This decision of a Full Bench of the Fair Work Commission in an appeal contains a very useful summary of the legal principles at play when determining whether a casual employee has been dismissed in the context of shifts being withheld.
“Decision of Vice President Gibian and Deputy President Wright
[1]
This appeal concerns whether a casual employee was ‘dismissed’ for the purposes of s 386 of the Fair Work Act 2009 (Cth) (the FW Act). The employee concerned is Dea Chang Kim. Mr Kim commenced unfair dismissal proceedings under s 394(1) of the FW Act against the Marlow Family Trust No 3 (the Marlow Group) on 24 November 2025. A Deputy President of the Commission found that Mr Kim had not been dismissed by his employer and, as a result, that the unfair dismissal application itself must be dismissed: Kim v The Marlow Family Trust No 3 [2026] FWC 543. Mr Kim appeals that decision. Permission to appeal has already been granted by a differently constituted Full Bench: Kim v The Marlow Family Trust No 3 [2026] FWCFB 132.
[2]
The background to the application may be briefly stated. Mr Kim worked in the kitchen at two venues operated by the Marlow Group, namely, the Kings Park Tavern and the Doonside Hotel. Mr Kim had no written contract of employment. It appears to be accepted that the employment was casual in nature. The evidence demonstrated that Mr Kim had been working regular shifts three days each week (Tuesday, Wednesday and Thursday) across the two venues plus some additional ad hoc shifts in the period leading up to November 2025. Mr Kim had been working that pattern of hours since the employment commenced in August 2024.
[3]
On 14 November 2025, Mr Kim received a text message from the head chef at 12.33pm which read:
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Hi Kim,
At the time being I have been asked to cut my casual labour due to down turn in business. Unfortunately, I don’t have any shifts for you at the time.
Sorry for any inconvenience.
[4]
Mr Kim responded to the message at 12.55pm in the following terms:
Hi Chef
Thank you for letting me know. I appreciate the update.
Just to confirm – should I understand that for now I will only be working on Wednesdays and Thursdays?
Please keep me in mind if more shifts become available in the future.
I hope things improve soon.
[5]
The head chef responded at 12.58pm and said:
Hi chef,
Unfortunately I don’t have Wednesday or Thursday either.
Sorry but if I have availability come up I will call you.
Thanks for understanding.
[6]
Mr Kim sent a further message to the head chef at 3.27pm as follows:
I have worked with you for a long time and have always followed your requests to work at Dunside. I was wondering if it might be possible to work part-time at Dunside or Kings Park.
I would really appreciate it if you could consider my request.
Thank you very much for your time and understanding.
[7]
The Deputy President recorded that the Marlow Group provided its employees, including Mr Kim, with work rosters three weeks in advance. On 14 November 2025, Mr Kim was removed from all shifts in the coming roster period running up to 7 December 2025. Mr Kim said he was provided with no clear guidance or confirmed roster regarding any future work.
[8]
As we have observed, Mr Kim applied to the Commission for an unfair dismissal remedy by completing an ‘Unfair dismissal application Form F2’ on 24 November 2025. After being served with Mr Kim’s application, the head chef at the Kings Park Tavern attempted to contact Mr Kim on 8 and 9 December 2025 by text message requesting that he indicate his
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availability for work the following week. It appears that the head chef again attempted to contact Mr Kim by telephone between 6 and 12 January 2026 without success.
[9]
The Marlow Group completed a ‘Form F3 Employer response to unfair dismissal application’ on 4 December 2025. In its response, it objected to Mr Kim’s application on the ground that he had not been dismissed. The response acknowledged that Mr Kim ‘was informed that we had seen a drop in our business and we would be in touch when we saw an increase in trade’ and stated that Mr Kim ‘still has an active profile on our rostering system’ and ‘is still eligible for shifts, and we have some in the coming weeks we will need him to fulfil’.
