The attached document replaces the document previously issued with the above code on 8 January 2025.

Correction of a typographical error in paragraph [13] and [24].

[2025] FWCFB 3

Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2024] FWC 2586 of Commissioner Lee made in Melbourne on 26 September 2024 - Application under s 365 of the Fair Work Act 2009 (Cth) alleging contravention of Part 3-1 in relation to dismissal - Jurisdictional objection on grounds that the appellant was not dismissed - Appellant employed under an initial 12 month fixed term contract as a Teacher Under Supervision - Contemplation of permanent appointment on completion of qualifications and satisfactory performance - Extension of appointment for further period - Qualifications not achieved within time - Appellant informed prior to expiry of contract period that employment would cease at end of term - Whether the appellant had been "dismissed" for the purposes of s 386 of the Act - Whether no dismissal by operation of s 386(2)(a) - Exception in s 386(2)(a) applies - No utility in considering remainder of the parties' contentions - Permission to appeal refused.

[1] This appeal concerns whether an employee was "dismissed" for the purposes of the Fair Work Act 2009 (Cth) (the Act) in circumstances in which, on its face, the employment came to an end as a result of the expiry of a time-limited contract.

[2] The issue arose in the following way. Ms Muria Roberts is a teacher. She commenced employment with TasTAFE on 6 March 2023. The letter of offer, which was dated 1 March 2023, described her initial appointment as for a "fixed term of up to 12 months". The letter indicated that:

We are pleased to offer you (Employee) fixed-term employment with TasTAFE ABN 54 248 304 374 (TasTAFE).

Your initial appointment will be fixed term for up to 12 months as a Teacher Under Supervision. On successful completion of the Certificate IV in Training and Assessment qualification, and satisfactory performance in the role, approval will be sought for your conversion to permanency.

[3] The schedule to the letter of appointment contained the following provision:

For the avoidance of doubt, no notice is required to bring your employment to an end on this date.

You acknowledge and agree that nothing in this contract is to be construed as providing you with an entitlement to ongoing employment with TasTAFE.

[4] By email dated 13 February 2024, Ms Roberts was advised that an extension had been approved to 3 May 2024. The email advised as follows:

Hi Robin and Muria, extensions to your contracts have been approved. This is the only extension that you can receive (new Fair Work laws).

You now have until those dates to complete your TAE. If you do not complete your TAE in that time frame your employment will be terminated (them's the rules). Robeka is aware of this change.

[5] The Commissioner found that a further offer of fixed term employment for Ms Roberts dated 29 February 2024 was uploaded on TasTAFE's online portal.[1] The letter advised that: "We are pleased to offer you (Employee) fixed-term employment with TasTAFE ABN 54 248 304 374 (TasTAFE)". The schedule to the letter of offer relevantly recorded:

For the avoidance of doubt, no notice is required to bring your employment to an end on this date.

You acknowledge and agree that nothing in this contract is to be construed as providing you with an entitlement to ongoing employment with TasTAFE.

[6] Leading up to 3 May 2024, representatives of TasTAFE appear to have formed the view that Ms Roberts had not made sufficient progress to complete the required qualification before that date. On 30 April 2024, TasTAFE sent an email to Ms Roberts attaching a letter with the subject "Certificate IV in Training and Assessment Progress". Among other things, the letter recorded:

• You commenced in the position of Associate Teacher with TasTAFE on 6 March 2023 for an initial 12-month fixed term contract, in line with the TasTAFE Associate Teacher Procedure.

• It was evident by the end of the 12-month contract you had not completed your TAE within the period specified in your contract of employment and the TasTAFE Associate Teacher Procedure.

• In February 2024, TasTAFE considered and approved a fixed term contract extension through to 3 May 2024 to support you in the completion of your TAE.

• On 29 April 2024, it was confirmed by Educator Capability that you had not submitted sufficient assessments within an adequate timeframe to successfully complete your TAE by 3 May 2024.

