s.365 - Application to deal with contraventions involving dismissal

Trojan Workforce No.4 Pty Ltd, DHL Express (Australia) Pty Ltd

Application to deal with contraventions involving dismissal

• [1] On 10 June 2025, Mr Sergio Luiz Mirande Lage (the Applicant) filed a general protections application involving dismissal (the Application) to the Fair Work Commission (the Commission) alleging that he was dismissed by Trojan Workforce No.4 Pty Ltd (Trojan) and DHL Express (Australia) Pty Ltd (DHL Express) (jointly the Respondents) in contravention of Part 3-1 of the Fair Work Act 2009 (Cth) (the FW Act).

• [2] On 25 June 2025, Trojan filed a Form F8A - Response to a general protections application involving dismissal, raising a jurisdictional objection on the grounds that the Applicant was not dismissed within the meaning of s.386 of the FW Act. Trojan stated that the Applicant continued to be employed by Trojan on a casual basis.

• [3] On 30 June 2025, DHL Express filed a Form F8A - Response to a general protections application involving dismissal, raising a jurisdictional objection on the grounds that the Applicant was not an employee of DHL Express. DHL Express advised that the Applicant was a labour hire worker employed by Trojan and assigned to DHL Express on a casual basis.

• [4] A Directions Conference was conducted in this matter on 24 July 2025, further to which, Directions were issued for filing of materials by all parties in relation to the Respondents' jurisdictional objections.

• [5] By consent of the parties, the jurisdictional objections are determined on the papers.

"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."

• [7] Section 386 of the FW Act provides the meaning of 'dismissed' as follows:

(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."

• [8] In Coles Supply Chain v Milford,[1] the Full Court of the Federal Court stated:

"To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply. It is also open to a respondent to admit that a dismissal has occurred but dispute that the dismissal took effect within 21 days of the date that the application was filed. Such a dispute may give rise to an issue under s 366(1), involving as it does a question as to whether it is necessary for the FWC to determine whether more time should be "allowed" for the application to be made under s 365. That too is an antecedent dispute, going to the question of whether an application has been made. It is a dispute that must be resolved before the powers conferred by s 368 can be exercised at all."[2]

• [9] As a result of this decision of the Full Court, I am obligated to make findings of fact in determining whether the Applicant has been dismissed before any Certificate can be issued under s.368 of the FW Act.

• [10] The Applicant submitted that he was engaged through a labour hire arrangement but worked under conditions that establish an employment relationship with DHL Express under the "primacy of reality" principle.

• [11] The Applicant submitted that he was employed from July 2021 - November 2022, and from September 2023 - May 2025, with both Trojan and DHL Express.

• [12] The Applicant submitted that he performed duties across two departments:

"• Operations Agent / Freight Handler: Manual handling, loading, unloading, sorting, scanning, freight allocation.

• Administrative Export Officer/Data Entry: Data entry, client communication, customs clearance, flight bookings."

• [13] The Applicant submitted that shift allocation, training, supervision, and task direction were exclusively handled by DHL Express. The Applicant submitted that he used uniforms, DHL Express access cards, DHL Express systems, and attended DHL Express staff events.

• [14] The Applicant submitted that DHL Express required him to complete Workplace Health and Safety, Dangerous Goods, RACA, and ASIC compliance protocols training. The Applicant submitted that these training modules were not "generic Trojan trainings", they were DHL Express mandated and site-specific.

• [15] Whilst DHL Express has objected on the grounds that the Applicant was not their employee, the Applicant submitted that the following elements confirm that an employment relationship existed:

•DHL supervisors scheduled, monitored, and assessed the Applicant's daily tasks.

•Shifts were confirmed directly with the DHL supervisor, not Trojan.

•The Applicant underwent DHL-specific training modules (WHS, SWP, Dangerous Goods, etc.).

•All training was conducted on-site, directed by DHL, and aligned with DHL operational policies.

