s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - was the employee dismissed - employee was dismissed - application within jurisdiction.

• [1] This is an edited version of my decision delivered ex tempore and recorded in transcript on Thursday 27 November 2025.

• [2] Ms Ashleigh Shackleton has applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth). Ms Shackleton says that her former employer South African Airways Pty Ltd dismissed her in contravention of Part 3-1 of the Act. SAA objects to Ms Shackleton's application on the basis that it did not dismiss her.

• [3] Before Ms Shackleton's application can be dealt with under s 368 of the Act, I must determine whether she was dismissed.[1] I conducted a determinative conference to hear evidence on the jurisdictional issue on Thursday 27 November 2025. Ms Shackleton spoke for her case. Mr Simon Ngwenya (ER Specialist/Human Resources) spoke for SAA.

• [4] Ms Shackleton sought at late notice to be represented by Clear-ER, a paid agent. Having regard to the submissions from the parties and the materials filed, I was not satisfied that any of the criteria in s 596(2) were enlivened and thus could not grant permission under s 596.

• [5] At the end of the determinative conference, I informed the parties of my decision that SAA had dismissed Ms Shackleton. I then conducted a conference under s 368 of the Act.

2. What were the events that led to the end of the employment relationship?

• [6] The relevant facts to the question I must determine are short.

• [7] On Sunday 9 September 2025, Ms Shackleton attended a meeting with Mr Ngwenya and another SAA representative. The purpose of the meeting was to discuss the outcome of an investigation into Ms Shackleton following a complaint from a co-worker.

• [8] SAA provided a transcript of this meeting. During this meeting, the SAA representative told Ms Shackleton that it had made the decision to dismiss her summarily. Ms Shackleton and her support person disputed the procedure undertaken. Ms Shackleton's support person also asked SAA to reconsider the dismissal and to instead consider a first and final written warning.

• [9] The SAA representative repeated that SAA had reached the decision to terminate Ms Shackleton's employment and noted that if Ms Shackleton wanted to lodge an application with the Commission she had 21 days to do so.

• [10] Ms Shackleton asked to have the opportunity to "resign on paper". SAA adjourned the meeting to consider her response. When the meeting reconvened, Mr Ngwenya told Ms Shackleton that SAA could not stop her from filing or submitting a resignation letter, but if she did, it would have to be with immediate effect.

• [11] When Ms Shackleton asked what her coworkers would be told, Mr Ngwenya stated, "If you submit the letter of resignation that you resigned, if you don't submit it, that your services were terminated". Ms Shackleton later submitted a letter of resignation.

• [12] 'Dismissed' is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides:

(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."

• [13] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2] considered the relevant authorities and principles on what it means for an employee's employment to be terminated at the employer's initiative as follows:

• It is insufficient to simply show that the employee did not voluntarily leave their employment.

• While it may be that some action on the employer's part intended to bring the employment to an end, it is not necessary to show that the employer held that intention.

• It is sufficient that the employer's conduct would - on any reasonable view - be likely to bring the employment relationship to an end. This can also be framed by asking the question: did the employer's conduct have the probable result of bringing about the end to the employee's employment or leaving the employee with no effective or real choice but to resign?

• [14] SAA submits that the end of the employment relationship was on Ms Shackleton's initiative. This is clearly incorrect. On SAA's own evidence and materials, it told Ms Shackleton that it was summarily dismissing her. Ms Shackleton asking to resign was only because SAA told her she was dismissed. SAA's conduct brought about the end of the employment relationship. This is squarely within the definition of 'dismissed' in s 368. The jurisdictional objection is dismissed.

• [15] As noted in [5] of this Decision, as a conference has been conducted in accordance with s 368 of the Act, the Commission's function in this matter is now concluded.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

[2] [2017] FWCFB 3941.

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