Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] Dean Ciantar (Applicant) lodged an application with the Fair Work Commission (Commission) to deal with a general protections dispute which he alleged involves dismissal. The respondent to the application is Action Workforce Pty Limited (Respondent). The Respondent is a labour hire provider.

• [2] The Respondent objected to the application, submitting that the Applicant was not 'dismissed' from his employment within the meaning of s.386 of the Fair Work Act 2009 (Cth)(Act) (No Dismissal Objection). The Respondent's position as set out in its Form F8A response is somewhat confusing. On the one hand, it suggests that the Applicant's employment ended on 10 July 2025.[1] On the other hand it says the Applicant remains a casual employee engaged on an assignment basis and his most recent assignment ended when it became apparent that his restrictions due to his health situation meant he could not continue work at the client's site.[2]

• [3] The Applicant filed his Form F8 application on 8 August 2025. At the time of filing its Form F8A Response on 1 September 2025 the Respondent had also objected to the application on the basis that it was not made within the 21 day period prescribed in s.366 of the Act (Out of Time Objection). The Applicant concurrently filed two versions of his application. In one version he indicates he did not know when he was dismissed and in the other he nominates 14 July 2025 as the dismissal date. If the Applicant was dismissed on 14 July 2025, it would mean that the application was made 4 days outside of the 21 day period.

• [4] Directions were set down on 17 September 2025 which required the parties to file materials addressing both the No Dismissal Objection and the Out of Time Objection.

• [5] The Respondent sought to be represented by a lawyer. There is complexity associated with the nature of the jurisdictional objection raised by the Respondent, being that the Applicant was not dismissed but that his casual engagement came to an end when he was unable to work at a client site. This objection raises complex considerations regarding whether cessation of a casual engagement in the Applicant's circumstances amounts to dismissal. I considered that, taking into account the complexity of the matter, granting the Respondent permission to be represented by a lawyer with capacity to identify the relevant law in this area would enable the matter to be dealt with more efficiently. As such I granted permission pursuant to s.596(2)(a) of the Act.

• [6] The Applicant filed submissions on 29 September 2025 and 23 October 2025 but did not address the Out of Time Objection. The Respondent filed submissions on 15 October 2025 and indicated it did not seek to rely on the Out of Time Objection. However, in the event of a finding that the Applicant has been dismissed, whether the application has been made within 21 days of the Applicant's dismissal and if not, whether an extension of time should be allowed, would remain matters that the Commission is required to determine as a threshold matter.

• [7] A hearing was held on 6 November 2025 to determine these issues. During the conference it became apparent that the parties had not focused on the question of whether, in the event of a finding of dismissal, the application was made out of time and, if so, whether an extension of time should be granted. After hearing from the parties about this complication, the parties were given a further opportunity to file material about this. The Applicant did so on 7 November 2025 and the Respondent filed submissions in reply on 14 November 2025.

• [8] The Applicant commenced casual employment with the Respondent on Monday 17 March 2025.[3] The Applicant is diabetic and requires insulin injections. The Applicant alleges he was dismissed due to a disability in breach of s.351 of the Act.[4]

• [9] The Applicant alleged that he applied for forklift work with the Respondent.[5] The Applicant provided a copy of an advertisement for the role which describes it as a 'Counter Balance Twin Tynes Forklift Operator'. During the hearing the Applicant said that he was instead put into dispatch which was not what he was employed to do, but that the Respondent did this to secure him more hours.

• [10] The Respondent's position is that the Applicant's employment was not limited to forklift work and that he commenced casual employment in roles which involved receival, re-work, manual handling of a broad nature, forklift operation and related tasks.[6] The Respondent said that none of the roles it offered were limited to forklift duties and all placements involved manual handling and physical requirements and this is made clear to all casual employees at the time of engagement.[7] During the hearing the Respondent pointed out that the advertisement stated as one of its key responsibilities 'Assist with general warehouse duties when required'.

