Worker had previously worked at employer's second location but wasn't offered role
The Fair Work Commission (FWC) recently dealt with a worker who claimed unfair dismissal after receiving notice that her employment would end due to business closure at one of two salon locations.
The worker argued she had been dismissed in contravention of general protections legislation when her employer terminated her employment following the closure of their shopping centre location in Sydney's CBD.
She maintained that despite the external circumstances prompting the store closure, the employer's decision to end her employment rather than offer redeployment to their remaining North Sydney premises constituted dismissal on the employer's initiative.
The employer contested the dismissal claim, arguing that the termination resulted from circumstances beyond their control rather than an employer-initiated dismissal.
Store closure triggers employment termination dispute
The employment relationship involved a casual beauty salon worker who had been employed since approximately February 2021 across two business locations operated by the employer in Sydney.
The primary workplace was located at a shopping centre in Wynyard, in Sydney's CBD with a secondary location in North Sydney where the worker had previously and regularly performed duties.
The employment situation changed when redevelopment plans by the Wynyard premises owner made the respondent's business at that location unavailable, forcing the closure of the salon at that site.
The worker was advised of the potential store closure prior to the actual closure occurring, including through a discussion with one of the company directors on 5 May 2025.
Following this discussion, the worker received formal notification via email on 9 May 2025 confirming the employment termination.
The email stated: "your last working day is expected to be May 23 2025... your role will officially conclude by the end of May 2025 at the latest" while expressing appreciation for the worker's "ongoing support, professionalism, and dedication throughout your time with us."
Employer argues external circumstances negate dismissal
The employer's primary defence was that the termination did not constitute dismissal because the store closure resulted from circumstances beyond their control rather than a deliberate employer decision.
The company argued that redevelopment plans by the Wynyard premises owner created an unavoidable situation that forced the business closure and subsequent employment terminations.
Additionally, the employer contended that since the worker was engaged as a casual employee, the employment relationship had simply reached its natural conclusion at the end of the last engagement period rather than through formal dismissal action.
This argument suggested that casual employment arrangements inherently lack the permanency that would make termination equivalent to dismissal.
The employer's position essentially argued that external business pressures and the nature of casual employment combined to create circumstances where employment ended without employer-initiated dismissal, despite the formal notification process and definitive termination date provided to the worker.
FWC rejects external circumstances defence
The FWC firmly rejected the employer's arguments, finding clear evidence of employer-initiated dismissal despite the external circumstances. The Commission noted:
"The email of 9 May 2025 is in clear terms. It says [the worker’s] last working day would be 23 May and that subject to minor changes her role would officially end at the end of May at the latest."
The tribunal emphasised that the employer's own evidence demonstrated deliberate termination action, stating: "[the worker] was given prior notice that her employment would be ending as a result of the closure of the premises. [the worker] was told that her services as a casual employee would not longer be required."
Crucially, the Commission found that the employer had failed to offer alternative employment despite having another operational location.
The FWC noted: "[the worker] was not offered a position at the North Sydney premises even though she said she had previously and regularly worked there." This demonstrated that the employer made a conscious decision to terminate rather than redeploy the worker.
Dismissal definition requires employer initiative finding
The Commission applied section 386 of the Fair Work Act, which defines dismissal as occurring when "the person's employment with his or her employer has been terminated on the employer's initiative." The tribunal determined that despite external pressures, the actual termination decision remained an employer-initiated action.
The FWC concluded: "Although external events had prompted the closure of the respondent's Wynyard premises, the termination of the employment of the applicant was clearly a termination on the initiative of the respondent. The termination was brought about by the respondent and not agreed to by the employee."
The Commission emphasised that the employer's action resulted "directly and consequentially" in the employment termination and was "taken with the intention of bringing the relationship to an end." This analysis focused on the employer's deliberate decision-making process rather than the external circumstances that influenced those decisions.
Casual employment status insufficient defence
The tribunal rejected arguments that casual employment status somehow exempted the termination from dismissal classification.
The Commission found that regardless of employment type, the formal notification process and definitive end date demonstrated clear employer-initiated termination rather than a natural conclusion of casual engagement.
The worker continued performing duties until 12 May 2025, when she provided a medical certificate stating her inability to work until 23 May 2025, the date specified in the termination notice.
This sequence of events reinforced that employment ended according to the employer's determination rather than the casual engagement conclusion or mutual agreement.
The Commission's finding that dismissal occurred on 9 May 2025 (when notice was given) but took effect on 23 May 2025 (the specified end date) demonstrated recognition of the formal termination process despite the worker's medical absence during the notice period.
Redeployment failure supports dismissal finding
A significant factor in the Commission's decision was the employer's failure to offer redeployment opportunities despite having an alternative business location.
The worker's evidence that she had "previously and regularly worked" at the North Sydney premises suggested viable redeployment options existed but were not pursued by the employer.
This failure to explore alternative employment arrangements within the existing business structure strengthened the finding that dismissal occurred through employer choice rather than operational necessity.
The Commission's emphasis on this point suggests that employers facing business closures cannot simply dismiss workers without considering available alternatives within their enterprise.
The FWC's decision establishes that external business pressures, while potentially justifying employment decisions, do not automatically negate the classification of termination as employer-initiated dismissal.
The focus remains on the employer's decision-making process and available alternatives rather than the external circumstances that prompted those decisions.
