Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

J & W Momentum Pty Ltd., Mr Xiaofeng (Kelvin) Wan

Application to deal with alleged contravention involving dismissal - objection that applicant not employed by first respondent - whether applicant independent contractor - whether applicant dismissed - application dismissed

• [1] Mr. Geng Geng (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Cth)(Act) alleging that his employment has been terminated by J & W Momentum Pty Ltd (First Respondent) in contravention of the general protections provisions contained in Part 3-1 of the Act.

• [2] The First Respondent has objected to the application on the basis that the Applicant was not employed by them. They say that the Applicant was at all relevant times engaged as independent contractor and therefore could not have been "dismissed" - as that term is defined in s.386 of the Act - by the First Respondent. Further, the First Respondent says that as a matter of fact, the Applicant voluntarily brought the relationship between himself and the First Respondent to an end and for that additional reason, the Applicant was not dismissed for the purposes of s.365 of the Act.

• [3] The Applicant contended that notwithstanding the written contracts that were entered into between himself and the First Respondent on 20 September 2024 and 10 October 2024, he was an employee of the First Respondent. Further, the Applicant maintained that the "Termination of Contract Notice" that he provided in writing to the First Respondent on 15 March 2025 amounted to a "forced resignation" on his part and that consequently he had been dismissed by the First Respondent.

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

365 Application for the FWC to deal with a dismissal dispute

(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.

• [5] The question of whether or not a person who has made an application under s.365 has or has not been dismissed goes to the validity of the application and is a matter that 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]

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

(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.

• [7] As is readily apparent from s.386, in order for there to be a dismissal under that section (and 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 in one or other (or potentially both), of the circumstances described in subsections (1)(a) and (b) of that section.

• [8] The determination of the question of whether the Applicant was an employee or independent contractor would involve an overall assessment of the relationship between the parties and the application of the provisions of s15AA of the Act. Those provisions necessitate a detailed consideration of a range of different factors to determine the real substance, practical reality and true nature of the relationship. The totality of the relationship must be considered. This would include the terms of two written contracts entered into by the Applicant and the First Respondent dated 20 September 2024 and 10 October 2024 respectively and how those contracts were performed in practice over a period of some 6 months.

• [9] On the other hand, the evidence relating to the question of whether there was a dismissal as a matter of fact is relatively confined. It is therefore convenient to deal with the issue of whether the circumstances constituted a dismissal in the first instance. For that purpose, I propose to assume, in the Applicant's favour and without determining the matter, that the relationship between the parties was one of employer and employee and that the Applicant was therefore capable of being dismissed from his 'employment' with the First Respondent.

• [10] The First Respondent is in the business of providing delivery services and Applicant was engaged by them to collect and deliver goods to various customers using a delivery vehicle.

• [11] The evidence relating to how and when the relationship between the parties came to an end was largely uncontentious. The Applicant accepted that he provided by email a notice titled "Termination of Contract Notice" dated 15 March 2025 (Notice) to the First Respondent. The Notice provided that the Applicant was formally terminating the contract between himself and the First Respondent by providing 4 weeks' notice and that the contract would come to an end on 12 April 2025. This was the date that the Applicant said the 'dismissal' took effect in the originating application. The Notice provided, relevantly:

I am writing to formally notify you of the termination of the contract entered into between J&W Momentum Pty Ltd and Geng Geng on 10 October 2024.

In accordance with Clause (sic) of the contract, I hereby provide four weeks' notice of termination. The contract will officially end on April 12, 2025.

During the notice period, I will ensure that all outstanding obligations under the contract are fulfilled, and I am available to discuss any necessary arrangements for a smooth transition. Please let me know if there are any specific tasks or deliverables that need to be addressed prior to the termination date.

Additionally, I would appreciate it if we could finalise any outstanding payments or administrative matters before the contract concludes.

• [12] The Applicant argued that he was 'forced to resign' by the First Respondent. There is no evidence to show the relationship was brought to an end on the First Respondent's initiative[3] and the Applicant did not contend as much.

• [13] In support of his submission that he had been forced to resign the Applicant gave evidence that he had been approached by other employees about problems that they had experienced with the First Respondent, including the withholding of their wages by the First Respondent. The Applicant said that the other employees told him that he should 'be careful' of the First Respondent.

• [14] The Applicant also contended that the First Respondent had sought to 'shift the blame' or responsibility for certain matters from themselves to the Applicant, including the responsibility for vehicle charging and dealing with problems the Applicant had encountered with the charging station. Further, the Applicant said he saw his position advertised before he sent the Notice and said that he feared for his job and felt the First Respondent wanted to replace him. Finally, the Applicant said he experienced discrimination from the First Respondent because of alleged deficiencies with his skills in English and Mandarin and was afraid that he would lose more money if he continued to work with the First Respondent. The Applicant submitted that these factors forced him to resign his employment.

• [15] I have considered the evidence provided by the Applicant that he contends constitute a dismissal through forced resignation. The Applicant provided a brief written statement and oral testimony as well as copies of SMS exchanges between the parties. I am not persuaded that the First Respondent forced the Applicant to resign. The Applicant may have been dissatisfied with or insecure in his working arrangements. He may have felt the First Respondent was taking financial benefits at his expense or that his potential losses might be compounded if he stayed on. But I do not think that the matters referred to by the Applicant either individually or in combination resulted in a forced resignation. I do not think the First Respondent engaged in conduct or a course of conduct with the intention of bringing the employment to an end. Nor do I think that termination of the employment was the probable result of the employer's conduct such that the Applicant had no effective or real choice but to resign.[4]

• [16] On the basis of the evidence before me I conclude that the Applicant decided to bring the relationship with the Respondent to an end of his own volition. He did this by providing the written Notice dated 15 March 2025.

• [17] I conclude that even assuming that the Applicant was in an employment relationship with the First Respondent, the Applicant was not dismissed for the purposes of s.386. It follows that the application was not validly made and must itself be dismissed.

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

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

[3] See Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200], Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769; (2011) 212 IR 248 and Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162.

[4] Bupa Aged Care Australia Pty Ltd v. Tacassoli [2017] FWCFB 3941at [47(2)].

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