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[2026] FWC 205
General information, not legal advice.
Fair Work Commission
2026-01-27
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
Application to deal with contraventions involving dismissal
[1] On 29 September 2025, Mr Anthony Clark (the Applicant) lodged an application (the Application) in the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act), against Valor and Pride Hospitality Group Pty Ltd (the First Respondent).
[2] The Applicant commenced employment with the Respondent on 2 August 2025. The Applicant claimed to have been dismissed by the Respondent by way of a forced resignation on 13 September 2025.
[3] The Respondent raised the jurisdictional objection to the Application, being that the Applicant was not dismissed.
[4] On 6 November 2025, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions).
[5] On 1 December 2025 my Chambers sent an email of non-compliance to the Applicant as no material had been filed in compliance with the original directions issued. That email relevantly read:
I note the Applicant has not complied with Direction [1] of the Commission's Directions issued on 6 November 2025 (Listing Directions). Please see below Direction:
The Applicant is required to email Chambers by 4:00pm on 3 December 2025 with their submissions and other materials or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.
I draw the parties' attention to Note c) of the Listing Directions, reproduced below:
c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.
[6] On 3 December 2025, in response to the above email, the Applicant refiled his Form F8 and associated attachments. The body of that email read:
1. I, Anthony Clark, file this email and the attachments in compliance with Direction 1 of the Commission's Listing Directions issued 6 November 2025 and the notice of 3 December 2025.
◦ Exhibits being the text-message and email chains between the Respondent's management and myself that relate to the termination of my employment
There is no witness statements or anything as it was all done via text and email
3. The bundle is provided in searchable PDF format, bookmarked and paginated. A identical copy is being contemporaneously emailed to Chambers.Cross.DP@fwc.gov.au with this same covering letter.
4. Should the Respondent or the Commission require the documents in hard-copy or any further particulars, I will provide them within 48 hours of request.
5. I confirm that, to the best of my knowledge, the material filed is complete and accurate and that I rely on it in relation to the jurisdictional objection raised by the Respondent.
6. A week and a half before Mark took me off pay he had found out that me and my fiancée where starting a family and he fired her also her release email is also below
[7] On 3 December the Respondent sent an email which read:
I am the respondent in this matter and acknowledge receipt of the Applicant's email and attachments dated 3 December 2025.
The Commission's Listing Directions required the Applicant to file:
The Applicant has filed only documents previously filed. No actual outline of submissions has been provided addressing the jurisdictional objection raised by the myself.
Paragraph 6 of the Applicant's covering email contains factual allegations unrelated to jurisdiction and appears to be directed toward the merits of an unfair dismissal claim. These matters are not relevant to the determination of whether the application is within jurisdiction.
Without submissions on jurisdiction, I do not have clarity regarding:
o how the attached documents are said to resolve the jurisdictional issues before the Commission
A. The Commission direct the Applicant to file a proper outline of submissions addressing the jurisdictional objection (as required by Direction [1]), within a 24 hour timeframe; or, in the alternative:
B. The Commission determine the Respondent's jurisdictional objection on the existing material, noting the Applicant's continued non-compliance with the Directions.
I see that the applicant has legal representation by sending his material to the previous representative.
I also continue to reserves my position as to costs against the applicant.
[8] The Applicant responded by way of email, noting that all material had been filed and submitted. On 5 December the Respondent sent a further email which read:
The Respondent notes that the Applicant has again not complied with Direction [1] of the Listing Directions issued on 6 November 2025. The Direction required the Applicant to file:
relating specifically to the jurisdictional objection raised by myself.
While the Applicant has filed some documents, the Applicant has:
Provided narrative material concerning the merits of an unfair dismissal claim, which is not relevant to jurisdiction.
The Directions are clear that the Applicant must comply in full, and that non-compliance will not be tolerated.
Given the continued non-compliance, the Respondent respectfully requests that the Commission determine the respondent's jurisdictional objection on the material properly before it.
The applicant has had 3 occasions to produce material against the jurisdictional objection in compliance but has failed to do so.
[9] On 5 December 2025, my Chambers issued the following email:
Deputy President Cross notes the Applicant has not filed submissions or identified how the materials filed relate to the jurisdictional question before the commission.
In those circumstances, subject to further Order, the Applicant will be confined to the materials filed.
The Respondent should file the material it wishes to rely on by 4PM on Monday, 8 December 2025, and the matter will proceed on 19 December 2025
[10] Accordingly, in response to the Directions:
(a) On 3 December 2025, the Applicant re-filed his Form F8 and a bundle of text messages and emails;
(b) On 19 December 2025, the Respondent filed an Outline of Submissions; and
[11] The Hearing of the Application occurred on 19 December 2025.
