Unsure if you’ve been dismissed? Here’s how you can find out

 

To make an unfair dismissal claim or general protections claim, you must have been dismissed by your employer. However, sometimes it is not clear if a worker was dismissed or not.

This is what happened in a recent Fair Work Commission case – Ms. Alana Weir v Add Staff Recruitment Pty Ltd, Aserve Victoria Pty Ltd [2025]. The worker wanted to make a general protections claim against her employer for violating her rights. But the employer argued that she was still employed at the company, making her ineligible to lodge her claim.

Often in cases like these, the issuing of an employment separation certificate can be a defining factor in the Commission deciding if an employee was in fact fired. In the aforementioned case and another we will cover in this article, the workers were issued a certificate.

In the first case, the worker’s certificate provided proof that they had been dismissed. However, in the second case, the certificate backed up the employer’s claim that the worker had resigned voluntarily.

 

What is an employment separation certificate?

An employment separation certificate is a document that your employer fills out when your job ends. It provides important details about your employment history and why the role ended.

You have the legal right to receive an employment separation certificate from your employer. You can request one whether you were dismissed or resigned. If you are a casual employee who is not receiving any shifts, you can also request one.

If you do not know if you still have a job or not, requesting an employment separation certificate is one way to confirm. A certificate is also required to apply for JobSeeker payments from Services Australia (Centrelink).

Only your employer can complete the certificate and they must do so within 14 days of being asked, either by you or by Centrelink. You can read more about employment separation certificates in our detailed article.

 

Employer attempts to block worker from standing up for her rights

Melbourne-based Alana Weir had been hired as a casual on-hire worker for Add Staff Recruitment under a written contract. The company provides on-hire workers to clients in the electrotechnology and construction industries. In January 2024, Ms. Weir was placed at a client, Aserve Victoria, in the role of project coordinator.

Her contract of employment with Add Staff Recruitment stipulated several conditions. This included that the end of a client work assignment “does not constitute the termination of your employment.” It also stated that the company did not guarantee ongoing assignments and that Ms. Weir was not obliged to accept any offered work.

The assignment with Aserve Victoria concluded on 11 November 2024. Ms. Weir stated that this led her to believe her employment with Add Staff Recruitment had also ended at that time. She received her final salary payment up to 14 November 2024.

 

Worker thought separation certificate confirmed dismissal

Later that month, Add Staff Recruitment told Ms. Weir that there were no suitable roles she could fill for clients. The company said that most of their clients were in Queensland. Ms. Weir told the Fair Work Commission that she understood this lack of work to mean she had been dismissed.

She therefore requested and was provided an employment separation certificate from Add Staff Recruitment. The document stated that Ms Weir’s employment commenced on 17 January 2024 and ceased on 14 November 2024. The stated reason for the separation was “shortage of work.” Ms. Weir contended that this certificate confirmed her belief that her employment had ended. She said that there had been no other contact with Add Staff Recruitment after the separation certificate was issued

 

Made claim with Fair Work

In December 2024, Ms. Weir lodged a general protections claim with the Fair Work Commission. In the claim she alleged that her dismissal by both Add Staff Recruitment and Aserve Victoria had violated her workplace rights. However, both companies lodged a jurisdictional objection to the claim. They argued that Ms. Weir had not been dismissed and was still an employee. To make a general protections claim, an employee must have been dismissed.

The Fair Work Commission had to work out if Ms. Weir had been dismissed at the initiative of Add Staff Recruitment. The company argued that her employment contract clarified that the end of an assignment did not automatically equate to the termination of employment. They also highlighted that Ms. Weir remained on their system as a casual employee and that further assignments were offered. The company also said that the separation certificate was only provided because she had requested it.

 

Dismissal was ‘clear and unambiguous’

At Ms. Weir’s hearing, the Fair Work Commission examined the terms of her employment contract. It concluded that the contract required “more than the mere cessation of an assignment” for a dismissal to occur. It was found that Ms. Weir had no basis on which to presume that her employment had ended.

However, her employment separation certificate was another story. The Commission said that it was “clear and unambiguous” that the certificate meant Ms. Weir had been dismissed. It noted that it clearly stated that the employment had ceased due to a “shortage of work” and not voluntarily.

The argument that Ms. Weir’s request for the certificate indicated a resignation was also rejected. The Commission said that when an employee requests an employment separation certificate believing that they have already been dismissed, the request is “not a termination on the employee’s initiative.”

 

Big win for worker

The Fair Work Commission also noted that Add Staff Recruitment’s behaviour was indicative of having fired Ms. Weir. It said that the company had not made contact with her after issuing the certificate. The Commission said that while Add Staff Recruitment may not have intended to dismiss Ms. Weir, the act of providing the certificate made it the case.

