s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection raised of 'not dismissed' - objection upheld - application dismissed.

• [1] On 25 July 2025, Mr Emille Abdallah filed an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal against Gasmak Pty Limited (Gasmak).

• [2] Gasmak filed a Form F8A in which it raised a jurisdictional objection to the application being that Mr Abdallah was not dismissed from his employment.

• [3] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine this point before exercising its Conference powers under s.368 of the Act. Therefore, the issue for determination is whether Mr Abdallah was 'dismissed' from his employment within the meaning of s.386 of the Act.

• [4] Section 386(1) of the Act states as follows:

(1) [When a person has been dismissed] 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

• [5] Section 386(2) of the Act sets out the circumstances where an employee has not been dismissed, none of which are relevant to the present matter.

• [6] The parties had the opportunity to file material on whether Mr Abdallah was dismissed pursuant to s.368 of the Act. Gasmak filed material in support of its position. I conducted a Hearing on 25 September 2025. Mr Abdallah gave evidence. Mr Chris Tselepatiotis, Dealer Principal at Gasmak, and Ms Jenny Kilpatrick, Customer Experience, OH&S & Training Manager at Gasmak, gave evidence for Gasmak.

• [7] Mr Abdallah commenced full-time employment with Gasmak on 20 May 2025 as General Sales Manager. On Friday, 4 July 2025, he says he became unwell and went home early from work. On Saturday, 5 July, he sent a text message to his manager Mr Tselepatiotis, to advise him that he was still unwell. At 2PM, Mr Abdallah then messaged Mr Tselepatiotis to say that he would be coming into work around 3PM that day.

• [8] Mr Tselepatiotis responded to this message as follows: 'Hi Emille don't bother coming in.'[1]

• [9] Mr Abdallah responded: 'I have too [sic], I've got things to do,' to which Mr Tselepatiotis replied, 'sorry what things.'[2]

• [10] Mr Abdallah responded: 'tiddy up and chat to you if you're there.' Mr Tselepatiotis responded saying that there was 'nothing to chat about Emille were done here [sic]'.[3]

• [11] Gasmak says that despite being told that he was not required for the remainder of the day, Mr Abdallah came into work at approximately 3:30PM. It is Mr Tselepatiotis' evidence that Mr Abdallah did not attend work in his work attire and that he had in his possession his work vehicle, car keys, fuel card, and his company-issued laptop.[4]

• [12] A conversation then took place between Mr Tselepatiotis and Mr Abdallah. Mr Tselepatiotis says that Mr Abdallah said to him that he was not really 'feeling it' and that he wished things were different.[5] Mr Tselepatiotis says that he responded that he understood, and that 'these things happen', and that he then accepted Mr Abdallah's resignation.[6] Mr Tselepatiotis says that he then told Mr Abdallah to confirm his resignation in writing, and that Mr Abdallah undertook to do this once he returned home.[7] Mr Tselepatiotis says that they then discussed the return of a second vehicle in Mr Abdallah's possession, and whether he needed a lift home.[8]

• [13] Mr Abdallah gives a different account of what happened during the conversation of 5 July. He says that Mr Tselepatiotis asked him what he was doing at work and that he had been told not to bother coming in. Mr Abdallah says that he told Mr Tselepatiotis that if he had time, he would like a discussion with him. He says that Mr Tselepatiotis rejected this and told Mr Abdallah that they were done. At the Hearing, it was Mr Abdallah's evidence that Mr Tselepatiotis had 'stood over' him and he felt that there was no need for him to be there anymore. He says that he then gave Mr Tselepatiotis his keys and walked out, but he did not confirm his resignation in writing that day.

• [14] Later that same day, on 5 July, Mr Abdallah contacted Ms Kilpatrick by email at 9:02PM, asking her to call him. On Monday, 7 July 2025, Mr Abdallah spoke to Ms Kilpatrick. It was Ms Kilpatrick's evidence that Mr Abdallah told her that he had been 'sacked' by Mr Tselepatiotis via text message.[9] Ms Kilpatrick says she informed Mr Abdallah that she found this difficult to believe but that she would follow up with Mr Tselepatiotis and get back to him.[10]

• [15] After speaking to Mr Tselepatiotis, Ms Kilpatrick says she contacted Mr Abdallah to advise him that she had been informed of a different version of events from that day and that it was Mr Tselepatiotis' recollection that Mr Abdallah would be resigning and that this resignation would be confirmed in writing. She says that upon telling Mr Abdallah what Mr Tselepatiotis had said, Mr Abdallah said that he would confirm his resignation to her in writing.[11] Ms Kilpatrick says that around 30 minutes after this call, she received Mr Abdallah's resignation in writing.[12] Mr Abdallah says that after speaking to Ms Kilpatrick, he felt that his time at the business was complete and that he was forced to resign.