• The Applicant had personal login credentials to DHL's internal platforms including: OCNT, AULCIM, ECIS, Sherlock, CALMS, and DCVS.

• Regular communication with DHL teams via Microsoft Teams, DHL email, and WhatsApp groups managed by DHL supervisors.

• The Applicant dealt directly with DHL Customs and DHL Asia.

• Participation in team meetings, social events (Go Green Day, End-of-Year parties).

• Despite Trojan issuing payslips, all elements of employment were carried out under DHL's control.

• DHL's attempt to deny the relationship contradicts factual evidence of control, supervision, and integration."

• [16] The Applicant submitted that in light of the following sequence of events, Trojan effected a constructive dismissal of his employment.

• [17] The Applicant submitted that on 21 May 2025, he reported a workplace injury and provided his first certificate of capacity.

• [18] The Applicant submitted that on 27 May 2025, DHL Express informed him, in person and via WhatsApp, that he would no longer be allocated shifts due to an internal investigation.

• [19] The Applicant submitted that on 24 June 2025, Trojan offered him light duties. However, the Applicant submitted that his treating GP issued a Certificate of Capacity stating that he was not able to return, even under modified duties, due to mental health concerns.

• [20] The Applicant submitted that, while a new job placement was still being arranged, the insurer advised that there would not be sufficient time to complete the injury investigation and informed that provisional payments would commence on 8 July 2025.

• [21] The Applicant submitted that on 7 July 2025, a day before the insurer was to commence provisional payments, Trojan declared that it was "not satisfied that the worker had suffered an injury as defined under Section 6 of the Act." The Applicant submitted that this declaration came immediately after he had requested all communications be made in writing, following Trojan attempting to initiate an informal discussion.

• [22] The Applicant submitted that Trojan's intervention had a direct impact on the insurer's decision to deny compensation, even though the insurer had previously acknowledged that there would not be sufficient time to complete an investigation before the scheduled payment date.

• [23] The Applicant submitted that, subsequently, when he requested a formal review on 15 July 2025, the insurer introduced additional and contradictory justifications, including:

"(b) That two different dates of injury had been provided.

(c) That no incident had been reported to the employer at the time."

• [24] The Applicant submitted that these claims are inaccurate and contradicted by documented evidence, including internal communications, witness awareness, and medical records.

• [25] The Applicant submitted that, taken together, these actions or deliberate inactions by Trojan "reflect a pattern of strategic disengagement and procedural interference, ultimately resulting in a de facto termination of the employment relationship, without due process or transparency".

• [26] The Applicant submitted that under the FW Act, ceasing work without clarification or alternative arrangements constitutes a dismissal in 'practical terms'.

• [27] Trojan denied that the Applicant has been dismissed or constructively dismissed. Trojan submitted that all actions taken by it have been lawful, reasonable, and in good faith, consistent with statutory obligations under Western Australian and Commonwealth law.

• [28] Trojan submitted that s.386 of the FW Act defines dismissal as either:

(b) Resignation forced by the employer's conduct.

• [29] Trojan submitted that neither element applies in this matter. Trojan submitted that it has not terminated the Applicant; no termination meeting has occurred, nor has any termination letter been issued. Trojan submitted that the Applicant remains employed but is unable to work due to a non-work-related injury.

• [30] Further, Trojan submitted that the Applicant has not resigned, verbally or in writing.

• [31] Trojan submitted that it has offered the Applicant suitable light duties, however, the Applicant declined this offer. Trojan submitted that the offer of light duties was consistent with its statutory obligations under the Work Health and Safety Act 2020 (WA) and the Workers' Compensation and Injury Management Act 1981 (WA).

• [32] Trojan submitted that it has not engaged in any conduct that would force or encourage a resignation by the Applicant.

• [33] Trojan outlined the following case authorities as being relevant in this regard:

• Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625

• O'Meara v Stanley Works Pty Ltd [2006] AIRC 496

• Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941

• [34] Trojan submitted that the Applicant received a CGU decision notice on 7 July 2025. Trojan submitted that it has no role or influence over CGU's decision-making.

