In a recent decision the Fair Work Commission has found that an art installer was dismissed when a manager emailed notifying a “pause” in their working relationship.
The Facts
The employee was an art installer in Bondi’s celebrated “Sculpture by the Sea” event, having worked in it as a contractor or employee each year since 2004, apart from those cancelled by the COVID pandemic.
On 15 January 2004 he was injured at a work depot. He then raised concerns about safety, culture, and leadership which led to emails exchanged over some months.
On 3 September 2024 a manager emailed him:
“Acknowledging your concerns about working with us again, and that you may not want to do so, and as we are in the final stages of preparing for this year’s Bondi exhibition and unfortunately no longer have time to meet with you prior to commencing final preparations for the install of the exhibition, we would like to take a pause on our working relationship until after this year’s Bondi exhibition. We suggest having a meeting in either mid-December or mid-January if you wish and are available…”
He responded by an email acknowledging that his services were not required for the Bondi show. The employer emailed to renew an earlier offer for a facilitated meeting in December or January to discuss the issues.
He applied to the Fair Work Commission for a breach of general protections, alleging that he was dismissed by the email dated 3 September 2024.
Was he dismissed?
The Fair Work Act provides that a person has been “dismissed” if their employment has been “terminated on the employer’s initiative” or, if the person resigned, “but was forced to do so because of the conduct, or a course of conduct, engaged in by his or her employer”.
The Commissioner concluded that he was not dismissed, finding that the evidence was clearly that he was a valued and highly regarded member of the team, and that the “pause” in the employment relationship was not a decision to sever the relationship.
The employee appealed the Commission’s decision to the full bench of the Fair Work Commission.
The Appeal
The full bench disagreed with the Commissioner, instead finding that a reasonable person would have understood the email sent on 3 September 2025 to “take a pause” as terminating the employment – i.e. dismissing the employee.
He had worked on every event that was held since 2004, had already agreed to work on the 2024 event, and the email of 3 September 2024 conveyed that he would not be engaged to perform any work unless there was a positive outcome to the foreshadowed meeting.
Implications
For employers the case is a reminder of the risks in managing casual employment. The Fair Work Act has various protections for casual employees that employers need to understand before communicating with casual employees about the availability of work.
Casual employees are reminded that, depending upon the circumstances, they may have a right of action when work is withdrawn.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.