s.365 - General protections

Application to deal with a general protections dismissal dispute - whether dismissed

• [1] Mr Mehmet Kapan worked as a labourer for Architectural Hardwood Joinery Pty Ltd (AHJ) from the week commencing 23 September 2024 until 17 March 2025. On 1 April 2025, Mr Kapan applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). Mr Kapan alleges that he was dismissed in contravention of the general protections after making complaints about not being paid properly and about his leave entitlements.

• [2] An application 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] AHJ objects to the application on the basis that Mr Kapan was not dismissed.

• [3] Although not expressly stated, Mr Kapan's application relies on his being 'dismissed' within the meaning of s.386(1)(a) of the Act (employment terminated on the employer's initiative). Mr Kapan denies that he resigned from his employment with AHJ.

• [4] I find that Mr Kapan was dismissed by AHJ on 17 March 2025. The jurisdictional objection will be dismissed and the matter listed for conference. These are my reasons.

• [5] At 6.50am on 17 March 2025, Mr Kapan returned to work after a week of unpaid leave. He had heard rumours that he was going to be fired. He went upstairs to see the General Manager, Mr Barry Bradley, and asked if his job was "ok". Mr Bradley responded by saying: "it's looking like your last week". Mr Kapan asked why, and Mr Bradley did not respond. They shook hands and Mr Kapan said: "This is a good company".

• [6] Mr Kapan went downstairs to the bathroom and cried. When he came out, he sent a voice message to his father. The message relayed that he had been dismissed from work; that this was his last week; and he had not been given a reason why. Mr Kapan's father responded to the voice recording with his own message. The message instructed Mr Kapan to leave the premises and come; to not stay or do any work.

• [7] Mr Kapan went back upstairs to see Mr Bradley. He asked if he could "quit instead", or "leave now without waiting a week". The precise words are in dispute. If it were necessary to decide, I would prefer the evidence of Mr Bradley on this point and find that Mr Kapan asked if he could "quit instead". Those words make sense of Mr Bradley's subsequent request for a resignation letter (see further below) in a way that the alternative choice of words does not.

• [8] However, it is not necessary to resolve the dispute in the circumstances because it is a matter of semantics. Mr Kapan's words were posed as a question ("can I quit instead" or "can I leave now...") rather than a statement ("I quit" or "I'm leaving"). They were not words directed at bringing an end to the employment relationship but rather at the date on which the employment relationship would come to an end (whether then, or at the end of the week).

• [9] Mr Kapan's understanding that he had already been dismissed had been conveyed earlier to Mr Bradley when, in response to being told it looked like his last week, they shook hands, and Mr Kapan expressed respect for the business. Mr Bradley did not contradict this understanding or seek to provide any assurance to Mr Kapan about continuing in employment beyond the week. I am satisfied on the evidence that there was a mutual understanding between them that Mr Kapan would finish up at the end of the week.

• [10] This understanding changed when Mr Bradley agreed for Mr Kapan to finish up straight away. He asked Mr Kapan to provide a resignation letter. Mr Kapan said he would (although he never did). He went downstairs again, shook everyone's hands, clocked off at 7.40am, and did not return.

• [11] I find that Mr Kapan was dismissed by AHJ. He had no intention of resigning from his employment on the morning of 17 March 2025 and he did not voluntarily leave the employment (except to the extent that he requested an earlier departure). It was AHJ's action in telling Mr Kapan that it was looking like he would finish up at the end of the week that was intended to bring the employment to an end. But for this action, I find that Mr Kapan would have continued in employment beyond that time. The action was the principal contributing factor leading to the termination of the employment relationship. Mr Kapan's employment was terminated at the initiative of AHJ.

• [12] The jurisdictional objection is dismissed.

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

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