s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - whether Applicant dismissed - jurisdictional objection upheld - found that Applicant was not dismissed within the meaning of s 386(1) of the Fair Work Act.

• [1] On 23 May 2025, Za Thawng (the Applicant) lodged an application pursuant to s 365 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment on 2 May 2025 by Goodride Tyres Pty Ltd (First Respondent) & 360 Personnel Pty Ltd (Second Respondent) contravened his workplace rights. In their Form F8A responses, the First and Second Respondents raised a jurisdictional objection to the application, that the Applicant was not dismissed within the meaning of s 386 of the Act.

• [2] The Respondents' jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application.[1] Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s 368 of the Act.[2] Consequently, the issue for determination is whether the Applicant was dismissed from his employment within the meaning of s 386 of the Act.

• [3] Following allocation of the matter to my Chambers, Directions were issued on 24 June 2025 for the filing of material in relation to the jurisdictional objection. All parties filed material in accordance with the Directions. At the hearing on 18 August 2025, the Applicant was called to give evidence by Mr Morgan Cumming of Westjustice who was granted permission to appear for the Applicant pursuant to s 596(2) of the Act. Mr Robert Martin of the Victorian Automobile Chamber of Commerce (VACC) appeared on behalf of the First and Second Respondents. Mr Martin called the following persons to give evidence;

• Mr Joe Limina - Chief Executive Officer of Goodride Tyres Pty Ltd
• Mr Grant Mitchell - State Manager for 360 Personnel Pty Ltd
• Mr Faisal Totakhil - Recruitment Partner for 360 Personnel Pty Ltd

• [4] The First Respondent is a tyre wholesale business located in Truganina, Victoria supplying the automotive transport industries in Victoria, Queensland, Tasmania and South Australia. The Second Respondent is a recruitment agency engaged in providing temporary recruitment and labour hire services and is authorised in Victoria to provide labour hire services subject to compliance with the Labour Hire Licensing Act 2018 (Vic). The Second Respondent entered a commercial arrangement with the First Respondent on or about 12 March 2025 to supply labour hire employees to the First Respondent for work at its Truganina site.[3]

• [5] The Applicant applied for and was successful in gaining employment with the Second Respondent, accepting an assignment to work at the First Respondent's site where he commenced working as a Store Person on or about 17 March 2025.[4] The Applicant states that as English is his second language he was confused as to the nature of the employment agreement[5] (Employment Agreement) that he signed on or about 13 March 2025 and says he thought he was just signing general paperwork.[6] He incorrectly put his date of birth down instead of the date on which he signed the Employment Agreement.

• [6] The Employment Agreement includes the following relevant terms;

"..............

3. All assignments are of a casual nature unless advised otherwise. Casual employees do not receive annual leave, sick leave or long service loading.

4. Each assignment will be discussed with you verbally in regards to location, duties and relevant licencing that may be required. You are free to decline a role if you feel it is unsuitable. However, if you accept the role you will be expected to complete it.

................."

• [7] When cross-examined on the Employment Agreement, Mr Mitchell and Mr Totakhil both agreed the following. The Employee Handbook was not incorporated into the contract of employment and that the Employment Agreement does not include terms that permit an assignment to be changed or terminated without reason and nor does it state that the employment relationship continues despite the cessation of a particular assignment.

• [8] The Applicant was required to complete and submit an appropriately authorised timesheet to the Second Respondent each week and was paid on a weekly basis by the Second Respondent. His pay slips[7] reveal he received a casual rate of pay for ordinary hours of $32.25 per hour. The Second Respondent invoiced the First Respondent monthly for labour supplied by it to the First Respondent.[8]

• [9] When questioned on his employment arrangements with the Second Respondent, the Applicant agreed that he was engaged as a casual employee as stated in clause 3 of the Employment Agreement, had agreed to the terms of the Employment Agreement, was paid as a casual employee and did not receive payment for hours not worked.

