s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - whether 'dismissed' - fixed term contract ended by effluxion of time

• [1] On 19 September 2025, Mr Omid Shabriz Zamani applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009. Mr Zamani alleges that he was dismissed by QIC Limited (QIC) in contravention of the general protections. QIC dispute that Mr Zamani was dismissed asserting that his employment ended with the effluxion of time and the expiry of his employment contract.

• [2] The Fair Work Commission generally does not have a determinative function in relation to applications brought under s.365 of the Act unless the parties agree to the Commission arbitrating the matter. Rather, the Commission's role is to convene conference and to issue a certificate to Mr Zamani, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where QIC deny that Mr Zamani was dismissed within the meaning of s.386 of the Act and object to the application on this basis, the Commission is required first to determine whether Mr Zamani was in fact dismissed or not.[1]

• [3] Section 365 of the Act establishes a jurisdictional precondition for a person to make an application to deal with a general protection claim involving a dismissal. Relevantly, s.365(a) of the Act requires that the person must have been 'dismissed'.

• [4] The word 'dismissed' is defined in s.12 of the Act by reference to s.386:

a) Section 386(1) provides that person has been dismissed if "the person's employment with his or her employer has been terminated on the employer's initiative"; and

b) Section 386(2)(a) provides that a person will not have been 'dismissed' "if the person was employed under a contract of employment for a specified period of time, 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"

• [5] Mr Zamani was employed by QIC on a fixed term basis as a Data Engineer. His contract commenced on 28 August 2023 with an end date of 28 August 2024. On 20 June 2024, Mr Zamani signed a letter of variation to the contract which extended his term-limited employment and set a new completion date of 29 August 2025.

• [6] On 26 June 2025, a discussion was held between Mr Zamani and his team leader about a permanent role based in Hervey Bay. This role was verbally offered to Mr Zamani. In early July 2025, Mr Zamani and his manager worked on finalising a flexible work arrangement that would apply to him now and possibly to his new permanent role. This request was related to working remotely from Hervey Bay.

• [7] In a meeting held on 4 July 2025 via Teams, Mr Zamani raised some "new terms that would have involved a promotion and title change for him".[2] QIC did not agree to those terms.[3] Mr Nathan Bowker on behalf of QIC advised Mr Zamani that he "would need to consult with People & Culture on what might need to happen in respect of the end of your [Mr Zamani] QIC employment if you [Mr Zamani] did not accept that offer", [4] and later confirmed via a Microsoft Teams message that if Mr Zamani did not accept QIC's offer, his contract would just come to completion as planned at the end of August.[5]

• [8] Additionally on 4 July 2025, Mr Zamani sent the following Teams message to his colleague:

"Hey Chloe, I just was informed by Nathan that my contract won't be renewed after 29th of August. Please take your time and let me know what areas you want me to focus on..."[6]

• [9] On 7 July 2025, Mr Zamani emailed Mr Bowker and acknowledged the permanent offer of employment but proposed to instead continue working as an independent contractor via an Australian Business Number.[7]

• [10] On 8 July 2025, Mr Bowker advised Mr Zamani that "we can't extend you under contract any further - industrial relations law says we have to readvertise (hence why we were looking to convert to full time). I've already advised HR, and we have a job posting going out this week".[8]

• [11] QIC submitted that "It is apparent that at some subsequent point, Mr Zamani's desire for permanent, open term employment with QIC was re-enlivened. However, by that time and on the basis of him not having pursued the offer that was available to him earlier, QIC had commenced external recruitment."

• [12] On 11 July 2025, QIC advertised a job posting for the Senior Data Engineer Role externally.

• [13] On 4 August 2025, Mr Zamani lodged a formal workplace complaint relating to Mr Bowker's conduct, in which he alleged the offer of employment had been revoked on unlawful grounds. The complaint was referred to the Executive Director - Operations and Technology (EDOT) for consideration.

