s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] On 27 June 2025, Ms Bobbie Lynch (the Applicant) filed an application under s.365 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving an alleged dismissal by Tumba Takeaway (the Respondent) on 30 May 2025.

• [2] The Applicant filed her s.365 application 28 days after the alleged dismissal took effect, which is 7 days outside the 21-day statutory timeframe.

• [3] In its Form F8A - Response to a general protections application involving dismissal, the Respondent raised multiple jurisdictional objections on the grounds that the application was filed outside the statutory timeframe and that the Applicant was not dismissed within the meaning of s.386 of the FW Act, rather, she voluntarily resigned.

• [4] In light of an upcoming period of leave, extended directions were issued by consent of the parties on 6 August 2025, requiring the Respondent to file its jurisdictional materials by 27 August 2025, the Applicant to file her jurisdictional materials by 17 September 2025, and anything in reply from the Respondent by 24 September 2025. A jurisdictional hearing was scheduled to take place by video via Microsoft Teams on 2 October 2025.

• [5] Ahead of the jurisdictional hearing in this matter, the Respondent raised a further objection on the grounds that the Applicant had failed to comply with directions of the Commission, having filed her jurisdictional materials on 19 September 2025.

• [6] Whilst the Respondent was granted an equivalent extension for filing its materials in reply, the Respondent elected not to file any materials in reply, instead asking that the matter be dismissed in light of the Applicant's failure to comply with the directions.

• [7] The Hearing proceeded by video on 2 October 2025.

• [8] This decision determines the objections raised by the Respondent.

• [9] Section 366 of the Fair Work Act provides the timeframe for filing a s.365 application:

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position."

• [10] Section 386 of the FW Act provides the meaning of 'dismissed' 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."

• [11] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s.368 of the FW Act.[1] In the present matter, the Respondent contends that the Applicant voluntarily resigned on 30 May 2025, and as the Applicant filed her application on 27 June 2025, it was filed 7 days outside the 21-day timeframe. In her Form F8 Application, the Applicant claimed that her dismissal took effect on 30 May 2025. However, in her formal jurisdictional submissions, the Applicant submitted that she had never resigned, and as the Respondent had provided her with a notification on 6 June 2025 that it had accepted her alleged 'resignation' of 30 May, the relevant 'dismissal' date was 6 June 2025, therefore, her application was filed within time.

• [12] I am therefore required to determine:

1. Whether, if she was dismissed, the application was lodged out of time; and

1. If the application was lodged out of time, whether to extend time under s 366(2).

• [13] The Respondent has relied on the Applicant's application form, which was lodged with the Commission on 27 June 2025, and provides that her 'resignation/termination' date was 30 May 2025.

• [14] The Respondent submitted that on 15 May 2025, the Applicant notified Mr Geoff Byers of her intention to resign and seek employment at the Reunion Hotel, a business also owned by the Respondent (related entity). The Respondent submitted that this was agreed upon, and her position with Reunion Hotel was to commence as soon as the renovations on the Hotel were complete.

• [15] The Respondent submitted that, subsequently, the Applicant notified the Respondent on 21 May 2025 that her partner had just lost her job and had been offered a job in Queensland, which would require the Applicant and her partner to move interstate.

• [16] The Respondent submitted that its General Manager, Ms Liz Hulm, had contacted the Applicant to "set the final resignation date 30th May", however, the Applicant had "[u]nexpectedly...responded as to whether we were terminating her position".

• [17] For completeness, the text exchange of 30 May is included here:

Due to our previous discussions with everything work wise with having time off work due to an injury sustained, 1st degree surface burn.

Not being able to fulfil the full duties at work due to not receiving yet a full Dr clearance.

I unfortunately don't have enough hours to offer you being casual at this stage.

We have been quiet and I have to find the work for my permanent employees atm.

Due to verbally agreeing with Geoff and taking on the job offer at the Re-union pub which you were willing to leave Tumba Takeaway for, you would have to cease employment with us very soon due to taking on this new role.

