Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal-jurisdictional objection that Applicant not dismissed-jurisdictional objection dismissed

• [1] This decision concerns an application made by Ms Lara Ulasowski (the Applicant) to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (the Act). The Applicant contends that Neurophysiology Services Australia Pty Ltd (the Respondent) contravened various provisions of Part 3-1 of the Act by dismissing her from her employment. The Respondent denies the allegations and also disputes that the Applicant was dismissed asserting that the Applicant remains employed.

• [2] The Fair Work Commission (the Commission) generally does not have a determinative function in relation to applications brought under s.365 of the Act unless the parties agree to the Commission arbitrating the matter. Rather, the Commission's role is to convene a conference and to issue a certificate to the Applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the Respondent denies that the Applicant was dismissed within the meaning of s.386 of the Act and objects to the application on this basis, the Commission is required first to determine whether the Applicant was in fact dismissed or not.[1]

• [3] A mention hearing was conducted on Wednesday, 16 July 2025. At the hearing, I advised the parties that as there appeared to be no dispute as to the factual chronology in so far as it related to the alleged dismissal, I was in a position, if the partied agreed, to determine the matter based on the materials before me. The parties agreed to that approach however were provided an opportunity to provide any further documents that they considered relevant by 18 July 2025. The Applicant filed some further materials which I have taken into consideration however they are of no consequence in the determination of the matter. The Respondent did not file any additional documents.

• [4] The Applicant asserts she has been dismissed by the employer with an effective date of dismissal of 23 May 2025. The Respondent's "primary" position is that it has not terminated the Applicant's employment and that she remains employed.

• [5] The Applicant has previously lodged a s.365 application alleging she was constructively dismissed on 28 April 2025 (the first application). The first application was lodged on 17 May 2025 and discontinued on 12 June 2025. In the first application, the Applicant stated among other things, "my return has been rendered professionally and unethically untenable". This application, the second application, was lodged on 13 June 2025.

• [6] On Sunday the 27th of April, the Applicant was given a "first and final warning" for an alleged serious breach of "internal communication process" by Ms Felicity Hsu the CEO for the Respondent. Early on Monday the 28th of April the Applicant wrote to Ms Hsu noting that she was available to arrange travel to Sydney that week subject to compliance with unspecified provisions of the Health Professionals and Support Services Award 2020 (the Award). There is a further email shortly thereafter from Ms Hsu referring to the arrangements for flights and asking for the weekend correspondence to be kept confidential.

• [7] The Applicant replied indicating she would arrange flights as per the instructions. The Applicant again raised that her deployment was to be consistent with the Award and legislative entitlements.

• [8] Ms Hsu responded an hour or so later in the following terms:

Considering your email below and the complexities discussed, the decision has been made to place you on paid leave and not to travel you to Sydney this week for training, case attendance and education.

You have made several significant claims and requests that have been documented in numerous emails over the past 48 hours that will need further review by management, before we proceed with a future employment plan for you that would involve contractual variations to your employment contract and conditions. This process will take some time as we evaluate and formulate responses to the emails sent on 27-04-25 @ 4.51pm, 28-04-25 @ 7.07am and 28-04-25 @ 7.27am.

At this stage, you will be relieved from formal duties, including clinical and administrative tasks, and placed on paid leave for this week, Monday, 28 April 2025 until Friday, 2nd May inclusively. Your only duties at this stage, will be to liaise with Alex Cronk and arrange for an Uber courier to pick up your NIM Eclipse machine and company laptops and courier them across to Alex, so that they can be returned to the Sydney office ASAP in the next 48 hours for service and repair. Please do not engage in any clinical discussions with colleagues, attend meetings or converse on the company Teams or WhatsApp chat during this time. The only company interaction should be with either Alex Cronk or myself.

Due to your upcoming annual leave (03-05-2025 till 16-05-2025) and leave without pay (19-05-2025 till 23-05-2025), we will arrange a formal meeting with you on your return to work on the 26th May 2025.

A formal meeting invitation will be sent through for the week commencing Monday, 26th May, time TBC. You may also advise who else you would like included in that invitation.

As previously discussed, this matter is to remain confidential, outside of obtaining some external legal support on this matter and you are also welcome to utilise our company EAP services if you feel it is appropriate.

I look forward to speaking to you in the coming weeks Lara and hopefully working towards a resolution and getting you back to work.

• [9] It is apparent from this email that from 28 April to 2 May the Applicant was effectively stood down on pay in response to the Applicant making "significant claims and requests". It is not apparent what those claims and requests were beyond the reference by the Applicant to the need for compliance with the Award. However, that will be a matter for evidence should the matter proceed to hearing on the merits.

• [10] On 28 April 2025, the Respondent also advised the Applicant by email that she could engage legal support or the Respondent's EAP services for returning to work on 26 May 2025. To the extent that the Applicant relies upon any failure by the Respondent to communicate with her during the period she was on annual leave, the Respondent submits that the Applicant had previously indicated she did not want to be contacted and would not respond to such contact. The Respondent planned for and expected to commence a process to address these issues with the Applicant upon her return to work on 26 May 2025.

• [11] The Applicant was then on annual leave from 3 May to 26 May and leave without pay from 19 May to 23 May (this period of leave was previously granted at the request of the Applicant).

• [12] On 19 May the Applicant wrote to Ms Hsu advising that she considered the conduct of the employer to have resulted in her constructive dismissal, effective on 28 April 2025 and advised she would lodge a general protections claim. Whilst the Applicant made the claim at that time she was constructively dismissed, it is not in dispute that at no stage has the Applicant ever resigned from her employment.

• [13] On 20 May Ms Hsu responded indicating that the Respondent did not consider the Applicant's employment was at an end and that she remained an employee as far as they were concerned.