• According to the TasTAFE Associate Teacher Procedure, if the Associate Teacher does not meet the requirements for conversion to permanency and their contract is not extended, their employment will cease at the end of their fixed term contract.

[7] The letter asserted that TasTAFE could not further extend Ms Roberts' fixed term contract or seek approval for conversion to permanency when she had not completed the TAE qualification. The letter later advised:

As a consequence of the above, I am saddened to advise your employment with TasTAFE will cease at the end of your fixed-term contract, Friday, 3 May 2024

[8] On 24 May 2024, Ms Roberts filed an application under s 365 of the Act for the Commission to deal with a general protections dispute involving dismissal. The application alleged that Ms Roberts had been dismissed on 3 May 2024 and that the dismissal involved contraventions of at least ss 340, 351 and/or 352 of the Act.

[9] TasTAFE objected to the application on grounds that Ms Roberts had not been dismissed. The objection was heard by Commissioner Lee. The Commissioner conducted a hearing in relation to the jurisdictional objection on 30 July 2024. On 26 September 2024, the Commissioner handed down his decision. The Commissioner concluded that Ms Roberts had not been dismissed for the purposes of s 386(1) of the Act. In short, the Commissioner concluded that there was an operative time-limited contract between Ms Roberts and TasTAFE "which reflected a genuine agreement that the employment relationship would not continue after 3 May 2024 and the employment relationship came to an end on 3 May 2024".[2] The Commissioner was not convinced that any of the circumstances of a type referred to in the Full Bench decision in Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162; (2017) 273 IR 44 (Khayam v Navitas) existed so as to suggest that there was a termination at the initiative of the employer. The Commissioner dismissed Ms Roberts' application.[3]

[10] It is relevant to note that the Commissioner made an alternative finding by reference to s 386(2)(a) of the Act as follows:[4]

In any event, if the consideration above is wrong, the decision in Alouni-Roby [sic] of Justice Raper is authority for the proposition that the exemption in s 386(2)(a) applies to the type of contract that applied to the Applicant. Consistent with the reasoning of her Honour, as the Applicant's second contract was a time limited contract of the type contemplate [sic] as falling within the scope of s 386(2)(a) as per the consideration of Justice Raper, it follows that there was no dismissal within the meaning of the Act.

[11] The decision referred to by the Commissioner is the decision of Raper J in Alouani-Roby v National Rugby League Ltd [2024] FCA 12; (2024) 328 IR 226 (Alouani-Roby (Raper J)).

[12] Ms Roberts seeks permission to appeal, and to appeal, from the decision of the Commissioner under s 604(1) of the Act. The question raised by the submissions of the parties is essentially whether Ms Robert's employment was terminated on the employer's initiative for the purposes of s 386(1)(a) of the Act. Ms Roberts' grounds of appeal are extensive and raise an array of factual assertions as well as contentions related to the proper application of s 386(1)(a) of the Act. In substance, Ms Roberts submits that her employment relationship did not come to an end by the mere effluxion of time, but as a result of actions and decisions of TasTAFE that she submits made it impossible for her to complete the Certificate IV in Training and Assessment within the required time.

[13] The appeal was heard by the Full Bench on 11 December 2024. In its written and oral submissions, TasTAFE accepted the basic premise of Ms Roberts' contentions. That is, TasTAFE accepted that if it had engaged in conduct that had the effect of preventing Ms Roberts from achieving the qualifications that would have permitted her conversion to permanency, that could have constituted a termination of employment at its initiative. TasTAFE submitted, however, that it had engaged in no such conduct and Ms Roberts' employment came to an end by reason of the expiry of her contract and for no other reason. In the alternative, TasTAFE relied on the reasoning in Alouani-Roby (Raper J) to suggest that, in any event, there was no dismissal by operation of s 386(2)(a) of the Act, although it submitted it was not necessary to deal with that issue to dispose of the present appeal.

