[2012] FWA 4672

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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Christina Le Plastrier
Aart Brons (Northern Belle Pty Ltd)



Termination of employment – Jurisdiction – whether termination was at the initiative of the Employer.


[1] This decision relates to the jurisdictional objection to the application made by Ms Christina Le Plastrier (the Applicant). The application was made pursuant to s.394 of the Fair Work Act 2009 (the Act), alleging her termination of employment was harsh, unjust and/or unreasonable.

[2] The Applicant was employed by Mr Aart Brons (Northern Belle Pty Ltd) (the Respondent). The Respondent disputed that a termination of employment had occurred. The Respondent stated that the Applicant left the premises after a disagreement regarding an allegedly non-compliant sexual health certificate for one of the ‘service providers’ 1. The Respondent submitted he had offered for the Applicant to return to work. Whereas the Applicant submitted her employment had been terminated and no clear offer was made to return to her job.

[3] Directions were set for the filing of submissions and materials. The Applicant was self represented. The Respondent provided limited materials which addressed the issues of this case. The Respondent failed to participate in the hearing conducted by telephone.

[4] Various endeavours were made by FWA to have the Respondent respond to the matter. These were unsuccessful.

[5] Whilst not all of the evidence, submissions and materials have been referred to in this decision, all of such has been considered in the determination of this matter.


[6] The issue of whether there was a termination of employment at the initiative of the Employer turns on a discussion that took place between the Applicant and the Respondent (the licensed owner of the brothel).

[7] The matter was the subject of a conciliation conference before a conciliator, which Mr Brons did not participate in, and a further telephone directions conference before me, in which Mr Brons also did not participate. The Applicant participated on both of these occasions. The matter was then set for directions and hearing. It was clear on the basis of the application and the associated materials filed by the Applicant, that she contended that her employment had been terminated, whilst the Respondent considered no termination had occurred and, if it had, he had later held out the job to the Applicant to return to.


[8] Section 394(1) of the Act allows a person who has been dismissed to make an application to Fair Work Australia for a remedy:

Summary of the Applicant’s submissions

[9] The Applicant made submissions on the events leading up to the dismissal. In particular the Applicant submitted that she had, in her role as Manager of the licensed brothel, disputed the sexual health certificate (for a worker) that the Applicant did not see as sufficient to comply with the Prostitution Licensing Authority (PLA) regulations. She submitted that as Manager, it was her responsibility to ensure statutory compliance and that she would be legally responsible if the regulations were not complied with.

[10] The Applicant submitted that a new service provider handed over her certificate (which is a requirement under the regulations) at the beginning of the shift. The Applicant did not consider that the certificate was fully compliant to enable the service provider to work legally. The Applicant stated she was sceptical about the contents of the certificate as it did not record the regular wording of the required health testing. Accordingly the Applicant raised this certificate with Mr Brons, who indicated it was acceptable; after which, he then left the premises. The Applicant consulted with another manager, who agreed that the certificate was not compliant. The Applicant then confirmed her position with the service provider and advised her where to attend to get a new certificate.

[11] When the Applicant attended for work the following day, she discovered that the Respondent and his co-owner/licensee had over-ridden her decision and allowed the service provider to work. The Applicant contacted the Prostitution Licensing Authority (PLA), whom she stated advised, that the certificate was likely to not be valid and the decision of the owners to ‘over-ride’ the manager’s decision on the certificate was potentially invalid. The Applicant then informed the service provider that in order to be able to work the next shift, which the Applicant was managing, she would need to provided an updated certificate. When the service provider presented for work the following day, she did not have a new certificate, therefore the Applicant told her she could not work. The Respondent disagreed with this decision.

[12] Shortly after a discussion regarding the certificate, the Applicant stated that the Respondent contacted the Applicant, angry that she had told the service provider that she could not work. The Applicant attempted to explain her reasons for ensuring PLA compliance. In contrast, the Respondent determined that the service provider would work. In response to this decision, the Applicant stated that she could not continue to work that shift, as this would jeopardise her PLA manager’s license. Before the Applicant left the premises she was directed to see Mr Brons. The Applicant submitted that Mr Brons made further comments about the “certificate fiasco” and then told her that the day shift (which the Applicant managed) was not going to continue. The Applicant submitted that this exchange was as follows:

[13] The Applicant conceded that she had in, rather crude terms, been offered by Ms Wode that if she were to return to the workplace a few hours of work would be given to her. She stated that she knew the Respondent and that she did not interpret this as a genuine offer of reinstatement.

Summary of the Respondent’s submissions

[14] The Respondent’s primary contention was that the Applicant was not dismissed from her employment, but had rather left voluntarily and refused to return when requested.

