s.365 - Application to deal with contraventions involving dismissal

Cemo Group Pty Ltd trading as CG Recruitment, Coregas Pty Ltd

Application alleging contravention of general protections provisions involving dismissal - jurisdictional objection - whether applicant dismissed - applicant failed to communicate - no dispute before the Commission - absence of jurisdiction - application dismissed

• [1] This decision concerns the issue of whether Mr Jonathon Kirkland (the Applicant) was dismissed within the meaning of that term for the purposes of section 365 of the Fair Work Act 2009 (Cth) (the Fair Work Act).

• [2] The Respondents, Cemo Group Pty Ltd trading as CG Recruitment and Coregas Pty Ltd, say that Mr Kirkland was not dismissed and that accordingly the Commission does not have jurisdiction to deal with this dispute pursuant to section 365 of the Fair Work Act. The Second Respondent also raises a different jurisdictional objection, which it is unnecessary to discuss here.

• [3] For the reasons that follow, I have decided to dismiss Mr Kirkland's application.

• [4] Section 365 of the Fair Work Act provides:

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] Whether someone has been dismissed under the Act is to be determined by reference to sections 12 and 386 of the Fair Work Act. Section 12, the Dictionary, defines the expression 'dismissed' by referring to section 386. Subsection 386(1) reads:

(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.

• [6] Mr Kirkland filed his application on 5 February 2025, under section 365 of the Fair Work Act. His application stated he had been dismissed with effect from 22 January 2025.

• [7] Cemo Group Pty Ltd trading as CG Recruitment (the First Respondent) filed its Response on 20 February 2025. Coregas Pty Ltd (the Second Respondent) filed its response on 19 February 2025.

• [8] I issued directions on 25 March 2025. On 30 May 2025, I issued further directions requiring Mr Kirkland to file his materials by 16 June 2025. Mr Kirkland did not file any materials as required under the further directions of 30 May 2025. On 17 June 2025, my chambers wrote to parties asking Mr Kirkland to explain his non-compliance. Mr Kirkland did not respond to that correspondence. On 8 July, in response to correspondence from one of the Respondents regarding Mr Kirkland's non-compliance, my chambers indicated that the matter was under consideration.

• [9] On 9 July 2025, my chambers sent correspondence by post to the Applicant's residential address. The correspondence enclosed copies of the email from my chambers of 30 May 2025, the further directions of the same date, the email of 17 June 2025, and the email of 8 July 2025. It sought the Applicant's written response within fourteen days. A copy was also sent to the parties by email. My chambers also, subsequently, sent an SMS to Mr Kirkland, a copy of which was also provided to the parties by email. I took these extra precautions in light of information included in the filed materials in relation to Mr Kirkland's health.

• [10] Mr Kirkland has not responded. My chambers has had no contact from him since the matter was allocated to me. He has not discontinued his application.

• [11] In the circumstances, including the absence of any communication from the Applicant at or since the time of the conference, there is no basis to consider that the parties are, or remain, in dispute. Accordingly, the Commission does not have jurisdiction to deal with the application pursuant to section 368 of the Fair Work Act.

• [12] Given this decision it is unnecessary to decide either of the Respondents' jurisdictional objections.

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