• [11] The Respondent said that prior to commencing work the Applicant completed a functional assessment at the Respondent's direction, the purpose of which was to ensure the Applicant was fit to perform the duties of the role safely. The Respondent said the Applicant made no reference to any health related restrictions he had and what effect his diabetes might have on his capacity to work safely.[8] However the Applicant indicated that he disclosed that he was diabetic by placing a tick on a form and also stated he had a requirement for insulin in the 'more information' section of the form.[9] The Respondent said that while it became aware of the Applicant's diabetes during the functional assessment, there were no identified limitations impacting the inherent requirements of the role and therefore no requirement to notify the Respondent's client.[10]

• [12] The Applicant was placed with a client of the Respondent (Client) and was given duties in dispatch and receiving. The Applicant said that despite signing up for forklift work he was placed in work that required manual labour and that his work in dispatch was resulting in his blood glucose level dropping to a critical low.[11]

• [13] The Applicant said he notified the Client's Receiving Manager that he was diabetic and required insulation injections.[12] The Applicant said Teresa was not aware of his medical condition when he made this disclosure but had no concerns with him continuing to do receiving work.[13]

• [14] The Applicant said that on 9 June 2025:

• he spoke with a coworker about a need to check his phone due to a low glucose event;
• he took a break to enable his blood glucose to reach a reasonable level;
• shortly after this he had a meeting with two shift managers of the Client;

• • during this meeting one of the shift managers advised he would send an email to record the Applicant's diabetes on file, and it was agreed that the Applicant would be able to use his phone when needed to check his blood glucose levels.[14]

• [15] The Applicant said he experienced low blood glucose events on 11 June 2025, 17 June 2025 and 4 July 2025 and managed these by taking breaks and lowering the amount of insulin he injected.[15]

• [16] The Applicant also said that on 3 July 2025 he placed a lunch bag containing his insulin in the fridge and that this lunch bag was taken by a casual team member and not returned for two days, resulting in a need to discard the insulin.[16] The Respondent denied this occurred and said it was never made aware of this issue during the Applicant's employment.[17]

• [17] The Applicant said he notified the Client's dispatch manager on 7 July 2025 who:

• advised the Applicant he was unaware that the Applicant had diabetes and how he was handling this in the context of his dispatch duties;
• advised that suitable adjustments could be made;

• • recommended that the Applicant take breaks when needed to which the Applicant agreed.[18]

• [18] The Applicant said that during his last shift worked on 7 July 2025 his glucose level dropped again, the following day his shifts were cancelled, and he was asked to get medical clearance from his doctor.[19] Screen shots of the Applicant's rostered shifts indicate he was rostered to work on 7 July 2025 but subsequent shifts between 8 and 11 July 2025 were cancelled.

• [19] The Respondent said that while working at the Client site the Applicant had informed staff that he was unable to perform the duties required in dispatch due to his type-one diabetes, and that the Respondent discussed these limitations with him.[20] The Respondent said that had when the Applicant raised the need for work restrictions on 8 July 2025 it promptly requested medical clearance and informed the Client.[21]

• [20] The Applicant said he did receive medical clearance and provided this to the Respondent but has not received any further shifts.[22] A medical certificated filed by the Applicant and dated 8 July 2025 states that the Applicant:

• was fit to drive a forklift and has no medical conditions to prevent this;
• could, in the doctor's opinion, undertake manual handling but only for short periods.

• [21] The Respondent submitted the manual handling restriction meant it was unable to continue placement of the Applicant with the Client[23] as his role required regular manual handling tasks.[24]

• [22] In its Form F8A response the Respondent said that it removed the Applicant from the casual roster.[25] However in its submissions the Respondent said the Applicant has remained on the casual roster.[26] The Respondent also said it attempted to source other casual work opportunities for the Applicant but none have been found and the health related work restrictions are a significant obstacle in finding casual work opportunities for the Applicant.[27]

• [23] During the hearing on 6 November 2025 the Applicant indicated he called Josh on 14 July 2025 as he had not heard anything after he submitted his medical certificate. The Applicant filed a copy of a text message that he sent to Josh asking him to call him back as well as a screenshot of the Applicant's call history with Josh indicating that a call took place on 14 July 2025. During the hearing the Applicant gave evidence that Josh was the Respondent's representative at the Client's facility. The Applicant said Josh told him he was no longer employed because of his ability to undertake the tasks which the Client required in dispatch.[28] The Applicant said that during this conversation Josh said:

"Your employment with [Client] has been terminated and someone from Action Workforce will be in touch with you in the next couple of days to talk."[29]

• [24] During the hearing the Applicant said:

• Josh told him that the Respondent was going to terminate his contract with the Client and he would have to seek work at other places;
• he responded by saying that he thought that was unfair as he had provided his medical certificates and done what had been asked of him;
• Josh then told him he could try and look into other avenues but at the moment this was going to be the case;
• Josh said "I'll let you know once I find out and we can go from there".