• [14] On 22 May, Ms Hsu sent the following email:

Our position remains as set out in my email of 20 May 2025. Specifically, your employment did not end on Monday, 28th April 2025. Up until receipt of your email on 19 May we were expecting you to return from your pre-scheduled leave on Monday, 26

May 2025 and were planning accordingly. Your employment has not been terminated. As far as we are concerned, you remain an employee.

Without derogation to the above, however, given it is apparent you are not intending to return to work on 26 May 2025 consistent with your erroneous assertion you were constructively dismissed, and the proposals you have set out below, we:

(i) ask you to return company property as you have set out in your email. Neurophysiology Services Australia will arrange for a courier to pick up the Medtronic unit and all accompanying equipment on Monday, the 26th of April to return to Sydney for servicing. I will ask the office to book this in and we can then advise you of a pickup time and your preferred location for pick up.

(ii) we will maintain your email access and other company software and programmes until Monday, 26 April 2025 but, given your intention not to attend and perform work, we will be removing your email access after that date unless you elect to return to work and consistent with your ongoing employment. You currently have access to all company applications.

We will address your Fair Work Commission application in our response to that application.

• [15] I note that while paras (i) and (ii) in the email above refer to Monday 26 April it would seem that it is an obvious error and should have read Monday 26 May given the email was sent on the 22nd of May.

• [16] The Applicant remained a member of various group chats relating to the Respondent's business after 23 May 2025 and until 27 May 2025, being removed only after she had not returned to work on 26 May 2025.

• [17] The Applicant was due to return to work on 26 May 2025. However, the Applicant didn't return to work. On 26 May there were some email exchanges between the Applicant and Ms Hsu. At 10:33am, Ms Hsu emailed the Applicant to advise a courier was booked to pick up equipment that belonged to the Respondent and sought that the Applicant confirm the equipment was ready for pick up.

• [18] On 26 May the Applicant replied advising Ms Hsu that she would comply by returning the equipment and stock as requested but the items were not ready for collection. At 4:15pm on 26 May Ms Hsu replied indicating she expected the equipment would be ready by the next day for pick up. That email also included advice that as the Applicant had not returned to work that day her access to the company email and other software would be removed.

• [19] There is no further correspondence exchanged. On the 28th of May the Respondent sent an email to employees of the Respondent advising that the Applicant "is no longer with NSA. We thank her for her contributions during her time with us and wish her all the best in her future endeavours". On 29 May the Applicant was "offboarded" by the employer's payroll system "Employment Hero". The copy of the email confirming the off boarding is dated 29 May 2025.

• [20] On 29 May, the Respondent sent the Applicant a payslip which included in the summary section, 'employment ended:23/05/2025' and also included 'termination payments' for leave loading and unused annual leave. The Applicant received that payslip on the 29th of May 2025.

• [21] Section 386 of the Act sets out the meaning of dismissed.

(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.

• [22] I will deal first with the proposition that there was a constructive dismissal. While the Applicant no longer pressed this, or seemed not to, in the second application, nevertheless the Applicant has made pronouncements that she had been constructively dismissed based on the events of the 28th of April. In order for there to be a constructive dismissal, there needs to be an act of the employee that can be considered objectively as a resignation. Section 386(1)(b) of the Act refers to an employee resigning because of conduct or a course of conduct engaged in by their employer. Resignation is a necessary precondition for there to be a finding that there was a termination of employment that falls within the second limb of s.386(1)(b). There is no evidence that the Applicant resigned. The Respondent's position is clearly that the Applicant took no action that could be considered a resignation as their position is that the employment remains on foot. It is clear that the Applicant has not been constructively dismissed.

• [23] Dealing next with whether the employment relationship remains on foot as asserted by the Respondent, it is apparent on the evidence that is not the case. Having regard to the chronology of events set out above, it is clear that, notwithstanding the Applicant's clear indication that her return to work was rendered "professionally and ethically untenable" via her F8 in the first application lodged on 17 May 2025, that the Respondent, nevertheless expected the Applicant to return to work on 26 May.

• [24] When the Applicant did not return to work on 26 May, the Respondent removed the Applicant from her email and software connections on 27 May. On the 28th May the Respondent advised other staff that the Applicant was no longer with the NSA. On 29 May the Respondent "off boarded" the Applicant from the Employment Hero software and sent the Applicant a payslip which clearly indicated her employment was at an end and included "termination payments" of annual leave and annual leave loading. The Applicant received that payslip on 29 May. Objectively, this was action by the employer that either intended to bring the employment relationship to an end or had that probable result[2]. While the payslip refers to a termination date of 23 May, a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed[3]. Whilst the payslip includes a note that the employment ended on 23 May 2025 the position remains that as the Applicant was not aware of the termination until 29 May, when she received the payslip. Therefore, I am satisfied that the dismissal did not take effect until 29 May.

• [25] While the Respondent referred to the issuing of the payslip as an administrative error, this is not accepted as it is inconsistent with the objective evidence. There was a clear and deliberate decision by the employer to "off board" the Applicant and end her employment. This is consistent with the communication to staff of Ms Hsu on 28 May that the Applicant "is no longer with NSA.

• [26] For these reasons, I am satisfied there was a termination of employment at the initiative of the employer which took effect on the 29th of May 2025 when the Applicant received her payslip.

• [27] For the reasons stated above I am satisfied that there was a termination at the initiative of the employer. Therefore, I'm satisfied the Applicant was dismissed within the meaning of s.386 of the Act.

• [28] The jurisdictional objection is dismissed, and the matter will be listed for conference in due course.

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

[2] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 (Watson VP, O'Callaghan SDP, Cargill C, 8 July 2011) at para. 24, [(2011) 212 IR 248]; citing O'Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100].

[3] Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at para. 24.

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