Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objections - whether Applicant was dismissed - objections dismissed.

• [1] Ms Cara Horn has filed an application with the Commission pursuant to s.365 of the Fair Work Act 2009 seeking that the Commission deal with a dispute arising from her dismissal from Form Fitness Pty Ltd (Form Fitness). Form Fitness objects to the Commission dealing with the application on two grounds. First, that the application was made out of time. Second, that Ms Horn was not dismissed but that she resigned.

• [2] Section 366 of the Act requires that an application be made within 21 days after the dismissal took effect or within such further time as the Commission allows. The Commission may allow an extension of time if satisfied that there are exceptional circumstances that justify doing so.

• [3] Further, if there is a dispute as to whether the alleged dismissal which is the subject of the application has occurred, this is a preliminary issue which, according to the Federal Court Full Court decision in Coles Supply Chain Pty Ltd v Milford [ 2020] FCAFC 152 at [67] 'must be resolved before the powers conferred by s.368 can be exercised at all'.

• [4] I was provided with contemporaneous communications between the parties which established the following background.

• [5] Ms Horn commenced work for Form Fitness on 18 July 2024 as a Personal Trainer. Ms Horn suffered from back pain which was exacerbated when she worked with clients who trained with heavy weights. In the first 6 months of employment the pain was dealt with through treatment. In early March 2025 her pain worsened, and she asked that her work be modified to accommodate her pain. Form Fitness was willing to accommodate her for one week and sought medical advice about her condition.

• [6] Ms Horn provided a doctor's certificate indicating she was only fit for light duties for the period 6 March 2025 to 11 April 2025. As a consequence, Ms Horn was unable to perform work for that period. A meeting was set for 14 April 2025 to discuss Ms Horn's return to work.

• [7] On 14 April 2025 Ms Horn sent a message at 7.19 am confirming that the meeting would occur that day. Mr Soldado, Managing Director for Form Fitness replied at 7.38 am that there would be no meeting as there had been no further medical information. The message indicated that a further meeting would be arranged once the information was provided.

• [8] At 4.11 pm on 14 April 2024 Ms Horn sent an email to Form Fitness in which she tendered her resignation. The operative words were as follows:

I am writing to formally tender my resignation from my position at Form Fitness, effective 14th April 2025. In accordance with the standard four-week notice period, my final working day will be 14th May 2025.

• [9] The email went on to explain Ms Horns reasons for resigning and then stated:

That said, I remain committed to ensuring a professional and smooth transition over the coming weeks. Please advise me of my scheduled shifts during the notice period so I can assist accordingly.

• [10] Mr Soladado replied by email at 4.45 pm on 14 April 2025 accepting the resignation and then stating that Form Fitness would "waive the notice period in good faith". The email then stated; "Your departure will therefore be effective as of 14th April 2025". Ms Horn was asked to return her keys and uniform and given times when she should do so.

• [11] Ms Horn responded at 8.01 am on 15 April 2025 that she did not agree to the waiving of the notice period unless she was paid in lieu of notice. She stated that she was fit to perform all duties during the notice period. Mr Soldado responded at 4.34 pm on the same day that as there was no updated medical evidence and that there were no alternative duties. Mr Soldado's email went on to say:

You have indicated a desire to work the remaining four weeks of your notice. We can facilitate this through flyer distribution, however, you will need to provide an updated capacity-to-work letter confirming you are fit to undertake this task.

• [12] Ms Horn responded by email at 8.00 am on 17 April 2025. The email sought her entitlements under the Fitness Industry Award and the National Employment Standards to payment in lieu of notice if the business chose not to provide her with work. Payment of accrued entitlements and a final pay slip_._ The email noted that her medical certificate that she could only work light duties was to provide temporary relief for her back pain and only for the period to 12 April 2025 and that she was fit for all duties after that date. Ms Horn rejected the offer to perform flyer distribution as she believed it was outside the scope of her role as a Personal Trainer.

• [13] Ms Horn returned her keys and uniform on 17 April 2025. Mr Soldado replied at 5.01 pm on 17 April 2025 attaching Ms Horn's offer of employment from July 2024 and stated that delivery of flyers formed part of the role of Personal Trainer. The email stated that these duties were offered on 15 April 2025 and declined. The email noted that as Ms Horn has returned her keys and uniform, she was electing not to work and stated, "(b)y electing not to work, you are not entitled to any payment in lieu of notice".

• [14] On 6 May 2025 Ms Horn filed the current application an application to the Commission to deal with a general protections dispute involving dismissal under Part 3-1 of the Fair Work Act 2009. The application alleges Ms Horn was dismissed on 15 April 2025 contrary to the Act because she had a temporary back injury.

• [15] This decision is limited to the question of whether Ms Horn was dismissed and, if so, when. Form Fitness contends that there was no dismissal, Ms Horn resigned on 14 April 2025. If this is the case the application is made on the 22nd day after the resignation took effect and so is not made within 21 days of that date. Ms Horn asserts that her resignation was made on the basis that the termination would take effect on 14 May 2025. Form Fitness failed to accept the resignation on the terms proffered and dismissed her during the notice period. Ms Horn contends that the dismissal took effect on 17 April 2024.

• [16] Section 386 of the FW Act provides that a person has been 'dismissed' if the person's employment with his or her employer has been terminated 'on the employer's initiative', or the person resigns from employment but is forced to do so by the conduct of the employer.

• [17] The issue of whether there was a dismissal in the circumstances is a matter to be determined on the facts in particular the exchange of emails between Ms Horn and Mr Soldado between 14 and 17 April 2025. Those communications amounted to an attempt by Ms Horn to bring her employment to an end by resignation on 14 April 2025. That resignation was made on the basis of a 4 week notice period with the resignation to take effect on 14 May 2025. Mr Soldado sought to have the notice period waived. Ms Horn did not agree. What followed was an exchange about the work that would be performed during the notice period. Mr Soldado's requirement that the work be limited to distributing flyers was not accepted. Mr Soldado's direction was in effect an ultimatum that if Ms Horn did not perform those duties the employment was terminated.

• [18] In the circumstances, I find that Ms Horn's resignation was superseded by Mr Soldado's ultimatum. Ms Horn's acceptance of that ultimatum brought about the termination of employment. The termination was therefore at the initiative of the employer, Mr Soldado's ultimatum being the initiative that led to the termination. The employment therefore ended on 17 April 2025.

• [19] These findings lead to the conclusion that Ms Horn was dismissed. Her dismissal took effect on 17 April 2025, and by filing her application on 6 May 2025 she did so within 21 days of the dismissal taking effect.

• [20] The jurisdictional objections are dismissed, and the matter will be listed for a private conference in accordance s. 368(2) of the Act. A notice of listing will be provided separately.

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