[10]
The Deputy President conducted a determinative conference in relation to the jurisdictional objection on 20 February 2026 and handed down his decision on 27 March 2026. In his reasoning, the Deputy President recognised (at [17]) that there is a clear legislative intent that the unfair dismissal provisions in Part 3-2 of the FW Act apply to casual employees. The Deputy President referred (at [23]-[26]) to the decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan [2018] FWCFB 5; (2018) 273 IR 126 (Balgowan) and, in particular, the conclusion of the Full Bench that it was not open to find that changes to the hours of work or duties of a casual employee resulted in a repudiation of the employee’s contract of employment unless the hours or duties were contractual. The Deputy President reasoned:
[27] I am satisfied that the Applicant was a casual employee engaged on a regular and systematic basis. However, I do not consider that his working hours, the number of shifts allocated to him, or the locations where he worked, were contractual terms of an ongoing employment relationship capable of variation only by agreement. Instead, those matters gave rise to expectations, which may have been reasonable, but they were not terms of the contract of employment.
[28] The Applicant did receive regular notification of allocated work as a result of the Respondent’s issuance of rosters. However, the fact that the Applicant relied upon being notified of work through the rostering process is indicative of those rosters not constituting contractual terms. I further note that, although the Applicant was commonly rostered to work on Tuesdays, Wednesdays and Thursdays, those shifts were subject to variation, albeit minor, including variations to start and finish times.
[11]
The Deputy President indicated (at [29]-[33]) that he took into account the conduct of the parties for the purposes of ascertaining the terms of Mr Kim’s contract, including that Mr Kim had said he did not immediately believe he had been dismissed on 14 November 2025 and that the head chef had sought to allocate shifts to Mr Kim in early December 2025.
[12]
The Deputy President concluded (at [34]-[35]) that Mr Kim’s hours of work, number of shifts and the location at which his work was to be undertaken were not terms of a contract of employment of an ongoing nature which could only be altered by agreement and that the text messages of 14 November 2025 did not constitute dismissal. As a result, the Deputy President stated (at [36]) that the Commission did not have jurisdiction to deal with the application and it must be dismissed.
Nature of the appeal and further evidence
[13]
If permission to appeal is granted as it has been in this case, an appeal to the Full Bench under s 604(1) of the FW Act is an appeal by way of rehearing: Coal & Allied Operations Pty
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Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [17] (Gleeson CJ, Gaudron and Hayne JJ). The function of the Full Bench on appeal is to determine whether there was an error on the part of the primary decision-maker: Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29; (2025) 99 ALJR 1185 at [53], [55] (Gageler CJ, Gordon and Beech-Jones JJ) and [83] (Edelman J). The powers of the Full Bench on appeal are only able to be exercised if error is found in the first instance decision.
[14]
The question of whether an employee has been dismissed is a matter that, in some cases at least, may give rise to uncertain questions of fact and law about which reasonable minds might differ. Nonetheless, the question of whether a person has been dismissed is a matter upon which the jurisdiction of the Commission depends and is a question amenable to only one correct answer: Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 at [79] (Rares, Collier and Charlesworth JJ). The identification of errors in the approach adopted in the decision at first instance may, of course, be instructive as to whether the conclusion reached is correct. Nonetheless, the question on appeal is ultimately whether the Deputy President was correct to find that Mr Kim was not dismissed.
[15]
Mr Kim’s notice of appeal identifies 19 grounds of appeal. His written submissions distil those grounds into five grounds which variously contend that the Deputy President misapplied various principles of law, failed to identify the terms of his contract of employment, misapprehended the facts and denied him procedural fairness. At least included within those grounds (particularly within ground 2 as identified in his written submissions), Mr Kim contends that the Deputy President erred in the application of s 386(1)(a) of the FW Act in failing to find that the conduct of his employer directly terminated his employment on 14 November 2025. It is sufficient to consider that ground to resolve the appeal.