• [35] Trojan submitted that it has fully complied with its obligations as the Applicant's Employer. Trojan submitted that any suggestion of collusion between Trojan and the insurer is baseless, unfounded, misleading, and defamatory.

• [36] Trojan submitted that if the Applicant is dissatisfied with CGU's decision, the review process set out in the decision notice may be followed.

• [37] Trojan maintained that the Applicant has not been dismissed, either actually or constructively.

• [38] Trojan maintained that it has consistently acted in accordance with its legal obligations, including WHS and workers' compensation duties, and has engaged in this process in good faith.

• [39] Trojan submitted that the Applicant's claims, including allegations of collusion and defamatory conduct, are unfounded.

• [40] Trojan requested that the Application be dismissed on the grounds of its jurisdictional objection.

Labour Hire Worker Status and Employment Relationship

• [41] DHL Express submitted that the Applicant was engaged as a labour hire worker through Trojan and, therefore, was never an employee of DHL Express. DHL Express submitted that in accordance with established and relevant legal principles and definitions:

"• The employment relationship exists solely between the Applicant and the labour hire agency, Trojan Workforce. The Applicant was hired and is employed by Trojan Workforce. The employment relationship was between Trojan Workforce and the Applicant; no employment agreement was issued by DHL Express to the Applicant.

• The Applicant acknowledged and accepted the terms and conditions of employment as a casual employee with Trojan Workforce. He receives a 25% casual loading and understands that there is no guarantee of ongoing employment.

• DHL Express acts as the host organisation, contracting with Trojan Workforce for the supply of labour hire workers to perform work at its site.

• While DHL Express exercises day-to-day supervision and operational control over the Applicant while onsite, this does not constitute an employment relationship; it merely reflects direction in the performance of work.

• All remuneration, payment of wages, superannuation, statutory employment obligations, workers compensation insurance and contractual responsibilities remain with Trojan Workforce as the Applicant's employer."

• [42] DHL Express submitted that this distinction is fundamental and consistent with the labour hire model and prevailing workplace laws. DHL Express submitted that as it is not the Applicant's employer, it has no capacity or authority to vary his terms of employment, impose disciplinary action, or terminate his employment.

• [43] DHL Express cited the following in support of this proposition:

"• The Fair Work Act 2009 (Cth) provides the overarching framework for employment rights and protections but recognizes that labour hire workers have an employment contract with the labour hire agency, not the host company.

• The High Court in Personnel Contracting Pty Ltd v CFMEU [2022] HCA 1 clarified that the legal employment relationship is defined primarily by the contract and cannot be overridden simply by day-to-day control exercised by a host organisation. The Court stated that a worker engaged under a contract with the labour hire company remains an employee of that company, notwithstanding supervision or direction by the host.

• Similarly, in Damevski v Giudice (2003) 202 ALR 494 (FCA Full Court) the court distinguished between the formal contract of employment and practical control, establishing that a "rooster" cannot be turned into a "duck" merely by label or external control. This supports DHL's position that operational control does not by itself create an employment relationship."

• [44] DHL Express submitted that the "primacy of reality" principle cited by the Applicant is contextual but must be reconciled with the contract and statutory definitions confirmed in these cases.

• [45] While the Applicant has contended that DHL exclusively controlled and allocated his shifts, DHL Express submitted that the 'reality' of the workplace relationship was as follows:

"• The Applicant was engaged on a casual, as-needed basis through Trojan Workforce to fill gaps caused by staff absences (due to sick leave or resignation) or increased workload due to high shipment volumes. However, there were no fixed or guaranteed hours of work assigned to the Applicant.

• Although the Applicant's average weekly hours ranged from 30 to 38 between 2021 and 2024, particularly during the COVID period, when shipment volumes spiked but his hours declined significantly between January and May 2025. During this period, he worked between 0 and 37.9 hours per week, with an average of approximately 17.1 hours per week. In some weeks prior to the alleged injury, he was not assigned any shifts at all, demonstrating that there was no fixed or continuous engagement.

