Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - whether Applicant dismissed - jurisdictional objection upheld - found that Applicant was not dismissed within the meaning of s 386(1) of the Fair Work Act.

• [1] This decision concerns an application made by Duncan Bruce (the Applicant) on 11 April 2025 in which he asserts that the termination of his employment on 22 March 2025 by Liquorland (Australia) Pty. Ltd. (the Respondent) contravened his workplace rights. The Respondent raised a jurisdictional objection that the Applicant was not dismissed within the meaning of s 386 of the Act in its Form F8A response.

• [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] For reasons given on transcript in proceedings on 7 July 2025, I have found that the Applicant was not dismissed within the meaning of either s 386(1) of the Act. Accordingly, at the time the Applicant made his application, he was not a person who had been dismissed for the purposes of s 365 of the Act. The respondent's jurisdictional objection is therefore upheld, and the application must be dismissed.

• [4] The application is therefore dismissed. An order giving effect to this decision will be separately issued.

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

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