Fair Work Act 2009

s.394 - Unfair dismissal

Application made under s.394 - no dismissal - Application dismissed.

[1] Ms Duyen Ho (the Applicant) has made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent to this application is Persol Staffing Australia Pty Ltd (the Respondent). The application was the subject of a determinative conference at which both parties were self-represented. Whilst the Applicant had requested a Vietnamese interpreter, I engaged in dialogue with her at the commencement of the determinative about it proceeding without one. I invited the Applicant to advise me at any stage during the determinative conference if she was not following what was being discussed and she confirmed she was comfortable to proceed on that basis, without an interpreter.

[2] Before the Fair Work Commission (the Commission) can consider the merits of an unfair dismissal application, it must decide the matters outlined in s.396 of the Act. These include deciding:

a) whether the application was made within the period required in subsection 394(2) (i.e. within the prescribed 21-day period after the dismissal took effect or within such other period as the Commission allows) (s.396(a) of the Act).

b) Whether the person was protected from unfair dismissal (s.396(b)).

c) whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)).

d) whether the dismissal was a case of "genuine redundancy" within the meaning of s.389 of the Act (s.396(d))

[3] In this case it is apparent that the Applicant was a person protected from unfair dismissal, and that the Respondent was not a small business employer at the material times. Further, it was not claimed by the Respondent, and nor does the material before the Commission suggest, that the dismissal was a case of "genuine redundancy". Accordingly, in order for the Applicant's unfair dismissal application to proceed, the Commission is required to decide whether the application was made within the prescribed 21-day period after the dismissal took effect. This arises as an issue in this case because the Applicant asserts she was notified of a dismissal which took effect on 21 November 2025 and it was not until 27 January 2026 that she lodged her unfair dismissal application. Beyond this, and more fundamentally in this case, the Applicant is required to satisfy the Commission that she was dismissed (s.385(a)) and that her dismissal was harsh, unjust or unreasonable (s.385(b)) if her application is to succeed. The Respondent disputes that the Applicant was dismissed.

• [4] In the recent decision in Pathirana v Reshma Services Pty Ltd,[1]the Full Bench stated:

"If there are two jurisdictional objections to a matter, and one appears likely to be upheld, it is sensible and efficient for that objection to be decided first, as that may obviate the need to determine the second."[2]

[5] Consistent with this proposition, I will deal firstly with the question of whether the Applicant was dismissed.

[6] The Applicant is a Chemist and the Respondent is a labour hire company providing labour and staffing solutions on an 'as needs' basis to clients across multiple industries. The Applicant accepted an offer of employment with the Respondent on 28 November 2024 and commenced on-hire employment on 2 December 2024 under an employment contract that outlined that her employment was on a casual basis, and that she would be recorded as being available to accept offers of casual work. The employment contract is said to have also stated that there was no guarantee of work. Further, in entering into the employment contract, the Applicant is said to have acknowledged that:

a) The Respondent could elect to offer her any work in accordance with its needs;

b) The Respondent could change the hours, nature and arrangements for any work offered to her, as necessary;

c) The Respondent was not required to offer her any work assignment;

d) She was not required to accept any offer of work from the Respondent; and

e) The terms of the employment contract did not give her any entitlement to continuing and indefinite work.

[7] The Applicant commenced a work assignment on 2 December 2024 as a Chemist at the Clayton plant of one of the Respondent's commercial clients, PPG Industries Australia Pty Limited (PPG). In an on-site incident on 19 November 2025, the Applicant was alleged to have breached one of PPG's Life Critical Rules (LCR) by using her mobile phone in a designated prohibited area for mobile phones. The Applicant admitted to the breach and subsequently apologised for it. On 21 November 2025, Mr George Koshy, Senior Recruitment Consultant for the Respondent, sent the Applicant an email, which stated:

I want to update you regarding the recent incident at PPG Clayton. It was observed that you were using your mobile phone inside the laboratory, which is a designated prohibited area. As you know, PPG's Life Critical Rules (LCR) and site safety policies strictly prohibit mobile phone use in labs and other restricted areas. Phones must be switched off and stored in a bag, office, or locker while on site and may only be used in designated areas such as the canteen, admin offices, or locker rooms.

Given the seriousness of this breach and the associated safety risks, PPG has completed their review and decided that you will not be re-engaged for future assignments at the Clayton site. This decision reflects the critical importance of maintaining a safe working environment for all employees.

Please do not attend the site under any circumstances. I will reach out to you directly if a suitable role becomes available in the future, and I'm happy to support you in exploring other opportunities."[3]

[8] On 8 December 2025, the Applicant sent an email in reply, in which she stated:

I would like to give a response to this email based on what I have discussed with you and with my Manager at PPG previously to clarify the case before we move forward.