• Trojan Workforce is notified of shift allocations assigned to the Applicant, in accordance with standard labour hire arrangements.

• In the Applicant's statement, he claimed that his work schedule and shift allocations were exclusively controlled by DHL supervisors using DHL's system, such as UKG. It is important to clarify that UKG is a time and attendance system linked to DHL's payroll. This system is used solely for DHL Express permanent employees and does not include labour hire workers.

• Although Trojan Workforce uses a similar UKG system for time and attendance tracking for its own employees, including the Applicant, it is entirely separate from DHL Express's system. DHL supervisors do not have access to Trojan Workforce's UKG system."

• [46] DHL Express submitted that, as confirmed in the decision of CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting), control over shift allocation is an incident of host supervision but does not translate to a direct employment relationship.

• [47] DHL Express noted that the Applicant claimed he sustained a work-related injury and submitted a Certificate of Capacity to his employer, Trojan, on 21 May 2025, indicating that he was fit for light duties.

• [48] DHL Express submitted that on 22 May 2025, it was formally notified by Trojan of the Applicant's workers' compensation claim for an injury he allegedly sustained while working at the DHL Express site in March 2025.

• [49] DHL Express submitted that according to the Applicant's statement in the document titled 'Host Employer Evidence Dossier', submitted to the Commission on 14 July 2025, he claimed that he was not aware of his rights or the correct processes relating to a workers' compensation claim. However, DHL Express submitted that in his most recent submission, 'Comprehensive Evidence Dossier - Employment Relationship and Post-Injury Conduct', lodged with the Commission on 7 August 2025, the Applicant stated that he verbally reported the incident to his colleagues. DHL Express submitted that there is no written evidence to support this claim.

• [50] DHL Express submitted that the Applicant did not report any injury directly to a DHL Express supervisor or manager, as required by workplace procedures. DHL Express submitted that the Applicant claimed he was unaware of the incident/injury reporting procedures. However, DHL Express submitted that all of its employees and labour hire workers were informed of these procedures through toolbox talks and signed acknowledgments, which clearly state that any injuries must be reported to a supervisor or manager at the workplace. DHL Express filed and relied on toolbox talks signed by the Applicant as confirmation that he was aware of DHL Express's incident reporting requirements.

• [51] DHL Express submitted that it has an obligation to ensure the workplace is safe for all workers, including those engaged through labour hire arrangements.

• [52] DHL Express submitted that it had explored and considered options for suitable light duties within its organisation that the Applicant could safely perform, taking into account his medical restrictions. DHL Express submitted that when no suitable duties are available it provides reasons to the labour hire employer. In this case, DHL Express submitted that it communicated to Trojan that there were no light duties available in the Gateway Operations PM shift. However, on 27th May 2025, when a light duties task became available that aligned with the Applicant's medical restrictions, he was assigned a shift to perform data entry tasks at the Service Centre, due to staff being on sick leave. DHL Express submitted that this complied with its obligations under Work Health and Safety legislation, and its duty of care to ensure the Applicant is fit to safely perform assigned duties and to mitigate any risk that could potentially lead to further injury to the Applicant.

• [53] DHL Express submitted that it fulfilled its Work Health and Safety obligations by offering suitable light duties aligned with the Applicant's medical restrictions, where reasonably practicable.

• [54] DHL Express submitted that it requires all personnel on site including DHL permanent staff, labour hire workers, and independent contractors to complete relevant site-specific inductions, compliance training, and safety protocols. This includes training on Safe Work Procedures (SWP), Work Health and Safety (WHS), required certifications such as Dangerous Goods, RACA (Regulated Air Cargo Agent), requirement of having ASIC (Aviation Security Identification Card), and the correct use of personal protective equipment (PPE).

