s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - not dismissed - position made redundant during parental leave - intention to offer different duties upon return from leave - dialogue regarding return to work - application under s.372 regarding return to work - repudiation - application under s.365 - election - termination at the initiative of the employer.

• [1] On 9 June 2025, Ms Eunhye Hong made a general protections application under s.365 of the Fair Work Act 2009 (Cth). Ms Hong was employed by 2022 Trading Pty Ltd, which is a Brisbane retailer of various Korean and other Asian food products trading as K-Fresh Mart. K-Fresh agrees that Ms Hong's employment has ended, but claims that Ms Hong was not dismissed.

• [2] The Commission's power to deal with a dispute under s.368 of the Fair Work Act 2009 (Cth) (the Act) is only enlivened if Ms Hong's application was properly made under s.365. In light of K-Fresh's objection I must determine whether Ms Hong was dismissed from her employment.

• [3] Unfortunately there have been no real winners in this case so far: K-Fresh has lost an employee it wanted to keep and was very happy with, and Ms Hong has lost her job. The start of the end was a significant downturn in trade for K-Fresh, which led to K-Fresh's tough decision to make Ms Hong's position redundant while she was on parental leave and to offer Ms Hong a different mix of duties at a lower rate of pay upon her return. Despite Ms Hong's attempts to resolve her concerns about her duties and her pay, and despite K-Fresh's stated desire to keep Ms Hong in employment, no resolution was reached.

• [4] The employment has ended. This decision is about when and how the employment ended and whether Ms Hong is "an employee who was dismissed."

• [5] Ms Hong commenced employment with K-Fresh on 17 April 2023 as a casual web designer. Her position was made permanent in or around April 2024. Ms Hong was hired as a skilled designer. Her key tasks and duties were said to be using the Miricanvas software to set up and make templates; creating and designing promotional leaflets for distribution; selecting products to be promoted for sale including on social media; and installing in-store advertisements and creating designs for suppliers.

• [6] On 17 May 2024, Ms Hong informed K-Fresh's managing director, Mr Bae, that she intended to commence unpaid parental leave on 25 August 2024, with a view to returning after approximately six months. Parties agreed that Ms Hong would provide 1-2 months' notice before returning.

• [7] During her pregnancy Ms Hong worked under an agreed hybrid arrangement whereby she worked two days remotely and three days on site. This hybrid arrangement was a flexible working arrangement facilitated by s.65 of the Act.

• [8] Ms Hong commenced parental leave as planned on 25 August 2024.

• [9] In February 2025 K-Fresh decided to make Ms Hong's role redundant. K-Fresh's evidence and submissions about this decision can be summarised as follows:

(a) K-Fresh is a small business with less than 15 employees;

(b) by 2023 K-Fresh was going through some trading difficulties;

(c) from August 2024 onwards K-Fresh suffered net losses;

(d) tighter controls were placed on stock purchases and K-Fresh negotiated with creditors for additional time to pay invoices and the like;

(e) by November and December 2024 K-Fresh began making changes to counter its reduction in profit. Measures included limiting the number of hours given to essential staff such as cashiers and floor workers to reduce labour costs;

(f) K-Fresh decided to simplify its marketing requirements by temporarily allocating Ms Hong's work to the Assistant Manager, however this caused other problems. K-Fresh then made a short-term arrangement with a temporary employee on a holiday visa;

(g) it became readily apparent however that there was simply not enough budget and work to justify Ms Hong's role remaining a standalone and dedicated role for design work; and

(h) the scope of tasks required for Ms Hong's role were drastically reduced, which reduced the numbers of hours needed for Ms Hong's key duties.

• [10] Mr Bae and Mr Kwon decided that Ms Hong's role would be merged with a cashier role so that the cashier work could be performed when there was no design work. The whole role needed to be performed on site. Given the reduction in scope and complexity of design duties, Ms Hong's remuneration would be less, however this could be negotiated with Ms Hong depending on her needs and K-Fresh's capacity having regard to its financial position.

• [11] Mr Bae and Mr Kwon also assumed that the holiday visa holder performing the role while Ms Hong was on parental leave would leave the position in the coming months.

• [12] Importantly, Mr Bae and Mr Kwon said that they thought there would be time to discuss and agree on Ms Hong's return to work arrangements because of the agreement that Ms Hong would give 1-2 months' notice before returning to work.

• [13] On 28 March 2025 Ms Hong contacted Mr Kwon to discuss returning to work in the same hybrid pattern. Mr Kwon agreed to speak with Mr Bae on behalf of Ms Hong regarding the arrangements. Ms Hong followed up Mr Kwon on 14 April 2025 for an update.

• [14] On or around 16 April 2025, Ms Hong said she was informed over the phone by Mr Kwon that the previous hybrid work arrangement would no longer be available and K-Fresh could not confirm a return date. Ms Hong was told that her pre-leave salary or hourly rate would not be guaranteed due to unspecified changed circumstances.