• [14] On 21 August 2025, QIC issued an end of contract letter to Mr Zamani.

• [15] On 22 August 2025, QIC found there had been no wrongdoing towards Mr Zamani in respect of any of the allegations he had raised.[9] According to QIC Mr Zamani's request for a review of the outcome 'did not raise any valid ground for review' and was subsequently declined.[10]

• [16] Mr Zamani's employment came to an end on 29 August 2025.

• [17] It is clear from Mr Zamani's submissions before me that he has misunderstood the matter in issue is the jurisdictional hearing and the sole issue for the Commission's determination is whether Mr Zamani was dismissed under s 365 of the Fair Work Act 2009.

• [18] The two questions for the Commission's consideration are:

1. Was Mr Zamani employed under a contract of employment for a specified period of time?
2. Did the employment terminate at the end of that period?

Was Mr Zamani employed under a contract of employment for a specified period of time?

• [19] It is not in dispute that Mr Zamani was employed under a contract of employment for a specified period of time.

• [20] The relevant Employment Agreement provided that unless otherwise agreed by QIC in writing or terminated sooner, Mr Zamani's employment would automatically cease on 28 August 2024.[11] On 20 June 2024, the date of automatic cessation was extended by the Variation Letter until 29 August 2025.[12]

Did the employment terminate at the end of that period?

• [21] It is clear from the submissions of both parties that the employment terminated at the end of the specified period of the contract of employment.

• [22] Mr Zamani contends QIC approved ongoing employment for him closer to end of his employment term. I do not accept that submission. The approval relied upon by Mr Zamani related to the creation of a permanent position.[13] That position was offered to Mr Zamani; however, he did not accept the offer and instead sought amendments to its terms. When QIC did not agree to those changes, Mr Zamani declined the offer. QIC subsequently advertised the position externally, but Mr Zamani did not apply for it.[14]

• [23] Mr Zamani argued that QIC's commencement of the advertising process for a separate permanent role after he declined the offer demonstrates that his employment was terminated QIC's initiative.[15] I do not accept that submission. The role advertised was a separate position that did not commence until after the expiry of Mr Zamani's fixed term contract. Again, Mr Zamani could have applied for that role but chose not to.

• [24] Mr Zamani has also submitted that he remained open to permanent employment with QIC. However, the critical fact is that Mr Zamani sought to renegotiate certain terms of the proposed employment, which were not acceptable to QIC. At no point did Mr Zamani state that he would accept employment on the terms offered by QIC.

• [25] For the reasons stated above, I am not satisfied that there was a termination at the initiative of the employer as Mr Zamani was employed under a contract of employment for a specified period of time, and the employment terminated at the end of that period. The end of Mr Zamani's employment fell within the exception to the definition of dismissal set out in s.386(2)(a) of the Act. Therefore, I am not satisfied Mr Zamani was dismissed within the meaning of s.386 of the Act.

• [26] The jurisdictional objection is upheld, and the Application is dismissed. I order accordingly.

B Burton, Managing Legal Counsel, of QIC Limited, for QIC.

G Alexandrou, Special Counsel, of Corrs Chambers Westgarth, for QIC

[1] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd [2020] FWCFB 5365).

[4] P.10 of the DCB - Attachment to Form F8.

[5] P.120 of the DCB - Attachment 6 to Form F8A.

[6] P.121 of the DCB - Attachment 7 to Form F8A

[7] P.115 of the DCB - Attachment to Form F8A.

[8] P.116 of the DCB - Attachment to Form F8A.

[9] P.123 of the DCB - Attachment 9 to Form F8A.

[11] P.102 of the DCB - Attachment 1 to Form F8A.

[12] P.104 of the DCB - Attachment 2 to Form F8A.

[13] P.55 of the DCB - Transcript of Audio Exhibit B.

[14] Audio recording of Hearing at 17:30.

[15] P.66 of the DCB - Applicant's Amended Submissions.

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