FWC examines what really happens when a worker is sent home without clear next steps
The Fair Work Commission (FWC) recently dealt with a jurisdictional objection in a general protections case involving a worker who claimed she was told to leave her workplace and not return after raising safety concerns about equipment.
The employer objected to the worker's application, arguing she had not been dismissed but merely "stood down" due to equipment breakdown. According to the employer, they had intended to offer her more work once it became available.
The worker maintained she was abruptly told to leave the site and not come back, received her final pay immediately rather than on the regular payday, and received no communication about future work opportunities until after she had filed her application with the FWC.
The worker was employed as a casual truck operator by a labour hire company that provided earthmoving equipment and workers to clients. She started in August 2024 and worked until February 2025, when the disputed termination occurred.
In the days leading up to her final shift, the worker had reported several safety issues with trucks she was operating. On her last day, she documented problems with a broken steering wheel, taking videos as evidence.
She claimed a manager told her over the phone to leave the site and not return after accusing her of failing to isolate a machine with safety issues – an accusation she denied.
Text messages submitted as evidence showed the worker immediately messaging an operations manager after the incident: "[The manager] has told me to leave the company. He is saying that I didn't isolate the truck when I did... The steering wheel was broken I should not have been driving the truck in the first place."
The employer claimed the worker wasn't dismissed but simply stood down because of a truck breakdown.
The managing director stated that before they could communicate about other available work, the worker had filed her application. However, the company provided no evidence of attempts to contact the worker about future shifts.
A crucial piece of evidence was that the worker received her final wages on the day of the incident rather than waiting for the normal pay cycle the following week.
The worker's message to the payroll officer included "I take it you know I'm gone," and received the reply: "Hey, I only just heard! no worries at all! I paid you the 9 hours you had banked as well as today's hours too!"
The day after the incident, the worker emailed the employer about her "wrongful dismissal," writing that she had properly isolated the machinery despite accusations to the contrary.
She detailed her history of reporting safety issues: "Over the past number of weeks, I have flagged multiple safety issues with the machines I was operating. I also provided video footage of these issues."
Five days later, the managing director responded claiming the worker had not been dismissed: "That you were not dismissed but rather sent home due to a machine breakdown. At that time, there were no available sites for you to be reassigned to, other than the machine that was out of operation."
Under section 386 of the Fair Work Act, a dismissal occurs when employment is "terminated on the employer's initiative" – meaning the employer brought about the termination without the employee's agreement.
Two key criteria must be met: the employer's actions must "directly and consequentially" result in the termination, and if the employer hadn't taken this action, the employee would have remained employed.
The FWC determined that the employer's conduct in telling the worker to leave with no communication about finding her other work, combined with immediately paying out her wages, "clearly indicates a course of action by the [employer] intended to bring the employment relationship to an end."
The decision noted: "On the evidence, for five days no further contact was made with [the worker]. Certainly no discussion had been undertaken with her on the day that she was sent home to demonstrate that [the worker] remained on the books and [the employer] was actively looking for alternative work for her."
The FWC cited the case of O'Meara v Stanley Works Pty Ltd, which established that all circumstances must be examined when determining if a termination occurred at the employer's initiative.
The FWC found: "[the employer's] actions in abruptly telling [the worker] to leave the site and not come back clearly intended to bring the employment relationship to an end. This was reinforced by [the employer] immediately paying out [the worker] rather than if she had simply been stood down paying her with the normal pay cycle."
The Commission dismissed the employer's jurisdictional objection, concluding: "I am satisfied that taking into account the conduct of both parties, that [the worker's] employment was terminated at the initiative of [the employer] within the meaning of s.386(1)(a) of the Act."
The FWC further emphasised: "The instruction from [the employer] that day and the immediate finalisation of her wages can only be interpreted as intending to bring her employment to an end."
The case underscores the importance of clear communication about employment status with casual workers, particularly in labour hire arrangements where work assignments may fluctuate but employment relationships continue between assignments.
