s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - whether the Applicant was dismissed - found employment relationship ended on the Applicant's initiative - jurisdictional objection upheld - application dismissed.

• [1] Mr Pantelis Kalantzis (the Applicant) has made an application to deal with contraventions involving dismissal to the Fair Work Commission, pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondents to this application are Cesco Australia Limited (Cesco) and Gary Webster (the Respondents).

• [2] A contravention of s.365 requires a dismissal to have occurred, as defined in s.386. The Respondents in their F8A response form have argued the Applicant does not meet this requirement as they were not dismissed but voluntarily resigned from their employment on 2 July 2025.

• [3] The Applicant maintains he was in fact dismissed.

• [4] The question of whether an Applicant under s.365 has or has not been dismissed goes to the validity of the application and 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]

• [5] Directions were issued for parties to file evidence and submissions on the jurisdictional issue to be heard on 15 September 2025. Both the Applicant and Respondent filed written submissions and supporting material. Mr Kalantzis provided sworn evidence to the Commission and was represented in proceedings by Ms Rosemary Michail (paid agent) who I granted leave to appear.

• [6] The Respondent was represented by Mr Sam Hooper of Australian Industry Group (AI Group). Mr Webster, Ms Storey, Mr Hockley, Mr Cox and Mr Hartley provided witness statements and gave sworn evidence in support of the Respondent's position.

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

365 Application for the FWC to deal with a dismissal dispute

(a) A person has been dismissed; and

(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.

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

(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.

• [9] It is clear from the above, in order for there to be a dismissal under this 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 by one, or the other (or potentially both) in circumstances described by s.386 subsections (1)(a) or (b).

• [10] Mr Kalantzis submits that in a conversation with Mr Hartley on 2 July 2025 he was told in explicit terms that "the product is no longer your concern - pack your shit, you are fired."[3] He says that his managers_,_ Mr Hockley and Mr Cox, were witnesses to this conversation. Mr Kalantzis understood he was terminated because of these remarks by Mr Hartley, and that this decision of the employer was confirmed by Mr Hockley. Mr Kalantzis maintains that at no time did he voluntarily resign from his position. He submits that he packed up his things and left the Cesco's premises the same day he was told he was fired.

• [11] Further supporting this position, Mr Kalantzis identifies that Cesco provided him a separation certificate indicating he had been dismissed and that on multiple occasions after his dismissal he wrote to Cesco claiming to have been dismissed and seeking redress. He submits Cesco never challenged his understanding that he had been dismissed and that on 8 July 2025, Ms Storey confirmed in writing that he had been terminated on 2 July 2025. Furthermore, that up until the filing of its F8A response form the Respondents did not suggest Mr Kalantzis had not been dismissed, despite multiple opportunities to do so.

• [12] In the alternative to a finding he was in fact dismissed, Mr Kalantzis' position is that he was forced to resign, because of the conduct or course of conduct engaged in by his employer.

• [13] In proceedings, Mr Kalantzis accepted that the conversation he engaged in with Mr Cox, Mr Hockley and others on 2 July 2025 was animated and became hostile. He accepts he engaged in "yelling", was "angry" he was not provided the information he wanted and became frustrated. He submits Mr Hockley and Mr Hartley also yelled and became angry at him and that his conversation with Mr Cox, while "animated", remained civil.

• [14] As background, Mr Kalantzis submits he initiated the conversation with Mr Cox on 2 July 2025 because he believed the Respondent's instructions for him to perform modifications on a vehicle were unsafe and contrary to vehicle safety requirements. He raised these concerns with Mr Cox. He sought additional information and wanted to know from the Respondent that what they required him to do was safe. Mr Kalantzis accepts Mr Cox disagreed with him and sought to inform him the Respondent was complying with all its obligations and requirements. Further, that Mr Cox made it clear to him that he was required to undertake the work as directed. Mr Kalantzis was not prepared to do so until the Respondent provided him the vehicle schematics and assurances the modifications were safe.

• [15] Mr Kalantzis made this clear to Mr Cox in their conversation on 2 July 2025 outside the workshop. It was a lengthy conversation that was animated on both sides. Mr Cox wouldn't or couldn't give him the information he required. As the conversation continued, he submits Mr Hockley came out of his office yelling at him. He yelled back and told Mr Hockley he didn't know what was happening. Mr Hartley then came out of the office and started yelling at him. Mr Kalantzis says he told Mr Hartley this concerns product, Mr Hartely's response was to the effect of "this doesn't concern you, the product doesn't concern you, pack your shit."[4]

• [16] Mr Kalantzis says his response to Mr Hartley was "you know what, I think I'd better". He then says he looked at Mr Hockley and said words to the effect of "you know, like, ring me in a couple of days" and Mr Hockley's response was "I probably won't ring."[5]

• [17] Mr Kalantzis's evidence is Mr Harltey terminated him, and Mr Hockley confirmed it. And that after this he started to pack his stuff and left the workplace. Mr Kalantzis submits this took some time as he had a lot of stuff on site and was on a motorbike, identifying he felt the Respondent sought to hurry him into packing up his gear.

