s.365 - General protections

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

[1] On the 8 December 2025, Mr Les Kalmar (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 19 November 2025 by Meliian 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 an employee and was therefore 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 his employment within the meaning of s 386 of the Act.

[3] Following allocation of the matter to my Chambers, Directions were issued on 14 January 2025 for the filing of material in relation to the Respondent's jurisdictional objection. The hearing to deal with the jurisdictional objection was listed for 12 March 2026. At the hearing, the Applicant appeared and gave evidence while the Respondent was represented by Ms Ma Cecilia Catanghal - Director of the Respondent, who also gave evidence.

[4] For reasons given on transcript in proceedings on 12 March 2026, I have found that the Applicant was an employee and was dismissed within the meaning of s 386(1) of the Act. Accordingly, at the time the Applicant made his application on 8 December 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 dismissed. The matter will now be listed for a conciliation conference pursuant to s 368 of the Act.

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

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