s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Spinifex IT Global Pty Ltd, Mrs Christina Mulcair

General protections application dealt with by consent under s 369 of the Act - Whether applicant had or exercised workplace rights - Whether applicant was dismissed for making a complaint of inquiry - Employer respondent dismissed the applicant because of concerns about performance - Dismissal not in breach of Part 3-1 of the Act - Application dismissed.

• [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 s 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. In my decision in this matter in Tran v Mulcair & Spinifex IT Global Pty Ltd [2025] FWC 1433, I found that Mr Tran's employment with Spinifex ended on 28 February 2025.

• [3] I am satisfied that I may deal with Mr Tran's dispute by arbitration under s 369 of the Act. I conducted a conference in this matter on 26 May 2025 and issued a Certificate under s 368 of the Act. At the end of the conference, Mr Tran requested that the Commission arbitrate the matter. Mrs Mulcair on behalf of herself and SpinifexIT agreed to the Commission arbitrating the matter. I took the request and agreement to be notification that the parties agreed to the Commission arbitrating the dispute and waived compliance with formal requirements to submit a form regarding consent to arbitration.

• [4] This decision is about whether Mr Tran's dismissal was in breach of the general protections provisions of the Act.

• [5] Mr Tran gave evidence on his own behalf. He provided submissions and witness statements, and also relied on the material that he had filed in the earlier proceedings under matter C2025/2221.

• [6] Ms Christina Mulcair was the first respondent and Spinifex's Global Chief Financial Officer. Ms Mulcair gave evidence on her own behalf and on behalf of Spinifex. The following people also gave evidence on behalf of Spinifex:
  • Ms Diana Jane (DJ) Cudia, Finance Manager;
  • Ms Clarinda (Claire) Chua, Global Financial Controller; and
  • Mr Neil (Nico) Gasendo, Human Resources Associate Director.

• [7] I found all witnesses to be frank, open and honest when giving evidence. Mr Tran answered questions thoughtfully and made appropriate concessions. He did not attempt to give self-serving evidence. There was no significant factual disparity among the witnesses' evidence, and contemporaneous emails and messages corroborated witnesses' evidence.

• [8] Mr Tran started his employment with Spinifex on 9 December 2024. Spinifex is a global software development company. It has employees based in Melbourne, Australia as well as in the Philippines. Mr Tran and Mrs Mulcair are based in Melbourne; Ms Chua, Ms Cudia and Mr Gasendo are based in the Philippines.

• [9] Spinifex employed Mr Tran in the role of full-time Senior Financial Planning and Analysis Analyst. Spinifex had used a recruitment agency to engage Mr Tran on a temporary fixed-term basis for 12 months. Mr Tran was employed to work on a high-risk confidential project, that Spinifex named 'Project B,' as well as usual business finance activities (which it called Business as Usual or BAU).

• [10] Mrs Mulcair gave evidence about why she hired Mr Tran, including his education and employment history and that he had interviewed well. Mr Tran also gave evidence about why he accepted the role, including that it was an opportunity to work with Mrs Mulcair. Relevantly, Mr Tran was aware that the role was for a 12-month fixed term, but with the possibility that it could become permanent.

• [11] Mrs Mulcair assigned various tasks to Mr Tran in September which included him learning how to prepare Spinifex's statutory financial reporting pack and other reports that she described as basic. Mrs Mulcair said "The level [Mr Tran] was able to perform these tasks was lower than I expected."

• [12] In October 2024, as part of his onboarding, Mr Tran travelled with Mrs Mulcair to visit Spinifex's office in Manila, Philippines. They remained there for about 2 weeks. Ms Cudia trained Mr Tran on payroll and employee benefits, and Spinifex's contracts and revenue in the form of structured training sessions (that Spinifex termed 'Knowledge Transfers'). During this trip, Mrs Mulcair received feedback from finance team members about Mr Tran's communication style. The feedback was not positive.

• [13] At the end of October 2024, Mrs Mulcair directed Mr Tran to prepare a short presentation about what he had learned in Manila. Mrs Mulcair formed the view that the presentation lacked detail and was from the perspective of an evaluator or auditor, and did not demonstrate that Mr Tran understood and could undertake the relevant processes.