• [25] The Applicant's evidence was that he formed the view he had been dismissed following that conversation. The Applicant also said there was no contact between him and the Respondent after this date[30] and that he had not been given any shifts and nobody had reached out to him.[31] The Applicant filed a copy of text messages that he sent to a person called Carlos, who the Applicant indicated during the hearing was the Respondent's representative prior to Josh, on 29 July 2025 and 5 August 2025 indicating that he had not heard anything. There does not appear to be a response to those text messages.

• [26] The Respondent said it made several attempts to obtain a full medical clearance from the Applicant, its most recent request being 19 September 2025 and that it has not received the full clearance it requested. [32]

• [27] A person may only make an application for the Commission to deal with a dismissal dispute under s.365 of the Act if they have been dismissed. As such, in order to determine whether the Commission has the jurisdiction to hold a conference to deal with this dispute, the question of whether the Applicant has been dismissed needs to be determined as a threshold issue.

• [28] Section 386 of the Act provides:

(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.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, 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; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

• [29] No party submitted that the circumstances in s.386 (2) and (3) applied in this case. There was also no suggestion that the Applicant resigned, and I find that he did not. There is a remaining question as to whether the Applicant's employment was terminated on the Respondent's initiative.

• [30] During the hearing the Respondent said that it looked like contact was broken, it could not find any initiated action by the Respondent to end the employment relationship and that the employment relationship seemed to have 'gone into drift'. The Respondent conceded that the employment relationship had dwindled and ceased. The Respondent was less clear about when the employment relationship had ceased but submitted it was arguable that the Applicant's application was an initiating event that brought the relationship to an end.

• [31] While it is not in contention that the Applicant was employed on a casual basis, it is not possible to determine the terms on which the Applicant was employed by the Respondent as no party gave evidence about its terms. It was not in contention that the Applicant has not been given a shift since his last shift on 7 July 2025. The Applicant supplied his medical certificate as required by the Respondent and on 14 July 2025 he contacted the Respondent's representative on the Client site, Josh, for answers as he had not heard anything since providing this medical certificate. I accept that during a call on 14 July 2025 Josh told the Applicant that the Respondent would be terminating his contract with the Client, that the Applicant would have to seek work at other places and that contact would be made with the Applicant in a couple of days. However, the Respondent did not contact the Applicant.

• [32] While the Respondent said it made several attempts to obtain a full medical clearance from the Applicant, its most recent request being 19 September 2025 (post application), there was no evidence filed to support this. On 29 July 2025 and 5 August 2025, the Applicant sent text messages to Carlos, the Respondent's representative on the Client site prior to Josh, indicating that he had not heard anything. It appears that the messages were ignored as there was no evidence of any response to these messages. The hearing was held almost four months since the conversation between the Applicant and Josh on 14 July 2025 and as at the date of the hearing, there was no evidence of the Respondent making any contact with the Applicant. I prefer the Applicant's evidence that the Respondent has not contacted him since 14 July 2025. I accept that the Applicant was employed as a forklift operator as the job advertisement indicated that among the key responsibilities were assisting with general warehouse duties when required, there is no indication in that advertisement that manual handling was the primary component of the role. The Applicant's medical certificate indicates that he is fit to drive a forklift and can undertake manual handling for short periods. There is no evidence that the Respondent has offered or tried to find other work that the Applicant can undertake within this limitation and there was no communication with the Applicant about this post 14 July 2025.

• [33] The Applicant did not voluntarily leave the employment relationship. Considering the above factors, in combination, I am satisfied that in the circumstances of this case the Applicant's employment was terminated at the initiative of the Respondent and I find that the Applicant has been dismissed.

