s.365 - Application to deal with contraventions involving dismissal

Spinifex IT Global Pty Ltd, Mrs Christina Mulcair

Application to deal with contraventions involving dismissal - Jurisdictional objection (application made out of time) - Date of dismissal - Garden leave - Jurisdictional objection dismissed - Valid application.

This is a decision, delivered orally ex-tempore. It has been edited for readability.

• [1] On 20 March 2025, Mr John Khuong Tran (the applicant) applied to the Fair Work Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (Cth).

• [2] Mr Tran was employed by Spinifex IT Global Pty Ltd (the respondent/employer) as Senior Financial Planning and Analysis Analyst. His employment started on 9 September 2024.

• [3] The parties disagree about the date that Mr Tran's dismissal took effect.

• [4] Both parties agree that Mr Tran was notified of his dismissal on 11 February 2025, by email and during a meeting with Mrs Haiou Jin (also known as Christina Mulcair), Global Chief Financial Officer and Mr Neil Gassendo, Human Resources Associate Director.

• [5] The employer submits that it made a payment in lieu of notice and so Mr Tran's dismissal took effect on 11 February 2025, when he was notified of his dismissal. The employer objected to the application on the grounds that Mr Tran had filed it outside the statutory time limit under s 366(1) of the Act, that is "within 21 days after the date that the dismissal took effect." A dismissal takes effect when employment ends.

• [6] If Mr Tran's dismissal took effect on 11 February 2025, his application filed on 20 March 2025 is 16 days after the end of the statutory time limit. In order for his application to proceed, the Commission must allow a further period. The Commission may allow a further period if satisfied that there are exceptional circumstances taking into account the factors in section 366(2) of the Act.

• [7] If Mr Tran's dismissal took effect on 28 February 2025, his application filed on 20 March 2025 is within the statutory 21-day period and there is no need for the Commission to allow a further period.

• [8] I am of the view that Mr Tran's dismissal took effect on 28 February 2025. Despite the employer's arguments about making a payment in lieu of notice, the dismissal letter is explicit about when Mr Tran's employment will end. The letter says,

"This letter constitutes a notice of termination of probationary employment with SpinifexIT. According to your employment contract, 1 week's notice is required. However considering the circumstances, we will place you on a garden leave starting immediately and SpinifexIT will pay your full salary for February until the 28th of February 2025, at which time, your employment will be terminated."

• [9] If that was not sufficiently clear, SpinifexIT also provided a certificate of employment that records Mr Tran's period of employment as being from 9 September 2024 until 28 February 2025 and provided a separation certificate that also recorded Mr Tran's employment end date as 28 February 2025.

• [10] Payments in lieu of notice and garden leave are not the same thing. When an employee receives a payment in lieu of notice, their employment ends immediately and instead of receiving notice of termination, they receive a payment. When an employee is placed on garden leave, they remain employed until the end of the garden leave but are not required to work. This was Mr Tran's situation.

• [11] As I have concluded that Mr Tran's dismissal took effect on 28 February 2025, his application is validly made under s 366 of the Act.

• [12] As it is an application under s 365 of the Act, I will now conduct a conference to assist the parties to resolve the dispute relating to Mr Tran's allegations that his dismissal was in contravention of the general protections of the Act.

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