• [10] The Applicant was absent from work due to illness from 8 April 2025 to 22 April 2025 having been admitted to Sunshine Hospital and diagnosed with gout and Tenosynovitis in his ankles.[9] Following his return to work, the Applicant was observed by Mr Jackson Limina on 2 May 2025 to be limping at which point Mr Jackson Limina approached and asked the Applicant about his well-being. After some discussion, the Applicant was encouraged to leave work early at around 4.00pm due to his obvious physical discomfort.[10]

• [11] Mr Mitchell states that at approximately 5pm on 2 May 2025, Mr Joe Limina called him to discuss the Applicant who was sent home that afternoon by the First Respondent due to concern for his well-being. Mr Mitchell then stated to Mr Joe Limina that it appeared that the Applicant was not suited to the type of work (warehousing and dispatch) required at the First Respondent. He says he told Mr Joe Limina that he 'would take care of the Applicant and find him a more suitable alternative assignment with a different host firm.' Mr Mitchell then contacted Mr Totakhil to ask him to inform the Applicant that his assignment to the First Respondent would cease.[11]

• [12] Mr Totakhil states he complied with Mr Mitchell's request and called the Applicant on 2 May 2025 and advised him he was no longer required for the assignment with the First Respondent and that the Second Respondent would commence looking for a new assignment for the Applicant[12]. The Applicant says Mr Totakhil called him at 5.30pm on 2 May 2025 and used words to the effect of "Goodride Tyres no longer needs you" to which the Applicant says he asked why. According to the Applicant, Mr Totakhil then responded "We don't know. They don't need you anymore". The Applicant states that from his conversation with Mr Totakhil he understood he had been dismissed from his job with the First Respondent and that the employment relationship had ended.[13]

• [13] On 3 May 2025, the Applicant sent an email to the First Respondent raising concern at his dismissal while sick. The email was referred to Mr Totakhil on 5 May 2025 and it appeared to Mr Totakhil that the Applicant was mistaken in his understanding as to who was his employer. At Mr Mitchell's request, Mr Totakhil contacted the Applicant and advised him not to reach out to the First Respondent and to remind him that he was an employee of the Second Respondent.[14]

• [14] On 5 May 2025, the Applicant contacted Mr Totakhil regarding a forklift-oriented position for a potential client of the Second Respondent. Mr Totakhil responded that the commercial terms with the potential client had not yet been resolved but if it were resolved, the Second Respondent could look to place workers with that client. The Applicant thanked Mr Totakhil and expressed hope that Mr Totakhil would help him get an assignment soon. A commercial arrangement with the potential client did not immediately come to fruition.[15]

• [15] On 12 May 2025, after the Second Respondent received a request for labour from one of its host firms, Mr Totakhil says he immediately thought of and reached out to the Applicant at 12.30pm on 12 May 2025. He says he provided the details of the assignment verbally to the Applicant, confirmed there was a short-term assignment and that he (Mr Totakhil) would look after the Applicant and continue to identify further assignments. Mr Totakhil says the Applicant verbally accepted the assignment following which Mr Totakhil emailed details of the assignment to the Applicant.

• [16] Mr Totakhil responded to a question from the Applicant over the rate of pay for the offered assignment, following which the Applicant informed him that he could not work the offered shift but would wait for the next shift. The Applicant agreed during cross examination that he had been offered and declined this assignment as he did not consider it was suitable. Mr Totakhil then advised the Applicant 'nothing is available anymore' in a reply email to which the Applicant questioned why nothing was available for him when Mr Totakhil had told him he would look after the Applicant.[16] Mr Totakhil realised by the Applicant's response that he had misunderstood Mr Totakhil's reply and rang to clarify that his comments 'nothing is available anymore' was only a reference to there being no available work with that particular client[17].

• [17] Mr Totakhil stated that at the time of signing his first witness statement on 7 July 2025 no suitable assignments had been identified for the Applicant since 12 May 2025. He attributed this to the geographic location of available assignments, the Applicant's preference for day shifts and the administrative nature of the available assignments. In a further witness statement, Mr Totakhil states that the potential opportunity he raised with the Applicant in their email exchange on 5 May 2025 has now come to fruition[18]. This prompted Mr Totakhil to contact the Applicant by email on 7 August 2025 and by phone on 8 August 2025 regarding the assignment[19]. Mt Totakhil states that the Applicant did not respond to that contact[20]. He confirmed that the Applicant remains a casual employee of the Second Respondent, referring to its list of 'available' employees in its 'Bull Horn' system.[21]

• [18] The Applicant agreed during cross examination that he had not received a Separation Certificate or a letter of termination from the Second Respondent.

• [19] The issue to be determined in this matter is whether the Applicant has been dismissed from his employment. The circumstances in which a person is taken to be "dismissed" are set out in s 386 of the Act. Section 386(1) relevantly provides 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.

