s.365 - General protections

Application to deal with contraventions involving dismissal - Jurisdictional objection dismissed - Applicant was dismissed - Application to proceed

• [1] Mr Gregory Rebhandl (Applicant) has filed an application for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal under Part 3-1 of the Fair Work Act 2009 (Cth) (Act). The respondent is Granbasi Pty Ltd (Respondent).

• [2] Section 365 of the Act sets out when the Commission can deal with a general protections application involving dismissal as follows:

"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."

• [3] The Respondent has raised a jurisdictional objection to the application, alleging that the Applicant was not dismissed. A hearing in relation to the matter was held on 5 March 2025 and this decision deals with the jurisdictional question as to whether the Applicant was dismissed.

• [4] The Applicant commenced employment with the Respondent on 6 April 2021[1] as a mechanic.[2]

• [5] On 27 April 2023, the Applicant was injured at work[3] and on 6 June 2023 the Applicant's doctor assessed his work capacity to be as follows:

• lifting/carrying: up to five kilograms;
• standing tolerance: full capacity;
• sitting tolerance: full capacity;
• bending/twisting/squatting ability: full capacity;
• pushing/pulling ability: five kilograms;

• [6] From 6 June 2023 the Applicant was working for the Respondent for four to five hours a day, five days a week.[5] On 9 September 2023, the Applicant's doctor assessed his lifting/carrying capacity as up to 5.5 kilograms and his pushing/pulling ability as up to 20 kilograms.[6]

• [7] On around 20 August 2024, the Respondent requested that the Applicant transfer to a mechanical foreman role.[7] On 27 August 2024, the Applicant's pain management doctor wrote to the Applicant's treating doctor recommending against a change in the Applicant's role and stated, by way of summary:

• the Applicant had completed his occupational therapy sessions and returned to his usual duties which he could complete as expected;
• the Applicant experiences periodic pain flare-ups;
• the persistent paid had impacted the Applicant's psychological well-being and this had been exacerbated by the Respondent's request for him to change his role;
• he had discussed this matter with the Applicant and explained that, given his ability to perform his usual, pre-injury duties, there was no reason for him to change his role unless he wished to give it a trial;

• • the potential role change may further impact the Applicant's anxiety and depression, potentially leading him to cease work.[8]

• [8] On 11 November 2024 the Applicant incurred a back injury whilst at work.[9] The Applicant's evidence was that he informed his manager, Gary Penyu (Penyu).[10]

• [9] The Applicant returned to work on 13 November 2024 and recorded the details of the injury in the Respondent's injury register.[11] About an hour thereafter Mr Penyu asked the Applicant to attend a meeting with two other managers.[12] The Applicant's evidence was that Mr Penyu said, on a directive from the Respondent's dealer principal Ian Jones (Jones), that the Applicant was to stay at home on "no suitable duties" and to wear casual clothes for the meeting.[13] A meeting was scheduled for 18 November 2024. The Applicant's evidence was that he would have been able to continue his certified hours if not put on "no suitable duties".[14]

• [10] The Applicant attended the meeting on 18 November 2024 in the presence of Mr Penyu, Mr Jones, the Respondent's receptionist and the Applicant's rehabilitation consultant Jie Deng.[15]

• [11] The Applicant alleged that during the meeting: [16]

• Mr Jones said that the Applicant had not responded to a request that he transfer to a mechanical foreman role.
• The Applicant said "You should have been told, through the broker, that two of my doctors have said I can't do that role",
• Mr Jones said to the Applicant:
  • "We can't provide for you anymore and we are letting you go"; and
  • "It is affecting the legal requirements of the dealership. The dealership is exposed to more legal issues and we are letting you go".
• The Applicant asked on what grounds he was being dismissed, and Mr Jones said "I don't have to give a reason".
• The Applicant said "No one at the dealership has any concern about my work".
• Mr Jones said "You don't provide any benefit to us".

• • Mr Jones said twice "we are letting you go" and that the Applicant was terminated.[17]
• • The Applicant asked for a separation certificate and to be paid his entitlements.[18]
• • Mr Jones said that Caroline Clarence (Clarence) would send the Applicant all the legal documents.[19]

• The Applicant was escorted out of the workplace by Mr Penyu.

