s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] On 18 February 2025, Ms Pauline Dela Cruz (the Applicant) lodged an application (the Application) in the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act), against Blue Collar Ground Handling Pty Limited (the Respondent).

• [2] The Applicant commenced employment with the Respondent in May 2022. The Applicant claimed to have been dismissed by the Respondent on 18 February 2025.

• [3] In the hearing of the matter the Applicant represented herself. The Respondents were represented by Mr Nguyen and Ms Schoenherr of Irwell Law. The Respondent raised a jurisdictional objection to the Application, being that the Applicant was not dismissed.

• [4] On 18 March 2025, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). In response to the Directions:

(a) On 23 March 2025, the Applicant filed a Submission;

(b) On 9 April 2025, the Respondent filed an Outline of Submissions, a Statement from Ms Cynthia Bridgman and a Statement from Mr Christian Suarez; and

(c) On 15 April 2025, the Applicant filed materials in Reply.

• [5] The hearing of the Application (the Hearing) occurred on 30 April 2025.

• [6] The Applicant was employed by the Respondent from May 2022. At the relevant time the Applicant was employed by the Respondent and deployed as a Catering Attendant with their client, Dnata.

• [7] The Respondent operates a recruitment company that provides services to primarily the aviation industry.

• [8] On 12 February 2025, the Respondent sent an email to the Applicant regarding future shifts with Dnata on 17, 18 and 19 February 2025.

• [9] On 16 February 2025 the Applicant emailed the Respondent advising that she was unable to work until 28 February 2025 as she needed to fly to Dubai for personal reasons.

• [10] On 18 February 2025 the Respondent sent an email to the Applicant advising as follows:

This is not sufficient notice. After careful consideration, we have decided to proceed with your offboarding. Please return your Dnata ID to the Blue Collar New Office, as this will impact your final pay.

• [11] The Respondent submitted, and the Applicant accepted, that the "offboarding" was from Dnata.

• [12] Due to her position, the Applicant had access to the kitchen at Dnata, which is located at the jet base facility on the tarmac of Sydney Airport. As a matter of security, the Applicant needed to be offboarded from the Dnata system. I accept that it is the policy of both Dnata and the Respondent to take swift action and offboard an employee from Dnata systems if they are going overseas on short notice.

• [13] The Respondent did not attempt to contact the Applicant while she was on leave because they did not want to disturb her while she was taking leave.

• [14] The Respondent attempted to contact the Applicant by telephone after she returned from leave, and prior to and on 7 March 2025, to discuss a position with an alternative aviation catering company to Dnata, being Gate Gourmet.

• [15] A further text message was sent to the Applicant on 7 March 2025, asking her to attend the Respondent's office to have a discussion. The Respondent attempted to call the Applicant again on 18 March 2025, however, that call went unanswered.

• [16] The Applicant submitted that, while she understood that she was required to return her Dnata ID, withholding her salary until the ID was returned was unfair and unreasonable.

• [17] The Applicant submitted that if she was not dismissed, proper communication should have been made to inform her of ongoing work opportunities, particularly if the intention was to reassign her from Dnata to Gate Gourmet. At no point did she receive any formal email or written confirmation that she was still employed or being re-rostered. While the Respondent did contact her, she submitted this only happened because the Respondent was aware that she had filed a complaint against them.

• [18] Given the sequence of events, the message that she was being offboarded, the withholding of her salary, and the absence of further formal communication about continued

employment, the Applicant had every reason to believe that she had been dismissed.

• [19] The Respondent submits it did not terminate the Applicant's employment at their initiative, and there is no evidence to substantiate the Applicant's claim that her employment was terminated at the Respondent's initiative.

• [20] The Respondent maintains that the Applicant has not been dismissed, and the Respondent has tried on numerous occasions to contact the Applicant to arrange further shifts at Gate Gourmet. Based upon the correspondence of 7 March 2025, it is evident that the Respondent intended for there to be an ongoing employment relationship between the parties, and there has been no formal termination correspondence provided to the Applicant setting out that her employment has ended.

• [21] Section 386(1)(a) of the Act has not been satisfied as the Applicant's employment did not end at the Respondent's initiative.

• [22] The jurisdictional issue that arises in this matter is whether the Applicant was dismissed.

• [23] Section 12 of the Act defines the word "dismissed" by reference to s 386 of the Act. Sub-section (1) of s.386 relevantly 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.

• [24] The Applicant confirmed in the Hearing that she relied upon the first limb of the definition in s.386(1)(a).

• [25] While the use of the curious term "offboarding" may render superficially attractive a submission that a dismissal has occurred, such a simplistic approach does not consider the industry specific facts in this matter, that importantly were not in dispute between the parties.

• [26] As noted above, the Respondent submitted, and the Applicant accepted, that the "offboarding" referred to in the email was from Dnata, and not the Respondent. Due to her position, as a matter of security the Applicant needed to be swiftly offboarded from the Dnata system when going overseas on short notice.

• [27] The Applicant filed the Application on the date of dismissal. As such there was no opportunity for the Respondent to advance to the Applicant alternative placement opportunities prior to the Application being commenced. I am satisfied, however, that, consistent with the Applicant having ongoing employment with the Respondent:

(a) The Respondent did not contact the Applicant while she was on leave until 28 February 2025, because it did not want to interrupt her leave; and

(b) Shortly after her return from leave, and both before and on 7 March 2025, the Respondent sought to advance to the Applicant alternative placement opportunities.

• [28] For the reasons set out above, I am satisfied that the Applicant was not dismissed by the Respondent.

• [29] As the Applicant was not dismissed, she could not apply for relief under Sub-division A of Part 3-1 of the Act. The Application is dismissed.

Mr S Nguyen and Ms H Schoenherr of Irwell Law, on behalf of the Respondent.

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