[14] During the hearing of the appeal on 11 December 2024, the Full Bench raised with the parties that it had become aware that an appeal had been brought from the decision of Raper J in Alouani-Roby (Raper J) and that the decision of the Full Court with respect to that appeal was due to be handed down the following day, 12 December 2024. The parties were given leave to file supplementary submissions in relation to the effect (if any) of the decision of the Full Court on Mr Roberts' appeal. The Full Court handed down its decision in Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 (Snaden, Meagher and Needham JJ) (Alouani-Roby (Full Court)) as scheduled on 12 December 2024. The appeal was dismissed. TasTAFE filed supplementary submissions in relation to the Full Court's decision on 17 December 2024 and Ms Roberts did so on 23 December 2024.

[15] For the reasons that follow, the decision of the Full Court in Alouani-Roby (Full Court) means that Ms Roberts' appeal cannot succeed. The exception in s 386(2)(a) applies and Ms Roberts' was, by definition, not dismissed for the purposes of the Act. It is unnecessary for the Full Bench to consider the remainder of Ms Roberts' contentions. Even if those contentions were accepted, the reasoning of the Full Court means that Ms Roberts was not "dismissed" as that term is understood in the Act. There is no utility in permission to appeal being granted to consider Ms Roberts' contentions.

[16] Ms Roberts' application was made under s 365 of the Act. Section 365 falls within Part 3-1 which is entitled "General protections". Among other things, Part 3-1 prohibits an employer from taking "adverse action" against an employee for various proscribed reasons. One form of adverse action occurs if the employer dismisses an employee.[5] The reasons for which an employer is prohibited from dismissing an employee include that the employee has, has exercised or proposes to exercise workplace rights, various discriminatory grounds including sex and temporary absence from work because of illness or injury.[6] Those are the grounds to which Ms Roberts refers in her application.

[17] Division 8 of Part 3-1 is entitled "Compliance". Subdivision A of Division 8 is entitled "Contraventions involving dismissal" and contains s 365. Section 365 provides as follows:

365 Application for the FWC to deal with a dismissal dispute

(a) a person has been dismissed; and

(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.

[18] As will be apparent, a person, or an industrial organisation entitled to represent the industrial interests of the person, is only able to apply for the Commission to deal with a dispute under s 365 of the Act if the person "has been dismissed" and it is alleged that the dismissal involved a contravention of Part 3-1 of the Act.

[19] Section 386 of the Act is entitled "Meaning of dismissed" and provides:

(1) A person has been dismissed if:

• (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

(b) the person was an employee:

• (i) to whom a training arrangement applied; and
• (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

(c) the person was demoted in employment but:

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

• (iii) 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.

[20] Section 386 appears within Part 3-2 of the Act dealing with "Unfair dismissal". However, the definition is applied generally throughout the Act. Section 12 defines what is meant by the term "dismissed" in the Act by simply stating "see section 386". It has not been doubted that the definition in s 386 is to be applied to determine whether a person "has been dismissed" for the purposes of s 365(a).[7]

[21] The principal aspect of the concept of a person being "dismissed" is found in s 386(1)(a) and arises where the person's employment has been "terminated on the employer's initiative". The concept of the termination of employment having been at the "initiative" of the employer has been a feature of Commonwealth industrial legislation dealing with unfair dismissal since 1994 when the Industrial Relations Act 1988 (Cth) (the IR Act) was amended by the Industrial Relations Reform Act 1993 (Cth) to incorporate the first comprehensive Commonwealth unfair dismissal regime. The language has its genesis in the Convention concerning Termination of Employment at the Initiative of the Employer (the Convention) adopted by the International Labour Organisation in Geneva on 22 June 1982.[8] The language has been retained in s 386(1)(a) even though the provisions of the Act to which the definition applies no longer seek to give effect to the Convention.