• [55] DHL Express submitted that as a host employer, it has an obligation to provide a safe workplace, adequate training, access to necessary systems and tools, supervision, and site induction to all labour hire workers. DHL Express submitted that this aligns with the obligations of a Person Conducting a Business or Undertaking (PCBU), whereby DHL Express is responsible for ensuring a safe working environment, safe systems of work, appropriate training and certification, and adequate facilities.

• [56] DHL Express submitted that relevant DHL systems access is granted to labour hire workers to enable them to carry out the tasks for which they have been engaged. It submitted that a 'DHL business email address' may be assigned if their role requires communication with internal or external parties. DHL Express submitted that this access to DHL systems and tools is provided purely as an operational necessity and does not indicate the existence of an employment relationship.

• [57] DHL Express noted that the Applicant has stated that his pay rate was adjusted to align with the DHL Express Enterprise Agreement. DHL Express submitted that the 'Same Job, Same Pay' legislation came into effect on 1 November 2024, which is intended to ensure that labour hire workers receive the same pay as directly employed workers performing the same duties at the same workplace, under certain conditions. DHL Express submitted that it chose to proactively implement the change for all labour hire workers performing roles covered by all DHL Express Australia enterprise agreements since Monday, 25 November 2024.

Distinctions between DHL Permanent Employees and Labour Hire Workers

• [58] DHL Express also relied on clear distinctions between DHL permanent employees and labour hire workers as follows.

• [59] DHL Express submitted that all DHL employees are required to attend a mandatory one-week (five full days) global induction program, the Certified International Specialist (CIS), upon joining the company, held in either Sydney or Brisbane. DHL Express submitted that labour hire workers are not eligible to attend this DHL global induction.

• [60] DHL Express submitted that other training programs only required to be attended by DHL permanent employees include:

• Welcome To My Function - HUB and Gateway
• Welcome To My Function - Network Operations
• Our Customer Promise (Brand Awareness)
• Sanction Screener (e-Learning)
• Containerization Load (e-Learning)
• Containerization Unload (mTW)
• Containerization Supervisor (mTW)
• HMS (Held Management System) (mTW)
• Sustainability Starts With You (e-Learning)
• DPDHL Code of Conduct
• DPDHL Information Security Awareness
• DPDHL Data Protection
• DPDHL Certified Go Green Specialist"

• [61] Further, DHL Express submitted that it offers various sponsored classroom training programs for staff development, process improvement (such as the First Choice program), leadership development (Certified International Management), and global online training programs that are exclusively available to DHL permanent staff. DHL Express submitted that all training records for DHL permanent employees are maintained in DHL's global learning and development system, MyTalentWorld. This system does not apply to labour hire workers.

• [62] DHL submitted that labour hire workers, including the Applicant, are not entitled to benefits provided to DHL permanent staff, such as travel subsidies, health and well-being subsidies, education assistance programs, DHL shipment discounts, leave entitlements, annual leave loading, employee shares purchase scheme and other benefits.

• [63] DHL Express submitted that it celebrates events such as R U OK? Day, Diversity, Equity, Inclusion, and Belonging Week, the 50th Anniversary, International Women's Day, Men's Health Week, at which cupcakes or lunches maybe provided. DHL Express submitted that everyone on site, including labour hire workers and independent contractors, are invited to participate in these events, however, this inclusion does not signify that they are DHL permanent employees.

• [64] DHL Express submitted that in commemoration of its 50th Anniversary, all permanent employees received a gift valued at approximately $250. It submitted that during certain company events, other items such as mugs, towels, and bags may also be distributed to DHL employees. DHL Express submitted that these gifts are provided exclusively to permanent employees; labour hire workers are not entitled to receive such gifts or benefits.

• [65] DHL Express also noted that the global standard performance evaluation process implemented by DHL applies exclusively to its permanent employees, each of whom is subject to individual performance assessment and rating. Labour hire workers are excluded from this evaluation framework and are not subject to performance reviews under this system.