• [15] The next day Ms Hong confirmed the key points of the conversation in an SMS exchange with Mr Bae. The full exchange (translated into English) was as follows:

Ms Hong: Hello Manager Bae, I hope you have been doing well.

I'm sending you this message because there are a few things I would like to confirm directly with you.

I heard from Manager Kwon that after your meeting with him, the following was discussed regarding my return:

Currently, there is a newly hired designer, so it is difficult to set a specific return date right now.

However, the new employee is on a Working Holiday visa, so it was mentioned that the company does not expect them to stay long term.

If that person gives notice, there may be a chance to discuss my return timing again.

However, the working arrangement I had previously (remote work + in-office days) will no longer be available, and I would be required to work onsite 5 days a week.

Also, regarding my salary, it was mentioned that the company would not be able to guarantee the wage I was receiving before maternity leave, and it would need to be renegotiated.

1. The company cannot currently specify a return date.
2. The previous hybrid work arrangement (remote + onsite) is no longer available.
3. Salary and/or hourly wage will need to be renegotiated.

I have already informed Manager Kwon that under these conditions, I do not intend to return.

However, I wanted to check directly with you in case I have misunderstood anything, as you are the final decision-maker.

When you first went on maternity leave, you did not specify an exact return date.

We divided the design tasks among existing staff but that could not continue indefinitely, so we ended up hiring a new designer.

Since the new designer just started, we cannot immediately terminate their employment.

Also, under the current system, remote working is no longer possible.

Due to the company's current situation, we would not be able to maintain your previous wage, and a renegotiation would be necessary if you were to return.

Mr Bae: By the way, are you now fully recovered and ready to work?

Ms Hong: Although I haven't specified a return date, I clearly remember you telling me that I could inform you one to two months in advance if I wanted to return.

So I was proactively trying to discuss it early by reaching out to Manager Kwon.

It is unfortunate that you do not recall saying that.

In any case, I feel that about one to two months of preparation would be sufficient for me.

However, I do not have any intention to return under the conditions you have mentioned. ^^

• [16] Ms Hong did not hear from either Mr Bae or Mr Kwon after the SMS exchange with Mr Bae. On 22 April 2025 she sent an email to K-Fresh's generic email address with the subject line "Request for Resolution - Return to Work Conditions". The evidence was that this email address is used for invoicing and general communications. Ms Hong's email said:

Following our recent discussions regarding my return to work after maternity leave, I would like to formally outline my position and request a resolution in line with guidance provided by the Fair Work Ombudsman (FWO).

I am willing to return to my role under the original working conditions that were in place prior to my leave, including the hybrid arrangement of on-site and remote work. In light of my current family responsibilities, I would also like to explore the possibility of increasing remote work hours as part of a revised agreement.

I must also note that the conditions presented to me - including the refusal to return under prior working arrangements, the proposed reduction in pay, and the delay in confirming my return - appear to be inconsistent with the rights and protections provided under the Fair Work Act. As such, I am unable to accept these terms as they currently stand.

If the company is unable or unwilling to consider a fair and lawful return-to-work arrangement, I will be considering my next steps based on the advice received from the FWO.

I genuinely value the time I've spent with the company and hope we can resolve this matter cooperatively and constructively. I look forward to your response within a reasonable timeframe."

• [17] Ms Hong did not receive a response to this correspondence. K-Fresh said that the email was overlooked in the large volume of emails sent to that general address.

• [18] On 15 May 2025, Ms Hong lodged an application under s.372 of the Act asking the Commission to deal with an alleged contravention of the general protections provisions not involving dismissal. Ms Hong's description of the alleged contravention (Q3.1) included the following:

"... I made multiple attempts to contact the store manager and general manager from late March 2025 onwards, expressing my readiness to return to work, but my communications were persistently ignored.

These events have caused significant emotional and financial distress. I have been diagnosed with depression and prescribed medication, which I am required to take for at least three months. I have also been referred for psychological counselling.

In my GP's professional opinion, my condition is directly related to the employer's refusal to reinstate me under the original working conditions following parental leave...

Given the small size of the company and the breakdown in trust with management, I believe returning to the workplace would further deteriorate my mental health.

I strongly believe that this was intended to discourage and ultimately prevent my return to work, amounting to adverse action under the Fair Work Act. Furthermore, as a working mother who planned in good faith to return to her role, this experience has been disheartening and isolating."

• [19] Ms Hong asserted that she was still employed (Q3.3):

"The Respondent failed to reinstate me to my pre-parental leave position or an equivalent role on reasonable terms, despite my lawful request under the Fair Work Act 2009. At no point was I provided with a termination letter or formal notice ending my employment. Therefore, I considered that I remain employed, but have been unlawfully denied the right to return to my position.

Additionally, the Respondent's unilateral withdrawal of my previously agreed remote working arrangements, despite my lawful right to request flexible work due to caring responsibilities, constituted both discrimination and adverse action under the Fair Work Act."

