Fair Work Act 2009

s.365 - General protections (consent arbitration)

Application to deal with contraventions involving dismissal - consent arbitration - exercise of workplace right - no evidence of contravention - application dismissed.

[1] On 6 November 2025, Ms Danielle Loy lodged an application under s. 365 of the Fair Work Act 2009 (the Act) alleging she was dismissed by Indigo Lawyers Pty Ltd (Indigo Lawyers) for exercising a workplace right in contravention of Part 3-1 of the Act.

• [2] It is not in dispute between the parties that Ms Loy was dismissed from her employment as a Senior Associate Solicitor with Indigo Lawyers on 16 October 2025.[1]

• [3] In her application, Ms Loy alleged that Indigo Lawyers dismissed her from her employment because she exercised a workplace right in ceasing to perform unreasonable additional hours, raising a complaint or inquiry regarding her employment, contemplating contacting the Commission and working from home while ill.[2]

[4] In their response, Indigo Lawyers opposed the application and asserted that Ms Loy has not established the exercise of any of the workplace rights alleged.

[5] As there is a dispute between parties as to whether Ms Loy exercised any workplace rights as alleged, it is necessary for the Commission to hear evidence from the parties to determine this.

[6] On 5 January 2026, a certificate was issued pursuant to s.368(3)(a) of the Act stating that the 'Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful'.[3]

[7] Ms Loy lodged a Form F8B Notification of Agreement for a Consent Arbitration of a General Protections Dispute with the Commission on 28 January 2026.

[8] The Applicant's notification of agreement for consent arbitration was filed outside the 14 day timeframe required following the Certificate being issued under s. 369 of the Act.

[9] Ms Loy advised the Commission that the parties had reached an agreement to consent arbitration within 14 days of the certificate being issued. However, there was a delay in filing because correspondence from Indigo Lawyers confirming consent was sent to her email junk folder and was not discovered until after the 14 day timeframe.

[10] A Directions Hearing was held on 25 February 2026 and was attended by Ms Loy and a representative for Indigo Lawyers, where the extension of time issue was determined.

[11] After considering the parties' consent for the Commission to arbitrate the matter, the circumstances surrounding the minimal delay in filing and Indigo Lawyers not objecting to the grant of an extension for the application, I exercised my power under s. 369(1)(c)(i) of the Act and granted an extension of time for notifying the Commission of the parties' agreement to the Commission arbitrating the dispute.

[12] In line with the Directions Hearing, my Chambers issued written Directions to the parties on 26 February 2026 by email, which directed:

• Ms Loy to file materials in support of her general protections application by Wednesday, 11 March 2026.
• Indigo Lawyers to file materials in support of its position by 25 March 2026.
• The parties to attend a Hearing on Thursday, 9 April 2026.

[13] A text message notification was sent to the parties confirming that new correspondence regarding the matter had been sent to the parties' email addresses.

[14] Ms Loy did not file any materials as directed by 11 March 2026. She was then subsequently directed to file her outstanding submissions as soon as possible and by no later than 12 March 2026, but failed to do so.

[15] As a result of Ms Loy's failure to comply with the Commission's Directions, a Non-Compliance Hearing was held on Tuesday 17 March 2026. Though a representative for Indigo Lawyers attended this Hearing, Ms Loy did not attend.

[16] The Commission attempted to call Ms Loy by telephone twice and left a voice message requesting a call back. However, Ms Loy could not be contacted and did not return the call from Chambers.

[17] Ms Loy was advised by email on 18 March 2026 that unless she filed her materials by 20 March 2026, the Commission may proceed to determine her application based on the materials before it without further hearing and further notice. The email also advised Ms Loy that her application may be dismissed as the Commission cannot be satisfied that a contravention of general protections had occurred based on the materials currently before it.

[18] Ms Loy emailed Chambers on 18 March 2026 in response to the Notice of Listing for the Non-Compliance Hearing. She stated that she had only received this correspondence after the Hearing date.

[19] It was unclear from the content of this correspondence whether Ms Loy sought an adjournment or extension to file her materials. As such, Ms Loy was again advised by email to file her materials by 20 March 2026 or, otherwise, send a formal adjournment request or a request for an extension in writing. A text message to the parties to notify them that new correspondence regarding the matter had also been sent to their email addresses.

[20] Ms Loy did not file any materials nor contact the Commission by 20 March 2026.

[21] Noting Ms Loy's failure to file any submissions or evidence, Indigo Lawyers emailed Chambers and Ms Loy on 24 March 2026 seeking that the Commission dismiss the application without further hearing or notice. Despite this correspondence, Ms Loy, again, did not file any materials nor further correspond with the Commission.

(1) A person must not take adverse action against another person:

(ii) has, or has not, exercised a workplace right_; or_

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right_; or_

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4 - 1)."

[23] A workplace right is given its meaning in s. 341:

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law_,_ workplace instrument or order made by an industrial body_; or_

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument_; or_

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument_; or_

(ii) if the person is an employee_--in relation to his or her employment."_

• [24] White J in Perez v Northern Territory Department of Correctional Services[4] summarised the following principles relevant to an application for relief under s. 340(1):

"As noted, s 340(1) requires that there be a causal link between the taking of the adverse action, on the one hand, and the person's possession, exercise, or proposed exercise, of a workplace right, on the other. Section 361 has the effect of placing the onus of disproving the causal link on the respondent. At the relevant time, s 361(1) provided:

(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

Put broadly, an adverse action claim involves three elements:

(1) a person has a workplace right, has exercised such a right, or proposes to exercise such a right;

(2) the respondent took "adverse action" of the kind defined in s 342 against that person;

(3) the respondent took the adverse action because of the possession, exercise or proposed exercise of the workplace right.

The onus is on an applicant to establish the first two elements. Section 361 has the effect that the onus is on the respondent to disprove the third element: see Tattsbet Ltd v Morrow [2015] FCAFC 62 at [119]; Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [27]-[28]; Short v Ambulance Victoria [2015] FCAFC 55 at [54]."

[25] In applying Perez, the onus is on the Applicant to establish that she exercised the workplace rights as alleged in her application and that the Respondent took adverse action by dismissing the Applicant from her employment.

[26] Beyond filing the application under s. 365 of the Act with the Commission, Ms Loy has not filed anything to support the allegations that Indigo Lawyers took adverse action against her because she exercised a workplace right.

[27] Specifically, there is no evidence before the Commission that Ms Loy exercised a workplace right. Given that lack of evidence, it is not necessary to explore whether the allegations put by Ms Loy would amount to the exercise of a workplace right if proven.

[28] As there is no evidence that Ms Loy exercised a workplace right, it follows that it is not possible to make a finding that her dismissal by Indigo Lawyers was due to the exercise of her those rights. It is, therefore, unnecessary, for Indigo Lawyers to discharge the reverse onus of proof in s. 361 of the Act.

[29] Accordingly, Ms Loy has not substantiated her claim against Indigo Lawyers for a contravention of s. 340 of the Act and I am unable to find that a contravention of s. 340 of the Act has occurred.

[30] I order that Ms Loy's application under s. 365 of the Act be dismissed.

• [31] An Order giving effect to this decision is issued.[5]

[4] [2016] FCA 476 at [51]- [53].

[5] PR798277.

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