s.365 - General protections

Application to deal with contraventions involving dismissal - whether applicant dismissed or resigned - application dismissed

• [1] On 28 September 2025, Ms Ashleigh Childs applied for the Fair Work Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009. Ms Childs alleges that she was dismissed by Smilestones Therapy Pty Ltd (Smilestones) in contravention of the general protections. Smilestones dispute that Ms Childs was dismissed asserting that she resigned of her own free will.[1]

• [2] The Commission generally does not have a determinative function in relation to applications brought under s.365 of the Act unless the parties agree to the Commission arbitrating the matter. Rather, the Commission's role is to convene a conference and to issue a certificate to Ms Childs, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, Smilestones deny that Ms Childs was dismissed within the meaning of s.386 of the Act and object to the Application. Consequently, the Commission is required first to determine whether Ms Childs was in fact dismissed or not.[2]

[3] On 24 December 2025, the parties consented to the matter being determined on the papers.

[4] Section 365 of the Act establishes a jurisdictional precondition for a person to make an application to deal with a general protection claim involving a dismissal. Relevantly, s.365(a) of the Act requires that the person must have been 'dismissed'.

[5] The word 'dismissed' is defined in s.12 of the Act by reference to s.386:

1. Section 386(1)(a) provides that person has been dismissed if "the person's employment with her or her employer has been terminated on the employer's initiative"; and
2. Section 386(2)(a) provides that a person will not have been 'dismissed' "if the person was employed under a contract of employment for a specified period of time, 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"

[6] Ms Childs was employed by Smilestones on a part-time basis as a Paediatric Physiotherapist. Her employment commenced on 6 January 2025.

[7] On 28 August 2025, Ms Childs sent Smilestones a written resignation letter stating her final working day would be no later than 25 September 2025.

[8] On 29 August 2025, Ms Kim Fischer on behalf of Smilestones responded to the Applicant's resignation email and wrote that her final working day with Smilestones would be 11 September 2025.

[9] Ms Childs responded to Ms Fischer 1 September 2025 noting that her last day of employment would be 11 September and that "you do not wish me to work the final 2 weeks of the notice period".

[10] Ms Childs employment came to an end on 11 September 2025.

• [11] Ms Childs submits that Smilestones has contravened s 365 because the last day of her work would have been 25 September 2025 if Smilestones had not terminated her employment early on 11 September 2025. She asserts that Smilestones ended her employment early in order to avoid paying her final 2 weeks of notice period and contends that this was an "act of discrimination" based on her resignation.[3]

[12] Smilestones submitted that they did not initiate any termination and that the Applicant initiated her own resignation. Regarding the Notice Period issue, they submitted:

"During her resignation, the applicant did not set an exact final date, she resigned stating her last date being "no later than 25/9/2025". The Respondent acknowledged her resignation and set a date of 11/9/2025. The applicant acknowledged and agreed to this date. Therefore, in line with Fair Work, ending the notice period early. Fair Works states a notice period may end early if: both parties agree, or if the employer terminates the employee. In this case, both parties agreed. The agreed upon date was a 2 week notice period. As a small business with less than 15 employees, only a 1 week notice period was required for an employee who had worked less than 1 year (which was Applicant had only worked for the Respondent for 8 months)".

[13] I am required to determine whether Ms Childs voluntarily resigned or whether there was a termination at the initiative of the employer.

• [14] It is not in dispute that Ms Childs resigned from her employment on 28 August 2025.[4] The question to be determined is whether Ms Child's employment ending earlier than she would have preferred, resulted in a termination at the initiative of the employer.

[15] Ms Child's letter of resignation suggested that her last day of employment would be "no later than 25 September 2025". Had Smilestones agreed to an end date of 25th September 2025 this would have been the equivalent of four weeks' notice.

[16] It is relevant that Ms Childs' uses the term "no later than 25th September" in her letter of resignation. The use of this term clearly indicates the final date had not been agreed. I consider it reasonable in the circumstances that Smilestones responded to Ms Childs, advising their preferred end date of 11 September 2025, which was the equivalent of two weeks' notice.

• [17] Ms Childs acknowledges that she agreed to her last day of employment being 11 September 2025, however that she only did so because she was under the impression that Smilestones would still pay her up until 25 September 2025.[5]

[18] I have seen no evidence that Smilestones agreed to pay Ms Childs up to the 25th of September 2025 as she contends, nor have I been provided evidence that such provisions were contained within her contract of employment. Ms Childs' belief therefore appears to have been based on a misunderstanding of the notice provisions, which are drawn from her Award.

• [19] Ms Childs contract of employment notes that she is employed pursuant to the Health Professionals and Support Services Award 2020 (the Award). The Award provides that an employee with less than 1 year of service must provide their employer with at least 1 weeks' notice of their resignation.[6]

[20] The Award allows the parties to agree to shorten the required notice period, however there are no provisions that entitle either party to insist on a longer notice period. The end date proposed by Smilestones and agreed to by Ms Childs was 11 September 2025. This date provided 2 weeks' notice, which was in excess of the required 1 weeks' notice and therefore compliant with the Award.

[21] It is apparent that Ms Childs has misunderstood the nature and purpose of an application under s 365. The majority of Ms Childs submissions are directed to matters relating to financial consequences, which are not relevant considerations for the determination of a s 365 Application. Accordingly, these arguments do not assist Ms Childs in establishing that she was dismissed, nor do they provide a basis upon which the Application can succeed.

[22] For the reasons stated above, I am not satisfied that there was a termination at the initiative of the employer as Ms Childs resigned from her employment voluntarily. Therefore, I am not satisfied Ms Childs was dismissed within the meaning of s.386 of the Act.

[23] The jurisdictional objection is upheld, and the Application is dismissed. I order accordingly.

[2] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd [2020] FWCFB 5365).

[4] P.32 of the DCB - Applicant's Submissions.

[5] P.33 of the DCB - Applicant's Submissions.

[6] Health Professionals and Support Services Award 2020 Clause 37.

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