[12] On 2 August 2025, the Applicant commenced employment with the Respondent as a
Manager. The Applicant's employment was covered by the Hospitality Industry (General) Award 2020 (the Award). The Respondent's director, Mr Mark Smith, offered the Applicant
employment with the Respondent via text message. That text message included the following:
Mate are you interested in a $70k, 38 hour managers position at the Central Bar and Kitchen? Every second weekend off.
[13] The Applicant responded by text message to the Respondent's offer of employment, stating:
I'm happy to start on $70,000 for the first few months, with the understanding that we can revisit and renegotiate for a pay increase after 6 months. I'm comfortable with that arrangement...
[14] The Applicant provided his bank details, superannuation details, and Tax File Number to the Respondent. In doing so, the Applicant confirmed his acceptance of the offer of employment.
[15] After 7.44pm on 12 September 2025, Mr Smith sent a text message to the Applicant informing the Applicant that they would need to have a discussion about the Applicant's rostering. That text stated:
We need to discuss your rostering at The Central Anthony.
Been complaining to staff about 41 hours last week on father's day without considering your 35 and 36 hours previous weeks
Please consider our future conversations about, perhaps on Sunday about your future rostering being stepped back to casual hours.
[16] Later on 12 September 2025, the Applicant provided a response to the above text, which the Applicant defined as a workplace complaint, stating:
Every week I have work over my 38 hours, if not more which you can check it was over 41 hours last week this week I am roster 52 hours every week you pay me for 38
[17] Mr Smith replied to the above text, requesting evidence that the Applicant worked for 52 hours per week and stating:
If you think you have ever worked 52 hours. You must definitely need to work on casual shifts and in addition however from your performance as a manager we will discuss your downgrade to a Grade 2 Level 2 bar staff like the remainder of bar staff and Ayub the new licensee will be our only manager off probation and signing a contract.
We can discuss your casual position on Sunday as Saturday is expected to be a busy full on day
[18] The Applicant provided screenshots of their rosters to Mr Smith, and responded to Mr Smith stating:
Hi, I never agree to casual, I won't be accept a casual position, I have already worked 27 hours this week , So I will send your wrist bank and key and shirts back in ,
I won't be in tomorrow either Mark I don't deserve this kind of disrespect"
[21] Mr Smith replied to the Applicant by stating:
As per your award you will not be paid for a weeks salary
[22] The Applicant replied by text message to Mr Smith stating:
I will forward you my medical certificate which cover it , I didn't resignation [sic] you said you would discuss a casual position from Sunday which I don't accept , so I said
[23] Mr Smith responded to the Applicant, which stated:
Anthony. You resigned. You won't be receiving your last weeks salary for resigning without notice.
Please return all of the companies property please to 51-53 John Street, Singleton, NSW 2330
I will have the accountant make an assessment of your annual leave owing and that will be a final payment in due course.
[24] The Applicant responded to Mr Smith stating:
"You might want to seek advice before with hold pay , no contract sign and the agreement was offer of 70 k with every second weekend off , that I agree to feel free to check your text"
[25] Mr Smith responded to the Applicant stating:
I welcome you to challenge my decision with Fair Work for a resignation with no notice. I don't have any further discussion to have with you, you are no longer an employee on probation for my company that I was offering conversations with you to change your employment arrangements after poor performance as a manger that you refused to enter into and resigned and gave no notice.
We no longer have any further discussions to have.
[26] On 13 September 2025, the Applicant sent an email to Mr Smith. That email included the following:
I would like to clarify a few matters regarding my employment.
Firstly, I want to make it clear that I have not resigned from my full-time position. I also formally reject the casual role that was offered, as this does not reflect the terms of my original employment. From the outset, I made it clear that I would be forwarding the appropriate medical documentation to cover my absence, and that remains the case.
I would also like to point out that my initial offer of employment included every second weekend off, which has not been honoured at any point.
You were the one changing the agreement, and I simply rejected your offer to move me into a casual role. Therefore, yes-in that regard I have quit, effective from Sunday. Please also note that I am unwell and unable to attend work due to medical reasons, which will be supported by medical documentation.
[27] Later on 13 September 2025, Mr Smith provided a response to the Applicant by
The events of your resignation last night was based on your continual closure of the Hotel early and not completing your rostered hours and poor performance as a manager;
1. After you left early at 7.30pm for the second shift in a row I sent you a message to you
stating we needed to organise a time to have a conversation about your rostering and being considering being stepped back into casual hours
2. You then replied that you worked over 38 hours per week, 41 hours last week and rostered for 52 hours every week and was fine about having a conversation
3. I then asked you to produce when you have ever worked 52 hours (of which you have
not!) I then stated to you if you think you are working 52 hours you should consider being
on casual rates as you would be in a better position.
