s.365 - General protections

Application for the Commission to deal with a general protections dispute involving dismissal - whether dismissed - jurisdictional objection not upheld

• [1] Mr Hong Thang Dinh was employed as a Driver by Foodbank Australia Limited (Foodbank) from 6 September 2010 until 22 January 2024 when he was redeployed into the role of Pick Packer. On 30 June 2025, Mr Dinh's employment came to an end. On 21 July 2025, Mr Dinh applied in time to the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act).

• [2] Applications under section 365 of the Act can only be made by, or on behalf of, a person who has been "dismissed". A person has been dismissed if their employment has been terminated on the initiative of the employer, or they resigned but were forced to do so because of conduct by the employer.[1] Foodbank objects to the application on the basis that Mr Dinh was not dismissed. It says that the employment came to an end by mutual agreement.

• [3] I find that Mr Dinh was dismissed by Foodbank. The jurisdictional objection fails.

• [4] In January 2024, Mr Dinh was involved in an accident while driving at work. Foodbank's Human Resources Manager, Ms Kathy Ikonomidis, told him it was no longer safe for him to work as a truck driver, and that he would be offered alternative work as a Pick Packer in the warehouse. Mr Dinh was not happy about the change because it meant standing all day, compared to driving roles where he could sit in the truck. He asked if he could drive a forklift in the warehouse. The answer was no. Mr Dinh accepted the alternative role as Pick Packer, commenced in the role on 22 January 2024 and signed a revised contract of employment on 25 January 2024.

• [5] The contract of employment is not time limited. It contains three terms of particular relevance to the current dispute. Firstly, it says that Mr Dinh's commencement date in the role of Pick Packer will be Monday 22 January 2024 "with a review date of 30 June 2025" (clause 1.2). Secondly, it provides for termination on notice or without notice in the case of summary dismissal (clause 17). Thirdly, it says (at clause 21):

"This agreement embodies the entire agreement between you and Foodbank with respect to your employment terms and conditions and it supersedes and replaces any prior agreement, arrangement or understanding of any kind between you and Foodbank with respect to its subject matter."

• [6] On 17 April 2025, the parties met to 'review' the contract as contemplated in clause 1.2. Mr Dinh was told that the transition from driving to pick packing had been made to support him in the lead up to his retirement and that Foodbank had agreed to retain him on the books until 30 June 2025. Mr Dinh asked if he could continue working past that date and was told no; that the redeployment to pick packer was an 'act of goodwill' to support his transition to retirement; that they must 'work to the contract'; that his contract would officially end on 30 June 2025; and there were no plans to extend the contract beyond that date. Foodbank says Mr Dinh understood 'the decision' and accepted the outcome. Mr Dinh's acceptance of the outcome of the meeting does not have the necessary consequence that 'the decision' was one made voluntarily by Mr Dinh.

• [7] The meeting of 17 April 2025 is described as the 'critical' exchange leading to a mutually agreed termination of employment. In my view, the critical meeting was that held in January 2024 with Ms Ikonomidis. After that meeting, Foodbank was operating on the understanding that it was supporting Mr Dinh in the warehouse role 'until his retirement on 30 June 2025' due to his long period of service and despite not having the budget for another pick packer. Mr Dinh does not appear to have been operating on the same understanding. The origin of the notion of Mr Dinh's retirement on 30 June 2025 is not established.

• [8] Only Mr Dinh was available to give evidence about what happened in the meeting in January 2024. He denied any discussion of retirement during that meeting. He accepts that the new contract of employment referred to a review date of 30 June 2025 but says he did not read it at the time. He says he first learned that his employment would end on 30 June 2025 in the meeting on 17 April 2025.

• [9] The only evidence that might tend to contradict Mr Dinh's denial is hearsay. There is no written evidence of Mr Dinh's resignation at the time it is said to have occurred. The contract of employment does not provide for the employment to end by effluxion of time. It expressly 'supersedes and replaces any prior agreement, arrangement or understanding of any kind' between Mr Dinh and Foodbank with respect to its subject matter, including in relation to termination of employment. On its terms, any prior understanding for the employment to end on a certain date was displaced by the contract of 25 January 2024.

• [10] When told in April 2025 that his contract would end on 30 June 2025, Mr Dinh asked to continue working longer. His request was refused because they had to 'work to the contract', but the contract said nothing about its cessation on that date.

• [11] The conversations between Mr Dinh and Foodbank after 17 April 2025 do not assist in resolving the question of whether Mr Dinh was dismissed. I accept that Mr Dinh understood by this time that his contract was going to end on 30 June 2025. The source of this understanding was what he had been told in the meeting on 17 April 2025. I am not satisfied that he knew his employment was ending on 30 June 2025 before that meeting.

• [12] Taken together, the evidence does not permit a finding that the employment ended by mutual agreement. On 17 April 2025, Foodbank told Mr Dinh that his contract would end on 30 June 2025 and that there was no alternative option available to him. It follows that the employment was terminated at the initiative of Foodbank. Mr Dinh has been dismissed.

• [13] The matter will now be listed for conference. A notice of listing will issue separately.

Mr N Keats of McNally Jones Staff for the respondent.

[1] Fair Work Act 2009 (Cth), ss 12 and 386.

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