• [18] Mr Kalantzis's evidence is that he never had any intention of resigning. He maintains he was dismissed and forced to leave the workplace by the conduct of his employer. He further does not accept his employer, including Ms Storey, ever took steps to suggest to him that he resigned, maintaining "No one queried me... They sacked me and they know they sacked me...".[6]

• [19] The Respondents' position is that Mr Kalantzis resigned from his employment on 2 July 2025 and that he was not forced to do so because of the conduct, or a course of conduct, by his employer. They submit that in a conversation with his manager on 2 July 2025 about purported safety concerns, the Applicant told his employer he "would pack his things and leave".[7] The Respondents submit they understood this to mean that the Applicant was voluntarily resigning from his position. Further, that the Respondents agreed this was the best outcome and that following this remark, Mr Kalantzis proceeded to pack his things, leave the workplace and has not returned.[8]

• [20] It is the Respondents' position that the Applicant was not forced to make this decision by any conduct, or course of conduct of his employer. The Respondents say that they did not take any action with the intent to bring the employment relationship to an end, or any action the probable result of which would be an ending of the employment relationship.[9]

• [21] The Respondents' case is supported by the sworn evidence of Mr Cox, Mr Webster, Mr Hockley, Mr Hartley and Ms Storey.

• [22] Mr Cox's evidence is that he was the workshop supervisor with oversight of Mr Kalantzis' workplace. And that he had a conversation with Mr Kalantzis on 2 July 2025 where he was refusing to work as directed. He accepts Mr Kalantzis wanted to be provided with schematic drawings of a vehicle he was being asked to make modifications to. His position is the Respondents didn't have access to this information and didn't need it to undertake the work it was performing. He accepts the conversation was loud and animated and maintains that Mr Kalantzis made it clear to him during this "chat" that if they couldn't come to an agreement he would leave. His evidence is that at no time did Mr Hockley or Mr Hartley terminate the Applicant.

• [23] Mr Cox's further evidence was that the conversation he had with the Applicant occurred in the car park when people should have been at work. And that Mr Hartley did not have authority to fire anyone in the workshop and his comments to "sort things out" were directed at Mr Hockley.[10] He maintains his recollection of what occurred was the Applicant told him if they couldn't come to an agreement he would leave, and they would never see him again. That they couldn't agree, and Mr Kalantzis left.[11]

• [24] Mr Hockley's evidence is that he became aware of the conversation between Mr Cox and Mr Kalantzis on 2 July 2025 because it was happening in the car park outside the window to his office. This is why he went outside. He accepts that the conversation could be described as "yelling" because it was loud, animated and people were talking over each other trying to be heard.[12] His recollection is that after he told Mr Kalantzis the business was not able to provide him the documents he wanted, Mr Kalantzis said words to the effect of "Well, if you can't do anything then I'll pack my bags. I'll pack up my tools and you won't see me again."[13] Mr Hockley accepts Mr Hartley then joined the conversation and said to him words to the effect of "Y_ou need to stop it... He's got to go."[14]_ Mr Hockley's evidence is that Mr Hartley's comments were not directed at him and that he responded, telling Mr Harltey to mind his own business and that he was dealing with things. Further, that at no time did Mr Hartley terminate the Applicant's employment or have the authority to do so.

• [25] Mr Hockley submits that after Mr Kalantzis told him he was leaving he spent almost two hours in the workshop packing up all his tools. His evidence was that had Mr Kalantzis been dismissed he would have been immediately escorted from the workplace. That from his perspective, Mr Kalantzis resigned from his position. Confirming that later that day when he sent an email to Ms Storey in payroll informing her Mr Kalantzis had resigned, it was his usual practice. In further evidence, Mr Hockley accepted that he did not ask Mr Kalantzis to confirm his resignation or ask it to be put into writing, acknowledging that the only acceptance he offered was verbal, remarking "I'm sorry it's come to this."[15] He denies Mr Kalantzis asked him to call him in a couple of days, adding that when Mr Kalantzis told him he would leave, he accepted this because the business was not going to provide him the information he wanted, and he said he wouldn't work until it was provided so he could move on.[16]