Yes, I used the phone in the area that I am not allowed to use, and I agree to leave PPG for that reason.

However, I also would like to explain that I was pushed into a situation where I had to make a phone call to discuss a serious issue, and I did not try to break the rule honestly.

I hoped to have a second chance but right now I think this is a good way to close the case because even though I love the job, PPG is not a right place for me to work anymore.

Thanks for your support during this process. I will contact you next year after I come back in February.

I will be open to any opportunity at that time, but prefer a part-time position or something with flexible work hours, so that I can keep the balance and support my family at the same time if that is possible.

[9] Mr Koshy responded in an email sent on 8 December 2025, which stated:

Thank you for your honest and thoughtful response.

While it's unfortunate how things unfolded, I respect your decision and agree that closing the case in this way is the best approach for now.

Please take the time you need with your family, and when you return in February, feel free to reach out to me directly. I'll be more than happy to support you with suitable part-time or flexible opportunities.

Thanks again for your professionalism throughout this process."

[10] The Applicant said she made further contact with Mr Koshy at a point in time between their email exchange on 8 December 2025 a date in January 2026 because she wanted the opportunity to explain her mobile phone use to PPG. Ms Goodman said that in accordance with the email correspondence, the Respondent was waiting to hear from the Applicant upon her return in February 2026 but that it had no contact from the Applicant after 8 December 2026 and that the next thing that occurred was its receipt of her unfair dismissal application.

[11] At no stage during the determinative conference did the Applicant proffer that she was anything other than an employee of the Respondent. Nor did she make the submission that she had been dismissed by the Respondent. It was clear that the Applicant was aggrieved because she considers she was misled into believing that she would given the opportunity to explain her mobile phone use before PPG determined whether or not it wanted her to perform further work for it. She said her mental health was such after having been bullied at work at PPG that a month passed before she realised something was not right. The Applicant is now concerned because she will not have a favourable reference relating to her work for PPG that she can take to the employment market in pursuit of new employment.

[12] If the Applicant was not dismissed by the Respondent within the meaning of s.386(1) of the Act, there is no jurisdictional basis for her to pursue an unfair dismissal application. More specifically, if the Applicant's employment was not terminated at the initiative of the Respondent, or if my finding is that she was not forced to resign because of conduct or a course of conduct engaged in by the Respondent, there is no jurisdictional basis for her to pursue her unfair dismissal application.

[13] I am not persuaded that the Applicant's employment was terminated at the initiative of the Respondent (s.386(1(a)). Neither the 21 November 2025 email from Mr Koshy nor his 8 December 2025 email notified the Applicant that she had been dismissed by the Respondent. They advised that the Respondent would contact the Applicant if another suitable role became available and further, that the Respondent would support the Applicant in exploring other opportunities, including suitable part-time or flexible opportunities.

[14] As to whether there has been a dismissal within the meaning of s.386(1)(b) of the Act, there was no suggestion from the Applicant and nor do I find that she tendered a resignation from her employment with the Respondent. This is so, regardless of the fact that in her 8 December 2025 email, the Applicant stated that she agreed to leave PPG. I otherwise note that the test to be applied for s.386(1)(b) is whether the Respondent engaged in conduct with the intention of bringing the Applicant's employment to an end or whether termination of the employment was the probable result of the Respondent's conduct such that the Applicant had no effective or real choice but to resign. Having regard to the correspondence that passed between the parties, I do not consider that it was the Respondent's intention at any stage to bring the Applicant's employment with it to an end.

[15] Whereas s.385(a) of the Act requires the Commission to be satisfied the Applicant was dismissed, I have concluded that there was no dismissal within the meaning of s.386 of the Act. I have concluded there was no termination of the Applicant's employment on the Respondent's initiative and it has not been contended by the Applicant and nor I have not been persuaded that the Applicant resigned. Further, I have not been persuaded that the Respondent engaged in conduct or a course of conduct with the intention of bringing the employment to an end or that the termination of the Applicant's employment was the probable result of the Respondent's conduct. My conclusion that there was no dismissal obviates the need to determine whether the application was made within the period required in subsection 394(2) of the Act.

[16] The effect of my conclusion that the Applicant was not dismissed is that I am satisfied there was no harsh, unjust or unreasonable dismissal (s.385(b)). Based on this, I am not persuaded that the Applicant has been unfairly dismissed and as such, her application must fail and therefore be dismissed.

Ms D Goodman on behalf of Persol Staffing Australia Pty Ltd.

[1] 2026 FWCFB 64.

[3] Digital Hearing Book (DHB) at 16.

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