[22] Commonwealth industrial legislation has also consistently provided for various exceptions to the entitlement of employees to access the protection against unfair dismissal also initially derived from the Convention. One of those exceptions has involved a situation in which an employee was "engaged under a contract of employment for a specified period of time". The history and development of those provisions was described by the majority of the Full Bench in Khayam v Navitas as follows:[9]

An exception with respect to contracts for employment for a specified period of time long predates the FW Act, and was originally derived from Article 2 of the Convention. Under the initial termination of employment scheme in the IR Act, s 170CC authorised the making of regulations excluding employees from the operation of specified provisions in Div VIA subject to specified conditions, including that the exclusion was permitted by paragraph 2, 4 or 5 of Article 2 of the Convention. Reg 30B of the Industrial Relations Regulations 1996 was made in exercise of this power and relevantly provided that "employees engaged under a contract of employment for a specified period of time" were excluded from the operation of Subdivs B, C, D and E of Div 3 of Pt VIA (reg 30B(1)(a)), except where the employee was engaged under a contract of that kind "if a main purpose of the employee's engagement under a contract of that kind is to avoid the employer's obligations under Subdivision B, C, D or E of Division 3 of Part VIA of the Act" (reg 30B(2)).

The approach in Andersen and Cooper was followed in subsequent Industrial Relations Court decisions such as D'Lima and Dadey v Edith Cowan University, and was later referred to with approval by the Federal Court Full Court in Barratt v Howard. In 1997 reg 30B(1)(a) was amended (by Statutory Rule No 101 of 1997) to add the following note:

"[NOTE: The expression `employee engaged under a contract of employment for a specified period of time' used in paragraph 30B(1)(a) has been addressed in a number of cases before the Industrial Relations Court of Australia, including, in particular, Cooper v Darwin Rugby League Inc (1994) 57 IR 238, Andersen v Umbakumba Community Council (1994) 136 ALR 121, D'Lima v Board of Management, Princess Margaret Hospital of Children (1995-1996) 64 IR 19 and Fisher v Edith Cowan University (unreported judgement of Madgwick J, 12 November 1996, No. WI 1061 of 1996).]"

As a result of the Workplace Relations Amendment (Fair Termination) Act 2003, the exclusion that had been contained in reg 30B(1)(a) became part of the WR Act, as s.170CBA(1)(a). There was no change to the language used in the exclusion. The note which had previously accompanied reg 30B(1)(a) now followed s 170CBA(1)(a), and remained in the WR Act until the enactment of the FW Act.

[23] Until the commencement of the current Act, the exclusion of employees engaged under a contract of employment for a specified period of time operated by excluding such employees from the operation of the relevant parts of the legislation. A similar exception is contained in s 386(2)(a) of the current Act, however, now by way of an exception to the definition of when a person has been "dismissed". The subsection operates such that, even if a person might otherwise have been "dismissed" as that concept as defined in s 386(1), the person has not been dismissed by operation of the exception in s 386(2)(a) if the person, relevantly, "was employed under a contract of employment for a specified period of time ... and the employment has terminated at the end of the period ...".

Employed under a contract "for a specified period of time"

[24] The expression "engaged under a contract of employment for a specified period of time" as it appeared in the regulations and statutory provisions up until the commencement of the current Act was interpreted as limited to a contract that was strictly for a fixed term. A contract "for a specified period of time" was one where the period of employment has certainty as to both its commencement and time of completion. On this interpretation, a person was not considered to be employed for a "specified period of time" if their contract provided for a cessation date but contained an unqualified right to terminate on notice prior to its expiry. Such a contract did not specify a "period of time" but merely recorded the outer limit or maximum term that the contract could run. The most prominent decisions representing that view were Cooper v Darwin Rugby League Inc (1994) 57 IR 238 and Andersen v Umbakumba Community Council (1994) 56 IR 102.[10]

[25] The view that the exclusion of persons engaged under a contract of employment "for a specified period of time" did not encompass a time-limited contract which conferred an unqualified right of termination prior to its cessation continued to be applied by the Commission after the commencement of the amendments which became the Workplace Relations Act 1996 (Cth) and after the exclusion made its way into the legislation itself in 2003 in s 170CBA(1)(a).[11] That is unsurprising given the note which was inserted in relation to regulation 30B(1)(a) and later s 170CBA(1)(a) which referred to the approach in Cooper v Darwin Rugby League Inc and Andersen v Umbakumba Community Council.

