s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - not dismissed - objection upheld

• [1] Mr DonPhillip Fretton has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that he has been dismissed from his employment with ProQuest Pty Ltd (ProQuest) in contravention of Part 3-1 of the FW Act.

• [2] Mr Fretton claims that he commenced employment with ProQuest on 27 May 2025 and the dismissal took effect on 27 June 2025.

• [3] ProQuest has objected to the application on the ground that Mr Fretton was not dismissed from his employment as he continues to be an employee of ProQuest.

• [4] Before dealing with the dispute under s.368, I must be satisfied that Mr Fretton was dismissed.

• [5] On 13 October 2025, I conducted a hearing in relation to the matter which Mr Fretton did not attend. At the conclusion of the hearing, I dismissed Mr Fretton's application as I found that Mr Fretton was not dismissed on 27 June 2025 within the meaning of s.365 of the FW Act. I now give reasons for that decision.

• [6] In his application, Mr Fretton explained that he was employed by ProQuest who placed him as a casual worker for Sigma Company Ltd trading as Sigma Healthcare (Sigma) at its site in Kemps Creek, New South Wales. Mr Fretton said that he worked for a month and was removed from the roster on 27 June 2025 under the stated reason of 'low volume work.' Mr Fretton said that he was sent home early three times that week while other workers remained behind to complete their shifts, indicating that work was still available. Mr Fretton attached an email from ProQuest to his application dated 27 June 2025 which provided:

Unfortunately, due to low work volumes onsite, you have been removed from the roster and are no longer required at Sigma Healthcare.

Please contact our office for other available work opportunities.

• [7] ProQuest filed a Form 8A Response which stated that Mr Fretton:

• is still an employee of ProQuest
• has continued to discuss other work options with ProQuest
• is being offered work by ProQuest at other sites
• was not required on site anymore at Sigma but has not been dismissed
• agreed when he commenced employment with ProQuest to be placed on sites as determined by the labour needs of the host employer business

• [8] ProQuest subsequently provided file notes from Hema Mahe, General Manager of Operations which recorded that ProQuest had contacted Mr Fretton in July and August 2025 to offer him roles at other companies.

• [9] Mr Fretton named Ms Makere Grattan as an additional respondent to the application. Ms Grattan is employed by Sigma as Team Manager of the Kemps Creek site which is a distribution centre for pharmaceutical and other related products. Ms Grattan filed a witness statement in the matter. Mr Guy Tracey, Head of People and Capability - Operations and Workplace Relations at Sigma also filed a witness statement. Mr Tracey provided evidence that at all times Mr Fretton was engaged on a temporary labour hire arrangement through his employer, ProQuest. Mr Tracey explained that ProQuest is a labour hire company which Sigma uses to supply contingent labour on a labour hire basis to fill temporary peaks in demand. Mr Tracey said that such engagements are temporary, and their duration can vary. Mr Tracey said that Mr Fretton is not and never was employed by Sigma, nor was he a prospective employee of Sigma.

• [10] Ms Grattan gave evidence that during the short period that Mr Fretton worked at Sigma, there were persistent issues with his lack of punctuality and conduct. Further, in late June 2025, Sigma experienced a downturn in work. Mr Grattan said that for these reasons, the Shift Manager, Mr Brad Barnes, decided that Sigma no longer required the services of Mr Fretton. On 27 June 2025, Mr Barnes advised ProQuest that Mr Fretton was no longer required.

• [11] The matter was initially listed for a case management conference on 18 August 2025. Mr Fretton did not attend the conference. Following the conference, my Associate sent the following email to Mr Fretton:

RE: C2025/6379 - Mr DonPhillip Fretton v Ms Makere Grattan & Proquest Pty Ltd

I refer to the above matter which was listed for a case management conference before Deputy President Wright at 11:00am today 18 August 2025.

You have brought an application under s.365 of the Fair Work Act 2009 (Cth) alleging that you have been dismissed by ProQuest Pty Ltd.

Deputy President Wright has requested that ProQuest Pty Ltd provide information about your employment status. Please see attached ProQuest Pty Ltd's response.

On the basis of this information, Deputy President Wright has formed the preliminary view that the Commission has no jurisdiction to deal with this matter as there has been no dismissal.

If you wish to file a response to the information provided by ProQuest Pty Ltd or discontinue this matter, please do so by return email by no later than 4pm on Wednesday 20 August 2025.

If no response is received from you by the above date, a publicly available decision dismissing your application will be issued by the Commission.

• [12] On 22 August 2025, Mr Fretton sent an email to my Chambers apologising for his non-attendance at the case management conference. Mr Fretton explained that he was overseas due to an urgent family emergency involving sensitive personal matters and was unable to attend or advise the Commission in advance due to limited communication access. Mr Fretton requested that the Commission reschedule the conference to allow Mr Fretton the opportunity to properly respond to the claims made by ProQuest. In response to a request by my Chambers, Mr Fretton provided evidence which showed that he was overseas during the period from 26 July 2025 to 21 August 2025.