So in saying that and obviously have no work to offer you atm if you are happy to cease employment with us following today 30th of May.

If you are happy with that, I wish you all the very best with your future endeavours.

Thank you for making contact. Can you please clarify if you're terminating my position?

If so please supply a termination letter and separation certificate to my email please.

We just at this point in time don't have enough work for casual employees.

If you plan on leaving, we will gladly supply a separation certificate for you.

• [18] Despite this, the Respondent submitted that it had "decided to accept her verbal resignation and set the resignation date as the 30th May".

• [19] The Applicant submitted that she was notified of a back-dated termination from the Respondent on Friday 6 June 2025, by email as follows:

I have just received confirmation that Safe Work had denied both your claims, stating that "you have not sustained an injury within the meaning of the workers compensation legislation"

Now that the decision has been made Tumba Takeaway, after seeking legal advice have decided to accept the verbal resignation you made when you decided to apply for the position at the Reunion Hotel. At no stage have we ever asked you to resign, but a verbal agreement is binding in NSW and we now exercise our right to accept your request. We will indicate on your records that your final workdate was 30/05/2025 as previously offered. There are no employee payments owing, although you have been overpaid for provisional wages throughout the period from 11th April. This information will be supplied to your Fair Work Claim and your new Compensation Claim (currently under investigation by Safe Work).

Once the outcomes are received I will be meeting with other personnel to decide whether a criminal fraud case should be lodged. I have CC'd this information to your Case Manager as well as your General Manager, Liz Hulm.

• [20] The Applicant noted that this email provided an "acceptance of her resignation" as of 30 May 2025. However, the Applicant submitted that she did not resign on 30 May 2025.

• [21] The Applicant has claimed that she received 'advice' from "Fair Work" that as the notification from the Respondent was received on 6 June 2025, she had 21 days from the date of notification to file an application in relation to her 'dismissal'. The Applicant submitted that 21 days from the date of the notification would mean that her application was required to be filed with the Commission by close of business on 27 June 2025. The Applicant submitted that she lodged her claim with the Commission on 27 June 2025, therefore, the Respondent's 'out of time' jurisdictional objection should be dismissed.

• [22] The Applicant submitted that she did not resign, rather, she expressed interest in working at the Reunion Hotel. The Applicant submitted that her expression of interest was for the same owner/Respondent who trades as an individual/sole trader with both business names listed under his sole trader ABN.

• [23] The Applicant submitted that she had a conversation with the Respondent regarding her partner's ongoing job and advised the Respondent that her partner may lose her position as her employer was selling the business. The Applicant submitted she advised the Respondent that she would provide notice if she were required to move, but that if she were to move, this would not be for another 12 months. The Applicant submitted that her partner did not lose her position, and therefore, they have not had to move.

• [24] The Applicant maintained that she did not resign, and that she was notified of her dismissal via the 6 June 2025 email from the Respondent.

• [25] The Applicant submitted that she had requested clarification regarding her ongoing position via text messages to the Respondent's General Manager on Friday, 30 May 2025 at 1826. The Applicant submitted that this exchange was following receipt of a text message from the Respondent stating that there were no available duties for the Applicant due to an injury she had sustained.

• [26] The Applicant submitted that the Respondent's General Manager responded to her on 30 May 2025 at 1856 stating that 'termination' was not applicable and the Respondent had no hours for casual employees. The Applicant submitted that the Respondent had noted a separation certificate could be provided if the Applicant was wishing to resign.

• [27] The Applicant noted that she was on restricted duties at this time due to sustaining an injury at work on 11 April 2025.

• [28] The Applicant submitted that the Respondent posted employment opportunities on 30 June 2025, which she submitted substantiates that a return to work could have been facilitated for her by the Respondent. The Applicant noted that this was only:

"• 32 days from the General Manager stating there was no available duties

• 24 days from the receipt of termination email from the respondent"

• [29] The Applicant also made submissions in relation to workers compensation claims, however, as these are not relevant to my determination of the jurisdictional objections, those submissions have not been repeated here.