[26] When it commenced, s 386(2)(a) of the current Act had a number of different features compared to regulation 30B(1)(a) and later s 170CBA(1)(a). First, as we have mentioned, it operates not to directly exclude a person from the unfair dismissal jurisdiction, but rather so as to provide an exception to the definition of when a person had been "dismissed". Second, the provision added additional words such that a person was taken not to have been dismissed only if the person had been employed under a contract "for a specified period of time" and the employment "has terminated at the end of the period". Third, the note which appeared following regulation 30B(1)(a) and s 170CBA(1)(a) and referred to Cooper v Darwin Rugby League Inc and Andersen v Umbakumba Community Council was removed.

[27] The Commission nonetheless continued to apply the approach in Cooper v Darwin Rugby League Inc and Andersen v Umbakumba Community Council to the exception in s 386(2)(a). Most authoritatively, in Khayam v Navitas, the majority of the Full Bench noted that the expression "contract of employment for a specified period of time" was identical to that used in the former reg 30B(1)(a) and then s 170CBA(1)(a) and rejected the submission that the addition of the requirement that the employment "has terminated at the end of the period" indicated an intention to recast the entire provision. The view of the majority was that the additional language in s 386(2)(a) did no more than make express an implication to be drawn from regulation 30B(1)(a) and s 170CBA(1)(a).[12]

[28] If that view is applied to Ms Roberts' case, s 386(2)(a) would have no operation in relation to her application. Ms Roberts' initial letter of offer, in clause 9(a), permitted TasTAFE to "terminate the Employee's employment at any time by giving the Employee written notice in accordance with the Industrial Instrument". The further letter of offer with respect to the additional term to 3 May 2024 provided, in clause 8(a), that TasTAFE could "terminate the Employee's employment at any time by giving the Employee written notice in accordance with the Act". As such, despite recording an "end date", both contracts contained an unqualified right to terminate with notice prior to their expiry.

[29] In Alouani-Roby (Full Court), however, the Full Court adopted a different construction of s 386(2)(a). The Full Court concluded that, in the context of s 386(2)(a), the phrase "a contract of employment for a specified period of time" is apt to include fixed-term contracts which permit termination otherwise than at the expiry of the term. The Full Court said:[13]

... The concluding words in which s 386(2)(a) is expressed very clearly disclose that the statutory conception of "a contract of employment for a specified period of time" is apt to include fixed-term contracts that are terminable otherwise than by the expiry of their fixed terms. At least for present purposes, a contract of employment that is expressed to terminate upon the expiry of a nominated term is a contract for a specified period of time; and it is no less so merely because it reserves for the parties other modes of earlier termination.

[30] The Full Court acknowledged that its conclusion is difficult to reconcile with the judgment of von Doussa J in Andersen v Umbakumba Community Council and inconsistent with the prevailing view in the Commission exemplified by the decision of the majority in Khayam v Navitas. Nonetheless, the Full Court continued:[14]

Be that as it may, we think that the import of the words in which s 386(2)(a) of the FW Act is expressed is appreciably clear: a contract that is expressed, whether subject to other rights or not, to run for a nominated term is, for the purposes of s 386(2)(a) of the FW Act, a contract for a specified period; and remains as much notwithstanding that it might lawfully be brought to end otherwise than by (which is to say, before) the expiry of that period. If we are wrong about that and s 386(2)(a) of the FW Act permits of alternative constructions, any attendant ambiguity is immediately resolved upon consultation of the explanatory memorandum that accompanied the Fair Work Bill 2008 (Cth) (above, [28]). The intention underpinning the section could hardly have been made clearer: the "...fact that an employment contract may allow for earlier termination would not alter the application of [s 386(2)(a)]"