• [20] However the remedy sought in the s.372 application was:

• - Financial compensation for economic loss and emotional distress;
  • - Formal recognition of the harm caused by the company's conduct;
  • - A written apology from the employer;
  • - Any further remedies the Commission considers appropriate.

I am not seeking reinstatement due to mental health deterioration resulting from the Respondent's repeated failure to respond to my lawful return-to-work requests after maternity leave."

• [21] Under cross-examination Ms Hong said that she did not seek reinstatement in her s.372 application because she could not return to work at that time because of mental illness. She said "It doesn't mean that I don't want to return to work. That means I couldn't return to work." Ms Hong also said that at the time she made her application under s.372 she did not think that the employment relationship was over.

• [22] On 23 May 2025, K-Fresh filed a response to the s.372 application. The response included:

"... Despite the financial difficulties the company is facing, I would like to make it clear that it has always been my intention to facilitate Ms. Hong's return to work. Although the designer position no longer exists due to operational restructuring, I have proposed alternative roles within the company that align as closely as possible. I am also willing to discuss flexible arrangements to support her return, within the limits of the company's current capacity.

If there are any further considerations or recommendations from the Commission, I am open and willing to accommodate them to the best of my ability, in light of the company's present situation.

... under the current conditions, it is not feasible to reinstate Ms. Hong in her former designer role. The only available option at this time is a reassignment to cashier or floor duties. In particular, a floor staff member is scheduled to resign in mid-to-late June 2025, and I plan to consider assigning Ms. Hong to that vacancy without hiring a new employee. However, I respectfully request her understanding that a wage adjustment will be necessary due to the company's financial limitations."

• [23] Mr Bae said in cross-examination that he did not think that Ms Hong's employment had ended at the time that the s.372 application was made, but was concerned that Ms Hong did not want to return on the conditions they were proposing. He said there was room for negotiation but that he thought Ms Hong did not want to discuss it.

• [24] Ms Hong sent a response to K-Fresh's response that included the following:

"I clearly and in good faith communicated my intention to return to work on three separate occasions:

Despite these communications, I received no formal response or clarification regarding a return date, available roles, or terms of employment. Instead, I was only told that my prior conditions could no longer be accommodated - including a significant reduction in salary, no possibility of remote work, and no definite timeline for reinstatement."

• [25] The application under s.372 was allocated to a member of the Commission and listed for a conference under s.374. In an email exchange prior to the conference Ms Hong asked the following question:

"I am writing to seek clarification regarding my General Protections (Non-dismissal) application. In the Respondent's recent response, they claimed that my previous position was made redundant.

I would like to confirm whether this affects the classification of my application, or if it will still proceed as a General Protections dispute not involving dismissal."

• [26] The reply Ms Hong received included the following:

"... it appears that the matter may involve a dismissal. The Jurisdictional Objection raised by the Respondent is not one that the Commission must decide to deal with a s.372 application.

The Conference can proceed as listed however, you should urgently seek independent legal advice as to whether an application pursuant to s.372 of the Act is the right application for you. The Commission cannot provide legal advice and there is information about where to find legal help on the Commission's Website."

• [27] Shortly before discontinuing her application under s.372 Ms Hong advised the Commission:

"... After reviewing the Respondent's response, I was shocked to learn that the employer appears to be asserting that I have been dismissed. This is the first time I have become aware of any such dismissal, as I have not received any formal notification from the employer.

Following this development, I have sought legal advice and have been advised that it may be more appropriate for my application to be submitted as a General Protections - Dismissal matter (Form F8) ..."

• [28] Ms Hong then filed a new application under s.365 of the Act claiming that she had been dismissed in contravention of the general protection provisions of the Act.

• [29] The Fair Work Commission can deal with applications under s.365 of the Act by way of conciliation or mediation under s.368. If the Commission is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 imposes a substantial restriction upon applicants by preventing a general protections court application being made unless the FWC has issued a certificate under s 368(3)(a) in relation to the dispute (Ward v St Catherine's School [2016] FCA 790 at [3]).

• [30] The Full Court in Coles Supply Chain v Milford [2020] FCAFC 152 at [51], [2020] FCAFC 152; (2020) 300 IR 146 (Milford) found that the FWC's power to deal with a dispute under s.368 is only enlivened if an application is properly made under s.365. When a jurisdictional objection is raised the FWC must determine whether the application was properly made, which might include determining whether an applicant was actually dismissed from their employment.

• [31] Ms Hong only has capacity to make a claim if she is "a person who has been dismissed" (per s.365(a)). The Commission does not have a roving brief to intervene in any and all workplace difficulties. The cornerstone of the s.365 general protections jurisdiction, as well as the unfair dismissal jurisdiction, is that the employee has been dismissed.

• [32] In both jurisdictions much flows from the fact that the employee was dismissed. In the general protections jurisdiction the only inquiry is whether the employer's reason(s) for dismissal included any prohibited reasons. In unfair dismissal matters the considerations in s.387 apply by reference to the dismissal: whether there was a valid reason for the employer to dismiss the employee, whether the employer provided procedural fairness before deciding to dismiss the employee, whether the dismissal was harsh, and so on.