• [13] Rather than list the matter for a further case management conference, I decided to issue directions for the filing of material and to list the matter for hearing on 30 September 2025 to determine ProQuest's jurisdictional objection that Mr Fretton was not dismissed.

• [14] On 22 September 2025, Mr Fretton sent an email to my Chambers advising that 'due to an urgent and unforeseen personal family matter' he would be required to travel overseas during the period that the hearing was scheduled and would be unable to attend the hearing in person. Mr Fretton requested that the hearing either be rescheduled to a later date or that it proceed as a video hearing. In response to a request by my Chambers, Mr Fretton provided evidence which showed that he would be overseas during the period from 21 September 2025 to 5 October 2025.

• [15] After seeking the views of the other parties, I adjourned the hearing to 13 October 2025. Mr Fretton and ProQuest did not attend the hearing. Prior to the commencement of the hearing, my Associate unsuccessfully attempted to contact Mr Fretton by telephone so the hearing proceeded in his absence. At the hearing, I determined the matter based on the material filed by the parties and dismissed the application. I now provide reasons for my decision.

• [16] The application has been brought under s.365 of the FW Act which provides:

365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

• [17] The issue between the parties which the Commission has been asked to determine is whether Mr Fretton was dismissed by ProQuest. The dictionary at clause 12 of the FW Act refers to section 386 for the definition of 'dismissed'.

(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.

(2) However, a person has not been dismissed if:

(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.

• [19] The expression 'termination at the initiative of the employer' is well understood to be a reference to a termination that is brought about by an employer, and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[1]

• [20] The issue of whether a labour hire employee who is removed from their placement with the host employer has been dismissed has been considered on numerous occasions by the Commission.

• [21] In Jayleen Kool v Adecco Industrial Pty Ltd T/A Adecco,[2] and Patrice Tait v Spinifex Australia Pty Ltd,[3] the fact that the applicant in each case worked for a single host employer for an extended period, was removed from the host employer's site for conduct or performance reasons rather than operational requirements and was not provided with an alternative assignment were all matters weighing in favour of a finding of dismissal. Apart from the reason for Mr Fretton's removal from the Sigma site being partially for performance reasons, these factors are not present in the current proceedings. Mr Fretton worked for Sigma for only one month and the material before the Commission shows that ProQuest continues to offer work to Mr Fretton. Mr Fretton does not dispute this but claimed that the roles that he was offered by ProQuest are not suitable. There is no evidence before the Commission which establishes that the offers of work which ProQuest has provided to Mr Fretton since his removal from the Sigma site are not genuine or designed to give a false impression that Mr Fretton continues to be employed when this is not the case.

• [22] Mr Fretton's complaint is clearly about Sigma's decision to cease offering him work. Mr Fretton claimed that there is work available at Sigma and he has been unfairly removed from the Kemps Creek site. However, Mr Fretton has not pointed to any aspect of his employment relationship with ProQuest which imposed an obligation on either ProQuest or Sigma for Mr Fretton to be provided with work at Sigma if such work was available. Further, there is no dispute between the parties that Mr Fretton was not employed by Sigma. There is no evidence that ProQuest was in any way involved in Sigma's decision to remove Mr Fretton from the site. As such, Sigma's decision cannot be attributed to ProQuest and there no basis to find that ProQuest dismissed Mr Fretton when Sigma ceased offering work to Mr Fretton.

• [23] Based upon the material before me, I make the following findings:

1. Mr Fretton commenced employment with ProQuest on 27 May 2025.
2. Mr Fretton was assigned by ProQuest to work for Sigma at its Kemps Creek site.
3. Mr Fretton has never been an employee of Sigma.
4. On 27 June 2025, Sigma advised ProQuest that Mr Fretton was no longer required to work at its Kemps Creek site.
5. On 27 June 2025, ProQuest advised Mr Fretton of Sigma's decision and asked Mr Fretton to contact ProQuest for other available work opportunities.
6. ProQuest has contacted Mr Fretton in relation to work opportunities in July and August 2025.

• [24] Based on these findings, I conclude that Mr Fretton continues to be an employee of ProQuest. In the event that I am wrong about this because Mr Fretton has not performed work for ProQuest since 27 June 2025, I find that ProQuest has not engaged in any action which was the principal contributing factor which resulted, directly or consequentially, in the termination of Mr Fretton's employment.

• [25] For these reasons, I determine that Mr Fretton has not been dismissed by ProQuest within the meaning of ss.365 and 386 of the FW Act. I dismiss the application.

[1] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; 62 IR 200

[2] [2016] FWC 925

[3] [2018] FWC 3686 (confirmed by a Full Bench on appeal)

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