[15] Regarding the events leading up to the dismissal, the Respondent submitted that initially the Applicant and the Respondent had agreed that the disputed certificate was compliant. The Respondent then left the premises only to be contacted by the service provider, who was upset that the Applicant had refused to allow her to work. Mr Brons discussed the matter with the night manager and stated that the service provider would work and the decision of the Applicant was overridden. The following day (the service provider’s next shift) the Respondent was again contacted by the service provider, who informed him that the Applicant was again refusing to let her work. The Respondent contacted the Applicant and told her that her decision was overruled and the service provider was to work. The Applicant did not accept this and informed the Respondent that she would not remain at work because it would breach her statutory obligations if the service provider was allowed to work. The Respondent arranged for another Manager to work.

[16] The Respondent submitted that sometime after the incident he had instructed another one of his Mangers to contact the Applicant and request her to return to work. He stated via his request he had directed the Applicant to resume work on 5 December 2011, as the service provider in question would not be ‘rostered’ on any of her shifts from that point; therefore the disputed certificate was no longer an issue. The Respondent submitted that the Applicant declined to resume work. Ms Suzanne Wode stated:

[17] Ms Tracey Brons (the daughter-in-law of Mr Brons) stated, with regard to the issue arising over the certificate, as follows:

[18] The Respondent submitted witness statements 4 from the two other managers (as set out) who worked at the establishment. These witnesses stated that they: accepted that the Respondent could override the decision of the Applicant; stated they believed that the Applicant had not been dismissed from her employment; and understood that the Applicant was asked to return to work from 5 December 2011 but that she had refused.


[19] In regard to a consideration of whether a termination at the initiative of the Employer occured, the Full Court in O’Meara v Stanley Works Pty Ltd reviewed the authorities in relation to constructive dismissal as follows:

[20] This approach was also expressed in the matter of Marwa Elgammal v BlackRange Wealth Management Pty Ltd ACN 092 38-0 348 T/A Commonwealth Financial Planning:

[21] Senior Deputy President Richards’ assessments of the relevant jurisdictional test, whilst made with reference to a prior statutory provision are still relevant:

[22] The Full Court in Mozahab found that a termination at the initiative of the Employer may be treated as such when the action of the employer is the principal contributing factor which leads to the termination of the of the employment relationship, as follows: 8

[23] At the hearing in the matter the Applicant provided additional evidence and answered a number of questions regarding the final conversation with Mr Brons.

[24] The evidence and submissions of the conversation as advanced do not support a resignation by the Applicant. The Applicant’s comments on recent events at the workplace and did not confirm a desire to end the employment relationship, nor do her actions represent a repudiation of the employment contract.

[25] There is some evidence that the Respondent, through another employee, made a request for the Applicant to return to work. A witness statement by Ms Suzanne Wode, a manager of the Respondent’s business, was filed by the Respondent giving evidence that Ms Wode telephoned the Applicant on, or about, Friday 2 December 2011 and advised the Applicant that if she returned to work on Monday and ‘resumed her position as Manager there would be no repercussions.’ The Applicant gave evidence that this offer of employment was expressed in much cruder terms and was not genuine.

[26] Mr Brons did not make himself available for cross-examination. The evidence of both Ms Wode and Mr Brons’ statements was challenged by the Applicant.

[27] There is no doubt the Applicant was concerned with her statutory obligations regarding the certificate in issue. However, whilst the Respondent took a different view of the certificate, he did not require the Applicant to work the shift with the relevant service provider. He did not require her to be compromised regarding her view of her statutory obligations in relation to the certificate.

[28] However, the matter turns on the final discussion between the Applicant and Mr Brons whereby the Applicant’s evidence was that he communicated to her that the day shift Manager’s position would no longer be available as the day shift was no longer going to operate. In this conversation, Mr Brons communicated the termination of employment. The Employer’s actions in the final conversation are construed as bringing the employment contract to an end. Further to this, he did not directly make any contact with the Applicant to overturn this or to provide specific details of ongoing employment.

[29] It should be noted that the Employer, himself, did not offer for her to return to the job of the day shift manager, which he previously informed her would no longer be available. The Respondent did not have any direct discussion with her concerning the number of hours she would work or the position she would hold. On the evidence before me, the request was not genuine.

[30] For the reasons set out, it is determined that a termination at the initiative of the employer was effected. Accordingly, the jurisdiction to hear the matter filed pursuant to s.394 of the Act is confirmed and the jurisdictional objection is dismissed. I order accordingly.

[31] Therefore, the matter will be further listed for directions.

[32] A separate listing will be issued.


 1   As referred to in the Applicant’s submissions

 2   Form F2—Application for Unfair Dismissal Remedy.

 3   Statement of Suzanne Wode.

 4   Statement of Tracey Brons; statement of Suzanne Wode.

 5   Giudice J, Watson VP, Cribb C, PR973462

 6   [2011] FWAFB 4038 at pn [13], 30 June 2011 (Harrison SDP, Richards SDP, Williams C).

 7   PR973785 [12] – [16]

 8   Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 2000) (Lee, Moore and Marshall JJ) as cited in Wicks v Colemans Printing; SDP Richards, PR970807

 9   Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 2000) (Lee, Moore and Marshall JJ) as cited in Wicks v Colemans Printing Pty Ltd; SDP Richards PR970807

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