• [66] DHL Express noted that the Applicant has asserted that he was highly involved in DHL staff engagement events, including the year-end party, and claimed that this demonstrated his integration into the DHL workplace culture, consistent with that of a permanent DHL employee. DHL Express submitted that while it does extend invitations to labour hire workers and independent contractors for such year-end events, attendance for these individuals is subject to a fee. These events are provided free of charge to permanent DHL employees. DHL Express confirmed that the Applicant was required to pay $30 to attend the year-end celebration.

• [67] DHL Express noted that the Applicant also claimed that he was nominated as "Employee/Star of the Month". DHL Express submitted that this was incorrect - the recognition received by the Applicant is the "Star of the Month" not "Employee of the Month". DHL Express submitted that there is a clear distinction between the two. DHL Express submitted that it has several formal recognition programs, such as Employee of the Month, Employee of the Quarter, and Employee of the Year, which are granted only to DHL employees, not labour hire workers. It submitted that the "Star of the Month" award, however, is extended to labour hire workers and independent contractors to recognize their contributions. DHL Express noted that the 'Star of the Month' award can be nominated by peers, whereas 'Employee of the Month' and 'Employee of the Quarter' awards are validated and selected by managers.

• [68] DHL Express submitted that the above aligns with the principle in Quest South Perth Holdings Pty Ltd v Fair Work Ombudsman [2015] HCA 45, which confirmed that benefits or facilities provided by a host to support effective work performance do not of themselves create an employment relationship.

Distinction of Personnel Identification - Uniform and ID tag

• [69] DHL Express submitted that the Applicant wore Trojan uniforms bearing the Trojan logo during the engagement period, not DHL uniforms, further highlighting the distinction between labour hire workers and DHL employees.

• [70] DHL Express submitted that there is also a clear distinction in ID tags between DHL permanent employees and labour hire workers or contractors. DHL Express submitted that labour hire workers are issued identification tags that include the letter 'C', denoting their status as contractors or non-DHL employees. In contrast, permanent DHL employees are issued ID tags that do not contain the 'C' designation. DHL Express filed and relied on a photograph of the Applicant's ID tag which contains the 'C' designation.

• [71] DHL Express submitted that it handles shipments globally, including those involving dangerous goods. DHL Express submitted that it is required to adhere to specific aviation rules and regulations when processing all shipments in the warehouse. As such, certifications such as Dangerous Goods (DG) and RACA (Regulated Air Cargo Agent) are mandatory. DHL Express submitted that anyone working in a DHL Express warehouse must hold an ASIC (Aviation Security dentification Card) card. Any personnel without an ASIC card will not be allowed to enter the warehouse. DHL Express submitted that compliance with these requirements is mandatory for all personnel, regardless they are DHL permanent employees or labour hire workers.

Work Health & Safety and Host Employer Obligations

• [72] DHL Express submitted that it consistently complies with its duties under the Work Health and Safety Act by providing a safe workplace with appropriate supervision, training, equipment, and compliance monitoring for all onsite personnel, including labour hire workers.

• [73] DHL Express submitted that, if required, it co-operates with Trojan to manage injury notifications, facilitate investigations and return-to-work processes. DHL Express noted that the Applicant has stated there was an internal investigation conducted by DHL Express. However, DHL Express submitted that the 'investigation' referred to in the SMS correspondence relied on by the Applicant was referring to the investigation conducted by the Applicant's employer, Trojan, not DHL Express.

• [74] DHL Express submitted that responsibility for the assessment and determination of workplace injury claims and workers' compensation entitlements rests solely with the labour hire agency and its insurer, not with DHL Express. DHL Express does not interfere with, nor does it exercise any influence over, the claims process administered by Trojan's insurer.

• [75] DHL Express submitted that it did not terminate the Applicant's employment, as it has no employment relationship with him. DHL Express submitted that the authority to make any such determination resides exclusively with Trojan, the Applicant's employer.

