s.365 - General protections

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

[1] On the 28 October 2024, Meng Wu (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 14 October 2025 by Eig Cash and Carry (Tasmania) 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 21 January 2026, I have found that the Applicant was dismissed within the meaning of s 386(1) of the Act. He was therefore, at the time he made his application on 28 October 2026, a person who had been dismissed for the purposes of s 365 of the Act. The Respondent's jurisdictional objection is therefore rejected. The application will now be programmed for conciliation 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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