The authorities decided under differently-expressed provisions, although perhaps not wholly irrelevant, are not presently instructive. It is unnecessary that we should express a view about the correctness of, in particular, the decision of the Industrial Relations Court in Andersen. It suffices to observe that whatever might have been the correct construction of the phrase "contract of employment for a specified period of time" under earlier (and different) statutory and regulatory pronouncements, the correct way to construe those words as they appear in s 386(2)(a) of the FW Act is the way in which the learned primary judge was minded to construe them.

[31] The consequence is that a contract of employment which records a designated end date at which the employment will terminate is capable of being described as "a contract of employment for a specified period of time" even if the contract contains an unconditional or unqualified right to terminate during its term. If the employment of a person who is employed under such a contract terminates "at the end of the period", the person has not been "dismissed" for the purposes of s 386 of the Act by operation of the exception in s 386(2)(a). Among other things, that person cannot apply under s 365 for the Commission to deal with a dismissal dispute arising from the termination of their employment.

[32] The application of the reasoning in Alouani-Roby (Full Court) to Ms Roberts' case is clear. Ms Roberts does not appear to dispute that she was employed under a time-limited contract or that the employment came to an end at the conclusion of the contract period on 3 May 2024. She was correct not to do so.

[33] The email dated 13 February 2024 communicated an offer to extend the employment to a fixed date, namely, 3 May 2024. The offer of fixed term employment dated 29 February 2024 similarly recorded an end date of 3 May 2024. As such, the contract of employment created by acceptance of those communications had a specified end date. Ms Roberts was notified that her employment would end at the conclusion of the fixed term by the letter dated 30 April 2024. That letter cannot be construed as having brought the employment to an end other than at the conclusion of the fixed period. Although it may have been unnecessary to do so, the letter did no more than put Ms Roberts on notice that no further employment would be offered, and her employment would cease at the end of the fixed term.

[34] The reasoning in Alouani-Roby (Full Court) means that Ms Roberts was employed under "a contract of employment for a fixed period of time" for the purposes of s 386(2)(a). That is so notwithstanding that the contract conferred an unconditional right on TasTAFE to terminate the employment by giving the minimum notice period prescribed by the Act. As Ms Roberts' employment terminated at the end of that period, s 386(2)(a) applies and she was not "dismissed" for the purposes of the Act. She was not able to make an application under s 365 and the Commissioner was correct to dismiss the application.

[35] Ms Roberts' submissions in relation to Alouani-Roby (Full Court) asserted that the case is distinguishable because the termination of her employment was the result of the actions of TasTAFE in withdrawing support in relation to completion of the TAE qualification. Ms Roberts submits that her contract of employment "establishes a clear expectation that TasTAFE would facilitate the Applicant's professional development as part of the commitment to the employment relationship" and that TasTAFE had breached what she describes as a "contractual obligation" by unilaterally withdrawing support and blocking her from completing the qualification.

[36] It is unnecessary for the Full Bench to comment on the contention that TasTAFE withdrew support for Ms Roberts or blocked her from completing the relevant qualification. Those submissions do not address the operation of s 386(2)(a). Even if those submissions were accepted, it does not alter the fact that Ms Roberts was employed under a contract of employment for a specified period of time (as that phrase has now been construed by the Full Court) and that the employment terminated at the end of the period. The submission could not establish that Ms Roberts was dismissed given the operation of s 386(2)(a).

