Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Eagleheart Health Spaces Pty Ltd, Shay Michaela Tan and Ryan Gosling

Application to deal with contraventions involving dismissal - jurisdictional objection - Applicant not dismissed

[1] On 2 October 2025, Ms Ankita Aranake (Ms Aranake or the Applicant) lodged an application under section 365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed in contravention of the general protections. In this application, Ms Aranake named three Respondents: her former employer, Eagleheart Health Spaces Pty Ltd (the First Respondent), Design Team Leader of the First Respondent, Ms Shay Michaela Tan (Ms Tan or the Second Respondent), and Construction Manager of the First Respondent, Mr Ryan Gosling (Mr Gosling or the Third Respondent).

[2] The Respondents filed a joint Form F8A - Response on 30 October 2025 raising a jurisdictional objection that Ms Aranake was not dismissed within the meaning of section 386 of the Act. It is the Respondents' case that the Applicant was not dismissed but rather her employment came to an end at the conclusion of her contract for a specified period of time on 23 October 2025.

[3] As Ms Aranake's employment came to an end on 23 October 2025, there is an issue as to whether her application was validly made three weeks beforehand, on 2 October 2025.

[4] A hearing was held on 5 March 2026. The Applicant represented herself and gave evidence on her own behalf. The Respondents were represented with permission by Mr Corkett of Irwell Law Pty Ltd, with evidence being given by Ms Tan and Mr Gosling.

[5] Section 365 of the Act provides that a person who has been dismissed may make an application for the Commission to deal with the dismissal dispute.

• [6] Section 386 of the Act sets out the meaning of 'dismissed':[1]

(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] Some facts were agreed and clear from evidence filed by both parties, but there were also significant differences in the evidence given about what occurred when Ms Aranake was advised she would not be offered an extension of her fixed term contract.

(a) Ms Aranake was engaged by the First Respondent initially pursuant to an employment contract signed by her on 17 October 2024.

(b) That contract included in a schedule to the contract the words: "6 months contract (Review Monday 21st April 2025)" and the date of commencement was amended from 31 October 2024 to 23 October 2024 and initialled by Ms Aranake.

(c) A meeting occurred between Mr Gosling and the Applicant on 23 April 2025 to discuss Ms Aranake's employment.

(d) On 23 April 2025, Mr Gosling sent an email to Ms Aranake that included the following: "As discussed, please see attached 6-month contract for you to sign." The contract was in fact a one-page document titled: "Fixed-Term Contract Extended" (the contract extension). The document included: "Eagleheart (the Employer) will be offering you a variation to the terms and conditions of your employment.

• The period of your fixed-term contract of employment has been extended and will now terminate on 23/10/2025. There is no expectation of ongoing employment beyond this date."

(e) Ms Aranake responded by reply email on 24 April 2025: "Thank you so much for the updated contract. ... I'm a bit concerned about this clause though, can I get some clarity on this?" Ms Aranake then extracted the clause of the variation set out in the dot point in paragraph (d) above.

(f) Mr Gosling responded on the same day: "The wording of the contract cannot be changed due to the nature of the contract. However, as discussed in the meeting yesterday, given your continued improvement with Eagleheart myself and Shay [Tan] don't believe this will be an issue and we are hopeful after the 6-month contract is finish (sic) we would be offering full-time employment pending 6 month review. I hope this satisfies your concerns."

(g) Ms Aranake signed and returned the extension correspondence on 24 April 2025, confirming that she agreed to the variation and extension of her contract.

(h) Mr Gosling and Ms Tan met with Ms Aranake on 19 September 2025 and told her that her employment would not be extended beyond the conclusion of her contract on 23 October 2025.

(i) Ms Aranake worked until her contract concluded on 23 October 2025 at which time her employment ended.

[9] Beyond what is set out above, there are significant factual disputes about what occurred at the meeting where Ms Aranake was told her contract would not be extended and other events that followed. A significant focus of the written and oral evidence was about what occurred at the meeting of 19 September 2025. Further areas of factual disputes concerned representations allegedly made at the time Ms Aranake was offered the contract extension, including whether the two fixed term contracts were offered by the First Respondent to assess Ms Aranake's suitability for ongoing employment.

