s.365 - Application to deal with contraventions involving dismissal

The Trustee for Pacific Waters Trust/Ausflow Pty Ltd

Application to deal with contraventions involving dismissal - whether application out of time - whether applicant was dismissed - correct identification of respondent/s

• [1] The Applicant in this matter, Mr. Andras Torocsik, has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act) alleging that he was dismissed by the Respondent, identified in the application as Ausflow Pty Ltd/Trustee for Pacific Waters Trust (Respondent), in contravention of Part 3-1, general protections, of the Act. The application was filed on 19 December 2024.

• [2] Responses to the application were filed by both Ausflow Pty Ltd and the Trustee for Pacific Waters Trust (collectively, the Respondents). Both responses objected to the application on the grounds that the application was filed outside the 21-day time limit prescribed by s.366(1) and that the Applicant was not dismissed. Those objections[1] must be dealt with before the Commission can conduct a conference under s.368 of the Act.

• [3] Directions were made for the filing of material relating to the objections that had been taken to the application. No material was filed by Ausflow Pty Ltd or the Trustee for Pacific Waters Trust. Brief submissions and a short witness statement were filed by the Applicant. The matter was listed for hearing on 5 March 2025.

• [4] Prior to the hearing, a request was made by the Applicant for the objections to be determined on the papers. The Respondents were asked to confirm whether they consented to that course noting that no material had been filed in support of the objections. No response was received in response to that correspondence and I determined and advised that the objections would be dealt with on the papers.

• [5] The evidence relied on by the Applicant included an email addressed to the Applicant dated 28 November 2024 titled 'termination letter'. The email included the following:

I spoke to you on the 4th November and I gave you notice due to the company moving into a new structure as per Mark's email that was sent explaining.

You were given 4 weeks (sic) notice as a gesture of goodwill.

• [6] The Applicant's statement said that the Applicant did not work for the Respondent after 29 November 2024. On the material before me I am satisfied that the Applicant's dismissal took effect on 29 November 2024. As the application was filed on 19 December 2024 it was made within the 21-day time period prescribed by s.366(1)(a). The objection that the application is out of time is therefore without substance.

• [7] As to whether the Applicant was dismissed, both responses effectively concede that the Applicant was dismissed as they say that the Applicant was given 4 weeks' notice that his employment was coming to an end. The Respondents appear to take issue with the application on the basis that the Applicant received the requisite period of notice rather than the fact that he was not dismissed, in which case the objection that the Applicant was not dismissed is misconceived. In any event, the email of 28 November 2024 evidences a termination on the employer's initiative within the meaning of s.386(1)(a). On the basis of the material available to me I am satisfied that the Applicant was dismissed for the purposes of s.365(a).

• [8] I note that there is a lack of clarity in the material as to the identity of the proper respondent or respondents to the proceedings. For the purposes of making a valid application under s.365 an applicant need only establish that they were dismissed and allege that the dismissal was in contravention of Part 3-1 of the Act.[2] Given that two apparently separate entities have been referred to in the application and have both responded to it, I have referred to both entities in this decision. In relation to the Trustee for Pacific Waters trust, the identity of that trustee is not apparent on the available material. If the application proceeds it may be necessary at some stage for the Commission (or the Court) to consider an application to amend the originating application to identify the proper respondent or respondents with greater precision.

• [9] The objections of the Respondents are dismissed. The matter will be relisted for a conference under s.368 of the Act on a date to be determined.

[1] As to an objection that an applicant was not dismissed for the purposes of s.365 see Coles Supply Chain Pty Ltd v. Milford [2020] FCAFC 152; (2020) 279 FCR 591.

[2] Civmec Construction & Engineering Pty Ltd v. Minchin [2025] FWCFB 2.

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