s.365 - Application to deal with contraventions involving dismissal

Ms. L. Phillips, Ms. S. Blanchard & Ms. B. Tighe

D.B. and T. Bache trading as Dartra Enterprises/Glenwood Caravan Park

Applications to deal with alleged contraventions involving dismissal - objections that applicants not employed by Respondent - whether applicants dismissed - whether applications validly made - applications dismissed

• [1] Ms. Belinda Tighe, Ms. Stephanie Blanchard and Ms. Lilly Phillips (collectively, the Applicants) have each made applications under s.365 of the Fair Work Act 2009 (Cth)(Act) alleging that their employment has been terminated by D.B. and T. Bache trading as Dartra Enterprises/Glenwood Tourist Park (jointly, the Respondent) in contravention of the general protections provisions contained in Part 3-1 of the Act.

• [2] The Respondent has objected to the applications on the basis that none of the Applicants were employed by them. They say that they were each engaged as independent contractors and therefore could not have been "dismissed" - as that term is defined in s.386 of the Act - by the Respondent. Further, the Respondent says that as a matter of fact, each of the Applicants voluntarily brought the relationship between themselves and the Respondent to an end and for that reason, the Applicants were not dismissed for the purposes of s.365 of the Act.

• [3] The question of whether or not an applicant under s.365 has or has not been dismissed goes to the validity of the application and is a matter that must be determined in favour of an applicant before the Commission can proceed to deal with the dispute under s.368 of the Act.[1]

• [4] Directions were made for the parties to file evidence and submissions going to that issue and the matters were listed to be heard concurrently on 5 March 2025. The Applicants did not file any material in response to the directions and did not attend the hearing on 5 March. The Respondent filed statements and submissions and attended the hearing.

• [5] Section 365 of the Act provides as follows:

365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

• [6] Section 386 of the Act sets out when a person is taken to have been dismissed 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.

• [7] As is readily apparent from s.386, in order for there to be a dismissal under that section (and therefore a valid application under s.365), there must be a relationship of employment between the parties[2] and the employment must be brought to an end in one or other (or potentially both), of the circumstances described in subsections (1)(a) and (b) of that section. The Applicants have not provided any evidence going to either of those issues, or any other matter. The Respondent has provided evidence relating to both issues.

• [8] The determination of the question of whether the Applicants were employees or independent contractors is not a straightforward task. It would involve an overall assessment of the relationships between the parties and, since the proceedings were initiated after the changes made by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) commenced operation on 26 August 2024, the application of the provisions of s15AA of the Act. It would involve the detailed consideration of a range of different factors to determine the real substance, practical reality and true nature of the relationship. The difficulty of attempting to arrive at a concluded view about the matter in each case is highlighted by the fact that none of the Applicants appeared or provided any evidence directed at the objection that has been raised. On the other hand, the evidence relating to the question of whether there was a dismissal as a matter of fact is relatively confined. For present purposes I propose to assume, in the Applicants' favour and without determining the matter, that the relationship between the parties was in each case that of employer and employee and that the Applicants were therefore each capable of being dismissed from their 'employment' with the Respondent.

• [9] The evidence relating to the circumstances in which the relationship between the parties came to an end was provided by Mr. Bache. The uncontested evidence of Mr. Bache was that Ms. Phillips attended the Respondent's office at approximately 12 noon on 15 November 2024 and said that she was terminating her contract with the Respondent effective immediately. Mr. Bache said that later on the same day, Ms. Tighe sent a text message to the Respondent advising that she was terminating her contract with the Respondent effective immediately and enclosing her final invoice. A copy of the text message was provided. It said "Hi Tracy here is my invoice for this week to be paid. I will not be returning." Mr. Bache said that on 19 November 2024 Ms. Blanchard sent a text message to Ms. Bache to cancel her contract and say she would not be returning. A copy of this text message was also in evidence. It said that Ms. Blanchard had, after careful consideration, "decided to resign from (her) position effective immediately" and that she would not be returning for the rest of the week.

On the basis of the evidence before me I conclude that each of the Applicants decided to bring their relationship with the Respondent to an end. There is no evidence to show the relationships were brought to an end on the Respondent's initiative[3] or that the Applicants were forced to 'resign' because of conduct or a course of conduct engaged in by the Respondent[4]. I am not able to conclude that the Applicants were dismissed for the purposes of s.386. It follows that the applications were not validly made and must, in each case, be dismissed.

By Video using Microsoft Teams at 12:00pm AEDT on Wednesday, 5 March 2025.

[1] Coles Supply Chain Pty Ltd v. Milford [2020] FCAFC 152; (2020) 279 FCR 591.

[2] See for example Grass v. NSW Chinese Tennis Association Inc [2021] FWCFB 3443 at [11].

[3] See Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200], Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769; (2011) 212 IR 248 and Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162.

[4] Mohazab op cit. See also Bupa Aged Care Australia t/a Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941.

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