[16]
Mr Kim sought to rely on two additional documents on appeal being a text message dated 26 August 2024 setting out his hours of work at the start of the employment and a text message dated 30 May 2025 in relation to the adjustment of his hours of work. The Full Bench can receive further evidence on appeal under s 607(2) of the FW Act. The principles ordinarily applied to the discretion to admit new evidence on appeal are set out in Akins v National Australia Bank (1994) 34 NSWLR 155 (Clarke JA). The further evidence advanced by Mr Kim does not satisfy the requirements in Akins at least in that it was available at first instance. However, in circumstances in which Mr Kim was unrepresented and has limited English language skills, we are satisfied it is in the interests of justice to accept the further evidence on appeal. Mr Greenland, who appeared for the Marlow Group, did not object to that course. The initial text message setting out Mr Kim’s hours of work at the commencement of his employment, at least, is relevant to the appeal.
Consideration
[17]
Section 394(1) allows a person who ‘has been dismissed’ to apply for an unfair dismissal remedy. In addition, s 385(a) provides that a person has been unfairly dismissed only if the Commission is satisfied that the person ‘has been dismissed’. Section 386 is entitled ‘Meaning of dismissed’ and relevantly provides:
386 Meaning of dismissed
(1)
A person has been dismissed if:
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(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.
…
[18]
As such, s 386(1)(a) and (b) provide alternative methods by which the conclusion might be reached that an employee has been dismissed. Under s 386(1)(a), a person will have been dismissed if the person’s employment has been ‘terminated on the employer’s initiative’. That is, if the employer’s act brings the employment to an end. Under s 386(1)(b), it is the employee’s act that (overtly at least) brings the employment to an end by way of resignation, but the employee may nonetheless have been dismissed because they were forced to resign because of conduct, or a course of conduct, engaged in by their employer.
[19]
Based on the decision in Balgowan, the Deputy President determined the question of whether Mr Kim had been dismissed by considering whether his working hours, the number of shifts allocated to him and the locations where he worked were contractual provisions. In those circumstances, it is appropriate to say something about the decision in Balgowan. In Balgowan, the employment of a casual employee came to an end as a result of a meeting which took place on 10 April 2017. The employee said that she was told at the meeting that the employer would not offer her any further shifts whilst the employer said that the employee resigned. At first instance, a member of the Commission determined that the employee had been dismissed because the employer had repudiated the employment by imposing changes to the employee’s duties, hours and location of work. The Full Bench concluded (at [29]) that it was not open to the Commissioner to find that the proposed changes to the employee’s hours, location of work or duties constituted a repudiation of the contract of employment because the shifts, hours and duties of the employee were not contractual. However, the Full Bench made clear that this was not the end of the matter. The Full Bench explained (at [30]):
But that is not the end of the matter. As we have already observed the Commissioner decided the matter on the question whether there had been a constructive dismissal. The Commissioner did not consider whether there had otherwise been a dismissal, that is, whether the Respondent’s employment with the Appellant had been terminated at the Appellant’s initiative. As we have earlier noted, the Respondent maintains that she did not resign and that her employment was terminated at the Appellant’s initiative when the Appellant’s representative (Ms Faaui) told her that it would not offer her “any shifts at the club”. Since neither party properly addressed that possibility in their written submissions, it is not appropriate for us to determine that issue by way of a rehearing. In those circumstances we propose to remit that question to another member of the Commission for determination.
[20]
As will be apparent, the question of whether the hours and duties of the employee were contractual terms was treated as being relevant to whether there had been a ‘constructive dismissal’ because the proposed changes to the working arrangement of the employee involved a repudiation of her contract of employment which it was open to the employee to accept. The fact that the employee’s hours of work were not contractual terms did not mean the employee had not been dismissed by an express act of the employer in the meeting on 10 April 2017. That was a factual matter that had not been considered or determined at first instance.
