s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - no dismissal - objection dismissed - application to proceed to conference.

• [1] This decision deals with the question of whether Mr Roy Rudolfo Tarantein (the Applicant) was "dismissed" within the meaning of the Fair Work Act 2009 (the Act) from his employment with HPI Hotels Pty Ltd (the Respondent) and so eligible to make a general protections application involving dismissal to the Fair Work Commission (the Commission).

• [2] The Respondent objects to the application on the basis that there was no dismissal as defined. With such objection having been made the Commission is required to determine whether the Applicant was dismissed before the application can proceed any further.

• [3] For the reasons set out below, I find Mr Tarantein was "dismissed" within the meaning of the Act

• [4] The objection was the subject of a hearing on Wednesday, 23 July 2025. The Applicant and Respondent represented themselves and their Submissions were filed in compliance with the Directions issued.

• [5] Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal:

"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."

• [6] The term "dismissed" is defined in s.12 of the Act by reference to s.386, which provides the following definition:

(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.

(a) The person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part."

• [7] Section 365 states that if a person has been dismissed, and the person alleges that the dismissal was in contravention of Part 3-1, he or she may apply to the Commission to 'deal with the dispute'.

• [8] The Commission's usual process with general protections matters is to deal with the dispute by conducting a conciliation conference by a staff conciliator. If it is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, the Commission will issue a certificate that allows the Applicant to commence proceedings in a Court (s.368(3)) or by arbitration in the Commission if consent is given by each party (s.369). However, in an application where the Respondent denies that it dismissed the Applicant and objects to the application on this basis, the Commission is required to determine whether the Applicant was dismissed.[1]

• [9] Consistent with the Commission's usual practice on these matters, this matter has been allocated to determine whether or not there was a dismissal.

• [10] The relevant facts are not substantially in dispute.

• [11] The Applicant was employed as a casual hospitality worker. He worked an average two to three days per week for the Respondent.

• [12] On 18 March 2025 the Applicant obtained a medical certificate citing a period of unfitness for work until 2 April 2025. The Medical Certificate relevantly stated that he was being treated for a respiratory condition which the Applicant confirmed was Tuberculosis. The Medical Certificate also noted he was unable to travel due to his medical condition.

• [13] On 19 March the Applicant provided the Medical Certificate to Mr Zhao Liu of the Respondent by way of email. That email relevantly read:

Since I have a health issue, I have been advice to take medicine and take a rest until 2 April 2025 based on government recommendation. Because of that, I would like to ask for sick leave until that time. I also attached the medical certificate of that.

Also, I'd like to confirm whether I can still come to work after that or not?

• [14] On 26 March 2025, the Respondent sent the following email (the Dismissal Email):

Please find attached for your latest payslip and Night Auditor sleeping in the back-office night benefits payment remittance attached.

Regarding your case I've spoken with my Lawyer, Sun Lawyer Pty Ltd www.sunlawys.com.au case no2025/7966, my lawyer advised me

Your position as casual and night auditor working in hospitality industry with currently situation is NOT suitable to services check in guests

So, we strongly recommended your take care of your healthy to get recovered and you are going to looking different jobs somewhere else which is not related

People to People services job can impacting others.

Please return Kirketon Hotel paid your uniforms and badges according to the Hotel Working Policy.

At last, Kirketon Hotel team wish you are all the best in further and having a great healthy in further as well.

• [15] The Respondent submits that there was no dismissal and conceded that "while the language [of the Dismissal Email] may have seemed conclusive, there was no intent to terminate the employment". The language of the Dismissal Email, however, must be considered objectively. The Dismissal Email clearly:

1. Directed the Applicant to return his work uniform and badges;
2. Recommended he look for a different job in an unrelated industry; and
3. Wished him all the best for his future.

• [16] The Applicant was not invited to respond, nor was any alternative arrangement offered. On its plain terms, the Dismissal Email conveyed a unilateral decision to terminate the employment relationship.

• [17] It is well-established that "an employment relationship may be terminated at the employer's initiative even where the employer denies that a dismissal has occurred, if their conduct or communication has the effect of bringing the relationship to an end" (Ayub v NSW Trains).[2] Whatever the Respondent's intention, the effect of the Dismissal Email was to convey that the Applicant's employment could not and would not continue. This constitutes a dismissal within the meaning of s 386(1)(a) of the Act.

• [18] The Respondent appears to rely, in substance, on the Applicant's medical condition as justification for their course of action. The Applicant had submitted a medical certificate indicating that he had tuberculosis and would be unfit for work for a limited period. The Respondent stated that, in a hospitality environment involving close client contact, it was untenable to continue the engagement.

• [19] However, the Commission has previously recognised that "illness or injury does not of itself constitute a valid reason for dismissal unless it goes to the capacity of the employee to perform the inherent requirements of their job", and that any dismissal for incapacity must follow a procedurally fair process (Lion Dairy & Drinks Milk Ltd v Norman).[3] No such process occurred here. The respondent did not seek further medical information, engage in consultation, or explore reasonable adjustments.

• [20] I accept that the nature of the Applicant's illness may have presented operational challenges. However, the Respondent's course of action amounted to a summary and unilateral termination, prompted by perceived inconvenience or risk, without regard to due process.

• [21] I am satisfied that the Applicant was dismissed within the meaning of s 386(1)(a), and the jurisdictional objection must accordingly be dismissed. The matter will now be listed for further conference.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [67]; Lipa Pharmaceuticals Ltd v Marouche [2023] FWCFB 101, [23].

[2] [2022] FWC 518 at [26].

[3] [2016] FWCFB 4211 at [29].

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