s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether Applicant dismissed - found that Applicant was dismissed within the meaning of s 386(1) of the Fair Work Act.

[1] On the 4 November 2025, Mr Balaji Bavuri (the Applicant) lodged an application pursuant to s 365 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment on 28 October 2025 by ProQuest Pty Ltd (the First Respondent) and Sarah Martin (the Second Respondent) (collectively the Respondents) 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 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 her employment within the meaning of s 386 of the Act.

[3] Following allocation of the matter to my Chambers, Directions were issued and both parties filed material in accordance with those Directions. At the hearing on 25 February 2026, the Applicant appeared and gave evidence while the Respondent was represented by Mark Nussbaum (Director - Operations) who also gave evidence.

• [4] The Applicant was engaged as a Store Worker Grade 1 on a casual basis with ProQuest which is a labour hire company that engages and places its employees with clients. At the time of his alleged dismissal, the Applicant had been placed by the First Respondent with a client, Technology Industries Australia (TTi) at its Tullamarine operations. In the 12-month period prior to the alleged dismissal, the Applicant failed to attend work at TTi on multiple occasions due to illness.[3]

[5] On 28 October 2025 a text message exchange took place between Ms Thimalka Perera, who is the Business Manager for the First Respondent, and the Applicant in the following terms. At 8.55am Ms Perera sent the following message;

"Hi Balaji, pls note that you have been removed from TTi Roster with immediate effect as your health doesn't seem to be improving. I wish you all the very best!"[4]

"Morning Thimalka, weather if sudden get sick. It is better to inform than spreading in the warehouse. SO did you remove me permanently from the roster?"[5]

[7] Ms Perera then replied at 9.59am as follows;

"Yes unfortunately you have been terminated as you have barely been at work lately."[6]

[8] The Applicant responded at 10.03am as follows;

"I have submitted my doctor certificates when necessary.

Please send me an email stating that I have been terminated due to my general sickness."[7]

[9] Ms Perea further at responded at 10.06 am as follows;

"No such email will be sent as a general sickness is not the reason we are discussing here. you're more than welcome to give me a call to discuss, we did have several conversations around your absenteeism and the need to improve it asap, I'll wait to hear from you, plus pls note we generally do not communicate on WhatsApp so pls call me on my office phone number and ask them to transfer the call to me.

[10] An email exchange then occurred between the Respondent's Account Manager Ms Sarah Martin and the Applicant on 28 October 2025 as follows. At 10.47am Ms Martin sent an email in the following terms;

Unfortunately due to poor attendance, you have been removed from the roster and are no longer required at TTI.

[11] At 11.10am, the Applicant replied to Ms Martin as follows;

At 8.56am today, I had conversations with Thimalka Perera stating that she has terminated me from TTI roster because I am Sick. I had conversations before you sent an email.

"I haven't done anything wrong, I was sick. I don't want to spread it in warehouse. I provided you medical certificate. Do you think it's against rule"

I spoke to fairworks ombudsman just now, it's not legal to terminate an employee who is sick. I also provided medical certificates to you guys when I'm sick.

I'm going to lodge complaint with fair works commission soon, before proceeding I want to let you know. So that you can discuss if you need to.

[12] An email exchange also took place between the Applicant and Ms Perera on 28 October 2025 as follows. At 11.28am Ms Perera sent the following message to the Applicant;

Please do not misconstrue facts of my message to you, I did not mention that you are being terminated due to being sick, it was due to your poor attendance.

You have been absent 22 days since starting work on 23 of July and that is an alarming number of absent days for a 3-month period.

I have spoken to you on 2 prior occasions about your attendance and you promised to do better, in fact on an email you assured me that you were in perfect health and therefore I do not understand how you quote that you are being let go due to being sick.

I wish you all the very best in all your future endeavours!

[13] The Applicant then replied at 11.43 am in the following terms;

I was just wondering that you told me today morning. Just wondering what is the meaning of this message which you sent me this morning on WhatsApp.