[21]
Reference to the concept of ‘constructive dismissal’ is not necessarily helpful in the context of s 386 of the FW Act: Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care
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Mosman) v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245 at [49]. To the extent the term has utility, ‘constructive dismissal’ refers to a situation in which the employee brings the employment to an end in response to conduct on the part of the employer. Such a situation might (but does not necessarily) involve a dismissal for the purposes of s 386(1)(b) on the basis that the employee was forced to resign. However, even where the question is whether an employee has been forced to resign, it is neither a necessary or sufficient condition to satisfy s 386(1)(b) that the conduct of the employer involved a breach or repudiation of the contract of employment: Commonwealth v Wilson [2026] FWCFB 82 at [49]. Furthermore, as the Full Bench acknowledged in Balgowan, a separate question may arise as to whether there has been an actual dismissal because the employer terminated the employment on its initiative for the purposes of s 386(1)(a) by some overt act which brought the employment to an end. Whether the conduct of the employer amounts to repudiation of the employment contract in the case of a casual employee is not determinative of whether the conduct of the employer ended the employment relationship so that the employee was dismissed: Birchley v Downer EDI Mining Pty Ltd [2019] FWC 6336 at [91].
[22]
The question of whether Mr Kim’s shifts, hours of work or work location constituted contractual terms may be relevant (although not determinative) if the case being advanced by him was that he had resigned because of the conduct of his employer in proposing changes to his working arrangements. That was not the case he advanced. There is no suggestion that Mr Kim resigned or took any action to bring his employment to an end. The question which arose in Mr Kim’s case was whether the conduct of the employer in the communications on 14 November 2025 and in taking Mr Kim off the roster constituted a dismissal having regard to all of the circumstances or whether the employment continued. With respect, the Deputy President erred in determining the question of whether there was a termination on the employer’s initiative for the purposes of s 386(1)(a) on the basis that Mr Kim’s hours of work were not terms of his contract of employment.
[23]
It is necessary then to consider whether Mr Kim’s employment was terminated on the employer’s initiative on the evidence in this case. Because Mr Kim was a casual employee, that question involves some complexity. It is apparent from s 384(2)(a) that casual employees who have been employed on a regular and systematic basis and who, during that service, had a reasonable expectation of continuing employment on a regular and systematic basis are intended to be included in the unfair dismissal scheme in Part 3-2 of the FW Act: Khayam v Navitas English Pty Ltd [2017] FWCFB 5162; (2017) 273 IR 44 at [70]-[71]. Due to the nature of casual employment, it may be difficult in a particular case to ascertain whether the employment has come to an end, and the manner in which it has come to an end, even where there has been a period of regular and systematic work and a reasonable expectation of continuing employment. It must be remembered that the nature of casual employment is characterised by an absence of a firm advance commitment to continuing and indefinite work: FW Act, s 15A.
[24]
There is no doubt that a casual employee can be dismissed if their employer decides that no further work will be offered to the employee. However, distinguishing a dismissal from a change in the hours, pattern or frequency of work which is consistent with an ongoing casual employment relationship will not always be easy. There will be many cases in which changes to the hours or duties of a casual employee, or periods in which no work is offered, will not
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result in termination of the employment. In Kaur v Adecco Industrial Australia [2025] FWC 3646, Easton DP usefully explained:
[65] If an employer decides that it is no longer willing to offer any more work at all to a casual employee, the employment relationship is invariably terminated by that decision. If the casual work is regular and systematic at the time, the work will stop and in most instances it is clear to all involved that the casual employee has been dismissed.
[66] However, if the casual work is not regular and systematic at the time, and there is no expectation of any specific future work, it will not be so obvious that the employer has decided to terminate the employment relationship and that the employer has put its decision into effect.
[67] Most employers will tell the casual employee that they will not be offered any more work, however, some employers do not. The result for the employee is the same, but it can be much harder to recognise that the dismissal has taken effect if the employer simply does not offer any further work and does not communicate their decision to the employee.
[68] The difference between a change in an unbroken period of employment (as described in Shortland and Manly Fast Ferry) and a dismissal at the initiative of the employer is essentially a matter of fact. Determining whether a casual employee was in fact dismissed will invariably involve a close examination of the employer’s conduct and communications, in the context of the particular employment arrangement.
[25]
In that case, the Deputy President concluded that the employee had been dismissed as a result of a communication which stated that the employee’s shifts were ‘on hold’ and the failure on the part of the employer to take any steps to continue the employment relationship.