• [14] In November 2024, Ms Chua, Ms Cudia and another member of the finance team visited Spinifex's Melbourne office so they could work together on Project B. Ms Chua worked in Melbourne from 4 - 22 November; Ms Cudia worked in Melbourne from 4 - 16 November. On 11 November 2024, Mrs Mulcair met with Ms Chua, Ms Cudia and the other finance team member. The diary title for the meeting was "John's Role, Onboarding Plan and Deliverables. By this time, Mrs Mulcair had formed a view that Mr Tran was not ready to work on Project B and she directed him to assist another team.

• [15] While in Melbourne, Ms Cudia provided further Knowledge Transfer sessions to Mr Tran. On 18 November 2024, Ms Cudia had an online meeting to discuss Mr Tran's progress. Ms Cudia's evidence is that she informed Mrs Mulcair that she did not think Mr Tran had absorbed or understood the training sessions, and that he was still confused about his role or did not want to do the tasks.

• [16] On 19 November 2024, Mrs Mulcair emailed Mr Tran. The email subject was: "Your On-the-Job Training and 3-Month Probation." It set out a numbered list of what onboarding had occurred. It also set out what tasks Mrs Mulcair required Mr Tran to perform, and what tasks he needed to understand. The email then set out 3 priorities. In the first priorities section of the email, Mrs Mulcair wrote:

The three-month probation is upon you so I want to make sure you can pass the test to pass your probation.

In the second priorities section of the email, Mrs Mulcair wrote:

In order to pass your probation, you must be able to demonstrate that you can perform this task independently.

• [17] On 29 November 2024, Mrs Mulcair met with Mr Tran to provide him with feedback on his performance. Shortly after the meeting she sent an email that summarised their discussion. It included her observations, many of which were positive, and areas that Mr Tran needed to work on. The overall feedback was:

With 3 months here, John has not established credibility among the team and the team has not established confidence in his ability to deliver tasks assigned to him.

John needs to deliver solid results to prove to the team. And this is urgent.

pondered the decision of whether to extend Mr Trans probation to give Mr Tran more time to demonstrate his competence in performing the role and improve his performance, or alternatively terminate his employment, for several weeks before I made up my mind.

• [18] Mrs Mulcair also discussed her deliberations with Ms Chua in via Slack messaging platform. In those messages, Ms Chua very frankly informed Mrs Mulcair that she did not want Mr Tran on her team, nor did she wish to continue training him. Mrs Mulcair, on the other hand, considered that he should be given a "fair go", more guidance and that there may have been cultural differences underlying how the Philippines team responded to Mr Tran.
• [19] Having formed the view that she wanted to extend Mr Tran's probationary period, Mrs Mulcair arranged for Mr Gasendo to prepare a letter that was sent to Mr Tran on 9 December 2024. Mrs Mulcair and Mr Gasendo met with Mr Tran the following day to discuss the extension. Mr Tran says that he was quite shocked by the extension of his probation because he was not under the impression that any of his performance up until that point was unsatisfactory. Mr Tran did not during that meeting challenge or question the decision to extend his probation.

• [20] In January 2025, Mrs Mulcair directed Ms Cudia to deliver Knowledge Transfer sessions with Mr Tran. Ms Cudia arranged 4 sessions from 16 to 30 January 2025; Mrs Mulcair also attended these sessions. After each session, Ms Cudia set homework for Mr Tran. She formed the view that he did not complete the 'homework' to a satisfactory standard. Mrs Mulcair formed the same view and clearly told Mr Tran this in an email on 24 January 2025. That email also set out her expectations and invited Mr Tran to ask questions of her and Ms Cudia while he was doing the task.

• [21] On 24 January 2025, Mrs Mulcair says she started considering terminating Mr Tran's employment. She sent a message to Mr Gasendo to say that Spinifex would need to give Mr Tran another warning as it was not likely that he would make it. She then directed Mr Gasendo to prepare a final performance warning letter on 31 January 2025. Mrs Mulcair added details to it.

• [22] However, on 11 February 2025, Mrs Mulcair decided that she would terminate Mr Tran's employment and asked Mr Gasendo to change the warning letter to a termination letter. She arranged a meeting with Mr Tran but asked Mr Gasendo to email him the termination letter half an hour prior to the meeting so that he could have time to read and comprehend it. Mrs Mulcair also organised to have Mr Tran's IT access terminated immediately after her meeting with him.

• [23] The meeting on 11 February lasted about 2 hours. Mrs Mulcair told Mr Tran that Spinifex was terminating his employment on performance grounds. Mrs Mulcair also discussed that Spinifex would place Mr Tran on garden leave until 28 February 2025. Mrs Mulcair asked him to return his laptop, and Mr Gasendo confirmed that IT had terminated Mr Tran's access.