4. I did also inform you based on your performance you could be a casual employee, however rostered as a Grade 2 Level 2 Bar Staff and discuss the position today or tomorrow
5. You replied, that you would never agree to casual, you would not agree to a casual
position, you had already worked 27 years this, So you would send your wrist band
and key and shirts back in and you would not be in tomorrow (today) either and dont
deserve this kind of disrespect. (Strong grounds of resignation without notice). Any medical certificate after this resignation without notice is INVALID and NOT REQUIRED by your former employer.
6. You then claim you will be forwarding a medical certificate. (Resignation had already
[28] A medical certificate dated 13 September 2025 was apparently provided some time on that date. The certificate stated:
Mr Anthony Clark has a medical condition and will be unfit for work from 13/09/2025 to 14/09/2025 inclusive.
[29] The Respondent's jurisdictional objection is that the Commission has no jurisdiction to deal with the s 365 application because the Applicant was not dismissed.
[30] The Respondent contends that the Applicant resigned without notice and the employment was not terminated at the initiative of the Respondent.
[31] The Applicant did not file an outline of submissions addressing the jurisdictional objection.
[32] In circumstances where the Applicant filed no submissions, I have considered the Applicant's position as it can be understood from the Application and the communications he relies upon.
[33] The Applicant contends, in substance, that he did not resign from his full-time employment and that he was effectively terminated when the Respondent sought to move him to a casual role and remove him from the managerial position.
[34] The Applicant asserts that he intended to provide medical documentation covering his absence on 13 and 14 September 2025.
[35] The Respondent submits that the Applicant was not dismissed and resigned voluntarily without notice. The Respondent relies on the SMS message exchanges and email correspondence as establishing that the Applicant resigned before any meeting or performance discussion could occur.
[36] The Respondent submits the Commission should dismiss the application for want of jurisdiction.
[37] Section 365 of the Act permits a person who has been dismissed to apply to the Commission to deal with a dispute if the person alleges the dismissal involved a contravention of Part 3-1. It is well-established that the Commission's jurisdiction under s 365 is conditioned on there having been a dismissal, as defined by the Act.
[38] "Dismissed" is defined in s 386 of the Act, which relevantly provides:
(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.
[39] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Tavassoli), the Full Bench of the Commission conducted a detailed analysis of authorities relating to whether particular resignations constituted dismissal in accordance with either of the aforementioned limbs. After that analysis, the Full Bench provided the following distillation:
[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.
[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.
[40] The question is not whether the parties are in dispute about the end of employment, nor whether either party acted reasonably. The question is whether the employment ended by:
(a) termination at the employer's initiative (s 386(1)(a)); or
(b) a resignation forced by the employer's conduct (s 386(1)(b)).
[42] While the lack of timestamping on the text messages, does not assist in understanding just how quickly events escalated, it is clear that the text messages on 12 September 2025 occurred from 7.44pm on that date until some time later that evening. In that period of time the Applicant went from employed to being considered to have resigned by the Respondent.
[43] The position of Mr Smith was clear. He said to the Applicant:
[44] When the Applicant disputed that he had resigned, Mr Smith responded:
Anthony. You resigned. You won't be receiving your last weeks salary for resigning without notice.
Please return all of the companies property please to 51-53 John Street, Singleton, NSW 2330
I will have the accountant make an assessment of your annual leave owing and that will be a final payment in due course.
[45] There was no attempt at clarification or confirmation with the Applicant after a reasonable time that the Applicant genuinely intended to resign. To the contrary, Mr Smith seized upon the Applicant advising he would not agree to a casual position, and advising that he would send the wrist band, key and shirts back in, as an irreversible resignation.
[46] The Applicant almost immediately advised Mr Smith that he had not resigned, however Mr Smith studiously resisted any revisitation of that which he had determined to be a resignation.
[47] I find that for the above reasons there was a termination of the Applicant at the employer's initiative (s.386(1)(a)).
[48] The Commission's jurisdiction to deal with a s 365 application depends upon the Applicant establishing that he was dismissed within the meaning of s 386 of the Act.
[49] I am satisfied that the Applicant's employment was terminated on the Respondent's initiative within the meaning of s 386(1)(a).
[50] Accordingly, the jurisdictional objection is dismissed.
[1] Transcript PN 39 to 54, and 61 to 67.
Printed by authority of the Commonwealth Government Printer
Mr Anthony Clark
Valor and Pride Hospitality Group Pty Ltd [2026] FWC 205