s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - no dismissal - accidental processing of resignation - jurisdictional objection dismissed

[1] Mr Jonathan Shields (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 27 October 2025. The Applicant claims that adverse action was taken against him by Lifestyle Solutions (Aust) Ltd (the Respondent) in breach of Part 3-1 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed at the employer's initiative under s.386 of the Act.

[3] Section 386(1) of the Act relevantly provides that 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.

[4] This matter is unusual. The Respondent states that the Applicant's termination of employment was a result of an accidentally recording that the Applicant had resigned in the payroll system. The mistake was subsequently rectified, and the Applicant is now back on the payroll.

[5] During the relevant period, the Applicant was not at work. He was on leave with an accepted workers' compensation claim. He was being paid by the Respondent's insurer.

[6] On 24 September 2025, the Applicant received a payment from the Respondent, but when he contacted them, he said no one was able to confirm what the payment was for.

[7] On 6 October 2025, during an appointment with Centrelink where the Applicant reported his income, the Applicant was informed that the payment had been a final employment payment and that his employment had been recorded as having ended on 27 August 2025. The Applicant then called the Respondent's incident response team, who said that, as far as they could see, he no longer worked there. The Applicant also said he tried call the Respondent's HR business partner. It was not clear whether the Respondent's HR partner received that phone call.

Lifestyle Solutions (AUS) Ltd acknowledges that Mr Shields' employment was mistakenly terminated in the payroll system on or around 27 August 2025, recorded as "resignation." However, the Respondent submits that this separation was the result of an administrative and process error, not a deliberate act of dismissal.

[9] The Applicant did not resign. The error occurred because the Respondent's Insurance and Claims officer requested that the Applicant be removed from the Tamworth roster. The Applicant was removed from the roster because the Respondent had been advised that the Applicant was relocating to Queensland and would no longer be living in Tamworth. The request to remove the Applicant from the roster was interpreted by a member of the Respondent's staff as a resignation and was incorrectly processed by a junior staff member without a resignation letter.

[10] Termination at the initiative of the employer requires an act on the employer's part. It is not contested that the resignation was processed by the Respondent, albeit in error. In that sense, the action was deliberate. It was not a computer system error. I have been unable to identify a case involving a similar argument of "accidental termination". I do not accept the argument that administrative errors cannot amount to a dismissal at law. The phrase "at the initiative of the employer" is wide enough to encompass situations where, subjectively, the employer did not intend to bring about the end of employment. For example, s386(1) may apply in circumstances of contractual repudiation where the employer does not provide an express notice of termination and may not have subjectively intended to bring about a termination of employment, but nevertheless does.

[11] If the circumstances were such that the Respondent rectified the administrative error before the Applicant was notified that his employment had been terminated, then my decision would be different.

[12] If the administrative error results in the Applicant being notified that his employment has ended, such that underlying contract has been terminated, then that is a dismissal at law. The Applicant was reinstated after the payroll error, with no loss of income and re-calculated leave accruals. However, for the period between when the Applicant was notified that he had been terminated and when he was reinstated, neither a contract nor an employment relationship existed, in my view.

[13] Of course, the accidental nature of the dismissal means that the Applicant's claim of dismissal in contravention of the Act is unlikely to succeed.

[14] I find that the Applicant was dismissed in accordance with s.386 of the Act.

[15] I note it was not submitted by the Respondent that the application may be out of time.

[16] The payroll mistake was made on 27 August 2025. The application was not lodged until 27 October 2025. However, in this case neither the Applicant nor the Respondent were aware of the dismissal until after 6 October 2025. The Applicant was advised by Centrelink on 6 October 2025 that his employment had been terminated. The Respondent did not become aware of the payroll error until after the general protections claim from the Applicant came through on 27 October 2025.

[17] I note the Full Bench decision in Ayub v NSW Trains [2016] FWCFB 5500:

[17] We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee. There is little support for the existence of any such exception which may be derived from the common law. While it is not inconceivable, as earlier stated, that a contract of employment might expressly provide that it may be terminated by the employer on notice to the employee effective from a time prior to receipt of the notice by the employee, we do not consider for the reasons we have stated that any such contract could be treated as determining the date of effect of a dismissal for the purposes of s 394(2)(a). Termination of employment in accordance with such a provision would be in contravention of s 117(1). Statutory industrial instruments such as modern awards and enterprise agreements could also conceivably allow a date of dismissal which is effectively retrospective (although we are not aware of any which actually do so), but again this could not be treated as determinative of the operation of s 394(2)(a) in a particular case such as to deprive a dismissed employee of the full time period allowed by the provision. In relation to statutory provisions governing public sector employment, we have already noted what was said by the Full Bench in ATO v Wilson about the Public Service Act. We do not consider that such legislation could establish an effectively retrospective date of effect of a dismissal for the purpose of s 394(2)(a) of the FW Act unless that was made clear by express words or by necessary implication. There is no such provision in the Public Service Act as it currently stands... Our conclusion is that, in respect of a dismissal without notice, s 394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt 3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.

[18] In my view, taking into account the Full Bench's comments, which are equally apt to apply to s.366(2), in my view, the application is not out of time. It was first communicated to the Applicant, through Centrelink, on 6 October 2025 that his employment had been terminated. The resignation was processed as a result of an error by a junior staff member, without authority of the delegated decision-maker. The Respondent did not become aware of the error until this claim was lodged. In circumstances where the termination was not communicated to the Applicant until 6 October 2025, and where the Respondent was not aware of the payroll error, the termination did not take effect, in my view, until 6 October 2025.

[19] If I am wrong and the termination took effect on 27 August 2025, then I would find that exceptional circumstances exist and exercise my discretion to order an extension of time. The reason for the delay was because the Applicant did not find out about the dismissal until 6 October 2025 (s.366(2)(a)); the Applicant did not dispute the dismissal prior to that date as he was not aware of it but after becoming aware, the Applicant contacted the Respondent and WorkCover (s366(2)(b)); prejudice to the employer is neutral in my view (s366(2)(c)); the merits of the application are a neutral consideration (s366(2)(d)) and I am unaware of another person in similar circumstances (s366(2)(e)).

The jurisdictional objection is dismissed. I Order accordingly. My Chambers will issue a notice of listing for a conciliation under s.368 of the Act.

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