, suggests that Sculpture by the Sea did not regard the decision as simply the continuation of the existing casual employment. Furthermore, as we have observed, Mr Humeniuk had been performing work on a regular basis up to that point in time and the decision meant that there would be a period of at least three or four months in which Mr Humeniuk would not be engaged and that whether the employment would resume would depend on a positive outcome to a meeting proposed to be conducted months into the future. Each of those aspects to the email of 3 September 2024 are inconsistent with the relationship as it had existed up to that time.
[57] A number of the matters relied upon by the Commissioner are not, in our opinion, relevant or persuasive. The Commissioner considered Mr Humeniuk’s email of 25 March 2024, the tone of his communications and his alleged failure to engage with Ms Corti to set up a meeting and whether the decision to pause the relationship was reasonable.34 Although whether a reasonable person would have understood Sculpture by the Sea to have terminated the employment must be assessed in light of the whole of the circumstances, we do not consider that those matters assist the analysis. Whether the actions taken by Ms Corti were understandable or reasonable, and whether Mr Humeniuk acted reasonably, is not relevant when assessing whether the inference to be drawn is that Sculpture by the Sea terminated the employment. Indeed, if an employer has good reason to terminate the employment of an employee, that might favour a conclusion that the employer intended to do exactly that. The email of 25 March 2024, if anything, favours a conclusion that Sculpture by the Sea intended to terminate the relationship because Ms Corti conveyed that she understood Mr Humeniuk may not wish to work for Sculpture by the Sea at all in the future. That was emphasised in Ms Corti’s email of 10 September 2024.
15
[58] Finally, we consider that the fact that Mr Marwick had asked Mr Humeniuk to perform work on the Bondi exhibition in 2024, and that Mr Humeniuk had agreed to do so, is relevant to the inferences a reasonable person would draw from the “pause” to the relationship. Contrary to the view formed by the Commissioner, that does not depend upon a determination of whether there was a “binding contract” or an “enforceable contract” to undertake that work. A decision to pause the working relationship which involved an employee not performing work which he had been asked to undertake is relevant to an objective understanding of the intentions of the employer. Similarly, the dispute as to whether there was work available to Mr Humeniuk after September 2024 does not assist. The email of 3 September 2024 conveyed that Mr Humeniuk would not be engaged to perform any work unless there was a positive outcome to the foreshadowed meeting. The decision did not suggest that Mr Humeniuk was not to be engaged to undertake further work because none was available.
[59] For these reasons, the decision of the Commissioner was affected by error of the type identified in grounds 2 and 3 and, in any event, the conclusion of the Commissioner that Mr Humeniuk was not dismissed was wrong.
Conclusion and disposition
[60] For these reasons, permission to appeal should be granted with respect to grounds 1 to 3 in Mr Humeniuk’s notice of appeal. The appeal should be allowed, the decision of the Commissioner should be quashed and Mr Humeniuk’s application remitted to the Commissioner to be dealt with under s 368 of the Act.”
Appeal by Humeniuk v Sculpture by the Sea Incorporated [2025] FWCFB 212 delivered 18 September 2025 per Gibian VP, Roberts DP and Slevin DP