• [76] DHL Express submitted that labour hire workers are generally employed by their agency; therefore, claims of unfair dismissal or termination cannot be maintained against the host employer in the absence of a direct contractual employment relationship. DHL Express submitted that the cessation of shifts or changes to work allocation by DHL Express does not constitute dismissal where the labour hire engagement is managed by the labour hire agency.[3]

• [77] DHL Express submitted that operational control exercised by DHL Express over a labour hire worker does not confer the ability or authority to terminate that worker's employment.

• [78] DHL Express submitted that allegations of constructive dismissal or interference with worker's compensation claim cannot be attributed to DHL Express. Accordingly, the Applicant's claims of dismissal by DHL Express are legally unfounded.

• [79] DHL Express also made submissions in relation to social media posts by the Applicant, noting that he has made posts featuring photographs of himself in front of the DHL Express premises. DHL Express submitted that such posts constitute a breach of its Social Media Policy.

• [80] DHL Express submitted that the Applicant's actions in relation to his social media posts have broken the relationship and trust with the company.

• [81] DHL Express maintained that the Applicant was correctly engaged as a labour hire worker through Trojan, and that DHL Express acted appropriately in relation to its duties as a host employer. DHL Express submitted that the Applicant's claims of dismissal by DHL Express are misplaced and unsupported by the facts and applicable law.

• [82] Both the Applicant and DHL Express elected to file additional supplementary materials outside of the directions in this matter. I have taken these materials into account and afforded them the appropriate weight.

• [83] I have taken into account all of the submissions and evidence of the parties.

• [84] The Explanatory Memorandum to the Fair Work Bill (2008) states, in relation to the purposes of what became enacted as s.386(1) of the FW Act:-

"This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200).

Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign."

• [85] I am satisfied that the Applicant was an employee of Trojan and not DHL Express.

• [86] The Applicant was employed by Trojan as a labour hire employee and then "contracted out" to host employers to supplement their permanent workforce. In this case, the Applicant was hosted by DHL Express for two periods, namely, July 2021 - November 2022 and September 2023 - May 2025. I have taken this into account.

• [87] However, the fact that the Applicant had two lengthy engagements at the one host employer, does not make him a permanent employee of that host. I have taken this into account.

• [88] Further, it is clear that DHL Express did not treat him as an employee. The Applicant undertook training relevant to the site and the necessary Workplace Health and Safety requirements but did not undertake the training that DHL Express provides to its employees, some of which is globally orientated. I have taken this into account.

• [89] It would be impossible, and contrary to the needs of the host employer, for the Applicant to be a labour hire employee and not take direction from the host employer's management team, be involved in team meetings or have access to DHL Express's systems. The Applicant was not at DHL Express as a specialist contractor, providing specialised skills and competencies that were not in existence at the site. He was simply supplementing the permanent workforce, working alongside DHL Express employees, in a Trojan uniform and being paid by Trojan. Like every other labour hire employee, the Applicant was integrated into his host employer's enterprise. I have taken this into account.

• [90] I have taken into account that the Applicant has not received a termination notice from Trojan. As a labour hire employee, the work can sometimes be itinerant. There is no guarantee of full-time hours or even any hours from week to week, as evidenced in paragraph [45] of this decision. Put simply, the Applicant remained "on the books" between any engagement from a host employer.

• [91] I have taken into account that Trojan has not acted in a manner which forced the Applicant to resign, i.e., he was not constructively dismissed. In fact, Trojan has subsequently tried to place the Applicant with another host employer, within his current medical restrictions, but the Applicant refused this employment opportunity.

• [92] Adopting the ratio in Personnel Contracting, I am satisfied and find that the Applicant is an employee of Trojan and not DHL Express.

• [93] I am satisfied and find that the Applicant has not been dismissed by Trojan by either their initiative or that he was forced to resign because of their conduct.

• [94] The jurisdictional objections of Trojan and DHL Express are upheld.

• [95] As a result, the application is dismissed.

[1] [2020] FCAFC 152.

[3] Macken v Shoalhaven Starches [2021] FWC 5618.

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