• [24] During the termination meeting, Mr Tran said that he had not been allowed to complete the full six months of his extended probation period. Mrs Mulcair recalls that she replied that she had already extended Mr Tran's probation to give him more time to improve. Mr Tran said that he also raised concerns about his deliverables during the termination meeting.

• [25] On 24 February 2025, Mr Tran asked for a reference from Mrs Mulcair. Mrs Mulcair declined but provided a certificate of employment that set out Mr Tran's period of employment and his responsibilities.

• [26] Mr Tran's employment with Spinifex ended on 28 February 2025.

Whether to dismiss the application under s 587

• [27] The Respondent asked me to dismiss the application under s 587(1)(a) of the Act, being that the application had not been made in accordance with the Act against the first and second respondents.

Application against first respondent, Mrs Christina Mulcair

• [28] Mr Tran's applications named Mrs Mulcair as the first respondent. However, he did not make any submissions about a particular case against Mrs Mulcair. Mr Tran naming Mrs Mulcair could be generously understood as an argument that she was involved in the contravention under s 550. None of his submissions nor evidence were directed towards any argument against Mrs Mulcair personally.

• [29] I therefore dismiss Mr Tran's application as it relates to Mrs Mulcair as an individual respondent under s 587 of the Act as not having been properly made nor would it have reasonable prospects of success.

Application against second respondent, Spinifex Effects Pty Ltd

• [30] The respondents' grounds for its request that I dismiss the application against the second respondent (the employer respondent) were that Mr Tran had not
  • properly articulated a claim;
  • properly identified the workplace rights that he relied upon; nor
  • identified the causal connection between the alleged exercises of workplace rights and any adverse action taken by the employer respondent.

• [31] Mr Tran is self-represented. He is entitled to be so. His application and supporting materials were not clearly pleaded nor particularised, but they are not required to be. The respondents referred me to decisions of the courts, including of the Full Court of the Federal Court about the degree of precision that these types of applications require. The Commission is different from a court. The Commission is required to perform its functions in a manner that is quick, informal and avoids unnecessary technicalities, as well as being fair and just, being open and transparent, and promoting harmonious and cooperative workplace relations (see s 577 of the Act). While it is usually a court that determines applications under s 365 of the Act, the Commission has jurisdiction to do so where the parties agree to the Commission arbitrating the matter, as they have done in this case. The Commission may then arbitrate the matter, exercising the powers available to us and in the manner that the Act requires, not in the way that a court may.

• [32] I am of the view that Mr Tran's materials sufficiently argued his case so that the respondents were able to respond to it. I understand Mr Tran's argument to be that he was dismissed in breach of his contractual entitlement for a 12-month fixed term contract. He also alleged that he had exercised a workplace right to make complaints and enquiries about his employment, complaints about the extension of his probationary period and that he had sought a reference after his employment had ended. He pointed to the adverse action that he felt he suffered - the extension of his probation period and ultimately his dismissal - and he alleged that the adverse action was because of his workplace rights.

• [33] I am satisfied that Mr Tran has properly made an application under s 365 of the Act, as he has been dismissed and he alleges the dismissal is in contravention of the general protections' provisions of the Act. I have earlier decided that his application was made within the time required by s 366 of the Act. I decline to dismiss his application under s 587 of the Act.

• [34] Section 340 of the Act says:

(1) A person must not take adverse action against another person:

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

• [35] A Full Bench of the Commission in Keep v Performance Automobiles Pty Ltd [2014] FWCFB 8941 at [14] - [15] said:

The task of the FWC in a consent arbitration proceeding such as this is to determine three factual questions:

(i) Was the employee exercising a workplace right, within the meaning of s.341?

(ii) Did the employer take 'adverse action' against the employee, within the meaning of s.342?

(iii) Did the employer take the adverse action against the employee because of a prohibited reason, or reasons which included that reason?

In the context of this case the applicant bears the onus of establishing that he had exercised a workplace right at the relevant time and that adverse action was taken against him. If so established, the respondent then bears the onus of establishing that the adverse action was not taken because Mr Keep had exercised a workplace right.

• [36] Section 341 of the Act says:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee--in relation to his or her employment.

• [37] Mr Tran's key argument was that he had a workplace right to 12 months of employment with Spinifex based on his fixed term contract. He expressed this a number of ways, including that he had the right to withhold consent to the termination of his employment.