"Hi Balaji, pls note that you have been removed from TTI Roster with immediate effect as your health doesn't seem to be improving. I wish you all the very best!"[12]

Yes I assured I have perfect health at that time cuz I had medication went to doctor and provided you medical certificate too, but in life can we guarantee that we won't feel sick like cold and flu or fever or hay fever or runny nose or any condition. I'm not an Astrologer to predict future. What happens tomorrow we don't know.

I came to work yesterday, I didn't expect that I get hay fever next day morning. Who wishes to get sick in their life. I don't wish to.

I work hard and earn money, I don't depend on benefits.

[14] Ms Perera again replied at 12.31pm as follows;

Again I send you my best wishes and unfortunately we do not to provide Clients with employees with regular attendance as they have workflow requirements that need to be handled on a daily basis. When that workflow is regularly impacted due to ongoing absenteeism we do need to replace that position with another who can turn up for work.

I hope you feel better soon, when you have recovered fully pls reach out and we will check what positions might be available for you somewhere else and take it on from there.

[15] 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.

[16] 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 argument is that he was dismissed within the meaning of the first limb of s 386(1), that being was dismissed at the initiative of the Respondent. I turn now to consider whether the Applicant was dismissed at the initiative of the First Respondent.

• [17] While agreeing that the Applicant's TTi assignment was terminated; the First Respondent rejects that the Applicant was dismissed and states that he remains 'active' in their system.[14] The First Respondent refers to the email from Ms Perera to the Applicant on 28 October, when she advised him that when he was "recovered fully pls reach out and we will check what positions might be available for you somewhere else...". The Respondent submits that this response was consistent with the casual employment contract remaining on foot, following the cessation of the TTi placement.

[18] I accept given the casual nature of the Applicant's employment, that cessation of the TTi placement would not in itself necessarily result in the termination of the Applicant's employment. There are however other matters supporting a conclusion that the termination of the TTi placement did bring the employment relationship to an end. Those factors are as follows.

[19] The communication of Ms Perera to the Applicant, both by text and email on 28 October 2025, left little room for doubt that the Applicant's employment had ended. At 8.55am, she wished him all the best after advising him he had been removed from the TTi roster. At 9.59am she advised the Applicant that he had been 'terminated' because he had 'barely been at work lately'. In an email at 11.28am, she clarified that his termination was not because of illness but because of poor attendance. In that same email she wished him all the best for his future endeavours. That communication is consistent with the employment having been terminated. Significantly, Ms Perera was not called to give evidence in relation to her email and text message exchanges with the Applicant on 28 October 2025. In those circumstances, the text messages largely speak for themselves.

[20] The Respondent seeks to rely on a subsequent email from Ms Perera that invited the Applicant to contact the Respondent when he had recovered, as evidence of an ongoing employment relationship. That would be a more convincing argument if there was evidence that the Respondent maintained contact with the Applicant, enquired after his wellbeing or took any steps to offer him further work. There is no evidence of any such contact by the First Respondent with the Applicant after 28 October 2025.

[21] Termination at the initiative of the employer means a termination brought about by an employer and which is not agreed to by the employee. Having regard to the removal of the Applicant from the TTi roster and the subsequent communication from the First Respondent, and particularly Ms Perera on 28 October 2025, I am satisfied that the First Respondent's conduct had the effect of bringing the employment relationship to an end. The fact that the First Respondent made no attempt to contact the Applicant and/or offer further assignments after 28 October 2025 fortifies my view. The invitation by Ms Perera to the Applicant to contact her when he was 'recovered' appears little more than 'window dressing' considering the absence of any subsequent communication by the First Respondent with the Applicant

[22] It follows from the foregoing that the employment of the Applicant ended at the initiative of the Respondent within the meaning of s 386(1)(a) of the Act.

[23] I have found that the Applicant was dismissed within the meaning of s 386(1)(a) of the Act. Accordingly, at the time the Applicant made his application on 4 November 2025, he was a person who had been dismissed for the purposes of s 365 of the Act. The Respondents' jurisdictional objection is therefore dismissed. A conference will now proceed to be listed and conducted pursuant to s 368 of the Act.

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

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