• [12] The Applicant alleged that on that same day he returned to collect his toolbox and was escorted through the workplace to collect it.[20]

• [13] The Applicant provided a copy of an email from his rehabilitation consultant, Jie Deng, to a person called 'Michelle' in which Jie Deng indicates, by way of summary, that in the meeting on 18 November 2024:

• Mr Jones advised that due to the 'current situation' and no response regarding the Mechanical Foreman role, the suitable duties offered to the Applicant were no longer viable for the business;
• Mr Jones advised of the termination of the Applicant's employment and advised the rehabilitation provider to proceed with a new employment service;
• the Applicant requested an official document confirming that his termination was due to a medical condition and sought payment for annual leave and leave loading;

• • Mr Jones advised that Ms Clarence would organise the documents that were legally required but that Ms Clarence was on leave.[21]

• [14] The Applicant filed a copy of the following text message exchange with Mr Penyu on 19 November 2024:

Mr Penyu: "Hi mate, Vince is looking for keys for Tucson that had windscreen replaced. Job card was in your holder. Any ideas?"

Applicant: "Hey Gary wasn't working the day it got dropped on Thursday or Friday. They were the days I got told to stay home. Also when am I getting the paper work and final pay slip since I was finished up. Are you able to check? Would be great Thank you."

Mr Penyu: "Thanks, I think Ian said with your normal pay. Not 100%"

• [15] On 19 November 2024 the Applicant emailed Ms Clarence stating that he had not received a separation certificate or final pay slip and was wondering when that might be.

• [16] On 23 November 2024 the Applicant sent another email to Ms Clarence requesting that he forward the following communication to Mr Jones as he was unable to get any communication details:

I refer to the workplace meeting that took place in your office at Geissler motors Goulburn with you, Gary (service manager), Khe-Sahn (secretary raking notes of the meeting), Jai my support person from ORS rehabilitation Canberra and myself on 18/11/24.

You have terminated me on that day 18/11/24 and have said in the meeting you are finishing me up on that day.

You did agree to a separation certificate with reasons of medical grounds and unsuitable duties.

I am formally requesting my promised separation certificate with above reasons that are required and my entitlements due including my annual leave with loading as per requirement.

I request a speedy return of what is required on these matters."[22]

• [17] At the time of his application the Applicant:

• had not been provided with a termination letter;
• had not been paid in lieu of notice or other entitlements on termination;
• had not been provided with a separation certificate as he had requested; and

• • had not been rostered or contacted for further work since 18 November 2024.[23]

• [18] Despite this apparent lack of contact since the meeting on 18 November 2024, the Respondent noted that it is currently paying the Applicant a weekly salary.[24] In support of this, the Respondent filed copies of payslips for pay periods between 20 November 2024 and 29 January 2025. This suggests that the Respondent has continued to pay the Applicant's weekly benefits during his period of workers' compensation.

• [19] The Applicant submitted that the Respondent dismissed him effective immediately on 18 November 2024 within the meaning of item 1(a) of s.342 of the Act. [25]

• [20] The Respondent alleges that it has not dismissed him and submitted that there was a miscommunication during the meeting on 18 November 2024 regarding the Applicant and suitable duties. In particular the Respondent submitted that:

• it had offered the Applicant a more suitable role within his capacity but the Applicant declined this offer;
• the offer of suitable duties was withdrawn; and
• based on the Applicant's capacity to work at that time, it was unable to continue to provide a safe working environment.

• [21] There is no evidence of resignation by the Applicant. The question that arises in these proceedings is whether the Applicant's employment with the Respondent was terminated on the Respondent's initiative.

• [22] Mr Jones said the Applicant's employment was not terminated but that "workers' compensation would organise another job for him". Mr Jones said he told the Applicant "we could not keep you there". Mr Jones said the Respondent was "still paying the Applicant until the workers' compensation could find something for him".

• [23] This was contested by the Applicant who asserted that Mr Jones told him his employment was terminated. Mr Jones said he could not recall telling the Applicant that his employment was terminated but did recall telling the Applicant that the Respondent did not have suitable duties for him, that the Respondent would get workers' compensation to organise a job that gave the Applicant suitable duties, and that the Respondent would continue to pay the Applicant under its legal requirements. The Applicant's evidence was that Mr Jones told him, with reference to the rehabilitation provider "he'll go find you work now" and the Applicant had a vocational assessment almost immediately thereafter. The Applicant said he has not had any communication from the Respondent since.

• [24] During the hearing Mr Jones acknowledged that he was "not one hundred percent sure of what was said at the meeting" on 18 November 2024 but that the insurance company's letter suggests that it might have misinterpreted the situation or that he "may have said the wrong thing". Mr Jones also said during the hearing that he told the Applicant that the Respondent:

• could not give him any suitable duties; and
• had "spoken to workers' compensation" who would "be the ones who would try and organise suitable duties for [the Applicant]."

• [25] Mr Jones acknowledged that he had not spoken to the Applicant since 18 November 2024.

