s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - no jurisdiction. Ms Beaumont was not dismissed within the meaning of s. 386 of the Fair Work Act

[1] Ms Elizabeth Beaumont has made an application pursuant to s.365 of the Fair Work Act 2009 (the FW Act) seeking the Fair Work Commission (the Commission) deal with a dispute over a dismissal alleging a contravention of Part 3-1. The application is brought against Fretti Pty Ltd (the Respondent). The Respondent contends that the Commission has no jurisdiction to deal with the dispute because Ms Beaumont has not been dismissed.

[2] In Coles Supply Chain v Milford Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591 at [64] - [65] the Full Court of the Federal Court of Australia made it clear that the Commission only has power to deal with a dispute under s. 365 if it is validly made. An application to deal with a dispute over a dismissal will not be validly made if there was no dismissal. The Court also made clear at [67] that where a question arises as to whether there has been a dismissal the Commission must resolve that question before proceeding to deal with the dispute.

[3] Whether someone has been dismissed under the FW Act is to be determined by reference to ss. 12 and 386. Section 12, the Dictionary, defines the expression dismissed by referring to s. 386. Section 386(1) reads:

(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.

[4] There are exceptions under s. 386(2) to subsection (1) but they are not relevant to this case.

[5] Ms Beaumont was employed to work with the Respondent as a casual sales assistant. The Respondent is a small business employing 15 staff, 3 of whom are permanent employees and the other 12 casual. She commenced work on 8 November 2021. The business operates in Mosman in Sydney NSW. It is owned by Ms. Lemmetty.

[6] Ms. Beaumont sustained a workplace injury on April 23, 2025, leading to a workers' compensation claim. Initially she was unable to work. A structured return-to-work plan was put in place in August 2025. The plan restricted the number and length of shifts that Ms Beaumont could work per week. She was provided shifts in accordance with this plan in August, September and October 2025. Ms Beaumont worked 10 shifts in October. The number of shifts did not always strictly match the plan due to the company's rostering needs and Ms Beaumont's availability.

[7] In November 2025 Ms Lemmetty noted that Ms Beaumont was struggling with the work and that she found working consecutive shifts difficult. Complaints from colleagues suggested she was becoming irritable and, from the business's point of view, unreliable. Ms Lemmetty's concerns led to a lengthy phone call with Ms Beaumont on 10 November 2025. Ms Beaumont's account of the conversation is that the Ms Lemmetty said that no shifts would be offered during the Black Friday sale period which were the 10 days ending November 23 and that shifts would be offered from the week following sale period. On 18 November there was a further discussion between Ms Lemmetty, Ms Beaumont, and Ms Beaumont's rehabilitation provider where the matters discussed on 10 November were discussed further. During those conversations there was mention that Ms Beaumont's rehabilitation might involve looking for alternative suitable employment. On 25 November Ms Beaumont sent Ms Lemmetty a lengthy email about the matters that had been discussed on 18 November 2025. The gravamen of that email was that Ms Beaumont understood that she had been dismissed and asked for written confirmation of the dismissal. On 27 November 2025, in response to that email, Ms Lemmetty sent Ms Beaumont an email setting out the matters discussed in the earlier conversations including concerns about her health, the difficulty with providing work during the busy period of the sale and confirming that while shifts could not be allocated at that time her employment had not been terminated. Ms Lemmetty also committed to continue to work with the rehabilitation provider in Ms Beaumont's recovery. Ms Beaumont respondent on 5 December 2025 and again asserted that she had been dismissed on the phone on 10 November which was confirmed on 18 November when it was suggested she find another job.

[8] On 9 December 2025 Ms Beaumont filed the current application alleging that she was dismissed and the reason for dismissal was her exercising workplace rights and her disability, breaching sections 341 and 351 of the Fair Work Act. She claims the adverse actions included removal of shifts, coercion to abandon her job, and discrimination based on her disability.

[9] The Respondent submits that Ms Beaumont was not dismissed. Ms Lemmetty said that while the workers' compensation insurer advised that the protected period under workers' compensation law which prohibits dismissal for reason of incapacity to wok due to a compensable injury within the first 6 months of a claim being made had passed, Ms Lemmetty had decided not to dismiss Ms Beaumont. Instead, she decided to continue to provide shifts to assist in the rehabilitation process. Ms Beaumont continues to be paid workers' compensation payments through the insurer and continues to receive superannuation payments from the Respondent. Ms Beaumont was also offered and accepted shifts in January 2026 and February 2026. She is on the roster to work further shifts.

[10] Ms Beaumont asserts that she was only given further shifts after she filed her application.

[11] I find in these circumstances that Ms Beaumont has not been dismissed. She may feel aggrieved by the number of shifts she has been provided under the return to work plan but those grievances cannot include a complaint of dismissal. She is a casual employee receiving workers' compensation payments for a workplace injury who is under a rehabilitation plan. That plan allows her to work limited shifts, and the Respondent is trying to accommodate that plan. No decision has been made by the employer to terminate the employment. In those circumstances there has been no dismissal within the meaning of s. 386 of the FW Act and there is no jurisdiction for the Commission to proceed to a conference under s. 368 of the FW Act.

[12] As I am not satisfied that the Applicant was dismissed within the meaning of s. 386(1) there can be no dispute over a dismissal and the jurisdictional prerequisite in s. 365(a) has not been met. If Ms Beaumont wishes to pursue her claims that the drop in the number of shifts offered to her in November and December 2025 amounted to adverse action under Part 3-1 she may do so on the basis of one of the other heads of adverse action listed in s. 342. An action relying on dismissal is not available.

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