s.365 - General protections

General protections applications involving an alleged dismissal - whether applicant was dismissed.

[1] Ms Woolston lodged an application pursuant to s 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections dispute involving an alleged dismissal. The respondent named in the application is the State of Queensland (Department of Education). In addition, Ms Woolston has sought leave to add her employer, Hudson Global Resources (Aust) Pty Limited, as a further respondent to the proceedings.

[2] Ms Woolston contends that she was dismissed by Hudson in contravention of the general protections provisions in Part 3-1 of the Act. Ms Woolston also contends that the State of Queensland was knowingly concerned in Hudson's contravention of the Act.

[3] Hudson contends that Ms Woolston has not been dismissed. The State of Queensland contends it was not Ms Woolston's employer and the Act did not apply to any relationship between Ms Woolston and the State of Queensland.

• [4] The Commission must determine whether Ms Woolston was dismissed before it can exercise powers under s 368 of the Act to deal with a dispute about whether Ms Woolston was dismissed in contravention of the general protections.[1]

[5] The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:

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

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

• [6] The reference in s 386(1)(a) of the Act to "the person's employment with his or her employer [having been] terminated" is a reference to the person's contract of employment being brought to an end (or, perhaps in some cases, repudiated).[2]

• [7] In circumstances where the employee does not leave their employment voluntarily, the focus of the inquiry under s 386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[3]

• [8] Section 386(1)(b) of the Act concerns the resignation of an employee where the resignation was "forced" by conduct or a course of conduct on the part of the employer. The question of whether a resignation did or did not occur does not depend on the parties' subjective intentions or understandings.[4] Whether an employee resigned depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances.[5]

• [9] The test to be applied in determining whether a resignation was "forced" within the meaning of s 386(1)(b) is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign.[6] The requisite employer conduct is the essential element.[7]

[10] On about 25 August 2025, Ms Woolston was engaged by Hudson as a casual employee.

[11] Ms Woolston's On-Hire Employment Agreement with Hudson included the following relevant terms:

"1.1 Under this OEA Hudson Global Resources (Aust) Pty Limited ("Hudson") is engaging you as a casual employee.

4.1 As a casual employee Hudson may from time to time offer you work in the form of assignments either directly with Hudson or with a Client.

4.3 If you accept an offer of assignment, then this OEA and the Confirmation of Assignment will together form the terms and conditions of your employment for the duration of the assignment.

4.7 In offering you casual employment, including the form of an assignment with a Client, Hudson makes no firm advance commitment to continuing and indefinite work according to any agreed pattern of work. You understand and agree that although the task and anticipated duration of an assignment will be set out in the Confirmation of Assignment, these may alter at any time during an assignment dependent upon the needs of Hudson or the Client.

6.1 Your relationship with Hudson is that of casual employee in accordance with the definition of 'casual employee' as set out in the Fair Work Act.

14.1 Either party may terminate the employment or an assignment at any time without notice for any reason."

[12] On about 25 August 2025, Ms Woolston was assigned by Hudson to work with the State of Queensland. The approximate end date of the assignment was initially stated to be 27 February 2026.

[13] On 4 December 2025, the State of Queensland contacted Hudson to end Ms Woolston's assignment. As a result, Ms Woolston's assignment with the State of Queensland came to an end.

[14] On 8 December 2025, Hudson presented Ms Hudson with a new opportunity to be assigned to work as a Legal Support Officer with the Department of Youth Justice and Multicultural Affairs, commencing in 2026. Ms Woolston did not respond to this proposed new assignment.

[15] On 11 December 2025, Hudson wrote to Ms Woolston and provided additional information from the State of Queensland in relation to the termination of the assignment. In the same email, Hudson reiterated to Ms Woolston that she was still a casual employee of Hudson.

[16] Ms Woolson accepts that she was employed by Hudson, not the State of Queensland.

[17] Ms Woolston does not submit that she resigned or was forced to resign. Ms Woolston submits that her employment was terminated by Hudson. Her application contends that she was told about being dismissed on 2 December 2025.

[18] Ms Woolston contends that the existence of a dismissal within the meaning of s 386 of the Act turns on practical termination, not contractual labels or legal fictions. Ms Woolston submits that her only source of work and income through Hudson was her placement with the State of Queensland and when that assignment was terminated on 4 December 2025:

• her employment relationship with Hudson was, in practical terms, extinguished.