• [34] While I have found that the Applicant was dismissed, ascertaining the precise date on which he was dismissed is complex. This date is relevant to determining whether the Applicant has made his application within 21 days of the date of his dismissal. During the hearing the Respondent submitted that it is arguable that the application is made out of time, but that it could not urge a conclusion that this is absolutely clear.

• [35] While the Applicant said he formed a view that he had been dismissed on 14 July 2025 following his call to Josh, the call ended with a commitment by Josh that the Applicant would be contacted in a couple of days. This likely caused some confusion and the evidence suggests that the Applicant contacted the Commission to obtain advice on 14 July 2025. The Respondent's actions and inaction since 14 July 2025 are not indicative of an employer that was seeking to continue the employment relationship beyond this point. I find that the effective date of the dismissal was 14 July 2025.

• [36] For the application to have been made within 21 days of dismissal it therefore needed to have been made by 4 August 2025. The application was made on 8 August 2025. For the application to proceed, the Applicant requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s 366(2)(a) to (e) of the Act.

Section 366(2)(a) - reason for the delay

• [37] During the hearing I pointed out to the Applicant that he had given evidence that he had formed the view he had been dismissed following his conversation with Josh on 14 July 2025 and asked him why he did not file his application within 21 days of that date. The Applicant said:
  • he had filed the wrong form and was told by the Commission he needed to file the application that is the subject of these proceedings;
  • he needed to look into things to make sure there was a dismissal; and
  • Josh had said that he would get back to him and never did.

• [38] The Applicant said he first contacted the Commission on 14 July 2025 after his conversation with Josh to make a request for legal advice. The evidence and Commission's records indicate that on 14 July 2025 the Applicant submitted a form requesting access to the Commission's Workplace Advice Service. However, the Applicant did not make an application at this time.

• [39] On 28 July 2025 the Commission advised the Applicant that it was unable to find an appointment for him to access the Workplace Advice Service due to high demand and provided links to find legal help from other organisations or other resources that may be of assistance.

• [40] On 5 August 2025 the Applicant made an unfair dismissal application. This application was made 22 days after the date the Applicant was dismissed. The Applicant said that on 8 August 2025 he was contacted by a representative from the Commission explaining that he filled out the wrong form and would need to fill out a different one.

• [41] The Applicant submitted that Josh of the Respondent, who confirmed the termination over a phone call on 14 July 2025, was brief about what was happening, and the Applicant was under the impression that someone from head office would call him. The Applicant described the situation as confusing.

• the Applicant did not explain why, after being advised that the Commission on 28 July 2025 that an appointment with the Workplace Advice Service was unavailable, he waited a further eight days before filing any form on 5 August 2025;
• the Commission's website provides clear access to the relevant forms and instructions;
• the delay between 28 July 2025 and 5 August 2025 remains unexplained;
• the Applicant's delay was a matter of choice and inaction and not exceptional circumstances beyond his control;
• the Applicant's conduct demonstrates he was aware of and capable of using the Commission's forms and processes and his subsequent decision to withdraw the Form F2 and file a Form F8 application on 8 August 2025 suggests a deliberate change of strategy, not confusion;
• while the Applicant has provided a screenshot of a call with the Commission on 8 August 2025 it does not establish what was discussed and it would be unusual for the Commission to advise a party that they had filed the incorrect form as the Commission's usual practice is to refer self-represented applicants to publicly available guidance about the different application types rather than providing advice on which form to use;
• it is reasonable to infer that the Applicant, upon understanding the potential remedies available under a general protections claim (which are broader and not subject to the compensation cap applicable to unfair dismissal) chose to pursue the general protections application.

• [43] While the Commission may have directed the Applicant to guidance about the different application types it is unlikely that the Commission would have advised the Applicant about which type of application to make. It is more likely that the Applicant was advised that he may not be eligible to make an unfair dismissal claim, noting that he commenced employment in March 2025 and did not meet the minimum employment period. The Applicant then discontinued his unfair dismissal claim and completed and submitted his general protections claim on 8 August 2025. There are two versions of the application that were filed concurrently. In one version the Applicant nominated 14 July 2025 as his dismissal date and in the other version he indicated that he did not know the exact date of his dismissal.