[26]
The approach to be adopted reflects that applied in any case when assessing whether there has been a dismissal. The question of whether a party to a contract of employment has terminated the employment does not depend on the subjective intention or understanding of the employer or employee, but an objective assessment of the intentions of the parties: see, in relation to the circumstance of resignation, Koutalis v Pollett [2015] FCA 1165; (2015) 235 IR 370 at [43] (Rares J); Dahdah v Platinum Distributors Australia Pty Ltd [2022] FCA 416 at [215] (Burley J); Sawyer v Wards Accounting Group Pty Ltd [2025] FWCFB 167; (2025) 342 IR 279 at [64]-[66]. The same approach is to be adopted in a matter of this type. The question is whether a reasonable person in the position of the parties would have understood the Marlow Group to have terminated Mr Kim’s employment: see approach in Humeniuk v Sculpture by the Sea Inc [2025] FWCFB 212; (2025) 345 IR 17 at [53]-[54] (Humeniuk).
[27]
In making that assessment, the whole of the circumstances of the employment are required to be considered. The nature of the employment relationship will be relevant, including the regular nature of the engagement of the casual employee and the fact that, necessarily, the employee will have had a reasonable expectation of continuing employment on a regular and systematic basis. It may be relevant to consider whether the regularity of the work had changed from time to time in the past or whether the work arrangements had been consistent until interrupted by the alleged dismissal. The conduct of the employer and the communications between the parties, in the context of the employment as a whole, and the events that resulted in the reduction or change in the hours of work will need to be considered. Each case will come down to its own facts and circumstances.
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[28]
In this matter, we consider that, although the question is reasonably finely balanced, the correct conclusion is that Mr Kim was dismissed. A number of matters are, in our view, significant. First, the evidence indicates that Mr Kim had been working regular hours with limited variation. He had been working five or five and a half hour shifts on Tuesdays, Wednesdays and Thursdays each week for a substantial period. The Deputy President recorded that the roster documents produced by Mr Kim covered the period of four months prior to 14 November 2025 and demonstrated a regular pattern of work in that period. It does not appear to be disputed that Mr Kim had been working the same regular shifts on the same days since his employment commenced in August 2024. That is demonstrated by the further document tendered by Mr Kim on the appeal. There was no significant variation to Mr Kim’s working arrangements or hours until all work was abruptly cut off entirely on 14 November 2025. There was not, in this case, merely a variation to casual working hours.
[29]
Second, the initial communication from the head chef to Mr Kim on 14 November 2025 stated that the head chef had been ‘asked to cut my casual labour due to down turn in business’ and that he did not have any shifts for Mr Kim ‘at the time’. After further inquiry from Mr Kim, the head chef then clarified that there were no shifts available at all. In our view, what was communicated was that a direction had been given to reduce the use of casual labour at the venues at which Mr Kim worked. The consequence of the direction was that there were no shifts for Mr Kim to perform. Mr Kim was not informed that the direction to reduce casual labour was temporary or would operate only for a defined period. A person in Mr Kim’s position would reasonably infer that a decision had been made which meant that there were no shifts available for him to work.
[30]
Third, although the communications on 14 November 2025 stated that there were no shifts for Mr Kim ‘at the time’ and held open the possibility that shifts might be available in the future, no assurance was given as to whether or when that might occur. The head chef communicated only that he would call Mr Kim if he had availability come up. That future work was contemplated as a possibility is relevant to whether there was a dismissal. However, the fact that an employer has indicated that it might be open to the employment recommencing in the future does not remove the possibility that the existing employment has been terminated: Humeniuk at [55]. In our view, the reasonable inference which would have been drawn from the communications with Mr Kim on 14 November 2025 was that the employment was at an end at least for the time being albeit that Mr Kim would be considered for work in the future if it happened to become available. It is also relevant that Mr Kim’s final communication on 14 November 2025 made an inquiry as to whether an alternative employment arrangement involving part-time work was possible. He received no response to that approach. That interaction reinforces our conclusion.