• [26] Mr Hartley's evidence is that he does not have the power to terminate the employment of workshop employees for Cesco and that he did not terminate or tell the Applicant to pack up his stuff or the words otherwise alleged. He maintains he has never had a direct conversation with Mr Kalantzis. His evidence is he became aware of the conversation Mr Cox and Mr Kalantzis were engaged in because it was loud, disruptive and had gone on some 30 or 40 minutes while he was trying to deal with customers. He says he:

"...simply walked out to the car park and told them, 'You need to stop. You need to stop this yelling. I can't have this. I've got people".[17]

• [27] Further, that he "simply wanted them to stop the arguing. It was unprofessional and I had clients in reception, and that's all that I conveyed and then I came back into my office."[18]

• [28] Ms Storey's evidence is that on the 2nd of July at approximately 12.09pm, she received an email from Mr Hockley advising her that Mr Kalantzis had resigned, effective immediately, because - "His position was untenable due to difference between his demands and reality."[19]

• [29] Ms Storey subsequently exchanged emails and phone calls with the Applicant where he made her aware of his concerns and his personal family circumstances and seeking a separation certificate. Ms Storey provided Mr Kalantzis with his separation certificate indicating his employment ended because he was not suitable for the Respondent's work to give him assistance seeking Centrelink payments. She maintains she consistently communicated to Mr Kalantzis her understanding he had resigned on the 2nd of July, as she had been advised by Mr Hockley. Further, that when she emailed Mr Kalantzis confirming he was terminated on 2 July 2025, she did not mean he had been terminated in the legal sense but in a way the company's payroll system recorded an ending of the employment relationship.[20]

• [30] For Mr Kalantzis's application to proceed, I must be satisfied that he has been either terminated at the initiative of his employer or been forced to resigned because of conduct, or a course of conduct, engaged in by his or her employer relevant to the meaning of dismissal set out in s.386.

• [31] I have considered all the evidence and submissions presented by the parties in relation to this application. I accept that both the Applicant and witnesses for the Respondents have endeavoured to provide genuine evidence to the Commission to the extent of their ability and recollection. I acknowledge that as the Applicant identifies he has been adjusting to a recent diagnosis of TNO that has negatively impact him.[21] Despite this being the case, I consider the Applicant has provided an accurate account of what occurred on the 2nd of July from this perspective. From his position, I accept Mr Kalantzis had a genuine belief his employment had ended because he understood Mr Harltley had told him to pack his stuff, and this was confirmed and not disavowed by his manager Mr Hockley.

• [32] I have considered the evidence of Mr Hartley, Mr Cox and Mr Hockley of what occurred on the 2nd of July. I do not draw a negative inference from the fact that Mr Hartley provided his evidence of the Commission only on receipt of the Applicant's contentions. I found Mr Hartley's evidence to be clear, consistent and plausible. It is supported by the evidence of Mr Hockley and Mr Cox. This consistent evidence is that Mr Hartley did not tell Mr Kalantzis to pack his stuff on July 2nd. I accept this to be the case.

• [33] My findings of what in fact did occur in the conversation of 2nd of July is consistent with the evidence of Mr Hartley. He was upset by the conversation that Mr Kalantzis, Mr Hockley and Mr Cox were engaged in and its disruption to the workplace. It was unprofessional and disruptive. Mr Cox left his office and told Mr Hockley in no uncertain terms that the conversation needed to stop, and that he needed to sort things out.

• [34] This does not constitute a dismissal within the meaning s.386 and I do not accept this to be the case.

• [35] Despite this conclusion, from Mr Kalantzis's perspective I accept that he may well have interpreted Mr Hartley's words as being directed at him to leave the workplace. The consistent evidence in this case is that this was a heated, loud and animated conversation. There was lots of yelling. People were trying to talk over each other and be heard.

• [36] Mr Kalantzis accepts he made it clear to Mr Cox he believed the work he was being asked to perform was unsafe, and that he made it clear he would not perform work without the information he was seeking being provided, or some other agreement reached. In doing so, my conclusion is Mr Kalantzis provided a clear ultimatum - give me what I need, or I am leaving the workplace.

• [37] I accept Mr Kalantzis had no intention to resign or leave his job on 2nd July. In these circumstances, the parties were engaged in a heated conversation. They had reached an impasse. Mr Kalantzis had given an ultimatum. This being the case, I find it more probable than not that when Mr Kalantzis heard Mr Hartley demand things be sorted out, he interpreted this to mean he had to leave the workplace. I reach this conclusion because it was the only option to sort things out where the Respondent refused to give him the information he wanted, and he refused to work without it.

