s.365 - General protections

Application to deal with contraventions involving dismissal - whether Applicant was dismissed - no dismissal.

• [1] Ms Chelsea Evans (Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 for the Commission to deal with general protections contraventions involving dismissal. The Applicant submits that her employment with Malex Facial Aesthetics Pty Ltd (Respondent) was terminated unlawfully on 13 August 2025.

• [2] The Respondent raised a jurisdictional objection on the ground that the Applicant was not dismissed within the meaning of s386 of the Act.

• [3] Section 386 of the Act relevantly provides that a person has been dismissed if:

(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.

• [4] A dismissal is a fundamental prerequisite that must be established before the Commission can exercise powers under s.368 of the Act to deal with a dispute about whether a dismissal was in contravention of the general protections provisions.[1]

• [5] The application was heard on 1 December 2025. The parties were represented with permission by lawyers.

• [6] For the reasons outlined below, I find that the Applicant was not dismissed within the meaning of the Act.

• [7] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[2] (Bupa), a Full Bench of the Commission examined the relevant authorities as to what constitutes 'dismissed' under s.386(1) which included the following:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.

• [8] In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park[3] Deputy President Sams noted the following when considering whether the applicant in that matter was dismissed:

1. Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. 'Initiative' is relevantly defined in the New Shorter Oxford Dictionary as: "the action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act."

• b. This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd[4] (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, '... a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.'

'In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.'

• d. A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd[5] said, '... to constitute termination at the initiative of the employer the termination must be the direct or consequential result of 'some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...' [Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].

• [9] The Applicant was employed by the Respondent from July 2023.

• [10] The Respondent is a small skin care business.

• [11] A disagreement arose regarding the basis on which the Applicant was paid. As a result, in May 2025 the Respondent sought legal advice and following that advice informed the Applicant that she needed to resolve that issue as a matter of priority.

• [12] An email exchange then took place between the Applicant and Ms Ryan, the owner of the Respondent, between 12 and 15 May 2025, as to the basis on which the Applicant would be paid going forward, and her rate of pay.

• [13] On 14 May 2025 the Applicant attended work at her usual time. Because of the ongoing negotiations regarding payments to the Applicant, Ms Ryan told the Applicant to go home until the situation was resolved. Ms Ryan said she spoke firmly to the Applicant during this conversation, and the Applicant said that Ms Ryan spoke to her in an inappropriate way.

• [14] On 15 May 2025 the Applicant provided a medical certificate to the Respondent stating she was unfit to work from 15 to 30 May 2025.

• [15] On 21 May 2025, the Respondent's lawyers wrote to the Applicant requesting the return of the keys to the business which included a gate remote, so that the Respondent could continue to trade during her absence. Ms Ryan explained that this was the only remote control for the garage that the Respondent had, and it needed to be returned along with the keys to the premises which were also required by other staff while the Applicant was absent. Ms Ryan also explained that as the business stored products that were categorised as S4 (i.e. prescription only drugs), for which there are legal requirements around access and storage, it was necessary to recover the keys. I am satisfied that Ms Ryan provided a reasonable explanation for the request of the return of the keys.

• [16] The Applicant then engaged lawyers, and what followed was extensive correspondence between the parties' legal representatives for a period of around three months. For the most part, it is unnecessary to detail the correspondence between the parties to determine whether the Applicant was dismissed.

• [17] Medical certificates were provided by the Applicant, through her lawyers, to cover the period from 29 May to 15 June 2025, and then from 16 June to 15 August 2025.

• [18] As a part of that correspondence, on 25 June 2025 the Respondent's lawyers sought the return of its only laptop which was still in the possession of the Applicant. I also accept the evidence of Ms Ryan that, as it was the only laptop owned by the business, it was necessary to have it returned so it could be used by herself and other employees while the Applicant was on leave.

• [19] At some point the Applicant's IT access was also suspended. Again, there is nothing unusual or unreasonable about suspending IT access when an employee is on extended leave.

• [20] The Respondent's lawyers wrote to the Applicant's lawyers on 16 July 2025 noting that the Applicant's sick leave would shortly run out and asked if she wished to take her remaining annual leave. That same day, the Applicant's lawyers replied, confirming that the Applicant consented to commencing payment of her annual leave following her personal leave being exhausted.

• [21] The Respondent then proceeded to pay the remainder of the Applicant's paid leave entitlements to personal and annual leave.

• [22] On 13 August 2025 the Applicant was provided with a payslip for the period from 4 to 10 August 2025 in which her remaining annual and personal leave entitlements were paid. This amounted to around seven hours' pay.

• [23] The Applicant then made an application to the Commission on 16 August 2025 alleging she was dismissed in contravention of the general protections provisions. The basis for the allegation in the main was that she had received a "final payslip" on 13 August 2025 which she contended had the effect of terminating her employment.

• [24] There is nothing on the face of the payslip that would indicate it was a final payment. It simply shows the payment of the remaining amounts of annual and personal leave that had been paid to the Applicant, in accordance with the confirmation the Applicant's lawyers had provided that she wished to be paid her remaining paid leave entitlements.

• [25] The Applicant's lawyers were critical of the Respondent for not contacting the Applicant to conduct a welfare check or taking steps to implement a return-to-work plan for the Applicant during the period in which both parties' lawyers were corresponding extensively. I consider this criticism to be unfounded. The Applicant's lawyers, as early as 22 May 2025, noted that the Applicant's condition was "very serious" and stated that they expected the Respondent to be "mindful of our client's sensitive condition during this time". Further, in circumstances where the Applicant was legally represented and there was very regular contact between the lawyers, it would not have been proper for Ms Ryan to be contacting the Applicant directly.

• [26] The only matter the Commission is required to determine is whether the Applicant was dismissed within the meaning of s.386. For the reasons given below, I am satisfied on the evidence that the Applicant was not dismissed.

• [27] First, both parties were legally represented for the previous three months and had engaged in extensive correspondence regarding the pay dispute between the parties. There was no suggestion by the Applicant's lawyers that the requirement to return company property or suspend her access to the Respondent's IT systems was conduct that could amount to a dismissal. In any event, the explanations given by Ms Ryan as to the reason for the request to return the keys and the computer were perfectly reasonable in the circumstances and could not be considered as a step towards dismissing the Applicant. Similarly, the removal of IT access when a person is on extended leave was also not unusual or unreasonable.

• [28] I am not satisfied on the evidence that the provision of a payslip, in the context of the correspondence between lawyers for both parties, could on any reasonable view be considered notice of the termination of the Applicant's employment. It should have been obvious to the Applicant and her lawyers that leave without pay would follow the exhaustion of her paid leave entitlements, as is the usual case.

• [29] Likewise, it would have been inappropriate for Ms Ryan to be contacting the Applicant directly while both parties were legally represented and engaging in extensive correspondence. I reject the suggestion that the lack of direct contact demonstrates an intention on the part of the Respondent to terminate the employment of the Applicant.

• [30] These matters, whether considered individually or collectively, cannot reasonably be said to give rise to a finding that the Respondent intended to bring about the end of the Applicant's employment.

• [31] In summary, the evidence does not demonstrate conduct of the Respondent that would support a finding that the Applicant was dismissed.

• [32] The Applicant has not discharged her onus to demonstrate that she was dismissed within the meaning of the Act. As a result, this application is dismissed.

L Meagher of Counsel for Malex Facial Aesthetics Pty Ltd.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

[2] [2017] FWCFB 3941.

[3] [2012] FWA 2473.

Printed by authority of the Commonwealth Government Printer