[31]
Fourth, the circumstances must also be considered practically from the position of the employee. Mr Kim had been working regular hours for a substantial period and receiving the income associated with that work. Without any prior notice, Mr Kim was immediately left without any work or income for an indefinite and unknown period and not given any assurance that work would be available in the future. The circumstances of many employees in such a situation (if not virtually all) are likely to be such that they are compelled to treat those events as involving the cessation of the employment and to endeavour to obtain alternative work to replace the income that had been lost as a result of their employer’s decision. We regard that
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context as relevant in assessing whether a reasonable person in the position of the parties would have understood the Marlow Group to have terminated Mr Kim’s employment.
[32]
The Deputy President placed some weight (at [29]-[32]) on the fact that Mr Kim was contacted on 8 and 9 December 2025 about his availability for further shifts. Mr Kim was contacted only after his unfair dismissal application had been filed and served. The submissions of the Marlow Group at first instance appeared to acknowledge that the contact was in response to the unfair dismissal application. Leaving that to one side, the case advanced by Mr Kim was that he was dismissed on 14 November 2025. Whether Mr Kim was dismissed on that day turns on an objective assessment of the circumstances that existed, and were known to the parties, at that time. If Mr Kim was dismissed on 14 November 2025, that outcome would not be altered by the fact that, after receipt of his unfair dismissal application, his former employer inquired if he was available for further shifts. This is not a circumstance in which the question involves ascertaining the terms of a contract that was not reduced to writing by inference from the conduct of the parties whilst the contract was on foot as occurred in EFEX Group Pty Ltd v Bennett [2024] FCAFC 35; (2024) 330 IR 171 at [7] (Katzmann and Bromwich JJ).
[33]
The Marlow Group argues, in its submissions on appeal, that the rosters it produces through the ‘Deputy’ rostering system are based on forecasts of labour needs taking into account a myriad of considerations including weather, bookings, functions, sporting events, staff availability, seasonal demand, public holidays, general trading conditions, promotional campaigns and competitor activity. It submits that the publication of a casual roster does not create a contractual obligation to provide the allocated shifts and that such a conclusion would impair the flexibility of an employer to revise rosters if conditions or their labour needs change. The submission is misguided. The conclusion we have reached does not depend on, or involve, a conclusion that the allocation of shifts on a roster creates a contractual entitlement for the employee to work the relevant shifts.
[34]
As we have explained, whether a casual employee has been dismissed by an action taken by their employer does not depend on the employer having repudiated the contract of employment of the employee. At least for the purposes of s 386(1)(a), a casual employee may be dismissed by an act of the employer which, objectively assessed, would be understood by reasonable people in the position of the parties as bringing the employment to an end. The answer to that question will depend on the circumstances of each particular case. This is not a case in which there were simply adjustments to Mr Kim’s hours. Rather, Mr Kim was informed that a decision had been made to reduce the use of casual labour and that, as a result, there were no shifts available for him. In our view, that resulted in his dismissal.
[35]
The conclusion that should have been reached at first instance is that Mr Kim was dismissed on 14 November 2025. The Commission has jurisdiction to deal with Mr Kim’s unfair dismissal application, and it should not have been dismissed.
Conclusion and disposition
[36]
Permission to appeal has already been granted in relation to Mr Kim’s appeal. For the reasons we have given, the appeal should be allowed and the decision of the Deputy President quashed. Mr Kim’s unfair dismissal application should be remitted to the Deputy President to be determined.
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[37]
The Full Bench (by majority) makes the following orders:
(a)
The appeal be allowed;
(b)
The decision [2026] FWC 543 made on 27 March 2026 in Matter Number U2025/18533 be quashed;
(c)
The jurisdictional objection made by the Marlow Group is Matter Number U2025/18533 be dismissed; and
(d) The application in Matter Number U2025/18533 be remitted to be determined.
Decision of Deputy President Saunders
[38]
Determining whether a casual employee has been terminated on their employer’s initiative within the meaning of s 386(1)(a) of the FW Act requires careful analysis in circumstances where no clear communication of a decision to dismiss is sent to the employee, and ‘will invariably involve a close examination of the employer’s conduct and communications, in the context of the particular employment arrangement’ (Kaur v Adecco Industrial Australia [2025] FWC 3646 at [65]-[68]).