• [26] Mr Penyu was the Applicant's manager and was present in the meeting on 18 November 2024. Mr Penyu did not appear as a witness in the proceedings but when the Applicant sent him a text message on 19 November 2024 asking when he would be "getting the paper work and final pay slip since [he] was finished up", Mr Penyu did not seek to clarify what the Applicant meant or that he had not "finished up" but rather responded "Thanks, I think Ian said with your normal pay. Not 100%". It seems likely that Mr Penyu was aware the Applicant had indeed "finished up" following the 18 November 2024 meeting. Jie Deng was also present at the meeting on 18 November 2024 and Jie Deng's email to 'Michelle' suggests that Jie Deng had formed the understanding that the Applicant's employment had been terminated. I also accept that the Applicant had formed the belief that he had been dismissed as evidenced by his follow up communications seeking a separation certificate and payment of entitlements on termination. Despite it being clear that the Applicant believed his employment had ended, there is no evidence of any response by the recipients of those communications that the Applicant's employment had not been terminated.

• [27] It seems likely that during the meeting on 18 November 2024, Mr Jones had formed the view that, following the Applicant's second workplace injury on 11 November 2024 he was unable to perform his role safely and when the Applicant did not accept the alternative role Mr Jones communicated to the Applicant that his employment was terminated. It seems likely that Mr Jones was unfamiliar with the workers' compensation jurisdiction when he did this. As a result, despite Mr Jones having communicated to the Applicant that his employment was terminated, the Respondent has continued to make payments to the Applicant during his period of workers' compensation. While the Respondent may have had a change of mind about the status of the Applicant's employment at some time after the meeting on 18 November 2024, it does not follow that the Respondent can simply retract the termination. In Birrell v Australian National Airlines Commission,[26] Gray J found that the authorities supported the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible and proceeded to say:

"...In principle, this conclusion must be correct. The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice period could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties."

• [28] Gray J did however consider the decision in Martin v Yeoman Aggregates Ltd[27] and contemplated that words uttered in the heat of the moment may be capable of withdrawal where those words are retracted swiftly. However, there is no other evidence that the Respondent's change of mind about his employment status was communicated to the Applicant. To the contrary, Mr Penyu did not seek to correct the Applicant when he indicated that he had been "finished up", he was not provided with suitable duties and there was no communication with him about returning to work following the 18 November 2024 meeting. Despite the Applicant's attempts to try and reach out to Mr Jones and the Respondent, Mr Jones has not spoken to the Applicant since the meeting on 18 November 2024. While the Respondent's post dismissal conduct in continuing to pay benefits to the Applicant whilst he is on workers' compensation creates a complication, it does not change the fact that he was dismissed in the meeting on 18 November 2024 at the Respondent's initiative.

• [29] In these circumstances I find that the Applicant was dismissed on 18 November 2024. The Respondent's jurisdictional objection is therefore dismissed. The application was made within 21 days of the dismissal and the Commission has the power to deal with the dispute pursuant to s.368(1) of the Act. In accordance with s.368(2) a conference will soon be conducted for the purposes of dealing with the dispute (other than by arbitration) wherein the Commission will seek to assist the parties in resolving the dispute by way of mediation or conciliation.

[1] Applicant's Form F8 application, response to q. 1.1.

[2] Applicant's Form F8 application, response to q. 3.1.

[3] Applicant's Form F8 application, response to q. 3.1.

[4] Applicant's Form F8 application, response to q. 3.1 and Attachment 1.

[5] Applicant's Form F8 application, response to q. 3.1.

[6] Applicant's Form F8 application, response to q. 3.1 and Attachment 1.

[7] Applicant's Form F8 application, response to q. 3.1.

[8] Letter from Dr Ramachandran to Dr Godfrey dated 27 August 2024, attached to Applicant's Form F8 application.

[9] Applicant's Form F8 application, response to q. 3.1.

[11] Applicant's Form F8 application, response to q. 3.1; Applicant's Statement.

[12] Applicant's Form F8 application, response to q. 3.1; Applicant's Sattament

[15] Applicant's Form F8 application, response to q. 3.1.

[16] Applicant's Form F8 application, response to q. 3.1.

[20] Applicant's Form F8 application, response to q. 3.1.

[21] Applicant's submissions, Attachment 7.

[22] Applicant's submissions, Attachment 10.

[23] Applicant's Form F8 application, response to q. 3.1.

[24] Applicant's Form F8 application, response to q. 1.2.

[25] Applicant's Form F8 application, response to q. 3.1.

[26] [1984] FCA 378.

[27] (1983) ICR 314.

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