• [38] This does not mean, however, that Mr Kalantzis was given no real or effective choice but to resign because of the conduct, or course of conduct of his employer. I do not accept this to be the case.

• [39] The evidence in this case is that it was Mr Kalantzis who initiated the conversation on the 2nd of July with Mr Cox. It was Mr Kalantzis who demanded to be provided with the vehicle schematics and assurances that the modifications he was being instructed to perform were safe or some other agreement be reached. His employer did not initiate this course of conduct or escalate the conversation to an impasse by proposing an ultimatum. These were the actions of Mr Kalantzis.

• [40] Previous decisions of the Commission have considered what is required for an employee to establish they have been forced to resign. In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Bupa),[22] a Full Bench of the Commission examined the relevant authorities at great length and summarised the definition of dismissed under s.386(1) as follows:

"(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable period of time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied her is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was a probable result of the employer's conduct such that the employee had no effective choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element."

• [41] This question was further considered by the Full Court of the Industrial Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd[23] where it said:

"a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship."

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly and important feature is the act of the employer results directly or consequently in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."

• [42] In O'Meara v Stanley Works Pty Ltd,[24] the Full Bench of the Australian Industrial Relations Commission expanded on Mohazab, and stated:

"In our view the full statement of the reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of the Full Benches of this Commission in Pawel and ABB Engineering require that there be some action on the part of the employer which is either intended to bring the employment relationship to an end or has the probable result of bringing the employment relationship to an end.

It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment. Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab.

In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign." (emphasis added)

• [43] I have considered the alternative submissions and evidence from Mr Kalantzis he indicates makes clear he was forced to resign in light of these authorities.

• [44] I am not persuaded that any act or omission of the Respondents forced him resign. I conclude all the participants in their heated conversation have a degree of responsibility for what transpired. None of them behaved in the manner appropriate in the workplace or with the maturity and professionalism required. Most certainly, this is not a conversation that should have persisted to the extent it did and not been ended sooner. As the responsible manager, Mr Hockley failed in this regard.

• [45] Despite this failing, however, it was not the Respondents' who initiated this conversation. Nor is it the case that the evidence indicates it was the Respondents that gave Mr Kalantzis a direction he had to perform work as directed, or face discipline or dismissal. Mr Kalantzis does not make this submission. He accepts he gave Mr Cox an ultimatum. My objective assessment of this evidence is that it does not constitute a dismissal within the meaning of s.386.

• [46] In reaching this conclusion, I have considered the legitimacy of Mr Kalantzis's safety concerns. However legitimate these concerns may be, they do not account for the conduct he engaged in on 2nd July. Rather, I consider the fact these were serious safety concerns relating to vehicle schematics and modifications suggest they could have been more appropriately raised with relevant safety or manufacturing authorities. I do not consider there was anything unreasonable in management's response to Mr Kalantzis's demands that they did not have the information he sought but confirmed the work he was directed to perform was safe.

• [47] I have also considered the significance of the separation certificate Mr Kalantzis was provided and the email he received from Ms Storey indicating he had been terminated. I accept Ms Storey's version of these events and the explanation for the words she used as rational and plausible. While misguided, I do not discern her evidence is anything other than honest. I accept her actions were motivated by a desire to assist Mr Kalantzis. The contemporaneous evidence of the email Mr Hockley sent Ms Storey on 2 July supports this conclusion.

• [48] However, at no stage does the evidence presented point to the Respondents engaging in conduct or a course of conduct with the intention of bringing the employment relationship to an end. Nor does it lead me to conclude that the end of the relationship was the probable result of the employer's conduct such that Mr Kalantzis had no real or effective choice but to resign.

• [49] Considering all the evidence before me, I conclude it was Mr Kalantzis's conduct that resulted in the ending of his employment relationship on 2 July and that he was not dismissed within the meaning of s.386.

• [50] It follows that the application is not validly made and must be dismissed.

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

[2] Grass v Chinese Tennis Association Inc [2021] FWCFB 3443 at [11].

[3] Applicant's Submissions dated 3 September 2025, Digital Court Book ('DCB') p.3.

[4] Transcript of Proceedings on 15 September 2025, PN111-113.

[7] Witness Statement of Ian Hockley, DCB p.20.

[8] Ibid, Witness Statement of Mark Cox, DCB p.45.

[9] Respondent's Outline of Submissions Jurisdictional Objections dated 3 September 2025, DCB p.17.

[22] [2017] FWCFB 3941.

[23] [1995] IRCA 625; (1995) 62 IR 200.

[24] PR973462.

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