[39]
The subjective understandings and beliefs of the employee and the employer are irrelevant to the question of whether there has been a dismissal. The test is objective. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. That requires consideration of the text of any communications and the surrounding circumstances known to the parties (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40]; Koutalis v Pollett [2015] FCA 1165; (2015) 235 FCR 370 at [43]-[44]; Humeniuk v Sculpure by the Sea Inc [2025] FWCFB 212; (2025) 345 IR 17 at [53]-[54]).
[40]
In the present case, Mr Kim, a casual chef employed by the Marlow Group, contends that his employment was terminated on his employer’s initiative on 14 November 2025. On that day, Mr Kim exchanged the following text messages with the head chef and, consistent with those text messages, Mr Kim was not given any shifts in the 3 week roster covering the period from 16 November 2025 to 6 December 2025:
12:33pm text message from the head chef to Mr Kim on 14 November 2025:
Hi Kim,
At the time being I have been asked to cut my casual labour due to down turn in business. Unfortunately I don’t have any shifts for you at the time.
Sorry for any inconvenience.
12:55pm text message from Mr Kim to the head chef on 14 November 2025:
Hi Chef
Thank you for letting me know. I appreciate the update.
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Just to confirm – should I understand that for now I will only be working on Wednesdays and Thursdays?
Please keep me in mind if more shifts become available in the future.
I hope things improve soon.
12:58pm text message from the head chef to Mr Kim on 14 November 2025:
Hi Chef
Unfortunately I don’t have Wednesday or Thursday either.
Sorry but if I have availability come up I will call you.
Thanks for understanding.
3:27pm text message from Mr Kim to the head chef on 14 November 2025:
I have worked with you for a long time and have always followed your requests to work at Dunside. I was wondering if it might be possible to work part-time at Dunside or Kings Park.
I would really appreciate it if you could consider my request.
Thank you very much for your time and understanding.
[41]
There was no evidence before the Deputy President of any response to this final text message on or after 14 November 2025, but that is of little importance because Mr Kim contends that his employment came to an end on 14 November 2025. Whether Mr Kim was dismissed on that day depends on an objective assessment of the circumstances that existed and were known to the parties as at 14 November 2025.
[42]
The uncontested evidence before the Deputy President was that there had been a downturn in Marlow Group’s business. Weekly revenue in the two pubs at which Mr Kim worked was down by $10,000 in one pub and $2,500 in the other pub. There is no suggestion in the evidence that, in respect of the single (3 week) roster in which Mr Kim was not given any shifts, other chefs were rostered to work the shifts that Mr Kim regularly worked. It was simply a downturn in business that resulted in the Marlow Group needing to cut its use of casual labour for the time being. That is precisely what the head chef communicated to Mr Kim at 12:33pm on 14 November 2025. The head chef was at pains to point out in that text message that he did not have shifts for Mr Kim ‘at the time’. There was no suggestion in the text messages from the head chef that the decision to reduce the use of casual labour was permanent or would last for any particular period of time. Indeed, with the Christmas season just around the corner, a reasonable person in the position of Mr Kim would have understood it was likely he would be offered shifts in the next (3 week) roster commencing on 7 December 2025. Further, the head chef expressly informed Mr Kim on 14 November 2025 that he would call Mr Kim if ‘availability come[s] up’. A reasonable person receiving such a message would not infer that their employment relationship with the Marlow Group had been terminated, especially when viewed in the context of a casual employment relationship.
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[43]
Mr Kim asserted that the Marlow Group had hired other employees to replace him, but the Deputy President rejected that contention, finding that the job advertisement on which Mr Kim relied was for a different pub, which the Marlow Group did not acquire until December 2025 (Kim v The Marlow Family Trust No 3 [2026] FWC 543 (the Decision) at [11]). There is no appeal against that finding.
