Fair Work Act 2009

s.365 - General protections

Application under s 365 - no dismissal - application dismissed

• [1] Myeongju Kim has made an application under s 365 of the Fair Work Act 2009 (Act). The respondent is the trustee for H J Heatherton Family Trust, which operates a Hungry Jack's franchise in Heatherton, Victoria. The respondent, through its manager Andre Molinaro, objects to the application on the ground that it did not dismiss Ms Kim.

• [2] Ms Kim contended that on 17 March 2025 she suffered a workplace injury and lodged a WorkCover claim, which was accepted on 14 April 2025. She later received a certificate of capacity that confirmed that she was fit for light duties. Ms Kim said that despite making numerous efforts to contact the respondent about a return to work, she received no response. She said that in late April 2025, she asked the respondent if she could return her Hungry Jack's uniform, so that the respondent would cease making uniform deductions from her pay. Ms Kim said that on 6 May 2025, she received an email from the respondent notifying her that she had been dismissed. But the email in question, which was attached to Ms Kim's application, did not state that she was dismissed. It thanked her for her time at Hungry Jack's and said that the respondent was sorry to see her go. It asked her to complete an online 'exit interview'. Ms Kim said that she called the Hungry Jack's human resources department, and was told by 'Skye' that the message constituted a termination notice. Ms Kim said that she spoke with two other managers (she provided no names or details) who also told her that she was dismissed.

• [3] Mr Molinaro contended that the respondent did not dismiss Ms Kim and that she is still its employee. He said that Ms Kim had asked to return her uniform, and that the respondent had facilitated this. He said that the respondent had regularly sought updates from Ms Kim about her capacity to return to work through the claims manager appointed to deal with her worker's compensation claim. The respondent submitted that the email sent to Ms Kim on 6 May 2025 was an automated message sent to employees when they are removed from the training platform, and that the platform regularly removes employees who are on prolonged absences in order to save costs and ensure accuracy in the training data.

• [4] On 21 May 2025, the respondent received an email from Ms Kim querying her WorkCover payments and noting that if the matter was not resolved, she would bring unlawful dismissal proceedings against the respondent. Mr Molinaro replied to Ms Kim on 27 May 2025, the day after she lodged her application in the Commission, stating that the respondent was still working with the insurer on her payments, and that she had not been terminated. The letter explained that Ms Kim would have received a default email from the online training which occurs when, after some time, employees are removed from the system if they have not been active in the system. The respondent also submitted that 'Skye' is in fact a human resources officer employed by the franchisor, and that Skye had told the respondent that she explained to Ms Kim that a worker is only dismissed when they are removed from the payroll system. Mr Molinaro said that he had no idea who the 'two other managers' referred to by Ms Kim could be. He said that he deals with employment matters, and that neither he nor anyone else from the respondent terminated Ms Kim's employment.

• [5] I find that Ms Kim was not dismissed. The email from Hungry Jack's to Ms Kim on 6 May 2025 did not state that her employment was terminated. It stated that Hungry Jack's was sorry to see her go and asked her to complete an exit questionnaire. It is plainly a letter sent to someone who is understood to be leaving their employment. It is not a termination letter. I do not accept that 'Skye' told Ms Kim that the letter constituted a termination notice, because it is obviously no such thing. Aside from the fact that the letter does not say that Ms Kim has been dismissed, the context of the message makes plain that this is not a dismissal letter. If a person has been dismissed, the employer does not ask the person for feedback in an exit interview. Ms Kim, whose first language is not English and who required extensive assistance from an interpreter at the hearing, likely misunderstood what Skye said. I further find that Skye was not an employee of the respondent and had no authority to confirm that Ms Kim had been dismissed by the respondent in any event. I find Ms Kim's statement that she spoke to 'two other managers' to be both vague and unsubstantiated.

• [6] I conclude that Ms Kim remains an employee of the respondent. I accept that the respondent has sought updates on Ms Kim's capacity to return to work through the claims manager who was appointed to deal with her compensation claim. This is a common situation. The respondent has not ignored her. Ms Kim's employment was not terminated on the respondent's initiative, nor was she forced to resign (see s 386). She was not dismissed.

• [7] A person may make an application under s 365 only if he or she has been dismissed. Ms Kim was not dismissed by the respondent and therefore had no standing to make her application. For this reason, the jurisdictional objection must be upheld. The application is dismissed.

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