• [38] I am not satisfied that this is a workplace right within the meaning of s341(1)(a) of the Act for 2 reasons. First, the benefit that Mr Tran asserts does not exist and second if he does have those benefits, they are under a contract, which is not a workplace law, workplace instrument or order made by an industrial body.

• [39] Sections 341(1)(b) and (c) are not relevant to this argument.

No contractual entitlement to 12 months of employment

• [40] Mr Tran's contract of employment with Spinifex includes a summary table in clause 1 that sets out the main details of his employment. It includes the following relevant rows:

• [41] The contract also includes clause 11 - Termination of your employment, which provides for a notice period prior to termination in clause 11.1:

• [42] Clause 11.2 provides for notice of termination by either party. Clause 11.3 deals with what the employer may request of an employee during a notice period (such as asking an employee to perform different work than usual, to not attend work, to not have contact with clients or customers, and to assist in a handover of duties). Clause 11.4 provides for termination of employment without notice.

• [43] The contract of employment does not expressly state that either party may terminate it prior to the end of the contract period. However, clause 11.2 can be understood as a clause that allows for termination on notice.

Contract is not a workplace law, workplace instrument or order of an industrial body

• [44] 'Workplace law,' 'workplace instrument' and 'industrial body' are defined in s 12 of the Act as follows:

(b) a court or commission (however described) performing or exercising, under an industrial law, functions and powers corresponding to those conferred on the FWC by this Act; or

(c) a court or commission (however described) performing or exercising, under a workplace law, functions and powers corresponding to those conferred on the FWC by the Registered Organisations Act.

"workplace instrument" means an instrument that:

(a) is made under, or recognised by, a workplace law; and

(ii) digital labour platform operators and employee - like workers; or

(iii) road transport businesses and regulated road transport contractors; or

(iv) persons in a road transport contractual chain.

(c) the Independent Contractors Act 2006 ; or

(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

• [45] A contract of employment is clearly not a workplace law, nor an order of an industrial body.

• [46] The Federal Court in Barnett v Territory Insurance Office [2011] FCA 968 considered whether a contract of employment was a workplace instrument and held that a contract of employment is not a "workplace instrument" for the purposes of s 341(1) of the Act (at [44]).

• [47] Mr Tran asserted that he had workplace rights under s 341(1)(c) as he made the following complaints of enquiries:

• Complaint or inquiry about his job role and priorities;
• Inquiry about his leave entitlements and entitlements relating to mobile phone use;
• Complaints about the extension of his probationary period; and
• Request for a professional reference after his employment ended.

• [48] In order to be a complaint or inquiry that is a protected workplace right within the meaning of s 341, the recent decision of the Full Court of the Federal Court in Alam v National Australia Bank Limited [2021] FCAFC 178 discussed the relevant principles, which I summarise below:

1. A complaint or inquiry must be more than a mere request for assistance, and must show discontent (Alam at [59];
2. But a complaint or inquiry does not need to be formal or expressly identified as a complaint or grievance (Alam at [59]);
3. An employee may make a complaint or inquiry to an external authority or other persons who have the capacity to seek compliance with a legal obligation (for example, a regulator like the Fair Work Ombudsman) (Alam at [65], [96]);
4. An employee may make also make a complaint or inquiry to their employer (Alam at [65]):
5. A complaint is distinct from an inquiry (Alam at [95]);
6. A complaint must be underpinned by a right or entitlement (which can be under a workplace law but could also be under an employment contract) (Alam at [74] - [76]; [96]);
7. The ability to make a complaint or inquiry does not have to be underpinned by an instrument (Alam at [81]; [95]).

• [49] With one exception, I am not satisfied that any of Mr Tran's complaints or inquiries above are complaints or enquiries within the meaning of s 341(1)(c).

• [50] In relation to his inquiries about his job role and priorities, they are no more than requests for information or conversations about his job that would usually occur while performing duties. The evidence does not show that Mr Tran expressed any discontent when he asked about his job or discussed his work priorities with Ms Mulcair or any other member of Spinifex's finance team.

• [51] Similarly, Mr Tran's inquiries about his leave entitlements and entitlements relating to use of his mobile phone were, by his own admission under cross examination, no more than general enquiries. There was no occasion on which he was denied leave if he sought it; rather, there was evidence that on each occasion he requested leave, it was granted. There was no evidence that he complained about any denial of leave or being unable to take leave. Mr Tran said that he was worried about taking leave during probation; this is understandable but he made no related complaints or enquiries about this worry or about how his leave entitlements may have been affected by his probationary period (including the extended probationary period).

