s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - whether the Applicant was dismissed - found employment relationship ended on the employer's initiative - jurisdictional objection dismissed - application to proceed.

• [1] Mr Dennis Gray (the Applicant) has made an application to deal with contraventions involving dismissal to the Fair Work Commission, pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to this application is Flanders Pty Ltd trading as Goose On Chapel.

• [2] A contravention of s.365 requires a dismissal to have occurred, as defined in s 386. The Respondent in its F8A Form has argued the Applicant does not meet this requirement as they were not dismissed because they were a casual employee.

• [3] The Applicant maintains they were in fact dismissed.

• [4] The question of whether an Applicant under s.365 has or has not been dismissed goes to the validity of the application and must be determined in favour of an Applicant before the Commission can proceed to deal with the dispute under s.368 of the Act.[1]

• [5] Directions were issued for parties to file evidence and submissions on the jurisdictional issue, to be heard on 17 September 2025. Both the Applicant and Respondent filed written submissions, witness statements and additional material in support of their positions.

• [6] On review of the material filed, I sought the views on whether the parties required a hearing to examine the evidence presented or were content for the Commission to determine the jurisdictional question on the papers filed. Both parties consented to the Commission determining the question on the papers. This decision records that determination.

• [7] Section 365 of the Act provides as follows:

365 Application for the FWC to deal with a dismissal dispute

(a) A person has been dismissed; and

(b) The person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

• [8] Section 386 of the Act sets out when a person is taken to have been dismissed for the purposes of s.365. It 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.

• [9] It is clear from the above, in order for there to be a dismissal under this section (therefore, a valid application under s.365), there must be a relationship of employment between the parties[2] and the employment must be brought to an end by one, or the other (or potentially both) in circumstances described by s 386 subsections (1)(a) or (b).

• [10] The Respondent's position is Mr Gray was a casual employee. That he was only paid for hours worked, with no written contract and no expectation or commitment to ongoing work.

• [11] In its F8A response, the Respondent indicates that on the 9th of July they informed the Applicant that they would not be offered further shifts due to sudden changes in the Respondent's position. They submit this cessation of shifts was "a consequence of operational and financial changes consistent with the nature of casual employment, rather than a termination for performance, conduct, or any prohibited reason".[3] Further, that at no time was the Applicant dismissed, but that simply "I explained to him I would not be rostering him further due to financial necessity".[4]

• [12] The Respondent's position is that this communication to Mr Gray on the 9th of July does not fall within the meaning of a dismissal in s.386 of the Act. On this basis, they submit application should be dismissed.

• [13] Mr Gray's position is that he commenced working for the Respondent by entering into a verbal agreement on or about 1 May 2025. He accepts that he was casual employee, with no written contract and no guarantee of ongoing work.

• [14] Mr Gray submits that from the end of May he was managing the Respondent's café and working up to 4 days a week. In June, these arrangements changed, and his hours were reduced. On 1st July, he submits his roster was again reduced to 3 shifts a week. On 9th of July, he received a text message from Mr Ellison in the following terms:[5]

I wanted to let you know that I've lost two of my bigger cleaning contracts today, so I'll be stepping back into the shop a few days a week. Because of this, I won't be needing your help at Goose anymore..."

• [15] Mr Gray understood this communication to mean he had been dismissed from his employment. His position is that at no time did he resign or indicate he wished to bring his employment with the Respondent to an end.

• [16] Mr Gray submits he was dismissed because he had raised concerns about the Respondent's financial position and ongoing viability in breach of the General Protections provisions.

• [17] I have set out above what is required for a person to be dismissed within the meaning of s.386 of the FW Act. This includes at s.386(1)(a), that their employment has been ended at the initiative of their employer.

• [18] It is not in contest that on the 9th of July Mr Ellison sent a text message communicating to Mr Gray that he no longer needed him to perform work for the Respondent. This communication is in clear and unequivocal terms.

• [19] Mr Gray understood this communication to be Mr Ellison ending his employment relationship. His reply to Mr Ellison's text message was as follows:[6]

Thanks for the message, and sorry to hear about the contracts - I understand how tough things can get, especially when business shifts fast.

That said, I do want to express that I was pretty surprised by the sudden change. Especially given our chat just yesterday about not wanting to be the kind of person who lets someone go without proper notice, while they are also a casual, on cash."

• [20] Mr Ellison accepts that the next day, out of "goodwill" he apologised to Mr Gray for the short notice and offered him 2 days extra pay which Mr Gray accepted.[7]

• [21] Determining whether a dismissal has occurred within the meaning of s.386 requires the Commission to undertake an objective assessment of the material presented. This is clear in Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Bupa)[8] where a Full Bench of the Commission examined the relevant authorities at great length and summarised the definition of dismissed under s.386(1) 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 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 period of time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer."

• [22] In the present case, the evidence is clear that Mr Gray's employment was ended by the text message sent by Mr Ellison on the 9th of July. I am satisfied this is case and that this constitutes a dismissal within the meaning of the Act.

• [23] I am further satisfied that Mr Gray is entitled to bring his application for relief under the General Protections provisions. His contentions are he was dismissed because he raised concerns about Mr Ellison's potential eviction and financial viability. While Mr Ellison does not accept this is correct, or that this had anything to do with his decision to bring Mr Gray's employment to an end, it is not in dispute Mr Gray raised these issues. These matters are relevant to the General Protections application and for consideration at a s.368 Conference to the program arising from this decision that the parties will be required to attend.

• [24] While not articulated, it seems apparent to me that Mr Ellison's objection rises from an understanding that casual employees are prohibited from bringing an application for relief under the provisions of s.365 because of the nature of their engagement. Such a prohibition exists in certain circumstances relevant to applications under Division 2 - Protection from Unfair Dismissal Provisions at s.382 of the FW Act, where a "person protected is an employee who has completed a period of employment of at least the minimum period."

• [25] These provisions are not replicated in s.365 as set about above.

• [26] Accordingly, the Respondent's jurisdictional objection is dismissed, and the application will be programmed for a s.368 Conference by my Chambers in due course.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591.

[2] See for example Grass v Chinese Tennis Association Inc [2021] FWCFB 3443 at [11].

[3] F8A Employer Response Form at [1.4].

[4] Witness Statement of Brent Ellison - 12 September 2025 at [21] - [24].

[5] Applicant's 'FWC_Evidence_Bundle_Final', p.13.

[7] Witness Statement of Brent Ellison - 12 September 2025 at [12].

[8] [2017] FWCFB 3941 at [47].

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