• [33] "Dismissed" is defined in s.12 of the Act by reference to s.386. Section 386 is in the following terms:

(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."

• [34] In Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47]- [48], [2017] FWCFB 3941; (2017) 271 IR 245 at 268-9, the Full Bench summarised the relevant tests under s.386 as follows:

"[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 probable 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.

[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the Applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the Applicant the precise basis upon which it is contended that the Applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter."

• [35] K-Fresh submitted that its actions were consistent with its parental leave obligations. Specifically, it said:

(a) the entitlement to unpaid parental leave under the Act is generally to be taken as a continuous period of up to 12 months, unless it is one of the special forms of unpaid parental leave. It can be reduced by agreement with the employer under s.77 of the Act. This meant any return to work by Ms Hong was subject to K-Fresh's consent, upon giving 1 -2 months' notice as had been agreed upon between the parties. In the absence of an agreed end date for the parental leave, K-Fresh was entitled to ask for more time before it could shorten Ms Hong's parental leave and facilitate her return to work;

(b) the return-to-work guarantee provided for under s.84 of the Act did not prohibit K-Fresh from making a decision to restructure Ms Hong's role (which K-Fresh says was motivated by the financial losses as opposed to Ms Hong's workplace rights or protected attributes). K-Fresh refers to observations in Clare v The Bet Deck Pty Ltd [2023] FWC 2309 at [63]:

"Although an employee such as Ms Clare has a right to take unpaid parental leave for a period of 12 months, which may be extended, under Division 5 of Part 2-2 of the Act, this does not provide any guarantee that their employer will still be in business or their job will still exist at the conclusion of their period of parental leave. The Act does not prohibit an employer from making changes to its business during an employee's period of unpaid parental leave, including changes which impact on the position of the employee on such leave."

(c) the return-to-work guarantee under s.84 does not provide for an automatic right for Ms Hong to return to work under a flexible work arrangement. There was no contractual right either, as Ms Hong had been substantively employed on the basis that she would perform her work at K-Fresh's premises. She had only ever been provided a temporary entitlement to work from home in order to accommodate the physical difficulties associated with her pregnancy, and it was not expected to be an ongoing arrangement;

(d) K-Fresh had reasonable business grounds as to why it could not allow Ms Hong to work from home when returning from her parental leave. Her revised role had to be performed on site because it involved cashier and floor staff duties, and Ms Hong's role prior to her parental leave (which could be performed from home) no longer existed; and

(e) despite the amended role clearly not being Ms Hong's preference and having less generous terms, it was still the role that was most suitable for Ms Hong and nearest in status and pay, meeting the terms of s.84(b) of the Act. K-Fresh's conduct in offering the new role and being prepared to negotiate its terms and conditions was in keeping with its obligations.

• [36] K-Fresh conceded that arguably the decision to make Ms Hong's position redundant in February 2025 terminated the relevant contract of employment. K-Fresh did not concede that the employment relationship was terminated at this time.

• [37] K-Fresh submitted that for there to be a dismissal K-Fresh must have engaged in conduct either intended to bring the employment relationship to an end or has that probable result, which it did not do.

• [38] To support these arguments K-Fresh said:

(a) there has not been any express communication from K-Fresh informing Ms Hong that her employment has been terminated;

(b) it did not want to terminate the employment relationship with Ms Hong;

(c) it wanted Ms Hong to continue in a different role, either the role discussed with her or another role to be negotiated between the parties;

(d) it was prepared to negotiate the terms and conditions of a new role with Ms Hong. It did, however, make it clear that Ms Hong's role prior to her parental leave was no longer available, and that no new role was not compatible with working from home arrangements;

(e) even when Ms Hong indicated that she did not wish to engage with the return to work process any further, Mr Bae's final message on 17 April 2025 did not suggest her employment was at an end. Rather, it encouraged Ms Hong to continue with her parental leave and focus on her recovery, whilst K-Fresh worked on improving its financial position, leaving open the possibility of reopening discussions at a later date. This was consistent with the agreement between the parties on flexibility.

• [39] K-Fresh submitted that it did not terminate Ms Hong's employment. K-Fresh said Ms Hong clearly indicated on 17 April 2025 that she did not wish to return to work due to changed conditions and there was no dismissal initiated. K-Fresh submitted it considered the employment relationship to be in a period of discussion, not termination, and therefore it objected to the claim being categorised as a dismissal. K-Fresh contended that while Ms Hong may have interpreted the situation as a dismissal, K-Fresh did not take any formal action to terminate her employment. K-Fresh said it viewed dismissal only as a last resort and made genuine efforts to resolve the situation constructively and supportively.