Whether the Applicant was dismissed and the date that it took effect

• [30] Whilst the Respondent has claimed that the Applicant voluntarily resigned, it is clear on the evidence before the Commission that the Applicant had expressed a desire to move to the Respondent's other business, the Reunion Hotel, or a potential that she would move interstate, however, she had not formally resigned. The Applicant's employment with the Respondent remained active until the date that the Respondent sought to retrospectively 'accept' the Applicant's intention to resign via the email of 6 June 2025.

• [31] I refer to the following extracts from the Full Bench decision in Ayub v NSW Trains [2016] FWCFB 5500:

"[21] In Stevanovski v Linfox Transport the Australian Industrial Relations Commission (Lacy SDP) rejected the proposition that at common law an employment contract could be terminated with effect from a date prior to that upon which the termination was communicated to the employee:

"[47]The notion of the termination of an employment contract retrospectively, as seems to be the purport of the letter of 9 October 2000, is inconsistent with the rule of law to the effect that the giving of a notice terminating a contractual employment, whether by employee or employer, is the exercise of the right under the contract of employment to bring the contract to an end, either immediately or in the future: Riordan v. War Office (1959) 1 WLR 1046 per Diplock J. When the respondent called the applicant to come to work on 9 October 2000, and decided to terminate his employment, it was entitled to terminate his employment either upon notice or with immediate effect. It did neither of those things. It terminated his employment with effect from a prior date. It would appear that the applicant might have been deprived of one day's pay as a result of the respondent's retrospective termination of his employment."

[22] It is conceivable that a contract of employment might expressly provide for its termination by the employer immediately without the termination first being communicated to the employee. However, other than in that circumstance, it is difficult to contemplate that an employment contract could ever terminate retrospectively even by agreement between the employer and the employee."

• [32] The Applicant asked the Respondent's General Manager whether she had been terminated. The General Manager said 'No'. It is difficult to comprehend how the Respondent then formed the view that the Applicant had verbally resigned on the same day. I have taken this into account.

• [33] As a result, I am satisfied and find the Applicant was terminated by email on 6 June 2025. Therefore, the general protections application filed by the Applicant has been filed within the statutory timeframe.

Applicant's late filing of jurisdictional materials

• [34] Ahead of the jurisdictional hearing in this matter, the Respondent raised a further objection, asking that the application be dismissed on the basis that the Applicant failed to comply with directions of the Commission.

• [35] As noted in a recent decision of Tewantin Noosa RSL & Citizens Memorial Club, Kevin Graham v Michael Sue See [2025] FWC 2268:

"The Fair Work Commission is a tribunal and operates in a manner that "is quick, informal and avoids unnecessary technicalities". The Commission nowadays is a venue for mostly self-represented applicants to have matters dealt with in a more informal way. A consequence of this informality and efficiency is that directions from Members are not always treated with the same reverence and compliance as in other jurisdictions."[2]

• [36] Although the Applicant did not formally request an extension for filing her jurisdictional materials, I note that in 99% of matters where parties request an extension to file their materials, I grant their request. Further, where materials are filed one or two days outside the directions, I tend to accept their filing for procedural fairness reasons and noting that as a Tribunal, the Commission is not bound by the strict legal formalities or the rules of evidence that exist in a Court.

• [37] I am satisfied and find that the Applicant's materials that were lodged two days outside of the directions set by the Commission, should be admitted as formal submissions for this proceeding.

• [38] For the reasons stated above, the jurisdictional objections that have been raised by the Respondent are dismissed.

• [39] A further conference will be convened in the near future in accordance with s.368 of the FW Act.

• [40] A notice of listing will issue to the parties in due course.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; Ahmad v MPA Engineering Pty Ltd [2020] FWCFB 5365.

[2] [2025] FWC 2268 at [27].

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