• [20] In circumstances where a labour hire company, such as Hudson, terminates one assignment on which an employee is working, the termination of the assignment does not, without more, terminate the employee's employment with the labour hire company.[8]

[21] Ms Woolston's assignment with the State of Queensland was terminated earlier than expected, but that did not terminate Ms Woolston's employment with Hudson. So much is clear from both the terms of the Employment Agreement and the fact that Hudson offered Ms Woolston a new assignment on 8 December 2025.

[22] Ms Woolston contends that her employment relationship with Hudson was functionally exclusive to a single host client, with the result that termination of that engagement had the practical effect of terminating her employment.

• [23] Ms Woolston also submits that the High Court in CFMMEU v Personnel Contracting Pty Ltd[9] confirmed that employment characterisation turns on the substance of the relationship, not merely the contractual labels applied by the parties. Ms Woolston submits that the substance of the relationship was:

• complete loss of work and income upon termination;

• employer conduct consistent with termination in substance.

[24] I do not accept these submissions. The terms of Ms Woolston's Employment Agreement expressly envisaged her potentially being offered "work in the form of assignments either directly with Hudson or with a Client". Hudson acted in accordance with this term when it communicated with Ms Woolston about a new potential assignment on 8 December 2025.

[25] Ms Woolston further submits that after her placement was terminated on 4 December 2025, Hudson:

• attempted to retrospectively vary the contract end date with the State of Queensland to an earlier date;

• issued correspondence purporting to "end" the contract after the termination had already occurred; and

• failed to provide Ms Woolston with copies of her previously signed onboarding documents when requested on 12 February 2026.

[26] It is submitted that this conduct is inconsistent with Hudson's assertion that Ms Woolston's employment relationship meaningfully continued. It supports the inference, so Ms Woolston contends, that Hudson itself understood the termination of the placement to operate as termination of the employment relationship in substance. Ms Woolston submits that the attempt to retrospectively alter contractual dates after termination undermines Hudson's credibility and supports her contention that Hudson is attempting to retrospectively manufacture jurisdictional immunity.

[27] The following documents were filed by Ms Woolston in support of these submissions:

(a) an email from Hudson to Ms Woolston on 4 February 2026 stating that the date of her assignment with the State of Queensland "has been brought forward in our systems" from 27 February 2026 to 4 February 2026;

(b) an email from Hudson to Ms Woolston on 4 February 2026 advising that her "contract with Hudson has been updated" and asking Ms Woolston to review and sign the variation of contract; and

(c) an email request by Ms Woolston to Hudson on 12 February 2026 for access to "onboarding documents".

[28] In my view, these documents do not establish that Ms Woolston has been dismissed from her employment with Hudson. Although the limited material before the Commission in relation to these matters does not explain why various requests were being made, the documents relied on by Ms Woolston supports a conclusion that the employment relationship between Ms Woolston and Hudson remained on foot into February 2026.

[29] Finally, Ms Woolston submits that accepting Hudson's submission would allow labour-hire employers to terminate workers from their sole income source, maintain a legal fiction of "ongoing casual employment", and defeat statutory protections under Part 3-1 of the Act, which would undermine the protective purpose of the Act and leave labour-hire workers without a meaningful remedy for harsh, unjust, or unreasonable termination. The first point to make in response to these submissions is that Ms Woolston has not commenced proceedings for unfair dismissal, involving a determination as to whether a dismissal was harsh, unjust or unreasonable. Secondly, I do not accept that Hudson has "maintained a legal fiction of 'ongoing casual employment'" to defeat statutory protections under Part 3-1 of the Act. The bargain Ms Woolston struck when she accepted an offer of employment with Hudson included express terms that Ms Woolston would be employed by Hudson as a casual employee and she may, from time to time, be offered work by Hudson in the form of assignments either directly with Hudson or with a client of Hudson. A matter of about four days after the conclusion of her assignment with the State of Queensland, Hudson communicated with Ms Woolston about a potential assignment with the Department of Youth Justice and Multicultural Affairs. Such conduct is inconsistent with the notion of a "legal fiction of 'ongoing casual employment'".

[30] For the reasons given, Ms Woolston was not dismissed from her employment with Hudson. Accordingly, Hudson's jurisdictional objection is upheld and Ms Woolston's general protections application against the State of Queensland and Hudson is dismissed. It follows that I do not need to determine the State of Queensland's argument that the Act did not apply to any relationship between Ms Woolston and the State of Queensland.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67]

[2] Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 at [63]

[3] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200

[4] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704 at [30]

[5] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704 at [30]

[6] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(2)]

[7] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(2)]

[8] Fonofehi v APS Group (Holdings) Pty Ltd [2024] FWC 177 at [29]-[30]

[9] [2022] HCA 1

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