s.365 - Application to deal with contraventions involving dismissal

EZYPAY SOLUTIONS PTY LTD, EZYREMIT WORLDWIDE PTY LTD

Application to deal with contraventions involving dismissal - whether applicant dismissed - probationary period of employment - contract for specified period of time

• [1] The reasons set out below are an extended version of reasons I delivered ex tempore at the hearing of this matter which was conducted on 30 June 2025.

• [2] Ms. Cella Tran (Applicant) commenced employment with Ezi Remit Worldwide Pty Ltd (Respondent) in late September 2024. According to the letter of offer provided to the Applicant by the Respondent, the Applicant was to initially work on a part-time basis for 2 days per week commencing 26 September 2024 before the Applicant would commence full-time employment on and from 7 October 2024.

• [3] The letter of offer provided that Ms. Tran was to be employed on the basis that there would be a probationary period of 6 months. Clause 6 of the letter said:

This offer is based on a six-month probationary period during which time either party may terminate this agreement with one week's notice.

On completion of your probationary period, we will conduct a performance review with you, and provide you with a remuneration adjustment if appropriate.

• [4] Clause 7 of the letter of offer said, amongst other things, that following the probationary period, either party may, for any reason, terminate the contract of employment by giving to the other party not less than two weeks' notice.

• [5] On the evening of 24 March 2025, the Applicant received an email containing a letter of termination bearing that date. The letter advised that the Applicant's performance was unsatisfactory and that her employment would not continue. The letter went on to provide that the Applicant's last day of employment would be 29 March 2025.

• [6] The Applicant's evidence was that she continued to work up until the afternoon of 26 March 2025 when her access to the Respondent's information technology system was revoked.

• [7] Mr Nguyen, one of the Respondent's directors, gave evidence that he was involved in the board of directors' decision to bring the employment of the Applicant to an end. He said that the reason the decision was taken was because of the Applicant's poor work attitude and poor performance.

• [8] Following the termination of her employment, the Applicant applied under s.365 of the Fair Work Act 2009 (Cth)(Act) alleging that the Respondent had dismissed her in contravention of Part 3-1 of the Act. The Respondent objected to that application on the basis that the Applicant had not been dismissed by them and that the letter of offer was in substance a fixed term arrangement. The Respondent contended that the employment was conditional upon the completion of the probationary period and that the Applicant's employment had come to an end in accordance with the terms of the contract as set out in the letter of offer. The Respondent submitted that the Applicant's employment had come to an end because of the non-renewal of a conditional offer rather than a dismissal.

• [9] An objection of the kind raised by the Respondent must be dealt with and determined before the Fair Work Commission (Commission) can deal with the dispute by conducting a conference under s.368 of the Act.[1]

• [10] Section 386 of the Act defines the circumstances in which someone is dismissed for the purposes of the Act,[2] including for the purposes of s.365. It provides as follows:

(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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

• [11] In this case the Applicant contended that her employment had been terminated on the Respondent's initiative for the purposes of s.386(1)(a). The Respondent argued that the exclusion in s.386(2) applied because the Applicant was employed under a contract of employment for a specified period of time and the employment was terminated at the end of that period.

• [12] The Respondent's submission cannot be accepted. The letter of offer which constituted the contract of employment did not specify that the employment was for a specified period nor did it say that the employment of the Applicant would cease at the end of any specified period of time. The text of the letter provides simply that there will be a probationary period of 6 months after which there will be a performance review and possible remuneration adjustment. That is, far from providing that the employment would end on a particular date, the letter envisages a separate process of review and the prospect of ongoing employment at an adjusted remuneration level. It provides that during the probationary period there is to be a reduced period of notice than that which would otherwise apply but says nothing about termination of employment through the effluxion of a specified period of time or the employment coming to an end on a particular date.

• [13] Probationary periods are not uncommon features of employment contracts. They provide for a period of assessment as to the suitability of the employee for the role, including performance, during the initial stage of employment. Probationary periods are however to be distinguished from contracts of employment for a specified period of time. The latter are generally contracts that are expressed to terminate upon the expiry of a nominated term, including in circumstances where the contract also provides the parties with "other modes of earlier termination."[3]

• [14] In this instance the contract did not include an agreed end date. The exclusion in s.386(2)(a) did not apply. Rather, the Applicant's employment was brought about by a unilateral act of the Respondent who had assessed the Applicant's performance as substandard and determined that the employment would be brought to an end on a date of the employer's choosing. The Respondent's action resulted "directly and consequentially" in the termination of the Applicant's employment.[4] The action of the Respondent was intended to bring the employment to an end and had that probable result.[5] I conclude that the Applicant was terminated on the Respondent's initiative within the meaning of s.386(1)(a) and was therefore dismissed for the purpose of s.365 of the Act.

Following my ex tempore decision on 30 June 2025, I conducted a conference between the parties under s.368 of the Act to deal with the dispute. The matter did not resolve at the conference and I indicated that I would issue a certificate pursuant to s.368(3). That certificate accompanies these reasons. I observe that the certificate refers to both the Respondent and Ezipay Solutions Pty Ltd. There was some uncertainty as to the entity which ultimately employed the Applicant. The Applicant's letter of offer refers to employment with the Respondent. For the purposes of s.365 I need only be satisfied that the Applicant was dismissed.[6] The identification of the proper respondent or respondents to any proceedings which might follow on from the issuing of the certificate is a matter that may require further consideration and clarification at that stage.

By Video using Microsoft Teams at 10:00am AEST on Monday, 30 June 2025.

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

[2] See s.12.

[3] Alouani- Roby v. National Rugby League Ltd [2014] FCAFC 161 at [50].

[4] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645. See also Pawel v Advanced Precast Pty Ltd Print S5904.

[5] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769

[6] Civmec Construction & Engineering Pty Ltd v. Minchin [2025] FWCFB 2.

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