• [40] K-Fresh submitted that this is not a matter where it blatantly disregarded its obligations to Ms Hong who was on parental leave in such a way that the termination of the employment relationship was the probable result. To the contrary, K-Fresh did what it could to facilitate Ms Hong remaining employed in some capacity whilst also navigating the impact of the financial losses on its business. Rather, it seems Ms Hong has misunderstood K-Fresh's obligations and subjectively believed she was entitled by law to be reinstated to her previous role and would not accept otherwise or engage with K-Fresh regarding alternatives. It was also Ms Hong's belief that she was entitled by default to working from home arrangements, which was not the case.

• [41] Therefore, K-Fresh argued, it was Ms Hong's (mistaken) subjective belief that ultimately led to the termination of the employment relationship, which was communicated to K-Fresh on 17 April 2025 when Ms Hong indicated to Mr Bae that she did not wish to return.

• [42] K-Fresh submitted in the alternate that if Ms Hong was dismissed then the dismissal took effect on 17 April 2025 when Ms Hong was informed that K-Fresh would not allow her to return to her previous role.

• [43] Ms Hong's primary submission was that she was dismissed on 23 May 2025 when she received K-Fresh's response to her s.372 application. She submitted that K-Fresh's response stated that the employment relationship had been terminated and her role was no longer available.

• [44] Ms Hong said she accepted what she called the view of the Commission that she had been dismissed. Ms Hong said that as a self-represented applicant with limited legal knowledge, she accepted that assessment.

• [45] Ms Hong argued that K-Fresh's conduct constituted a repudiation of Ms Hong's statutory right under s.84 of the Act to return to her pre-parental leave position or an equivalent role. This repudiation was not merely procedural but substantive, as no genuine alternative was offered during the course of Ms Hong's communications with K-Fresh.

• [46] Ms Hong contended she had been receiving the same kind of promotional advertisements from K-Fresh every week that she had been preparing when she was working in the role prior to parental leave, so she had assumed the role still existed, and that someone had been covering it during her parental leave. Ms Hong stated she did not want to work on the floor or at the cashier because it is not the same level or even the same work as her previous role and does not use her professional skills. She said she had not given any thought to how a different role might look or what alternative arrangements she would be open to, because she was given no reason to expect anything would change before she contacted K-Fresh to make arrangements to return to work following parental leave.

• [47] In any event, Ms Hong submitted that K-Fresh did not formally present her with an alternative role at any time during the discussions. Ms Hong submitted that the new role was not formally offered to her, was inferior in status and pay, and was incompatible with Ms Hong's skills and prior conditions.

• [48] Ms Hong said she had never heard anything about K-Fresh having any financial troubles. She said K-Fresh has just expanded their business to online sales and is also actively recruiting for her role and have advertised for a designer for around 20 hours per week.

• [49] Ms Hong, Mr Bai and Mr Kwan gave evidence and were cross-examined. All three witnesses recognised that the clear agreement between Ms Hong and K-Fresh was that it would take 1-2 months to transition Ms Hong back to work once she was ready to return.

• [50] It is not exactly clear that Ms Hong intended to announce her desire to return to work when she made contact with Mr Kwan in March and April 2025. When she spoke to him she was advised that K-Fresh's financial position had declined and that she would not be able to return to the same arrangements as before.

• [51] Ms Hong was clear to Mr Kwan that she was not happy with the proposed changes. Neither Ms Hong, Mr Bae nor Mr Kwan thought that the conversation about Ms Hong's return to work had finished in April 2025.

• [52] Ms Hong said that she had repeatedly expressed her readiness to return to work. She did indicate several times that she expected to return to her pre-parental leave hybrid arrangement, which K-Fresh had made clear was not possible because of its financial position.

• [53] Because the conditions under which Ms Hong would return had not been resolved, the specific date on which she would return was never agreed or even discussed.

• [54] K-Fresh's submissions at hearing relied upon an objective interpretation of the communications between Ms Hong and K-Fresh, which is a legally sound approach. However, there was no clear single communication that ended the employment. Nobody subjectively thought that the employment had ended in April 2025 and nobody's communication, viewed objectively, ended the employment in April 2025 or earlier.

• [55] By the time Ms Hong made her application under s.365 both parties agreed that the employment had ended. There was, of course, no agreement as to whether the employment had ended at the employer's initiative or by Ms Hong's resignation. The present task is to identify when and how the employment ended.

• [56] There are several possible moments or events at which the employment ended:

(a) when K-Fresh decided to make Ms Hong's pre-maternity leave position redundant on 25 February 2025; or

(b) on 16 April 2025 when Mr Kwan told Ms Hong that the hybrid work arrangement would no longer be available and that Ms Hong's wage would need to be reduced (see [14] above); or

(c) on 17 April 2025 in the SMS exchange between Mr Kwan and Ms Hong when Ms Hong indicated that she did not have any intention to return under the conditions stated by K-Fresh (see [15] above); or

(d) on 22 April 2025 when Ms Hong sent an email "formally outlining [her] position", indicating that "if the company is unable or unwilling to consider a fair and lawful return to work arrangement, [she] will be considering [her] next steps based on the advice received from the FWO" (see [16] above);

(e) after 22 April 2025 when K-Fresh did not respond to Ms Hong's email; or

(f) on 15 May 2025 when Ms Hong made an application under s.372 of the Act asking the Commission to deal with a dispute about an alleged contravention of the general protection provisions not involving a dismissal; or

(g) on 23 May 2025 when K-Fresh filed a response to Ms Hong's application under s.372; or

(h) on 9 June 2025 when Ms Hong discontinued her s.372 application and filed her present application under s.365.