• [10] In summary it is the Applicant's case that on 19 September 2025 she was told by the First Respondent that she was being "let go for poor work performance"[2] and that "they did not tell me my contract was not being renewed, they specifically told me that I was being dismissed for poor work performance."[3] She argues that the reason that was given to her for the ending of her employment was inconsistent with the Respondents' submission that her employment was terminated on account of the conclusion of her fixed-term contract that also aligned with the completion of the work that Ms Aranake had been employed to perform. Ms Aranake disputes that there were issues with her performance and submitted that no performance related issues had been raised with her. Ms Aranake asserts that she was dismissed because of the words used in the meeting of 19 September 2025, such as 'let go' and 'dismissed' and the reliance on an allegation of poor performance as the reason for not offering further employment.

[11] The Respondents reject any assertion that they told Ms Aranake that she was being dismissed or that she was being dismissed for poor performance. The Respondent witnesses made clear that Ms Aranake was firmly told on 19 September 2025 that she would not be offered a further contract after 23 October 2025. The evidence of the Respondent witnesses in this matter was to the effect that Ms Aranake was employed to implement the Rivet software and that her role in its implementation was completed by the end of her contract.

• [12] There was a further dispute between the parties about whether Ms Aranake was advised in the 19 September 2025 meeting that she could leave immediately or work until the end of her contract. Ms Aranake says the option to "resign on the spot or finish [her] contract"[4] was offered, which I understand she advances as another reason that her employment did not come to an end simply on its conclusion. She argues that the offer to leave immediately is evidence of a dismissal at the initiative of the First Respondent.

• [13] The evidence of Ms Tan was that Ms Aranake was told at the meeting on 19 September 2025 that the First Respondent would allow her to conclude her employment before 23 October 2025 if she secured other work but was otherwise not advised she could leave her employment before her contract expired.[5]

[14] Nothing turns on whether Ms Aranake was offered the option to leave her employment before 23 October 2025. It is an agreed fact that she worked until her contract concluded on 23 October 2025. Even if it was an option offered to her, I do not accept Ms Aranake's submission that it should lead me to find that her employment was terminated, rather than her employment concluded at the end of her contract.

[15] Likewise, nothing turns on what reason, if any, was given to Ms Aranake as to why her employment was coming to an end at the conclusion of her contract and she would not be offered ongoing employment. The agreed facts are that she was told on 19 September 2025 that she would not be offered another contract after 23 October 2025. It is not necessary for me to make any findings about whether Ms Aranake was told it was because there were issues with her performance or simply that her fixed term contract would be ending on 23 October 2025, because the terms of the contract extension are clear. The contract extension not only records the date the contract extension ends, it also sets out that Ms Aranake can have no expectation of employment beyond the end date of the contract extension. Further, it is agreed that Ms Aranake was employed for the full period of the contract extension, finishing her employment on 23 October 2025.

• [16] I note that Mr Gosling's evidence about what occurred in the meeting of 19 September 2025 was unhelpful in deciding this matter. He answered a number of questions asked of him in cross examination by advising the Commission that he could not recall what was said in the meeting, including whether Ms Aranake asked for a reason that her employment was not being continued. He repeated and insisted that all he told Ms Aranake was that her contract was coming to an end. This is despite the evidence in his witness statement that in making the decision not to offer Ms Aranake further employment he had discussed with Ms Tan his views that Ms Aranake was "inefficient", the task she was employed to do "took longer than expected" and her employment with the First Respondent was "not working out."[6] Ms Tan, however, gave some detail of her recollection of what was discussed at the meeting and agreed that Ms Aranake's performance in the role was raised, but by the Applicant in an effort to elicit a reason she was not being offered a further contract, and not by her or Mr Gosling.[7]

• [17] I also observe that there was an inconsistency in the evidence given by the Respondent witnesses that there were concerns about Ms Aranake's performance and the time it took for her to implement the Rivet software and what was said by Mr Gosling to Ms Aranake in his email of 24 April 2025. In the email Mr Gosling said he did not believe there would be an issue in offering Ms Aranake ongoing employment after the conclusion of the contract extension, however in cross examination, Mr Gosling admitted that at the conclusion of Ms Aranake's first fixed-term contract that he hoped there would be no further need to engage Ms Aranake but he did so on Ms Tan's request.[8] Furthermore, Mr Gosling's evidence in cross examination revealed that at the meeting of 23 April 2025, he raised performance issues with Ms Aranake, in particular that she was "slow with deliverables".[9] Those comments are inconsistent with his subsequent email to Ms Aranake referencing the likelihood of an offer of ongoing employment after the second fixed-term contract concluded.

