A worker who told the Fair Work Commission she had been dismissed on 9 April 2026 accepted a shift with the same employer on 22 May 2026, and on 28 May 2026 gave a prospective employer a CV listing that job as current. Commissioner Hunt found there had been no dismissal on 9 April 2026 and dismissed the application.
The application was lodged on 28 April 2026 under s.365 of the Fair Work Act 2009, the provision allowing a worker to ask the Commission to deal with a general protections dispute involving dismissal. Pro Tech Distributions Pty Ltd objected on jurisdictional grounds, saying it had not dismissed her. Following the Full Court of the Federal Court decision in Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, the Commission must settle the question of dismissal before it can use its s.368 powers to deal with such a dispute.
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.
The worker began with the employer on 21 October 2025 as a casual store person and took up a full-time Inspection Technician position on 17 November 2025, working on robot vacuum and electric scooter products. In early February 2026 she travelled overseas for medical treatment and resumed work on 19 February 2026. On 4 March 2026, after a probation review meeting attended by the company’s managing director, she was told she had not passed her probationary period and was issued with a termination letter giving one week’s notice, effective 10 March 2026. She then asked to be engaged on a casual basis and signed a casual contract on 11 March 2026, operating from 12 March 2026, classified as Technical Employee Level 1 under the Business Equipment Award 2020 [MA000021].
She was rostered for about two shifts a week in mid-March. On 27 March 2026 she was told no shifts were available the following week because of renovation works, and on 2 April 2026 she was told again that there was no work the following week. Her email of 9 April 2026 asking whether ongoing regular shifts would be available received no reply. The employer’s HR lead gave evidence that a response had been drafted internally but was never sent, due to an administrative oversight.
that the relationship had, in substance, already ended during April 2026, that she had gone a long stretch with no work being offered and had received no answer to her email, and that the lack of any casual work was the “final straw”. She said the shift on 22 May 2026 was a one-off that did not reinstate her full-time position or the regular work that had stopped before she lodged her application, and did not change the circumstances that led her to bring it.
that it had not dismissed her, pointing to the work she performed on 22 May 2026, the medical certificates she supplied about her ongoing incapacity, and her written participation in consultation over a proposed redundancy in June 2026. Its HR lead gave evidence that the worker stayed recorded in the Employment Hero system as an active casual employee until June 2026, and that ending her employment would have required separation documentation, payroll processing and her removal from active employment status.
that the full-time employment ended on 4 March 2026 “by clear and unequivocal affirmation by the Respondent”, that from 12 March 2026 the worker was engaged as a casual with no entitlement to shifts unless the employer had work to offer, and that the gap in shifts during the renovations was “simply a temporary pause of shifts it can offer to a casual employee”. The Commissioner said it was regrettable that the email of 9 April 2026 went unanswered, but held that this did not bring the casual employment to an end.
“If she truly thought that she had been dismissed on 9 April 2026 there would be no basis to accept further work on 22 May 2026.” Commissioner Hunt
The Commissioner also weighed the worker’s conduct around the back injury she suffered while lifting on 22 May 2026. She kept liaising with the employer about light duties, told a manager she remained willing to work on suitable duties, and on 28 May 2026 told a prospective employer she was still employed. In June 2026 she replied in writing to the consultation process, seeking information about the impact of the proposed changes “on her position”. The Commissioner was satisfied the employer genuinely regarded her as an active employee on its payroll system, rather than keeping that status in place to shore up its jurisdictional objection.
The employer ended the casual employment on 30 June 2026, citing the cessation of the Dreame and Mova contracts. That decision was not before the Commission in this matter, which was confined to whether there had been a dismissal on 9 April 2026.
At a glance
- Parties: The applicant v Pro Tech Distributions Pty Ltd (C2026/3483)
- Citation: [2026] FWC 3838, Commissioner Hunt, Brisbane, 7 October 2026
- Section: Fair Work Act 2009 s.365, s.368 and s.386(1)(a)
- Outcome: Jurisdictional objection of no dismissal upheld; application dismissed; Order PR815107 issued with the decision
- Who it affects: Casual employees and employers engaging casuals with no guaranteed minimum hours
The casual contract in this case stated that the employer made “no firm advance commitment to continuing and indefinite work”. On the Commissioner’s reasoning, a stretch without offered shifts under such an arrangement does not by itself amount to a termination at the employer’s initiative, and conduct after the alleged dismissal date, including taking later work and describing the job as current, can be taken into account in deciding whether the relationship had ended.
Source: [2026] FWC 3838
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