• [44] The circumstances of the Applicant's dismissal are somewhat unusual in that it was unclear when he was dismissed. While I have ultimately found that the Applicant was dismissed on 14 July 2025, the call with Josh created an expectation of some further contact with the Applicant and this never occurred. When the Applicant reached out after this date he was ignored. I accept that this would have been confusing for the Applicant who did not sit on his hands but tried to seek advice about the situation through the Commission's Workplace Advice Service. Unfortunately, due to high demand, an appointment could not be found for the Applicant. The delay is not a lengthy one and I consider that in the circumstances of this matter, the ambiguity concerning the actual date of dismissal and confusion this would have created for the Applicant provides a reasonable explanation for the delay. This weighs in favour of allowing an extension of time.

Section 366(2)(b) - any action taken by the Applicant to dispute the dismissal

• [45] While the Applicant made an unfair dismissal claim to dispute the dismissal on 5 August 2025 this was also out of time. No further action to dispute the dismissal was taken prior to this date. However, as I have earlier found, there was ambiguity concerning the dismissal date and in the circumstances of this matter I regard s.366(2)(b) as a neutral consideration.

Section 366(2)(c) - prejudice to the employer (including prejudice caused by the delay)

• [46] I do not consider there to be any prejudice to the employer associated with the relatively short delay in this case and regard this as a neutral consideration.

Section 366(2)(d) - merits of the application

• [47] The merits of the matter would depend on findings made by a court after hearing the evidence. I regard the merits as a neutral consideration.

Section 366(2)(e) - fairness as between the person and other persons in a like position

• [48] I do not consider that there are any matters that are relevant to fairness between the Applicant and other persons in a like position (s 366(2)(e)).

• [49] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 366(2), I am satisfied that there are exceptional circumstances in this case due to the confusion surrounding the effective date of the dismissal and I allow an extension of time to 8 August 2025, being the date on which the application was made.

• [50] Having found that the Applicant was dismissed and having allowed the Applicant an extension of time to make the application, the matter will now be listed for a conference in which the Commission will assist the parties in an attempt to resolve the matter.

[1] Respondent's Form F8A - Response to a general protections application involving dismissal, response to q. 1.2.

[2] Respondent's Form F8A - Response to a general protections application involving dismissal, response to q. 1.2.

[3]Applicant's General protections dismissal Form F8, response to q. 1.2; Respondent's Submissions at [8].

[4] Applicant's General protections dismissal Form F8, response to q. 3.3

[5] Applicant's General protections dismissal Form F8, Annexure A.

[6] Respondent's Form F8A - Response to a general protections application involving dismissal, response to q. 3.1.

[7] Respondent's Form F8A - Response to a general protections application involving dismissal, response to q. 3.1.

[8] Respondent's Form F8A - Response to a general protections application involving dismissal, response to q. 3.1.

[9] Applicant's General protections dismissal Form F8, Annexure A.

[10] Respondent's Form F8A - Response to a general protections application involving dismissal, response to q. 3.1.

[11] Applicant's General protections dismissal Form F8, response to q. 3.1.

[12] Applicant's General protections dismissal Form F8, Annexure A.

[13] Applicant's General protections dismissal Form F8, Annexure A.

[14] Applicant's General protections dismissal Form F8, Annexure A.

[15] Applicant's General protections dismissal Form F8, Annexure A.

[16] Applicant's General protections dismissal Form F8, Annexure A.

[17] Respondent's Form F8A - Response to a general protections application involving dismissal, response to q. 3.1.

[18] Applicant's General protections dismissal Form F8, Annexure A.

[19] Applicant's General protections dismissal Form F8, response to q. 3.1.

[20] Respondent's Submissions at [10].

[21] Respondent's Form F8A - Response to a general protections application involving dismissal, response to q. 3.1.

[22] Applicant's General protections dismissal Form F8, response to q. 3.1.

[23] Respondent's Submissions at [10].

[24] Respondent's Submissions at [16].

[25] Respondent's Form F8A - Response to a general protections application involving dismissal, response to q. 3.1.

[26] Respondent's Form F8A - Response to a general protections application involving dismissal, response to q. 3.1.

[27] Respondent's Form F8A - Response to a general protections application involving dismissal, response to q. 3.1.

[28] Applicant's General protections dismissal Form F8, response to q. 3.4.

[32] Respondent's Submissions at [13].

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