s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] Mr Aristotle Stavros has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that he has been dismissed from his employment with Mason NSW Pty Ltd (Mason) in contravention of Part 3-1 of the FW Act.

• [2] Mr Stavros claims that he commenced employment with Mason on 1 January 2021 and the dismissal took effect on 20 September 2025.

• [3] Mason has objected to the application on the ground that Mr Stavros was not dismissed from his employment as he resigned on 29 August 2025.

• [4] Before dealing with the dispute under s.368, I must be satisfied that Mr Stavros was dismissed.

• [5] In summary, I have found Mr Stavros was not dismissed within the meaning of s.365 of the Act and have dismissed the application.

• [6] In the F8A response form filed by Mason, it claims that Mr Stavros resigned on 29 August 2025 by sending a text message which stated:

Please take this text message as official resignation from your business.

• [7] Mason submitted that on 30 August 2025, Mr Stavros attempted to withdraw the resignation and that it rejected this attempt for reasons which included:

(a) The resignation was clear and unambiguous; and

(b) Mason had already begun implementing operational changes such as removal from business systems, advertising, and notification to staff and clients.

• [8] Mason explained that it issued Mr Stavros with a formal termination letter on 20 September 2025 which confirmed and documented the earlier resignation/termination effective from 29 August 2025.

• [9] In the application, Mr Stavros submitted that he resigned and attempted to withdraw the resignation and made a number of allegations about the conduct of Mason which preceded the resignation.

• [10] The matter was listed for a case management conference on 26 November 2025. Mr Stavros did not attend the conference.

• [11] Later that day, my Chambers sent the following email to Mr Stavros:

RE: C2025/10213 - Mr Aristotle Stavros v Mason NSW Pty Ltd

I refer to the above matter which was listed for a case management conference before Deputy President Wright at 3:00pm today.

You have brought an application under s.365 of the Fair Work Act 2009 (Cth) (Act) alleging that you have been dismissed by Mason NSW Pty Ltd in contravention of Part 3-1 of the Act.

The Respondent has filed a F8A response stating that you were not dismissed within the meaning of s.386 of the Act as you resigned on 29 August 2025.

On the basis of the information filed, Deputy President Wright has formed the preliminary view that the Commission has no jurisdiction to deal with this matter as there has been no dismissal.

If you wish to proceed with this application, you are required to file the following material no later than 4pm on Wednesday, 3 December 2025:

1. An outline of submissions in relation to jurisdiction of the application addressing the Respondent's objection that you were not terminated on the employer's initiative (s.386(1)(a) Fair Work Act 2009); and
2. A witness statement for you and each of the witnesses you intend to call at the jurisdiction hearing, including any documentary material upon which you intend to rely.

If this material is received from you, Deputy President Wright will program the matter for hearing, subject to considering the views of the Respondent.

If no material is received from you by the above date, a publicly available decision dismissing your application will be issued by the Commission.

If you no longer wish to proceed with the matter, please advise the Commission by return email as soon as possible.

• [12] Mr Stavros did not respond to this email so I have proceeded to determine the matter.

• [13] The application has been brought under s.365 of the FW Act which provides:

365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

• [14] The issue between the parties which the Commission has been asked to determine is whether Mr Stavros was dismissed by Mason. The dictionary at clause 12 of the FW Act refers to section 386 for the definition of 'dismissed'.

(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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

• [16] The expression 'termination at the initiative of the employer' is well understood to be a reference to a termination that is brought about by an employer, and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry 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.[1]

• [17] Based upon the application and the Form 8A response, there is no dispute between the parties that Mr Stavros resigned, then attempted to rescind the resignation and that Mason did not permit Mr Stavros to rescind the resignation.

• [18] Mr Stavros has made a number of allegations against Mason in the application but has not filed any evidence in support of the allegations pursuant to directions I made on 26 November 2025. In the circumstances, I find that Mr Stavros has not established, on the balance of probabilities that action on the part of Mason was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment. Further I find that Mr Stavros has not established, on the balance of probabilities that he was forced to resign from his employment because of conduct, or a course of conduct, engaged in by Mason.

• [19] For these reasons, I determine that Mr Stavros has not been dismissed by Mason within the meaning of ss.365 and 386 of the FW Act. I dismiss the application.

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

Printed by authority of the Commonwealth Government Printer