Did the employment end when Ms Hong's position was made redundant?

• [57] K-Fresh said that in February 2025 it decided to make changes to its workforce and decided that Ms Hong's job was not required to be done by anybody. Ms Hong was on parental leave at the time and was not told about this decision, nor was she consulted about the change. This decision by K-Fresh did not, of itself, terminate Ms Hong's employment. Even though K-Fresh made a decision on this day about its ongoing staffing levels, it did not take any steps to terminate the employment relationship, which is understandable given that Ms Hong was on parental leave, with no set time of return. Even though K-Fresh's decision was the first in a series of events that culminated in the end of Ms Hong's employment, the decision itself did not end the employment.

Did the employment end when Ms Hong was told about changes to her position?

• [58] On 16 April 2025 Mr Kwan told Ms Hong that the hybrid work arrangement would no longer be available and that Ms Hong's wage would need to be reduced. No specific details were discussed about Ms Hong's duties if she was to return to work, when Ms Hong would or could return to work or by how much Ms Hong's pay would be reduced. Ms Hong told Mr Kwan that she was not happy with these changes, which is understandable. Mr Kwan agreed to refer the matter to Mr Bae for further consideration.

• [59] Ms Hong and Mr Kwan hit a roadblock early in this conversation that prevented them from progressing to any detailed discussion about Ms Hong's position in the future if she was to return to work. A significant difficulty or tension had emerged in the employment relationship, caused by K-Fresh's decision in February. This difficulty did not need to be resolved immediately because Ms Hong was on parental leave and there was an agreement that if or when Ms Hong returned to work there would be 1-2 months' notice. The difficulty did need to eventually be resolved and Mr Kwan agreed to talk further with Mr Bae. Ms Hong's indication that she would not return to work under those altered arrangements must be understood in the context that there were still more conversations to be had about her return to work.

• [60] Ms Hong's parental leave entitlements added a layer of complexity to the difficulty that had emerged. Ms Hong had sought advice and was, quite understandably, of the view that she was entitled to resume work in her pre-maternity leave position and that any unsatisfactory alterations to those arrangements did not meet the requirements of the parental leave provisions in the Act. Conversely K-Fresh said it was in a difficult financial position and could not afford to continue those pre-maternity leave arrangements but nonetheless wanted to keep Ms Hong in employment because it was very happy with her work.

• [61] Ms Hong's employment was not terminated in this conversation.

Did the employment end in an SMS exchange with Mr Bae?

• [62] Ms Hong confirmed the key points of the conversation in an SMS exchange with Mr Bae. The full exchange is reproduced at [15] above.

• [63] K-Fresh argued that the indication by Ms Hong that she did not have any intention to return to work under the conditions Mr Bae had mentioned amounted to a resignation. I do not agree. The SMS exchange obviously followed on from the conversation between Ms Hong and Mr Kwan, it confirmed what Mr Kwan had told Ms Hong and perhaps added more.

• [64] The exchange between Ms Hong and Mr Bae, viewed objectively, did not bring finality to Ms Hong's employment. Because Ms Hong was on unpaid parental leave at the time, the negotiation/consultation/discussion about Ms Hong's duties and remuneration carried a certain remoteness. Ms Hong was not due to attend work the next day or the next week and, unlike other employment situations, she did not need to make a final call on her employment in that moment, nor did K-Fresh need to make a final call at that time.

• [65] Ms Hong was blunt to Mr Kwan and Mr Bae about her return to work expectations - as she was entitled to be. Some employers 'adjust' working arrangements while employees are away on parental leave, for good reasons or bad, that create obstacles to returning from parental leave. Ms Hong, like many parents, was concerned about the security of her position after her parental leave.

• [66] K-Fresh said its trading position changed for the worst during Ms Hong's absence on parental leave - which may or may not be correct. Such matters go to the reasons for the dismissal if there was a dismissal, and are not matters that I need to decide. Ms Hong was not happy about the proposed changes to her arrangements and she conveyed her unhappiness to her employer as she was entitled to do.

• [67] On an objective view of the SMS exchange, neither party initiated the end of the employment relationship at this time.

Did the employment relationship end on 22 April 2025 when Ms Hong formally outlined her position regarding her return to work?

• [68] Ms Hong did not hear from either Mr Bae or Mr Kwan after the SMS exchange with Mr Bae. On 22 April 2025 she sent an email to K-Fresh's generic email address with the subject line "Request for Resolution - Return to Work Conditions" (see [16] above).

