Fair Work Act 2009

s.394 - Unfair dismissal

Application made pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy - no dismissal - Application dismissed.

• [1] This is an edited version of a decision I delivered on transcript today.

• [2] Dr Mir Ahmad Rasoul Mofleh (the Applicant) has made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent to this application is Translationz Pty Ltd (the Respondent). The application was the subject of a determinative conference at which the parties were self-represented.

Initial matters to be considered - s.396 of the Act

• [3] I am satisfied the application was made within the prescribed 21-day period after the alleged dismissal took effect (s.396(a) of the Act). In addition, Dr Mofleh is a person protected from unfair dismissal because he completed the applicable minimum employment period and had an annual rate of earnings that was less than the high-income threshold (s.396(b)). Further, it is not contended, and nor do I consider that the Respondent was a small business employer at the material times, such that I am not required to determine whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c) and s.385(c)). Finally, as it was not claimed by the Respondent, and the material before me does not suggest that the dismissal was a case of "genuine redundancy" within the meaning of s.389 of the Act, I am satisfied that the dismissal was not a case of "genuine redundancy" (s.396(d) and s.385(d)). Accordingly, in order for Dr Mofleh's unfair dismissal application to succeed, he is required to satisfy the Fair Work Commission (the Commission) he was dismissed (s.385(a)) and that his dismissal was harsh, unjust or unreasonable (s.385(b)).

• [4] Dr Mofleh accepted an offer of casual employment with the Respondent on 22 May 2023 when he signed a letter of engagement dated 12 May 2023. The letter of engagement outlined that Dr Mofleh's employment was on a casual basis, as required, and that there was no guarantee of ongoing or regular work. The letter of engagement also stated that Dr Mofleh could choose the assignments allocated to him and that he was not obligated to accept all assignments offered to him.

• [5] On 17 July 2025, the Respondent received a complaint regarding Dr Mofleh involving conduct associated with his work at VicRoads. This resulted in the Respondent sending an email to Dr Mofleh on 18 July 2025,[1] which outlined the following:

• [6] At that point, Dr Mofleh was deallocated his forthcoming VicRoads bookings. While his VicRoads work formed the vast majority of his work for the Respondent, Dr Mofleh retained some ongoing assignments. This included work involving the Administrative Review Tribunal (ART). On 16 August 2025, Dr Mofleh sent an email to the Respondent in which he stated:

Plz be informed that there are two jobs from Melbourne ART that you have not removed from my portal yet.

Hope you assign them to whoever you want and do not blame me for late return.

• [7] Dr Mofleh said that the next time he was offered work for the Respondent was on 7 November 2025, which was after he had lodged his unfair dismissal application.

• [8] If Dr Mofleh was not dismissed by the Respondent within the meaning of s.386(1) of the Act, there is no jurisdictional basis for him to pursue an unfair dismissal application. More specifically, if Dr Mofleh's employment was not terminated at the initiative of the Respondent, or if my finding is that he was not forced to resign because of conduct or a course of conduct engaged in by the Respondent, there is no jurisdictional basis for him to pursue his unfair dismissal application.

• [9] I am not persuaded that Dr Mofleh's employment was terminated at the initiative of the Respondent (s.386(1(a)). The 18 July 2025 email did not notify Dr Mofleh that he was dismissed. It advised that the Respondent would be reviewing concerns it had arising out of what had been reported to it regarding Dr Mofleh's conduct involving work at Vicroads and invited him to "reach out" if he wanted to discuss matter further. In the meantime, Dr Mofleh retained other work for the Respondent, including with the ART.[3]

• [10] As to whether there has been a dismissal within the meaning of s.386(1)(b) of the Act, Dr Mofleh maintained he did not resign from his employment, whereas the Respondent had outlined in the Form F3- Employer response to unfair dismissal application that it took Dr Mofleh's 16 August 2025 email to be his resignation. I do not consider, however, that Dr Mofleh resigned. This is because there was no resignation enunciated by him and his evidence before the Commission was that he had not resigned. I otherwise note that the test to be applied for s.386(1)(b) is whether the Respondent engaged in conduct with the intention of bringing Dr Mofleh's employment to an end or whether termination of the employment was the probable result of the Respondent's conduct such that Dr Mofleh had no effective or real choice but to resign. In this case, I do not consider that it was the Respondent's intention to bring the Dr Mofleh's employment to an end because:

1. It had advised it was reviewing the complaint made against him, not that it was dismissing him;
2. It had not withdrawn all of Dr Mofleh's assignments;
3. Dr Mofleh was a casual employee under agreed terms that stated that he had no guarantee of ongoing or regular work; and
4. Two further assignments were offered to Dr Mofleh on 7 November 2025.

• [11] Whereas s.385(a) of the Act requires the Commission to be satisfied Dr Mofleh was dismissed, I have concluded that there was no dismissal within the meaning of s.386 of the Act. I have concluded there was no termination of Dr Mofleh's employment on the Respondent's initiative and it has not been contended by Dr Mofleh and nor I have not been persuaded that Dr Mofleh resigned. Further, I have not been persuaded that the Respondent engaged in conduct or a course of conduct with the intention of bringing the employment to an end or that the termination of Dr Mofleh's employment was the probable result of the Respondent's conduct. The effect of my conclusion that Dr Mofleh was not dismissed is that I am satisfied there was no harsh, unjust or unreasonable dismissal (s.385(b)). It follows that I have not been persuaded that Dr Mofleh has been unfairly dismissed. His application fails and must therefore be dismissed. Given this conclusion, I will not issue an Order.

Ms K Hodgson and Ms K Woodward on behalf of Translationz Pty Ltd.

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