• [20] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. I understand from the Applicant's case that his argument is that he was dismissed within the meaning of the first limb of s 386(1), that being he was dismissed at the initiative of the Respondents.

• [21] The authorities in respect of the meaning of the term 'dismissed' are well traversed. In the Full Bench decision in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[22] (Bupa), the Full Bench was dealing with an appeal of a decision in which the member, at first instance, found that the dismissal was within the meaning of s 386(1) and that the dismissal was unfair. The Full Bench in Bupa was concerned with a 'forced' resignation and how the passage of the Act impacted prior authorities. Having identified there were two elements to s 386(1) and after extensively considering the authorities, the Full Bench then said;

"[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s 386(1) of the FW Act, we consider that the position under the FW Act may be summarised 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 be 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 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 here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element."

• [22] The Applicant submits that he was dismissed within the first limb of s 386(1) of the Act, that is, he was dismissed at the First and Second Respondents' initiative. It is to that I now turn.

Whether the Applicant was dismissed within the meaning of s 386(1)(a)

• [23] Termination at the initiative of the employer means a termination brought about by an employer and which is not agreed to by the employee. The Applicant contends that the key to this case is that of the contract. He submits that the contract does not include express provisions that allow for the termination of an assignment without reason and nor does it state that the employment relationship continues notwithstanding the cessation of a particular assignment. He further submits that the cessation of the assignment on 2 May 2025 had the effect of terminating the employment relationship and the fact that a further assignment was offered and declined was irrelevant as that further assignment was offered within the framework of the contract entered into. The Applicant also refers to other cases decided by single members of the Commission in favour of dismissed employees with similar factual circumstances.

• [24] Before dealing with the Applicant's contentions, it is useful to say something about the cases referred to by the Applicant to the extent they may be relevant. In Kim Starr v Workpac Pty Ltd T/A WorkPac Group[23] (Starr), the decision dealt with a case in which a labour hire employee employed by WorkPac was found to have been dismissed when her assignment was terminated. In that case Ms Starr was employed for four years as a casual Machinery Operator deployed by WorkPac to a coal mine operated by BHP Billiton Mitsubishi (BAM). The contract Ms Starr entered into included a provision that specifically stated that employment with WorkPac was on an 'assignment-by-assignment' basis representing a 'discreet period of employment'. There is no comparable term in the Applicant's Employment Agreement in the matter before me. I also note that Ms Starr was engaged for approximately four years as opposed to a matter of weeks in the matter before me.

• [25] In Rose Nagy v ProQuest Recruitment Pty Ltd[24] (Nagy), Ms Nagy's assignment to the host company was terminated after almost 9 years of exclusive and full-time deployment to that host. Commissioner Sloan found in the circumstances of Ms Nagy's engagement that the matters identified in Starr were analogous to those before him including the terms of the relevant contract. He concluded that the employment relationship had been ended by the termination of the assignment.

• [26] In Sean Carpenter v Global Management NSW Pty Ltd[25] (Carpenter), the explicit terms of the contract were found by Commissioner Sloan to support the employer's contention that the employment relationship was not terminated at its initiative. The contract relevantly included that the employer could change or terminate an assignment without reason and that termination of an assignment did not constitute the termination of Mr Carpenter's employment. Mr Carpenter was also told on the same day as his assignment ended that the employer would explore other opportunities for him remaining 'active' on Global's system. Commissioner Sloan went on to observe that the fact that Global Management NSW Pty Ltd had been unable to secure further work for Mr Carpenter was reflective of both the nature of the labour hire business and the casual nature of Mr Carpenter's employment.

• [27] Returning now to the circumstances of the case before me I find that the Applicant was not dismissed at the initiative of the Respondents for the reasons that follow.

• [28] Firstly, the terms of the Employment Agreement state that all assignments are of a casual nature. The Applicant agreed to those terms and was clearly paid as such. The absence of an explicit term of the type referred to in Carpenter and described above does not in my view rob the employment relationship of its casual character such that when an assignment ends, the employment relationship also ends. I am also of the opinion that casual employment in the context of labour hire arrangements is no different to casual employment in non-labour hire circumstances. That is, the relevant test to establish whether the employment relationship has ended is whether the employer has made clear by its words, acts or omissions that no further engagements would be offered or where the employee has made clear by words, acts, or omissions that no further engagements would be accepted.