• [69] It is not clear from the evidence whether Ms Hong had a more discrete and respectful way to send an email to Mr Bae. Although the email was highly provocative, I do not see that the email itself caused the end of Ms Hong's employment.

• [70] K-Fresh did not respond to this contentious email at all. K-Fresh said that the email was not noticed amongst the volume of emails sent to that email address. I have chosen not the publish the particular email address but can observe that it was quite clearly a generic address that was accessible to more people than just Mr Bae.

• [71] Viewed objectively the words "if the company is unable or unwilling ... I will be considering my next steps..." did not convey finality but instead indicated that Ms Hong wanted to continue her employment subject to reaching satisfactory terms. If there was any doubt, the words "I genuinely value the time I've spent with the company and hope we can resolve this matter cooperatively and constructively" confirmed Ms Hong's preference.

• [72] On an objective view of the email sent by Ms Hong, the employment relationship did not end at this time.

Did the employment end after 22 April 2025 when K-Fresh did not reply to Ms Hong's email?

• [73] Ms Hong submitted that K-Fresh's failure to respond to her email was itself a dismissal at the initiative of the employer. I do not agree. Ms Hong's email did not issue an ultimatum that required a response by a certain time.

• [74] K-Fresh should have responded to the email promptly. K-Fresh said that the email was missed and that its failure to respond was accidental. K-Fresh also submitted that Ms Hong had never before communicated with Mr Bae through this email account.

• [75] Ms Hong's email referred to the Fair Work Ombudsman and the Fair Work Act and was quite formal and legalistic in its tone. That said, the email was not unduly confrontational or hostile and Ms Hong was well within her rights to say what she said.

• [76] As I have found above, the email itself did not end the employment, nor did it create a situation whereby K-Fresh's silence or failure to respond would or could end the employment.

Did the employment end on 15 May 2025 when Ms Hong made an application under s.372 of the Act?

• [77] Ms Hong said that she made an application under s.372 because she did not receive a reply to her email. K-Fresh submitted that the application to the Commission was an acceptance by Ms Hong that the employment had ended. In her application Ms Hong sought the assistance of the Commission to resolve her complaint and unambiguously asserted that she remained an employee of K-Fresh (see [19] above).

• [78] Ms Hong's action in commencing litigation under s.372 did not bring the employment to an end. Ms Hong's cause of action was not dependent upon her being dismissed. In fact the Commission's limited jurisdiction in relation to applications under s.372 applies only to alleged contraventions not involving a dismissal.

Did the employment end on 23 May 2025 when K-Fresh filed a response to Ms Hong's application under s.372?

• [79] Ms Hong submitted that K-Fresh's response to the application under s.372 brought about the end of the employment, or at least crystalised the fact that the employment had ended.

• [80] There were no words in the response document that indicated that the employer thought that the employment had ended. In fact the employer's response appears to have also assumed that the employment was still on foot. More importantly, none of the words used by K-Fresh in its response could objectively be understood to have ended Ms Hong's employment.

• [81] K-Fresh's response did state that Ms Hong's "position" no longer existed, which is not the same thing as stating that the employment had ended. There is a difference between an employee's position or job being made redundant and the termination of employment because of redundancy. For example, an employer might decide to make a position redundant but nonetheless continue the employment by redeploying the employee to a different position. In that scenario the worker is generally not dismissed if they accept redeployment to a different position.

• [82] On the face of the documents filed in the s.372 proceedings there is no doubt that Ms Hong's original position had become redundant. However both parties expressed a desire to try and reach agreement on an alternative position for Ms Hong so that her employment could continue.

• [83] The filing of the response document by K-Fresh did not end the employment.

Did the employment end on 9 June 2025 when Ms Hong filed her application under s.365?

• [84] After filing the application under s.372 Ms Hong sought clarification from the Commission about whether her employment had ended. In response Ms Hong was encouraged to urgently seek legal advice (see [26] above) outside of the Commission. Ms Hong's further reply indicated that Ms Hong did obtain legal advice and that "it may be more appropriate for my application to be submitted as a General Protections - Dismissal matter" (see [27] above).

• [85] Ms Hong then filed a new application under s.365 claiming that she had been dismissed in contravention of the general protection provisions of the Act.

• [86] If my findings above are correct Ms Hong was still employed and on parental leave immediately prior to making her application under s.365. Ms Hong made her s.365 application on the mistaken belief that she had already been dismissed. Ms Hong's application had the effect of causing K-Fresh to treat Ms Hong as if her employment had ended - which brought the contest to its current state: both parties agree that the employment has ended, and both say it ended at the other's initiative.

• [87] In my view the employment ended when Ms Hong commenced her application under s.365 of the Act. At law the application under s.365 was an acceptance by Ms Hong of K-Fresh's repudiation of her contract of employment. At law Ms Hong was dismissed within the definition in s.386 because the employment is taken to have been terminated on the employer's initiative (per s.386(1)(a)). This conclusion requires some unpacking.

