Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal- whether applicant 'dismissed'

• [1] Ms. Fatemeh Savadkoohy was employed in the beauty salon of the respondent, Golden Pacific Partners Pty Ltd (respondent), on a casual basis commencing on or about February 2021. On 9 May 2025, Ms. Savadkoohy was sent an email from the respondent in the following terms:

As discussed during our phone conversation on Monday, May 5, 2025 and following the earlier heads-up, I'm writing to confirm that - due to a recent business decision - your last working day is expected to be May 23 2025 While there's a small chance this date may shift slightly depending on operational needs, your role will officially conclude by the end of May 2025 at the latest.

I want to genuinely thank you for all your ongoing support, professionalism, and dedication throughout your time with us. Your efforts, particularly during busy periods, have been truly appreciated by the team.

If you have any questions or need anything clarified, please don't hesitate to reach out

• [2] Ms. Savadkoohy has since filed an application alleging that the respondent has terminated her employment in contravention of s.365 of the Fair Work Act 2009 (Cth) (Act). The respondent objected to the application on the basis that the applicant had not been dismissed for the purposes of s.365 of the Act. That is a matter that must be determined before an application of this kind can be dealt with by the Fair Work Commission in a conference under s.368 of the Act.[1]

• [3] Section 386 of the Act defines the term 'dismissed', including for the purposes of s.365. It provides, relevantly:

(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] The facts of the matter can be briefly stated. The respondent conducted a beauty salon business at two premises in Sydney. One was located at a shopping centre in Wynyard. The other is located at North Sydney. As a result of redevelopment plans by the owner of the Wynyard premises, the respondent's business at that location became unavailable and the respondent had to close its business at that store. Ms. Savadkoohy was advised of the potential store closure prior to the closure occurring, including through a discussion with Ms. Emadi, one of the respondent's directors on 5 May 2025. Following that discussion, Ms. Savadkoohy was sent the email set out above on 9 May 2025. Ms. Savadkoohy continued to work at the respondent's business until 12 May 2025 when she provided a medical certificate saying that she was unable to work up until 23 May 2025. As a result of the Wynyard closure, Ms. Savadkoohy and one other employee did not perform any further work for the respondent after the store closure on 23 May 2025.

• [5] The respondent claimed that Ms. Savadkoohy had not been dismissed on the initiative of the employer because the closure of the respondent's business was not something that was within their control but was simply a consequence of the closure and redevelopment of the Wynyard premises. Further, the respondent submitted that the applicant was engaged as a casual employee and that the casual employment had simply come to an end at the end of the last period of the applicant's engagement.

• [6] The respondent's submissions must be rejected. The email of 9 May 2025 is in clear terms. It says Ms. Savadkoohy's last working day would be 23 May and that subject to minor changes her role would officially end at the end of May at the latest. The respondent's own evidence was that Ms. Savadkoohy was given prior notice that her employment would be ending as a result of the closure of the premises. Ms. Savadkoohy was told that her services as a casual employee would not longer be required. Ms. Savadkoohy was not offered a position at the North Sydney premises even though she said she had previously and regularly worked there. Although external events had prompted the closure of the respondent's Wynyard premises, the termination of the employment of the applicant was clearly a termination on the initiative of the respondent. The termination was brought about by the respondent and not agreed to by the employee.[2] The employer's action resulted 'directly and consequentially' in the termination of the employment of Ms. Savadkoohy.[3] The action was taken with the intention of bringing the relationship to an end.[4] I conclude that the applicant employment was terminated on the initiative of the employer on 9 May 2025. The dismissal took effect on 23 May 2025.

The respondent's objection is dismissed. The matter will be relisted for conference on a date to be fixed.

By video using Microsoft Teams at 10am AEST on Monday, 11 August 2025.

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

[2] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75].

[3] Mohazab v. Dick Smith Electronics no. 2 Pty Ltd [1995] IRCA 625; (1995) 62 IR 200.

[4] Barkla v. G4S Custodial Services Pty Ltd [2011] FWAFB 3769; (2011) 212 IR 248.

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