s.365 - Application to deal with contraventions involving dismissal

Recording Oasis Pty Ltd as trustee for Recording Oasis Trust

Application to deal with contraventions involving dismissal - jurisdictional objection - non-compliance with directions - application for summary dismissal of proceedings

• [1] The Applicant Ms Madeleine Greer has filed an application under section 365 of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). The Respondent objects on the ground that it says Ms Greer was not dismissed.

• [2] I issued directions to deal with that objection on 22 September 2025. Ms Greer has not complied with those directions. On 14 October 2025 my chambers put Ms Greer on notice that if she did not file material, the application may be dismissed on the basis that I could not be satisfied that there was any live dispute on foot capable of being dealt with under the general protections, or that the jurisdictional objection may be decided on the basis of the materials presently before me.

• [3] On 15 October 2025 the Respondent applied for summary dismissal of the Applicant's application.

• [4] For the reasons that follow I dismiss the Respondent's summary dismissal application on the grounds that it is misconceived. However, I accept that the Applicant was not dismissed and so I find that the Commission lacks jurisdiction to deal with Ms Greer's application. Accordingly, Ms Greer's application is dismissed.

• [5] Section 365 of the Fair Work Act relevantly provides that if a person has been dismissed, and they allege that they were dismissed in contravention of Part 3-1 of the Fair Work Act, the person may apply for the Commission to deal with the dispute.

• [6] Whether someone has been dismissed under the Act is to be determined by reference to sections 12 and 386 of the Fair Work Act. Section 12, the Dictionary, defines the expression 'dismissed' by referring to section 386. Subsection 386(1) provides:

(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] The application was filed on 3 June 2025. Ms Greer subsequently sought to file a supporting document on 16 June 2025, described as "Statement & Evidence." The document was copied to the Respondent. The Respondent's response was filed on 25 June, and raised a jurisdictional objection, on the basis that the Applicant was not dismissed. I issued directions on 22 September 2025, to deal with the Respondent's objection. I issued further directions on 2 October. Pursuant to that further directions order the Applicant was due to file her materials by 10 October 2025. She did not do so. On 14 October 2025 the Respondent's solicitor wrote to my chambers indicating they had not received Ms Greer's materials. That same day my chambers wrote to the parties as follows.

Ms Greer, it appears you have not complied with the Directions issued on 1 October by Deputy President Butler. You were to file your witness statements and outline of submissions by 10 October.

You should, as soon as possible, explain your non-compliance.

Non-compliance with directions has the potential to adversely affect the continuation of these proceedings. The Commission may form the view that there is no longer a dispute between you and the Respondent, and it no longer has jurisdiction to proceed under section 368, in which case your matter may be dismissed.

Alternatively the Commission consider deciding the Respondent's objection on the basis of the materials that it filed on 1 October, without further notice to you.

In either case, if your case is dismissed then it is likely that a public decision will be issued explaining your failure to participate and prosecute this application.

If you do not wish to continue with your application, you may discontinue by

• filling out the discontinuance form: Notice of discontinuance (Form F50) | Fair Work Commission.

Once you notify the Commission of your discontinuance, the Commission will then be able to assess your application to confirm if you are eligible for a refund of your application fee.

Parties are reminded that requests for extensions or adjournments should be made in advance."

• [8] On 15 October 2025, Respondent wrote to my chambers. That correspondence included, inter alia:

"The Applicant has failed to comply with the directions, neither has she provided any reason for her delay or sought an extension to file her material. Accordingly, the Respondent seeks that the Application be dismissed pursuant to sections 399(1)(b) and 587(1)(c) of the Fair Work Act 2009 (Cth) (Act)."

• [9] Though that request was made by correspondence and not via an application in an approved form, I have treated it as an application for summary dismissal.

• [10] On 16 October 2025 my chambers wrote to the parties in the following terms:

"Ms Greer, if you wish to show cause why your application should not be dismissed, either on the Commission's own motion on the bases set out in the correspondence of 14th October, or on the basis the Respondent has put forward in its application of 15 October 2025, please do so by filing submissions of not more than five pages, and supporting witness statement(s) (if any), by 4 pm on 23 October 2025."

• [11] Ms Greer has not responded to the directions or subsequent emails in this matter. Indeed, my chambers has no record of receiving any correspondence from Ms Greer since this matter was allocated to me. Noting that Ms Greer's emails in June came from an "icloud" address, and emails have been sent to a "me.com" address, I have confirmed that my chambers has used the email address Ms Greer gave on her application. The "me.com" address also appears in the signature of the email received from Ms Greer when she provided her materials of 16 June, notwithstanding that email's "from" field displays the "icloud" address. I am satisfied the directions and correspondence have been sent to the address Ms Greer provided.

• [12] Section 399(1)(b) of the Fair Work Act does not provide a power to dismiss proceedings. The Respondent's solicitor may have meant section 399A, but that provision does not apply to applications brought under section 365, as is the case here. Because of subsection 587(2) of the Fair Work Act, the Commission cannot dismiss Ms Greer's application under subsection 587(1)(c). Accordingly, the Respondent's summary dismissal application is misconceived. That application is dismissed.

• [13] In the absence of any contact from Ms Greer I am, though, unable to be satisfied that there is any live dispute capable of being dealt with under the general protections.

• [14] Further, or in the alternative, I am unable to find that the Applicant was dismissed on the basis of the material before me. Even putting aside any question of the status of the documents filed without leave on 16 June 2025, and taking that document into account, on the Applicant's own material there is no basis for me to find that the employer took some action with the intent of ending the employment. Nor do I find that its conduct forced Ms Greer to resign, or had the probable effect of forcing her to do so. She had other options including pursuing other causes of action in this or another tribunal or court, seeking the assistance of a regulator, continuing to negotiate, or simply biding her time until she found another job.

• [15] In the circumstances the Commission lacks jurisdiction to deal with Ms Greer's application.

• [16] Ms Greer's application is dismissed. I order accordingly.

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