Poulter v JA & JA Concreting Pty Ltd [2025] FWC 1441

Employer’s failure to provide work or pay amounts to dismissal following repudiation of employment contract

Commission: Fair Work Commission
Member: Commissioner Redford
Date: 30 May 2025
Jurisdiction: Unfair dismissal – jurisdictional objection
Outcome: Employer’s objection dismissed – application permitted to proceed

Overview

The Fair Work Commission rejected an employer’s argument that an employee had not been dismissed, finding that the employer had repudiated the employment contract by deliberately removing the employee from the work roster and withholding work and pay.

In Poulter v JA & JA Concreting Pty Ltd [2025] FWC 1441, Commissioner Redford found that the employer had acted too quickly in assuming that the employee had abandoned his employment after missing one shift due to illness.

The decision is significant because it confirms that an employee can be dismissed at the employer’s initiative under s.386(1)(a) of the Fair Work Act 2009 where the employer’s conduct amounts to repudiation of the employment contract and the employee accepts that repudiation.

The employee did not resign or claim constructive dismissal. His case was that the employer’s conduct had brought the employment relationship to an end.

Background

The employee commenced employment with JA & JA Concreting in January 2024 as a permanent full-time employee.

On 13 March 2025, he failed to attend work because he was unwell. He did not notify the employer that morning or respond to text messages asking about his absence.

The employee had, however, previously advised the business’s administrative employee that he had a medical appointment on 14 March and would be taking 17 March off for a family reunion. He had indicated that he would return to work on Tuesday 18 March.

On 17 March, the employee apologised for his failure to notify the employer of his illness and explained that he had been too unwell to communicate.

His manager responded that the lack of communication was unacceptable and that the employee had not been included in the roster for the following week because the business had arranged alternative labour.

The employee subsequently discovered that he had not been rostered for work and had not been paid.

The employer’s position

The employer argued that the employee had not been dismissed.

Its manager, Mr Brendan Caspar, said he had assumed that the employee had abandoned his employment because he had failed to attend work on 13 March without explanation and had not responded to messages.

The employer maintained that it had not dismissed the employee and that it was seeking clarification about whether he intended to return.

On 24 March, the employer sent messages asking the employee to confirm his intentions and stating that shifts were available from the following day.

The employee responded that he would not be attending the next day. He subsequently sent a message describing a telephone conversation in which he alleged that his manager had told him he would not be paid for the days he had not been rostered and that he could quit if he wished.

The employee’s argument

The employee’s representative, Mr G. Dircks of Just Relations, argued that the employer had repudiated the employment contract by failing to provide work and pay to a permanent full-time employee.

The argument was not that the employee had been forced to resign under s.386(1)(b).

Rather, the employee relied on s.386(1)(a), arguing that the employer’s conduct had brought the employment relationship to an end by repudiating its contractual obligations.

The employee submitted that he remained ready, willing and able to work and that the employer had no contractual or statutory basis to stand him down without pay.

The Commission’s findings

1. The employee had not abandoned his employment

Commissioner Redford rejected the employer’s assertion that the employee had abandoned his position.

The Commission accepted that the employee had failed to notify the employer of his illness on 13 March. However, that absence had been explained on 17 March, and the employee had queried where he was expected to work the following day.

The Commissioner considered that the employer had been too quick to assume that the employee no longer intended to perform his employment obligations.

The employee had previously notified the business of his planned absences and had indicated that he would return on 18 March.

The employer’s decision to remove him from the roster was therefore not justified by an assumption that he had abandoned his employment.

2. The employer had no lawful basis to withhold work and pay

The Commission found that the employer had consciously decided not to roster the employee for the week commencing 17 March.

The employee was not offered work and was not paid.

The Commissioner found that there was no evidence that the employer’s failure to provide work was authorised by the employment contract.

Nor was there evidence that the statutory stand-down provisions in s.524 of the Act applied. The employer had not established industrial action, a breakdown of machinery or equipment, or a stoppage of work for which it could not reasonably be held responsible.

The Commission therefore concluded that the employer had not lawfully stood the employee down.

3. Failure to provide work and pay can constitute repudiation

The Commissioner considered the principles of contractual repudiation, including the High Court decision in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61.

Repudiation may occur where a party demonstrates an unwillingness or inability to perform substantial obligations under a contract, or breaches the contract in a way that justifies termination by the other party.

The Commissioner confirmed that a failure to provide work, where there is a contractual obligation to do so, or a failure to pay wages where there is an obligation to pay, can amount to repudiation of an employment contract.

The employer’s decision to remove the employee from the roster and withhold payment was found to be a breach of the employment contract amounting to repudiation.

4. The employee accepted the repudiation

The Commission found that the employee accepted the employer’s repudiation by filing his unfair dismissal application.

The Commissioner adopted the reasoning in NSW Trains v James [2021] FWCFB 6022, which recognises that lodging an unfair dismissal application in these circumstances can amount to acceptance of repudiatory conduct.

Consequently, the employment relationship had been terminated at the initiative of the employer within the meaning of s.386(1)(a).

5. The forced resignation argument was irrelevant

The employer attempted to argue that the employee had not been forced to resign under s.386(1)(b).

The Commissioner rejected this approach because the employee had never claimed to have resigned.

His case was based on termination at the employer’s initiative under s.386(1)(a).

The Commission considered that the employer should have understood the case being advanced and had been given a fair opportunity to respond.

Decision

Commissioner Redford found that the employee had been dismissed within the meaning of s.386(1)(a) of the Fair Work Act.

The employer’s jurisdictional objection was dismissed.

The unfair dismissal application was permitted to proceed to further programming.

Importantly, this decision determined only whether a dismissal had occurred. It did not determine whether the dismissal was ultimately harsh, unjust or unreasonable, or what remedy might be appropriate.

Significance for employees and employers

This decision provides important guidance on the circumstances in which an employer’s failure to provide work and pay can amount to dismissal.

In particular:

Permanent employment matters: An employer cannot simply stop rostering a permanent full-time employee and withhold wages without a contractual or statutory basis.
Abandonment must be established: A failure to attend one shift, even without notification, does not automatically establish abandonment of employment.
Communication is important: An employee’s explanation for an absence and indication of an intention to return may undermine an employer’s assertion of abandonment.
Stand-down provisions are limited: Section 524 does not provide a general power to withhold wages whenever an employer has insufficient work or wishes to resolve a workplace dispute.
Repudiation can constitute dismissal: An employer’s conduct may terminate the employment relationship even where there is no express termination letter or formal dismissal.
The correct statutory basis matters: A claim under s.386(1)(a) is distinct from a forced resignation claim under s.386(1)(b).

The decision is particularly relevant to permanent employees who are removed from rosters, denied work and left unpaid in circumstances where the employer has not lawfully stood them down.

Representatives

Applicant: Mr G. Dircks, Just Relations
Respondent: Mr M. Hawkins

Commission Member: Commissioner Redford