• [52] I am of the view that a complaint about the extension of his probationary period could be a workplace right. It is a complaint that is in relation to his employment, arising from a term in his employment contract that provides that his probationary period is 3 months, and for which there is no provision to extend the probationary period. However, there is no evidence that Mr Tran actually made a complaint. Mr Tran said under cross-examination, that he was shocked about the extension but he did not question or challenge it. He also said that he cooperated with the timelines and targets for his further probationary period.

• [53] Last, there is no workplace or other right to a reference and so any inquiry about it would not be a complaint or inquiry within the meaning of s 341(1)(c) of the Act.

Did Spinifex take adverse action against Mr Tran?

• [54] There is no dispute that Spinifex dismissed Mr Tran and that this would be adverse action within the meaning of item 1(a) in the table in s 342 of the Act. I also understand that Mr Tran submits that the extension of his probationary period is adverse action. I am satisfied that the extension of Mr Tran's probationary period on 9 December 2024 was adverse action as it injured him in his employment within the meaning of item 1(b) of the table in s 342. During his probationary period, Mr Tran was subject greater scrutiny, and was only contractually entitled to one week's notice for termination of his employment rather than one month's notice for an employee who was not subject to a probationary period (see clause 11 of the contract of employment. Ultimately, Spinfex provided Mr Tran with one month's notice of termination of his employment. But he could not know at the time of the extension of his probationary period that Spinifex would provide him with the full period of notice of termination.

• [55] As I am not satisfied that Mr Tran had or exercised workplace rights within the meaning of s 341 of the Act, Spinifex do not have to rebut any presumption that the adverse action was taken for the reason of those workplace rights (see s 361).

• [56] For completeness, if Mr Tran had or had exercised his workplace rights, I would be satisfied that the substantial and operative reasons why Spinifex took the adverse action of extending Mr Tran's probation and then dismissing him was performance related, and did not include any reasons relating to his asserted workplace rights.

• [57] The Full Bench in Keep (citation above) said at [48] that the Commission's task is "to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason." The decision-maker necessarily needs to give an explanation and evidence in order to discharge the respondent's onus under s 361 of the Act (but only if the applicant had first established that there was a protected workplace right and adverse action). The Commission must assess the evidence and ascertain the reliability and credibility of any evidence about the reasons for dismissal: (see Keep at [49] - [52]).

• [58] Mrs Mulcair was the sole decision maker in deciding whether to terminate Mr Tran's employment. She discussed her decision with the CEO of Spinifex and a shareholder, but gave clear, persuasive evidence that it was her decision. Mrs Mulcair also gave evidence that she discussed the implementation of the decision with Mr Gasendo, as HR representative. Mr Gasendo recommended a different initial course (to issue a warning), which Mrs Mulcair says she took a period of time to consider and then decided to proceed with termination. Each of Spinifex's witnesses, gave clear and cogent evidence of their contribution to Mrs Mulcair's views about Mr Tran's performance; none gave evidence that contradicted that it was Mrs Mulcair's decision alone.

• [59] I found all witnesses to give open, frank and clear evidence to assist the Commission. I found Mrs Mulcair believable and persuasive. She made no attempt to provide self-serving evidence. Mrs Mulcair provided evidence of the discussions she had with Mr Tran about his performance. Her concerns were well documented and supported by contemporaneous emails and messages on the Slack messaging platform. She was open about her hopefulness for his success with the business when she initially employed him, and the reasons for why she decided to initially extend Mr Tran's probationary period. Mrs Mulcair provided contemporaneous documentation about the discussions she had with Mr Tran about his performance during his employment.

• [60] I am satisfied on the balance of probabilities that Mrs Mulcair was the decision-maker and none of the asserted workplace rights formed a substantive or operative reason for her decision to extend Mr Tran's probationary period, and then dismiss him.

• [61] Last, if Mr Tran's request for a reference could be said to be a workplace right protected by s 341 of the Act, it could not logically form a substantive or operative reason for the employer respondent's decision to extend the probationary period or dismiss the applicant, because Mr Tran's request was made after the dismissal took effect.

• [62] Based on the above, I am not satisfied that Spinifex dismissed Mr Tran in contravention of Part 3-1 of the Act (the general protections provisions). I dismiss Mr Tran's application under s 365 under matter C2025/4848 filed on 26 May 2025.

Ms M Hardinge of Counsel, instructed by Hamilton Locke, with permission, on behalf of the Respondent.

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