s.365 - Application to deal with contraventions involving dismissal

Application to deal with a dismissal dispute under s365 of the Act - jurisdictional objection that there was no dismissal - jurisdictional objection dismissed.

• [1] This is an edited version of a decision I delivered on transcript today.

• [2] On 13 July 2025, Mr Mubarak El-Hassan (Applicant) made a general protections application involving dismissal to the Fair Work Commission, pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application, Vistqual Pty Ltd (Respondent), has objected to the application on the basis of an assertion that the Applicant was not dismissed.

• [3] Evidence was received from the Applicant and Mr Thomas Chambers, the Managing Director of the Respondent. The two evidentiary accounts differ in relation to the question of whether the Applicant was dismissed. Both accounts reference a telephone conversation between the Applicant and Mr Chambers on 23 June 2025. The Respondent also sought to rely on a statutory declaration from the Applicant's manager, Mr Christopher Cameron. As Mr Cameron was not present to give evidence in person, this has affected the weight to be given to his testimony.

• [4] The Commission has before it a chain of email correspondence between the parties sent on 23 and 24 June 2025. In circumstances where the Applicant and Mr Chambers have given different accounts of the conversation they had on 23 June 2025, I consider this email correspondence provides the most persuasive guide as to what occurred. I find that the accounts given by both the Applicant and Mr Chambers on the question of whether there was a dismissal were self-serving, as opposed to having been compellingly probative. As to the contemporaneous correspondence, the Applicant sent an email to Ms Desiree Wasdin and Mr Chambers of the Respondent at 5.40pm on 23 June 2025. The Applicant referenced a telephone call he received from Mr Chambers at 4.16pm that day. Much of the email concerned the workers' compensation claim the Applicant had lodged on 23 June 2025 and it concluded with the following:

"I have sustained an injury while working for Vistqual Pty Ltd also known as Omsco and the pain has escalated both in my neck and shoulder and on the 23rd June i made a decision to leave and rest and get checked by a Dr and request scans as it has become

Unbearable. I'm booked for the 24th and will update with results as appropriate and let you guys know."

• [5] Ms Wasdin sent an email the following morning, at 7.30am on 24 June 2025. This stated:

We are all surprised and disappointed by the outcome of what was meant to

be a very routine training session yesterday, not just Tom.

Your decision to refuse training and abandon your role is no one else's fault

or responsibility. I won't go over all the points you've raised because we all

From my perspective, you were treated with respect and patience by myself

and Tom and have now created many problems for us as you leave the

company. You never mentioned an injury to anyone once returning to work

after the minor fender bender. We have plenty of witnesses to prove that.

Sussen is responsible for payroll and I will make sure any missing days are

• [6] Ms Wasdin followed up with another email sent at 4.51pm on 24 June 2025, which stated:

After failure to complete compulsory training with your manager Chris Cameron,

on 23 June 2025, you have failed to meet the minimum standards required to

maintain employment at Vistqual Pty Ltd t/a OMSCO. You have therefore been

unsuccessful in the role as Driver/Installer under the probationary period and

termination was acknowledged and took effect on 23 June 2025.

All hours worked and annual leave accrued have been paid in full. Any remaining

super will be paid in the next super payment cycle.

All supporting evidence including video, email and text will be presented subject to

We acknowledge that all OMSCO property, including the warehouse key provided

For further information regarding probation periods, please contact Fair Work."

• [7] None of this email correspondence made reference to a resignation. The Applicant concluded his 23 June 2025 email with the advice that he was going to seek medical assistance and would provide an update. Ms Wasdin's second email sent on 24 June 2025 included the subject line "Termination of Employment - Unsuccessful Probationary Period" and made no refence to a resignation. I consider the correspondence exchanged between the parties on 23 and 24 June 2025 provides the most persuasive guide as to what transpired in this case. It is contemporaneous and unfiltered.

• [8] In this case, I consider that on the balance of probabilities the Applicant was dismissed and notified of his dismissal by the email sent by Ms Wasdin at 4.51pm on 24 June 2025. There being no other jurisdictional objections, the matter will, pursuant to s.368 of the Act, proceed to a conference.

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