[37] Ms Roberts referred to the decision in Lattouf v Australian Broadcasting Corporation [2024] FWC 1441; (2024) 332 IR 127 (Lattouf). That was a very different case. In Lattouf, the ABC made and communicated a decision that Ms Lattouf would not be permitted to perform any further work, or provide any further service, prior to the conclusion of her fixed term employment.[15] Although Ms Roberts characterises the alleged failure to support her in completing the relevant qualification as a breach of contract, there is no suggestion that any steps were taken by TasTAFE to bring the employment relationship, or Ms Roberts' service, to an end prior to 3 May 2024. The decision in Lattouf does not assist Ms Roberts.

[38] There is no utility in granting permission to appeal to consider the remainder of Ms Roberts' submissions. Even if we were to accept that TasTAFE's actions contributed to Ms Roberts not achieving the qualification necessary for consideration to be given to permanent appointment, that would not change the fact that she was employed under a contract of employment for a specified period of time and that her employment terminated at the end of the period. There would be no different outcome. It is also unnecessary for the Full Bench to consider the alternative reasoning in Alouani-Roby (Full Court) which addressed whether Mr Alouani-Roby had been "dismissed" for the purposes of s 386(1)(a) leaving aside the operation of s 386(2)(a).[16] If the exception in s 386(2)(a) applies, Ms Roberts was not "dismissed" irrespective of the operation of s 386(1).

[39] For these reasons, the Commissioner was correct to dismiss Ms Roberts' application under s 365 of the Act. The alternative finding of the Commissioner that the exception in s 386(2)(a) applies to the termination of Ms Roberts' employment was correct and means that Ms Roberts was not dismissed or able to make an application under s 365. There is no reason to grant permission to appeal to address Ms Roberts' remaining contentions.

[40] The Full Bench orders that permission to appeal is refused.

B Murphy, counsel, instructed by Page Seager Lawyers for the Respondent.

[1] Roberts v TasTAFE [2024] FWC 2586 at [11].

[2] [2024] FWC 2586 at [32](a).

[3] [2024] FWCF 2586 at [32](b} referring to Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162; (2017) 273 IR 44 at [75](5).

[4] [2024] FWCF 2586 at [43].

[5] Fair Work Act 2009 (Cth), s 342(1)(Item 1(a)).

[6] Fair Work Act 2009 (Cth), ss 340(1)(a), 351(1) and 352.

[7] Alouani-Roby (Full Court) at [12]. See also Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171; (2018) 273 IR 439 at [22]- [27] (Gilmour J) and Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 at [14]- [15].

[8] See discussion in Mahony v White [2016] FCAFC 160; (2016) 262 IR 221 at [19]- [24] (Jessup, Tracey and Barker JJ) and Khayam v Navitas at [33] (Hatcher VP and Saunders C).

[9] Khayam v Navitas at [78], [83] and [86] (Hatcher VP and Saunders C).

[10] Cooper v Darwin Rugby League Inc (1994) 57 IR 238 at 241 (Northrop J) and Andersen v Umbakumba Community Council (1994) 56 IR 102 at 106-107 (von Doussa J). See also D'Lima v Board of Management, Princess Margaret Hospital for Children [1995] IRCA 407; (1995) 64 IR 19 at 25 (Marshall J) and Dadey v Edith Cowan University (1996) 70 IR 295 at 296-297 (Madgwick J).

[11] Ledington v University of Sunshine Coast (2003) 127 IR 152 at [34]; SPC Ardmona Operations Ltd v Esam (2005) 141 IR 338 at [68]-[69]

[12] Khayam v Navitas at [88]-[89] and [96]. See also Howard v Falls Creek Ski Lift Pty Ltd (t/as Falls Creek Ski Lift Group) [2023] FWCFB 154; (2023) 325 IR 434 at [25].

[13] Alouani-Roby (Full Court) at [50].

[14] Alouani-Roby (Full Court) at [52]-[53].

[15] See, particularly, Lattouf v Australian Broadcasting Corporation [2024] FWC 1441; (2024) 332 IR 127 at [110].

[16] Alouani-Roby (Full Court) at [57]-[72].

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