• [29] Secondly, the Second Respondent has by its actions and words made clear to the Applicant that further engagements would be offered to him. This is evidenced by the following. On 5 May 2025, Mr Totakhil responded to the Applicant's interest in a particular job by advising that the particular client opportunity for the Second Respondent had not yet been confirmed. Mr Totakhil subsequently communicated with the Applicant on 7 & 8 August 2025 when that opportunity was able to be confirmed. On 12 May 2025, Mr Totakhil reached out and offered the Applicant an assignment, which while initially accepted was subsequently declined by the Applicant as being unsuitable. Consistent with the terms of the Employment Agreement, the Applicant was free to decline that role without adverse consequence for his employment. That he did decline the assignment does not indicate that the Applicant had made clear that no further assignments offered to him would be accepted.

• [30] Thirdly, the fact that no further assignments were offered to the Applicant between 12 May and 7 August 2025 does not indicate the employment relationship has ended. Just as observed by Commissioner Sloan in Carpenter, I would agree that the lack of assignment offers reflects the nature of labour hire and the casual nature of the Applicant's employment with the Second Respondent.

• [31] Fourthly, unlike the facts in Starr and Nagy, the Applicant's assignment with the First Respondent was for a brief period of time. The assignment commenced on 17 March 2025 and concluded on 2 May 2025 during which period the Applicant was absent from work for medical reasons from 8-22 April 2025. This short engagement acts to distinguish the circumstances of the present case with the two authorities of Starr and Nagy. Contrary to the Applicant's submissions, I do regard the duration of the engagement as a relevant factor to be weighed. A longer period of assignment over many years and exclusive deployment to a particular host while not determinative would tell in favour of a finding that the end of the assignment also ended the employment relationship.

• [32] Fifthly, the Applicant remains a 'live' employee in the Second Respondent's 'Bull Horn' system, has not been issued a letter of termination and nor has he received a Separation Certificate.

• [33] It follows from the foregoing that the employment of the Applicant did not end at the initiative of the Respondents within the meaning of s 386(1)(a) of the Act. Further, as the Applicant did not contend that he was dismissed within the meaning of s 386(1)(b) of the Act it is unnecessary for me to deal with the second limb of s 386(1) of the Act

• [34] I have found that the Applicant was not dismissed within the meaning of s 386(1)(a) and it was not contended he was dismissed within the meaning of s 386(1)(b) of the Act. Accordingly, at the time the Applicant made his application on 23 May 2025, he was not a person who had been dismissed for the purposes of s 365 of the Act. The Respondents' jurisdictional objection is therefore upheld, and the application must be dismissed.

• [35] The application is therefore dismissed. An Order[26] giving effect to this decision will be separately issued.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.

[3] Exhibit R2, Witness Statement of Grant Mitchell, dated 8 July 2025, at [5], [10]-[14].

[4] Exhibit A1, Witness Statement of Za Thawng, dated 22 July 2025, at [11]-[13].

[7] Exhibit R7, Applicant payslips for pay periods between 17 March & 4 May 2025.

[8] Exhibit R8, Tax Invoices sent to First Respondent for period March - May 2025.

[10] Exhibit R6, Witness Statement of Jackson Limina, dated 4 July 2025, at [15]-[18], Exhibit A1, at [28]-[32].

[12] Exhibit R3, Witness Statement of Faisal Totakhil, dated 7 July 2025, at [25]-[26].

[14] Exhibit R3, at [27]-[28], Exhibit R11, Email chain on 3-5 May 2025 re Applicant's contact with First Respondent.

[15] Exhibit R3, at [29]-[32], Exhibit R12, Email exchange between Applicant and Mr Faisal Totakhil, dated 5 May 2025.

[17] Exhibit R3, at [38]-[39], Exhibit R13, Email exchange between Faisal Totakhil and Applicant, dated 12 May 2025.

[18] Exhibit R4, Second Witness Statement of Faisal Totakhil, dated 15 August 2025, at [2]-[3].

[19] Exhibit R4, Annexure H, email to Applicant dated 7 August 2025, Annexure I, Phone record of 8 August 2025.

[21] Exhibit R3, at [40], [44], Exhibit R14, 'Bullhorn' system extract.

[22] [2017] FWCFB 3941.

[24] [2025] FWC 78.

[25] [2024] FWC 3592.

[26] PR790800.

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