Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - Jurisdictional objection that employee not dismissed - Resignation - Employer's decision to bring forward end date - Applicant dismissed.

This is the edited version of a decision delivered ex-tempore.

• [1] Section 365 of the Fair Work Act 2009 (Cth) provides that a person who has been dismissed may apply to the Commission to deal with a dispute relating to whether or not that dismissal was 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].

• [2] Mrs Lida Peymani has applied to the Commission under section 365 of the Act. She says that she was dismissed by Posh N Polished Pty Ltd. Posh N Polished is in the beauty industry, and employs about 6 workers. Mrs Peymani was employed from early September 2024 to manage the business and to bring in new treatments. She was paid a salary as well as commission. Ms Carol Elzain is the owner of Posh N Polished.

• [3] On 14 May 2025, unhappy with her pay and conditions, Mrs Peymani sent an email to Ms Elzain. In that email, Mrs Peymani provided 2 options about moving forward which were what she desired for her pay and commission. She then said:

If neither of these options aligns with your expectations, I am prepared to submit my 4- week notice of resignation and begin a smooth transition.

• [4] Mrs Peymani says the email was not a resignation but a business proposal and nothing was agreed.

• [5] After this email, Mrs Peymani says that she experienced a lot of pressure from Ms Elzain pushing her out of the business. This included that Ms Elzain removed her certificates and changed her access to booking and salon management software called Fresha. Ms Elzain confirms that she did alter Mrs Peymani's access to Fresha, to limit her access to the business' financial information after the email of 14 May 2025.

• [6] The parties exchanged lengthy text messages, some of which were provided to me. Ms Elzain says that after the 14 May email, she met with Mrs Peymani and verbally accepted her resignation. She says that she told Mrs Peymani that she could not agree to any of the options. Mrs Peymani recalls that Ms Elzain said to her that she accepted her resignation and that she cannot afford the options provided.

• [7] Ms Elzain says they then discussed a 4 week exit period, and for Mrs Peymani's employment to end around mid-June. This appears to be supported by text messages, in one of which Mrs Peymani says:

Four weeks is heaps of time. I'm happy to wait so you can find a good fit for the business.

• [8] Ms Elzain advertised to replace Mrs Peymani in her business. Mrs Peymani agrees this occurred. Mrs Peymani says it was further evidence that Ms Elzain was forcing her to leave.

• [9] After 14 May 2025, Ms Elzain says that she and Mrs Peymani had several meetings, in which Mrs Peymani attempted to retract her resignation and they tried to discuss Mrs Peymani's salary and commission. I find that many meetings did occur between Ms Elzain and Mrs Peymani. Those meetings were to discuss whether Mrs Peyamani continued in the business. The text messages support a back and forth between the parties about this, with Mrs Peymani reiterating that she wanted to remain in the business but also asking Ms Elzain to not act on her resignation.

• [10] Also during this time, Ms Elzain says that she found Mrs Peymani to be counter-productive at work, with an angry demeanour. Ms Elzain says that other staff members came to her to complain about Mrs Peymani's behaviour. Ms Elzain said that, due to Mrs Peymani's behaviour, she decided that it would be best to end the exit period at the 2-week mark instead of in mid-June.

• [11] Ms Elzain says that she entirely removed Mrs Peymani's access to Fresha on 2 June, which was also when she asked Mrs Peymani not to return to work at all. After this date, Ms Elzain paid Mrs Peymani's unused annual leave entitlements and her salary to that date.

• [12] Mrs Peymani confirms that she has not returned to work for Posh N Polished since 2 June 2025. She says her last day of actual work was the Thursday prior. This roughly aligns with the evidence of Ms Safoora Hooshyar, another employee of the salon.

• [13] 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.

• [14] Ultimately, it does not matter whether the email of 14 May 2025 or the discussions and text messages following that email constituted a resignation by Mrs Peymani. It also does not matter whether that resignation was voluntary or forced.

• [15] This is because there is no dispute that on 2 June 2025 Ms Elzain asked Mrs Peymani not to come back to work. There is also no dispute that Ms Elzain removed Mrs Peymani's access to Fresha around this date. The parties confirmed that a payment of unused annual leave was made shortly after this date.

• [16] Mrs Peymani says that she has not worked for Posh N Polished since that date.

• [17] By Ms Elzain's own evidence, she made a decision to end Mrs Peymani's employment earlier than it would have ended if Mrs Peymani's resignation had been effective.

• [18] In a recent decision of Terex v Cameron [2025] FWCFB 205, the Full Bench said at [11]:

There have been numerous decisions that have recognised that an employer's unilateral decision to bring forward an employee's nominated termination date is a termination of employment 'on the employer's initiative' ... A resignation on notice that ends on the employee's nominated termination date is a termination of employment on the employee's initiative. In that situation, the contract of employment and the employment relationship continues until the expiry of the period of notice in the absence of agreement that the termination date is to be brought forward. But if the employer then imposes an earlier termination date, the employment ends on its initiative.

• [19] If there was a resignation on the 14 May, then the nominated termination date would have been mid-June.

• [20] However, when Ms Elzain removed Mrs Peymani's access to Fresha and asked her not to return to work on 2 June 2025, this brought forward that end date and was a termination of employment at the employer's initiative. Therefore, Posh N Polished dismissed Mrs Peymani within the meaning of s 386(1)(a)

• [21] As I have found that the employer dismissed Mrs Peymani, Posh N Polished's jurisdictional objection to the application is dismissed.

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

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