• [18] There is also no evidence before me that it was made clear to Ms Aranake that, as the Respondents assert,[10] the purpose of her employment was to undertake the task of implementing the Rivet software system at the First Respondent's business and to ensure that other staff could use the system. Whilst it ought to have been clear to Ms Aranake that on the face of the contract extension[11] she had no entitlement to ongoing work after its conclusion, her expectations were also clearly set by Mr Gosling's comments in the email of 24 April 2025 that he did not believe there would be an issue with offering ongoing employment and he was "hopeful" of offering fulltime employment at the conclusion of the contract extension.

[19] Irrespective of whether Ms Aranake asked for comment on her performance or the Respondents offered it as a reason for not extending her employment, the fact is that Ms Aranake had accepted an extension to her contract that had as a term the conclusion of her employment on 23 October 2025. Ms Aranake was employed up to 23 October 2025 at which time her employment came to an end. Whether she had a valid expectation of a contract renewal or she was told that concerns with her performance had led to a decision not to offer her further employment are of no consequence because Ms Aranake's employment was ended on terms consistent with the fixed-term contract.

• [20] Ms Aranake conceded in her submissions that when her initial six-month contract concluded, Mr Gosling decided to extend her contract by a further six months. She also claims that Mr Gosling told her that the extension would be to assess her for a full time position.[12] The following exchange occurred during cross examination in reference to the email sent by Mr Gosling on 24 April 2025:[13]

"Respondent's representative: In this email, Mr Gosling does not explicitly state to you that you are guaranteed full-time employment, does he?

Respondent's representative: But he does not explicitly state that you will be offered full-time employment at the end of the 23rd of October 2025, does he?

Ms Aranake: I understand he says that we are hopeful that we would be offering full-time employment.

Respondent's representative: But he does not state that after 23 October 2025 that you will be offered full-time employment, does he?

• [21] Later in Ms Aranake's evidence, the following exchange occurred:[14]

"Commissioner: So you accept, and I think you have at earlier points in your evidence accepted that you were on a fixed-term contract? You had an expectation that it might continue, but you otherwise accept that you had a contract that concluded on the 23rd of October?

Commissioner: And you otherwise worked until the 23rd of October?

• [22] These exchanges in oral evidence support the conclusion that Ms Aranake was not dismissed, but rather was employed pursuant to a contract of employment for a specified period of time and her employment terminated at the end of the period.[15]

[23] Whilst it was the Respondents' decision not to offer Ms Aranake another contract or ongoing employment, the Respondents did not otherwise initiate a dismissal of her employment consistent with the definition of dismissal in section 368(1)(a) of the Act. There was no dismissal because the contract operated according to its terms and ended with the passage of time. Section 368(2)(a) of the Act provides clarification for the circumstances that arise in this case and makes clear that a person has not been dismissed if they were employed under a contract of employment for a specified period of time and the employment has terminated at the end of the period.

[24] Consequently, Ms Aranake was not dismissed from her employment in accordance with the definition of dismissal in section 368(1)(a) of the Act. A dismissal from employment is a jurisdictional fact required for a person to make an application concerning contraventions of the general protections involving dismissal pursuant to section 365 of the Act. As there was no dismissal, there is no jurisdiction for the Commission to deal with this application.

[25] In oral submissions, Ms Aranake briefly submitted that section 386(3) has application to this matter. That section says:

(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.

• [26] Ms Aranake told the Commission that she had applied for the role with the First Respondent because it was advertised as a full-time role, but she had been offered a fixed term contract instead.[16] I understand Ms Aranake meant that the role advertised was a permanent role. She submitted that "it is my understanding that section 386 has a provision that ... the fixed term contract expiry is not valid if the employer is ... trying to avoid their obligations."

