s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether Applicant dismissed - found cessation of employment occurred by operation of law - Applicant was not dismissed within the meaning of s 386(1) of the Fair Work Act.

[1] On the 20 November 2025, Mr Adam Tate (the Applicant) lodged an application pursuant to s 365 of the Fair Work Act 2009 (the FW Act) in which he asserts that the termination of his employment on 5 November 2025 by the Department Of Education (the First Respondent) and David Howes (the Second Respondent) contravened his workplace rights. In its Form F8A response, the First Respondent raised a jurisdictional objection to the application, that the Applicant was not dismissed within the meaning of s 386 of the Act.

• [2] The First Respondent's jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application.[1] Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s 368 of the Act.[2] Consequently, the issue for determination is whether the Applicant was dismissed from his employment within the meaning of s 386 of the Act.

[3] Following allocation of the matter to my Chambers, Directions were issued on 24 December 2025 for the filing of material in relation to the jurisdictional objection. Both parties filed material in accordance with the Directions. At the hearing, the Applicant appeared and gave evidence while the First Respondent was represented by Mr Andrew Denton of Counsel who called Ms Emily Lett, Director of the Workplace and Education Law Branch of the First Respondent, to give evidence.

• [4] The background to this matter may be shortly stated. Immediately prior to his dismissal, the Applicant was employed as a Classroom Teacher Range 1 at the Barayip Primary School. As part of the legislative requirements for persons working in child-related work, the Applicant received a Working with Children Clearance (WWC Clearance) in 2020. On 15 October 2025, the Victorian Department of Government Services sent a letter to the Department of Education advising that the Applicant had been given a 'Working with Children (WWC) Exclusion' (WWC Exclusion) under the Worker Screening Act 2020 (the WS Act) and attached a copy of the WWC Exclusion.[3] The WWC Exclusion had the effect of revoking the Applicant's WWC Clearance. On 5 November 2025, the Department of Education informed the Applicant by letter that he was dismissed from his employment in accordance with s 2.4.58 of the Education and Training Reform Act 2006 (Vic) The ETR Act.[4] The Applicant has since lodged an application in the Victorian Civil and Administrative Tribunal (VCAT) challenging the WWC Exclusion decision, a stay of which was granted by VCAT on 2 December 2025.

[5] The issue to be determined in this matter is whether the Applicant has been dismissed from his employment. The circumstances in which a person is taken to be "dismissed" are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[6] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. I understand from the Applicant's case that his primary argument is that he was dismissed within the meaning of the first limb of s 386(1), that being he was dismissed at the initiative of the First Respondent.

[7] The WS Act provides a legislative framework for the screening of persons employed or engaged in risk assessed roles for the purposes of the NDIS and for work with, or care for children (child-related work). Child-related work is defined at s 7 of the WS Act to include work in 'educational institutions'. Clearly, the Applicant's former role as a teacher falls within the definition of child-related work and coverage by the WS Act. Persons working in child-related work require a WWC Clearance.

[8] Part 6.2 of the WS Act deals with offences related to child-related work and relevantly states as follows in respect of engaging in child-related work without a WWC Clearance;

"121 Engaging in child-related work without a WWC clearance

(1) A person must not engage in child-related work if -

(a) the person does not have a current WWC clearance; and

(b) the person engages in the work knowing that it is child-related work; and

(c) the person knows that they do not have a current WWC clearance or is reckless as to whether or not they have one.

Penalty: Level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both."

[9] Section 123 in Part 6.2 of the WS Act goes on to deal with obligations of employers in respect to persons that do not hold a WWC Clearance where such a clearance is required to perform child-related work. Section 123 relevantly provides as follows;

1. Offence to engage a person who does not have a WWC clearance in child-related work

(1) A person must not engage, or continue to engage, another person (the worker) in child-related work if -

(a) the person knows the work is child-related work; and

(b) the worker does not have a current WWC clearance; and

(c) the person engaging, or continuing to engage, the worker knows that the worker does not have a current WWC clearance or is reckless as to whether or not the worker has one.

Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both.

[10] While the Language in s 123 of the WS Act is clear enough, in that it prevents an employer from continuing to employ a person in chid-related work where they do not possess a WWC Clearance; the ETR Act reinforces this point in explicit terms. Section 2.4.58 of the ETR Act states as follows:

"If an employee has, at any time, been convicted or found guilty of a category A offence in Victoria or an equivalent offence in another jurisdiction or been given a WWC exclusion, the Secretary must dismiss the employee from the teaching service." (emphasis added)

[11] It is uncontroversial that the First Respondent received a letter from the Department of Government Services on 15 October 2025 that advised the Applicant had been issued with a WWC Exclusion. The letter relevantly stated as follows:

Adam TATE, who has indicated that they are currently engaged in child-related work with Baryip [sic] Primary School, has been given a Working with Children (WWC) Exclusion under the Worker Screening Act 2020 (the Act).

