s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - Jurisdictional objection (not dismissed) - Casual employee no longer offered shifts - Termination on the employer's initiative - Jurisdictional objection dismissed - Proceed to conference under s 368

This is the edited version of a decision delivered ex-tempore on 8 October 2025.

• [1] On 21 July 2025, Mr Shiv Singh applied under s 365 of the Fair Work Act 2009 (Cth) for the Commission to deal with a general protections dispute involving dismissal.

• [2] CKW Truganina Pty Ltd (the respondent/ employer) employed Mr Singh as Gym Receptionist on a casual basis and his employment started on 14 January 2025.

• [3] Mr Singh says that his employment ended on 5 July 2025. Mr Singh says that he received a telephone call from his manager, who said:

I'm sorry to inform you that I have to let you go effective immediately. You're no longer working here anymore because you've been talking shit about the business.

• [4] CKW Truganina say that they did not dismiss Mr Singh. In their response Form F8A, they say that they

had to discontinue Shiv Singh's employment solely because of his limited availability and redundancy of staff.

• [5] At the determinative conference that I conducted on 8 October 2025, the employer said that they had reduced hours at Mr Singh's workplace and they had to reduce staff numbers. They chose Mr Singh because he had less availability than other staff members and was also a more recent hire than other staff. They say that they had no work at that time but would hire him in future if work became available. They agreed that they had asked Mr Singh's manager to call him.

• [6] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute if they have been dismissed and they allege that they were dismissed in breach of the general protections' provisions. When a person (an applicant) applies to the Commission under s 365, the Commission's role is to try to resolve the matter, and it usually does so by holding a conference. However, if a respondent denies that they dismissed the applicant, then the Commission must first determine whether the applicant has been dismissed, before we may exercise our jurisdiction to deal with the dispute: see Coles Supply Chain v Milford [2020] FCAFC 152 at [67] to [68].

• [7] Dismissed is defined in s 12 of the Act, which refers to s 386:

(1) A person has been dismissed if:

(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.

• [8] Section 386(2) deals with fixed term contracts and s 386(3) deals with demotions. Neither subsection is relevant to this matter.

• [9] There is also no question in this matter about whether or not Mr Singh resigned. The only issue is whether or not Mr. Singh's employment with CKW Truganina was terminated on the employer's initiative.

• [10] The Full Bench in Humeniuk v Sculpture by the Sea Incorporated [2025] FWCFB 212 said:

[53] The question of whether a party to a contract of employment has given notice of termination does not depend on the subjective intention or understanding of the employer or employee, but an objective assessment of the intentions of the parties. The question is whether a reasonable person in the position of the parties would have understood Sculpture by the Sea to have terminated Mr Humeniuk's employment through the email of 3 September 2024. (references omitted)

• [11] Recent decisions of the Commission's have found that a casual employee who was no longer offered shifts, including because there was a reduction in work, was a dismissal. For example, in Olefir v Brazil Catering Pty Ltd [2024] FWC 1584, which was an unfair dismissal matter but the definition of 'dismissed' is the same in general protections dismissal and unfair dismissal matters. Deputy President Colman found that when an employer sent a message to an employee to say that there were no available shifts - this was a dismissal. Similarly, in Park v LOTW Indro Pty Ltd (t/as Lord of the Wings Indooroopilly) [2020] FWC 858, Deputy President Asbury (as she then was) found that not rostering a casual employee for work was a dismissal.

• [12] Based on what I have heard from 2 directors of the respondent and the applicant, the ending of Mr Singh's employment was clearly a termination at the employer's initiative. The directors confirm that they reduced work for all staff and had to let some staff members go. One of those staff members was Mr Singh. The directors said that they had no work for him at the time his employment ended, but as a casual employee they could hire him in the future. However, they had no idea about when future work would be available.

• [13] On any objective assessment of what occurred, a reasonable person would have understood the words of Mr Singh's manager in the phone call on 5 July to Mr Singh to be a dismissal. Further the directors confirmed that they asked Mr Singh's manager to make the call. That they might employ the applicant in the future, but where there is no clear future reemployment date, is similar to the 'pause' in the matter of Humeniuk v Sculpture by the Sea, where the Full Bench held that such an e-mail saying that there would be a pause in the employment relationship was a dismissal within the meaning of section 386 of the Act.

• [14] I am satisfied that the respondent - CKW Truganina Pty Ltd - dismissed Mr Singh. So, the respondent's jurisdictional objection to the application is dismissed.

• [15] I will now proceed to conference this matter, as required under s 368 of the Act.

Mr P S Deol and Mr B Deol, on behalf of the Respondent.

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