• [16] The Full Bench of the Commission considered the two limbs of s.386(1) in Bupa Aged Care Australia Pty Ltd v Tavassoli.[13] After considering in detail the case law associated with the expression 'terminated on the employer's initiative' including notions of constructive dismissal and forced resignation, the Full Bench said at [47]:

[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(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 probabl(e)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.

• [17] In Hastie v Impress Australia Pty Ltd,[14] Senior Deputy President Richards at [48] said:

The employer's conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.

• [18] Section 386(1)(a) of the Act requires an objective assessment of whether the employee was dismissed at the initiative of the employer. This objective assessment requires a consideration of all the circumstances to determine whether Mr Abdallah's employment was terminated at the initiative of Gasmak. The legal question to be answered is whether the employer's actions 'directly and consequentially' resulted in the termination of employment and, had the employer not taken this action, whether the employee would have remained employed.[15]

• [19] Mr Abdallah says that he was dismissed by the text message sent to him from Mr Tselepatiotis on 5 July. Mr Tselepatiotis says that the text message exchange was about Mr Abdallah not being required to come in for the remainder of that shift, and that Mr Abdallah's employment was not being terminated by text message.

• [20] Gasmak says that Mr Abdallah resigned verbally, in person to Mr Tselepatiotis on 5 July, and then confirmed this in writing on 7 July 2025.

• [21] What was said between Mr Abdallah and Mr Tselepatiotis in their conversation on 5 July is contested although both accepted that comments were made about 'things not working out'. Mr Tselepatiotis says that the conversation was not a heated one. He says he offered to drive Mr Abdallah home, and that they discussed returning the second vehicle the following week, all in a calm manner. Mr Abdallah did not contest this evidence at the Hearing.

• [22] While I accept there may have been some possible confusion in the text message exchange, I do not consider that Gasmak was communicating the termination of Mr Abdallah's employment. I accept that the text messages were advising Mr Abdallah that there was no need for him to attend work for the remainder of the shift that day. I consider it relevant that within an hour of receiving the text messages, Mr Abdallah attended the site and spoke to Mr Tselepatiotis in-person and had the opportunity to clarify the intent of the text messages. I also consider it instructive that after speaking with Ms Kilpatrick on 7 July, who clarified that he had not been dismissed, Mr Abdallah still proceeded to put his resignation in writing later that day. At the Hearing, Mr Abdallah was unable to provide a reason for this.

• [23] I do not consider that Mr Abdallah was terminated at the initiative of Gasmak.

• [24] I do not accept, nor is there any evidence before me, that Mr Abdallah's resignation was forced by the conduct, or a course of conduct, of Gasmak. Mr Abdallah says that the text message exchange occurred after 'a couple of weeks of intimidation, being yelled at in front of co-workers and customers and [that Gasmak were now] withholding commissions.'[16] However, Mr Abdallah did not provide any further details, or any evidence, in support of his contentions. Mr Abdallah says that he was forced to resign because there was no assistance or help for the position that he was in and as he did not want to continue in the position.

• [25] I acknowledge that from Mr Abdallah's perspective, he may have faced some difficulties at work, but I unable to conclude, based on the material before me, that he was forced to resign. Gasmak says, and I accept, that there were alternative avenues available to Mr Abdallah if he had concerns about Mr Tselepatiotis' behaviour. He could have directly raised his concerns with Ms Kilpatrick, rather than having a conversation about resigning. There is no evidence that he did so.

• [26] I accept Mr Tselepatiotis' evidence that Mr Abdallah told him he was going to resign. This is further supported by Mr Abdallah's actions that afternoon, which included him returning his work car, keys and other work-related property.

• [27] I do not consider this to be a resignation made in the 'heat of the moment' as Mr Abdallah did not confirm his resignation until he had spoken with Ms Kilpatrick, some two days after the discussion with Mr Tselepatiotis.

• [28] Having considered the evidence of the parties and their submissions, when objectively viewed, I find that Mr Abdallah was not dismissed under either ss.386(1)(a) or (b) of the Act.

• [29] The jurisdictional objection of the Respondent is upheld, and an Order[17] to this effect will be issued with this Decision.

[1] Attachment B to Respondent's Outline of Submissions.

[4] Witness Statement of Mr Chris Tselepatiotis, page 4.

[7] Witness Statement of Mr Chris Tselepatiotis, page 4.

[9] Witness Statement of Ms Jenny Kilpatrick, page 2.

[13] [2017] FWCFB 3941.

[14] [2008] AIRC 102.

[15] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 at 205.

[17] PR792842.

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