It is also an offence for an organization to engage a person in child-related work where that person has been given a WWC Exclusion. The WWC Exclusion is effective from the date of issue.

[12] The First Respondent then wrote to the Applicant on 5 November 2025 in the following terms;

Notification of dismissal: section 2.4.58 of the Education and Training Reform Act 2006

I am advised that on 15 October 2025 you were issued a Working with Children (WWC) exclusion notice.

Section 2.4.58 of the Education and Training Reform Act 2006 (the ETR Act) provides:

If an employee has, at any time, been convicted or found guilty of a category A offence in Victoria or an equivalent offence in another jurisdiction or been given a WWC exclusion, the Secretary must dismiss the employee from the teaching service.

Having considered the matters above, I find that you are a person who falls within section 2.4.58 of the ETR Act as you have been given a WWC exclusion. As a result, the Secretary must dismiss you from the teaching service.

As Deputy Secretary, Schools and Regional Services, I have been delegated the powers of the Secretary under section 2.4.58 of the ETR Act and I write to inform you that you are dismissed from the teaching service and your dismissal is effective from the date of the WWC exclusion, 15 October 2025.

A copy of this letter has been forwarded to Nicole O'Brien, principal, Barayip Primary School.

If you have any queries in relation to this letter, please contact xxxxxxxxxxxxxxxx, Conduct and Integrity Division on (03) xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxx

• [13] In the present case it is necessary to determine whether it was the action of the First Respondent that had the direct, indirect or consequential effect, of bringing the Applicant's employment with the First Respondent to an end. In doing so, it is necessary to have regard to Federal Court authority, which has held that an employment relationship will not end at the initiative of an employer, where the termination was one "resulting from the operation of an act of Parliament."[5] In the case of Quirke[6], it was accepted by Perram J that previous Federal Court authority stood "for the proposition that where a contract of employment ends by operation of law without any act by the employer then there will be no termination within the meaning of section 386".

• [14] Decisions of Members of the Commission have adopted the reasoning of the above-referred line of authorities, including in Whelan v Department of Education[7]. In that case Colman DP found that Mr Whelan's employment with the Victorian Department of Education ceased pursuant to s 2.4.59(5) of the ETR Act. Section 2.4.59(f) provides that where a teacher's registration had expired following a 12-month period of being unregistered, employment ceases. The Deputy President relevantly found that termination of Mr Whelan in these circumstances was not at the initiative of the Department of Education. Similar reasoning was applied by O'Neill DP in Lennie v Department of Education[8] and Millhouse DP in Stark v Department of Education.[9] I respectfully adopt the reasoning set out in Quirke and in the decisions of Commission Members to which I have referred.

[15] Returning to the present matter, the Applicant's case is advanced on the basis that various actions taken by persons employed by the First Respondent, including allegations of misconduct levelled against him, led to the revocation of his WWC Clearance and consequentially, his dismissal. That he is aggrieved at events that led to the loss of his WWC Clearance, is clear. His arguments have failed to properly engage with the central point to be considered at this stage of proceedings, whether it was the First Respondent's actions that were the principle contributing factor in his dismissal. The fact that allegations were made against the Applicant in his employment by the First Respondent, does not rise to the level of establishing that those allegations were the principle contributing factor in his dismissal. The mere fact that allegations were made against the Applicant does not mean a decision was taken by the First Respondent to dismiss him.

[16] In the present case, there was no relevant action taken by the First Respondent to dismiss the Applicant. The First Respondent was notified of the WWC exclusion by the Department of Government Services and was made aware of its obligations under the ETR Act and WS Act. The First Respondent then proceeded to notify the Applicant of his dismissal by reason of the operation of the ETR Act, as the Act compelled it to do. The relevant facts of the present case are entirely consistent with the proposition summarised by Perram J in Quirke. The Applicant's employment was brought to an end by legislative mandate and not by any action taken by the Respondents. The Applicant cannot therefore be said to have been "dismissed" within the meaning of section 386 of the FW Act.

[17] I have found that the Applicant was not dismissed within the meaning of s 386 of the Act. Accordingly, at the time the Applicant made his application on 20 November 2025, he was not a person who had been dismissed for the purposes of s 365 of the Act. The First Respondent's jurisdictional objection is therefore upheld, and the application must be dismissed. An order giving effect to this decision will be separately issued.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.

[3] Exhibit R1, Witness Statement of Emily Giselle Lett, dated 19 January 2026, Annexure EGL-2

[5] Australian Liquor Hospitality and Miscellaneous Workers' Union (1994) 55 IR 18 (Moore J)

[6] Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587; 312 IR 359 at [225]

[7] [2025] FWC 1818

[8] [2024] FWC 1281

[9] [2025] FWC 3520

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