s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether Applicant dismissed - jurisdictional objection rejected - Applicant dismissed within the meaning of s 386(1) of the Fair Work Act.

• [1] On the 15 November 2025, Mr Kuan Chunh Huang (the Applicant) lodged an application pursuant to s 365 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment on 2 November 2025 by OJT 399 Pty Ltd (the Respondent) contravened his workplace rights. In its Form F8A response, the Respondent raised a jurisdictional objection to the application, that the Applicant was not dismissed within the meaning of s 386 of the Act.

• [2] The Respondent's jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application.[1] Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s 368 of the Act.[2] Consequently, the issue for determination is whether the Applicant was dismissed from her employment within the meaning of s 386 of the Act.

• [3] For reasons given on transcript in the proceedings on 23 December 2025, I have found that the Applicant was dismissed within the meaning of s 386(1) of the Act. Accordingly, at the time the Applicant made his application on 19 August 2025, he was a person who had been dismissed for the purposes of s 365 of the Act. The Respondent's jurisdictional objection is therefore rejected. A conference was held pursuant to s 368 of the Act, after the Hearings conclusion.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.

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