• [88] Ms Hong argued that K-Fresh's conduct constituted a repudiation of Ms Hong's statutory right under s.84 of the Act to return to her pre-parental leave position or an equivalent role. K-Fresh argued that if there was a repudiation by K-Fresh then it would have occurred on 17 April 2025 in the SMS exchange reproduced at [15] above, and would have been accepted by Ms Hong on the same day - making her s.365 application late. Ms Hong's submission is not quite correct on the law because there was no repudiation of a statutory right. K-Fresh's submission is not correct on the facts because there was nothing done by Ms Hong on 17 April 2025 that could be objectively understood to be an election by Ms Hong.

• [89] K-Fresh's decision to make Ms Hong's pre-maternity leave position redundant was a repudiation of Ms Hong's contract of employment. Repudiation of contract in employment can be broadly understood to encompass either (1) a party breaching the employment contact in such a way that the other party is entitled to terminate the contract or (2) a party engaging in conduct that evinces an intention to no longer to be bound by the employment contract, and/or evinces an intention to only fulfil the contract in a manner substantially inconsistent with that party's obligations under the contract (see Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61 at [44], [2007] HCA 61; (2007) 233 CLR 115 at 135-6).

• [90] At common law repudiatory conduct does not terminate the contract of itself (per Visscher v The Honourable President Justice Giudice [2009] HCA 34 at [53]- [55] and [81][2009] HCA 34; , (2009) 239 CLR 361 at 379-381 and 388). A repudiation gives the innocent party the right to elect to terminate the contract. The innocent party is "confronted" by two inconsistent options: either to accept the repudiation and bring about the end of the contract, or to affirm the contract and continue it. The innocent party may "keep the question open, so long as he does not affirm the contract ... and so long as the delay does not cause prejudice to the other side", but ultimately must make an election because the law does not allow a party to maintain two inconsistent rights (or positions) and requires a choice to be made (per Sargent v ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634 at 656).

• [91] If an employer engages in repudiatory conduct, at common law the employee has the right to elect to terminate the employment. If the employee so elects then, for the purposes of s.386(1), the employment is likely to have been terminated at the initiative of the employer. That is, where an employee elects to terminate the employment because of the repudiation by the employer, they are likely to be "a person who has been dismissed" for the purposes of s.386(1) and s.385(a). Importantly, it is only once the employee makes the election to accept the repudiation that the dismissal occurs.

• [92] The complicating factor in this matter is that K-Fresh never provided details of the amended role it intended to offer Ms Hong, for reasons discussed in more detail earlier in this decision. The conversation was ongoing and did not have to be finalised in April 2025 because it was not certain when Ms Hong would return from maternity leave. It was reasonably certain that K-Fresh's intention was that Ms Hong would not continue to provide work for Ms Hong in her previous position in accordance with her contract of employment. It was quite likely, but it was not certain, that the altered position would be substantially inconsistent with K-Fresh's obligations under the original contract of employment.

• [93] The key events that led to the end of the employment relationship, viewed through the prism of the employment contract are as follows:

(a) K-Fresh's decision in February 2025 to make Ms Hong's position redundant had no effect on the contract of employment at the time because Ms Hong was on parental leave and performance under the contract was not due;

(b) from 28 March 2025 until Ms Hong filed her application under s.372, K-Fresh engaged in repudiatory conduct by evincing an intention to no longer to be bound by the contract, and/or an intention to fulfil the contract only in a manner substantially inconsistent with its obligations (particularly in relation to wages and Ms Hong's position).

(c) In this period Ms Hong did not make an election to accept K-Fresh's repudiation or an election to affirm the amended contract. Instead Ms Hong, and to a lesser degree K-Fresh, engaged in dialog about the terms on which K-Fresh was prepared to offer further work once Ms Hong's parental leave had finished, so that Ms Hong could then make an election;

(d) from the commencement until the conclusion of the s.372 application nothing changed insofar as both parties continued to act on the assumption that the employment was ongoing. In making her application to the Commission under s.372 Ms Hong did not make an election to accept the repudiation because the s.372 application did not rely on the contract having ended; and

(e) by making her application under s.365 Ms Hong elected to accept the repudiation of the contract and sue for a remedy.

• [94] The decisive event that brought the employment to an end was the filing of the s.365 application in the Fair Work Commission. Once the s.365 application was filed both parties operated on the assumption that the employment had ended - which meant that the return-to-work conversation was no longer ongoing and there were no more discussions thereafter about the specific terms on which Ms Hong could return to work.

• [95] It is well established that a dismissal has taken place when an employer engages in repudiatory conduct and Ms Hong accepts the repudiation and elects to end the contract. Even though it is the employee's election that brings the contract to an end, the employment has ended at the initiative of the employer.

• [96] For these reasons I am satisfied that Ms Hong was an employee who was dismissed and that her application under s.365 was properly made. The Commission is therefore properly seized with jurisdiction to convene a conciliation conference under s.368.

• [97] K-Fresh's jurisdictional objection is dismissed.

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