Finding that Ms. Weir had been fired, the Commission therefore rejected the jurisdictional objection. Her general protections claim was therefore allowed to proceed.

 

Worker’s claim of dismissal rejected by Fair Work

Another Fair Work Commission case concerning a dispute about whether an employee was fired or not is Kyle Nash v  David Allan Gray, Rebecca Gray [2025]. Brisbane-based Kyle Nash was employed as a plasterer for a plastering business. The owner and general manager of the business was Rebecca Gray. In April 2024, Mr. Nash sustained a workplace injury when he fell from a ladder.

He informed Ms. Gray of the incident via text message on the same day. He told her that he had a chiropractic consultation booked for that afternoon. After the consultation, he told Ms. Gray that his doctor had recommended doing a CT scan and taking a day off. Ms. Nash replied saying “Okay no worries just let me know how you are feeling tomorrow.”

The key issue that led to Mr. Nash’s dismissal was that a week after sustaining the injury, he lodged a WorkCover claim. He also engaged legal representation for a potential common law workers’ compensation claim. Ms. Gray was notified of the claim. She then contacted WorkCover and raised concerns about its legitimacy.

 

‘There are just so many red flags with this claim’

Ms. Nash said that she suspected Mr. Nash’s injury was not work related. She claimed that he had only made the WorkCover claim when his leave ran out, five days after the injury. Ms. Gray also said that Mr. Nash was “on the verge of being dismissed” for failing to follow instructions repeatedly. She said there were “so many red flags” with his claim and that he had already had three months off work.

 

Employer claimed worker did not want to return to work

In August 2024, Ms. Gray prepared a return-to-work plan for Mr. Nash, outlining potential administrative and light duties. A meeting to discuss this plan took place on 8 October 2024, involving Mr. Nash, Ms. Gray and representatives from Konekt, a return-to-work coordination service. During this meeting, Mr. Nash reportedly expressed uncertainty about his future in plastering. He also spoke of his desire to return to a work at a previous employer.

Ms. Gray told the Fair Work Commission that she was informed by Konekt that Mr. Nash was updating his curriculum vitae and did not intend to return to work. Mr. Nash, however, offered to the Commission contradictory testimony about his intentions.

 

Worker received employment separation certificate

WorkCover finalised Mr. Nash’s claim in December 2024 and he was expected to return to work on 14 January 2025. Mr. Nash did not return to work or communicate with his employer between 14 and 16 January. On the 17^th, Ms. Gray sent him a letter saying that because she had not heard from him “I assume that you do not want to continue your employment.” She said that he should contact her if this was not the case.

Mr. Nash replied to Ms. Gray the same day and requested a separation certificate. He later explained that he required it to apply for Centrelink. He was given the certificate, which stated that he was “ceasing work voluntarily.” Mr. Nash told the Fair Work Commision that he did not notice this designation when he submitted the form.

 

Fair Work rejects worker’s claims

In late January 2025, Mr. Nash lodged a general protections claim with the Fair Work Commission. However, his employer lodged a jurisdictional objection to the claim, arguing that Ms. Nash had resigned and had not been dismissed. The Commission therefore had to work out if this argument was true.

It considered the letter Ms. Gray had sent Mr. Nash on 17 January 2025. The Commission said that it did not contain explicit language terminating Mr. Nash’s employment. His statement that he was given until 20 January to respond to the return-to-work offer was also rejected by the Commission. It preferred Ms. Gray’s evidence that the deadline was 13 January 2025, which was the day Mr. Nash’s WorkCover payments ceased.

 

Worker found to have resigned

The Fair Work Commission factored in Mr. Nash’s request for the employment separation certificate. Coupled with his response to Ms. Gray’s letter, it determined that a “reasonable person” would consider that Mr. Nash’s intention was to end his employment. The Commission said it was not likely that the employer’s conduct gave him “no effective or real choice but to resign.”

It stated that Mr. Nash’s conduct was the “principle contributing factor” that led to the cessation of the employment relationship. Given these findings, the Commission ruled that it lacked the jurisdiction to hear the general protections application. The application was therefore dismissed.

 

Have you been unfairly dismissed?

If you dispute the fairness of your termination, our team at A Whole New Approach can help you take action. We can let you know if you are eligible to make an unfair dismissal claim to seek reinstatement or financial compensation.

Our team has over three decades of experience helping Australian workers make claims. Your first consultation with us is free and confidential, and we offer a no win, no fee service.

 

Call us now on 1300 766 700 for a discussion about your situation.