[27] This was not an argument that was foreshadowed to the Respondents before the hearing. In any event, I do not find that the offering of two consecutive fixed term contracts of six months each demonstrates an intention to avoid the operation of the general protections involving dismissal provisions in the Act. In reaching this view I accept the evidence of the Respondents that Ms Aranake was employed to undertake a particular task over two fixed term periods and when the task was completed there was no need to continue her employment. This finding does not diminish the concern I previously noted that on the evidence before me it does not appear that Ms Aranake was informed she was being employed to complete a task for the First Respondent in a specified time and that contrary representations were made to Ms Aranake (that fell short of making a promise of ongoing employment) which created an expectation in Ms Aranake that ongoing employment would be offered at the conclusion of the contract extension.

• [28] Ms Aranake was informed on 19 September 2025 that her employment was coming to an end on 23 October 2025. She filed her general protections application on 2 October 2025. Ms Aranake said that she "assumed that the dismissal was effective from the day I was informed".[17] At the time the application was made Ms Aranake's employment had not come to an end by dismissal or otherwise. She had only been notified that it was coming to an end on 23 October 2025. Consequently, Ms Aranake's application was not made in accordance with section 366(1)(a) of the Act that specifies: "An application under section 365 must be made ... within 21 days after the dismissal took effect", because the condition for making the application specified in section 365(a), being a dismissal, had not yet occurred. In accordance with the Full Bench authority of Mihajlovic v Lifeline Macarthur[18] (Mihajlovic):

"...that is not the end of the matter because it remains necessary to determine whether, in light of the fact that there is now no doubt that Mr Mihajlovic is a "person who has been dismissed", the prematurity in the lodgement of Mr Mihajlovic's application has the consequence that it is invalid and a nullity, or merely subject to a defect or irregularity which is capable of being cured by the use of the Commission's general powers".[19]

"An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made."[20]

[30] Mihajlovic was an unfair dismissal matter. I see no reason why the same reasoning does not have application to a general protections involving dismissal application. Section 365(1) requires that for an application to be made under that section, the person must have been dismissed.

• [31] The Applicant submits that "a premature application is a minor technical oversight"[21] and I should waive the irregularity. The Respondents say I should not exercise discretion to waive the irregularity in the date the application was filed because the Applicant was not otherwise dismissed.[22]

[32] This matter is distinguishable from the circumstances in Mihajlovic, where the Applicant filed his application in a notice period but was ultimately dismissed from employment. In this matter, Ms Aranake was not dismissed and therefore is not a person who can bring a general protections involving dismissal claim. There is no utility or basis to exercise my discretion to waive the procedural irregularity in this case.

[33] Ms Aranake was not dismissed because she was employed under a contract of employment for a specified period of time and her employment terminated at the end of the period. As Ms Aranake was not dismissed from her employment within the meaning of section 368(1)(a) of the Act, her application is not within the jurisdiction of the Commission. Consequently, Ms Aranake's general protections application is dismissed.

D Corkett and T Plummer of Irwell Law Pty Ltd with permission, on behalf of the Respondents.

[1] See Varichak v COG Regional Team Pty Ltd [2022] FWCFB 37 at [30] where it is noted 'the provisions of s.386 have been applied by the Courts to s.365 General Protections matters'.

[2] Statement of the Applicant at paragraph 15.

[5] Audio recording of hearing at 58:57.

[6] Statement of Mr Gosling at paragraph 13.

[7] Audio recording of the hearing at 54:12 - 55:32.

[10] See Statement of Mr Gosling at paragraphs 5 and 13.

[11] And Mr Gosling's email of 24 April 2025.

[12] Applicant's outline of submissions at paragraph 23.

[13] Audio recording of hearing at 1:30:26 - 1:31:10.

[15] See section 386(2)(a) of the Act.

[16] Audio recording of hearing at 1:06:11.

[17] Applicant's Response to Irregularity at paragraph 1.

[18] [2014] FWCFB 1070.

[21] Applicant's Response to Irregularity at paragraph 3.

[22] Outline of written submissions of the Respondent at paragraph 16.

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