Fair Work Act 2009

s.365 - General protections

Application under s 365 - jurisdictional objection - application dismissed

• [1] Jeffrey Nudalo has made an application under s 365 of the Fair Work Act 2009 (Act). His former employer, Fikiris Enterprises Pty Ltd (company), objects to the application on the basis that it did not dismiss Mr Nudalo, and because the application was made outside of the 21-day period in s 366(1)(a). I will first determine whether Mr Nudalo was dismissed.

• [2] Peter Fikiris, the company's managing director, gave evidence that on 28 January 2025, Mr Nudalo approached him at work just after 8.00am and said, 'Sir, I need to tell you something.' Mr Fikiris replied, 'Yes, what is it Jeffrey?' Mr Nudalo said, 'Sir, I would just like to let you know that I am resigning as of today.' Mr Fikiris asked Mr Nudalo when he was leaving, and Mr Nudalo said, 'Now, sir'. Mr Fikiris told Mr Nudalo that if he wanted to leave that day, he could do so. Mr Nudalo's evidence was that on 29 January 2025, he attempted to give Mr Fikiris two weeks' notice of resignation, but Mr Fikiris cut him off and said that he could leave. Mr Fikiris strongly denied that he told Mr Nudalo to leave. He said that Mr Nudalo had been an asset to the company and worked hard. He said that later that day he asked other workers whether they had known that Mr Nudalo was thinking of leaving. I prefer and accept the evidence of Mr Fikiris about his conversation with Mr Nudalo that morning. It was clear, consistent and detailed about what Mr Nudalo said on the morning in question.

• [3] Mr Nudalo also contended (evidently, in the alternative to his primary contention that Mr Fikiris dismissed him) that he was forced to resign. In his written submissions, Mr Nudalo said that this was because he had no reasonable alternative because of 'hostile treatment' at work, and because the company did not address workplace safety concerns. But Mr Fikiris said, and I accept, that Mr Nudalo never raised such matters with him. It appears that the relationship between the parties deteriorated after Mr Fikiris refused Mr Nudalo's request that the company cover some $2000 in hospital fees, following which Mr Nudalo made a WorkCover application. But these are not matters that compelled Mr Nudalo to resign. I find that Mr Nudalo freely resigned from the company. He was not dismissed by the company, nor was he forced to resign because of the conduct or a course of conduct of the employer (see s 386).

• [4] As Mr Nudalo was not dismissed, he was not eligible to make an application under s 365, and the application must be dismissed on this basis. It is unnecessary for me to consider the company's second objection that the application is out of time. But had I proceeded to deal with it, I would have upheld that objection: even if, as Mr Nudalo claimed, there was a good reason for the delay and also exceptional circumstances because of representative error, the application nevertheless has no merit, because the applicant was not dismissed. I would therefore have declined to exercise my residual discretion to grant an extension of time.

• [5] Mr Nudalo's application is dismissed.

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