[44]
The following surrounding circumstances are also relevant to the objective assessment as to whether the Marlow Group intended to terminate its employment relationship with Mr Kim on 14 November 2025:
(a)
Mr Kim did not have a written contract of employment with the Marlow Group. He found out the shifts he was rostered to work when he received each roster, covering a 3 week period, published by the Marlow Group (Decision at [10]).
(b)
The 3 weekly rosters for the 4 month period immediately preceding Mr Kim’s alleged dismissal on 14 November 2025 demonstrate that Mr Kim worked regular shifts of 5 to 5.5 hours on Tuesdays at one pub, regular shifts of 5 to 5.5 hours on Wednesdays and Thursdays at another pub, and ad hoc shifts at the second pub on other days of the week (Decision at [5]). Notwithstanding the pattern of these shifts, there was no agreement between Mr Kim and the Marlow Group that he would continue to be offered, or would continue to work, the same shifts in the future.
(c)
The Marlow Group uses rostering and timesheet software known as Deputy. The cost of Deputy to a business is calculated based on the number of active employee profiles on any given week. The Marlow Group performs weekly inspections of ‘active employees’ to ensure it is not paying fees for ‘inactive employees’. Mr Kim’s Deputy profile was not archived by the Marlow Group; it remained active on and after 14 November 2025 (Decision at [13]).
(d)
The Marlow Group has a clear procedure which establishes the administrative steps that must be followed when it dismisses an employee. At no stage were any of the steps in the procedure triggered in relation to Mr Kim (Decision at [12]).
[45]
A further relevant contextual matter is that Mr Kim was employed by the Marlow Group as a casual employee. The defining characteristic of a casual employment relationship is the absence of a firm advance commitment to continuing and indefinite work (s 15A(1)(a) of the FW Act). Just as the Marlow Group informed Mr Kim on 14 November 2025 that he was not required to work in a single (3 week) roster due to a downturn in business, Mr Kim was free, at any time, to inform the Marlow Group that he was not able to work a rostered shift, or any shifts in a roster or a series of rosters, for any or no reason. If Mr Kim had informed the Marlow Group that he was not able to work ‘for the time being’ due to a family situation and he declined an offer to work shifts in a single (3 week) roster, a reasonable person would not infer that Mr Kim intended to terminate his casual employment relationship with the Marlow Group.
[2026] FWCFB 227
13
[46]
In particular circumstances, a reasonable person may conclude that an employer or an employee has decided to terminate their casual employment relationship because the employer or the employee, as the case may be, is not offering or making themselves available for work on an ongoing basis, particularly in circumstances where other casual employees with the same skills are being offered the shifts previously offered to the casual employee in question. But that is a long way from the circumstances of the present case.
[47]
The Deputy President was correct to conclude that “[d]etermined objectively by reference to all the circumstances, the text messages of 14 November 2025 do not constitute dismissal of the Applicant” (Decision at [35]).
[48]
The Deputy President was also correct to conclude that the mere fact Mr Kim worked some shifts on a regular and systematic basis as a casual employee did not give rise to, or create, a contractual right on the part of Mr Kim to continue working such shifts in the future (Decision at [34]) (City of Sydney RSL & Community Club Ltd v Balgowan [2018] FWCFB 5; (2018) 273 IR 126 at [21]-[29]). It was necessary for the Deputy President to consider this issue because, if Mr Kim did have a contractual right to work particular shifts each week on an ongoing basis, any repudiation of the contract of employment which resulted from the Marlow Group’s decision not to give Mr Kim any shifts for a single (3 week) roster could have resulted in a termination of Mr Kim’s employment at the Marlow Group’s initiative. In Visscher v The Honourable President Justice Giudice [2009] HCA 34; (2009) 239 CLR 361, Heydon, Crennan, Kiefel and Bell JJ expressly recognised (at [69] and [81]) that conduct amounting to a repudiation of a contract of employment by an employer may mean that ‘termination of the employment relationship could be said to be at its initiative’.
[49]
There is no appealable error in the Decision. The appeal should be dismissed.”
Kim v The Marlow Family Trust No 3 [2026] FWCFB 227 delivered 28 August 2026 per Gibian VP, Saunders DP and Wright DP