s.365 - General protections

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

• [1] On 20 September 2025, Mr Paul Ducco applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). Mr Ducco alleges that he was dismissed by Bundanon Trust (Bundanon), in contravention of the general protections, when it revoked his work email access in response to his request for a flexible work arrangement.

• [2] Mr Ducco was employed by Bundanon on a part-time, fixed term basis as a Digital Project Manager. His contract commenced on 12 August 2024 with an end date of 11 August 2025. It is not in dispute that the contract came to an end, as the parties had earlier agreed, on 11 August 2025. Mr Ducco says he was dismissed when, as a prospective employee, he was in the process of negotiating a further contract with Bundanon.

• [3] There is no real dispute as to the facts. Bundanon submits that Mr Ducco's contract ended by effluxion of time on 11 August 2025, and that in the period after this time, Mr Ducco could not have been dismissed. If Mr Ducco was dismissed, Bundanon says the application is out of time. Mr Ducco denies the application is out of time. If it is, Mr Ducco says at worst the application is 2 days late.

• [4] The question is whether Mr Ducco was dismissed.

• [5] I find that Mr Ducco was not dismissed. At the time of the alleged dismissal, Mr Ducco was not an employee. He was a prospective employee. It is not necessary to deal with whether the application is out of time. The application will be dismissed. These are my reasons.

• [6] Application under section 365 of the Act can only be made by, or on behalf of, a person who has been 'dismissed'. A person has been dismissed if their employment has been terminated on the initiative of the employer or they resigned but were forced to do so because of the employer's conduct.

• [8] Mr Ducco was employed on a fixed term 'outer limits' contract from 12 August 2024 to 11 August 2025.

• [9] On 28 May 2025, Mr Ducco sought to initiate discussion about a contract renewal with Bundanon. There was a conversation with his direct manager, Ms Rae Begley, and on 9 July 2025, she followed up to see if Mr Ducco had any further thought about the scope of his proposed new contract.

• [10] On 8 August 2025, Mr Ducco was advised that a contract was being prepared for him involving a requirement for him to work on site on his 1 working day each week. On 11 August 2025, the draft contract was provided for Mr Ducco's review. On 12 August 2025, Mr Ducco raised a question about the scope of the role, advising that a certain distinction was 'key in deciding whether I sign the contract and/or continue in the role'.

• [11] On 15 August 2025, Mr Ducco received clarification about the scope of the role and was given an indication that he may be offered an additional day (2 days a week in total). He asked for clarification about a recent conversation with Ms Begley suggesting that there may be a preference for him to work onsite, rather than from home.

• [12] On 18 August 2025, Ms Begley sent Mr Ducco an SMS stating: 'Just a note to check in and see how you're going with confirming your available days for the new contract? We'd love to have you start next week on the new contract if possible with your plans?'. Mr Ducco responded the same day proposing hybrid working days (Monday or Tuesday onsite, Friday remote) and said 'Once the contract is finalised, I'll confirm the start under the new arrangement'. He also asked about how his 'previous contract (now ended) will be finalised' in relation to the pay out of his accrued entitlements, to 'make sure that's all closed off properly'. This followed earlier advice to the effect that Bundanon was keen to formally issue him with a new contract that day, 'to ensure continuity of employment'.

• [13] On 19 August 2025, Ms Begley wrote to Mr Ducco to say: 'I've confirmed for Yashaan [Cawasji] that Tuesday and Friday works well. I'll leave it with him to finalise the contract with you and look forward to confirming a start date.' There was some back and forth between MR Ducco and Bundanon about the contract and pay out of his entitlements. Mr Ducco expressed a preference for his leave to be 'paid out (rather than rolled forward)' on the basis that his new contract was a continuation, but 'technically starts fresh'. A start date of 25 August 2025 was proposed and Mr Ducco agreed with starting in that week.

• [14] On 20 August 2025, Mr Ducco's employment entitlements were paid out. Separately, Mr Cawasji sent Mr Ducco a contract for his signature. Mr Ducco did not sign the contract.

• [15] On 21 August 2025, there was further correspondence on the contract. Mr Ducco proposed some changes, and sought some clarifications on a range of issues. Ms Begley wrote to Mr Ducco to say that the CEO was 'unfortunately not agreeable to the second day being managed as a remote working arrangement, the role needs to be on site to work closely with the team.'

• [16] On 25 August 2025, Mr Ducco wrote to Bundanon seeking clarification on its position about working from home, including by reference to flexible work arrangements under the National Employment Standards. As part of that correspondence, he wrote:

'I'm sure you'll appreciate that I can't consider or sign a contract without confidence that suitable arrangements will be considered and made.'

• [17] Bundanon responded to say that it did not have a formal working from home policy; that remote work was not a preference and that there was scope to consider flexibility under the Act. A direct conversation between Mr Ducco and Ms Begley was suggested.

• [18] On 27 August 2025, Bundanon's payroll person advised Mr Ducco that 'a new contract started with your first day yesterday Tue 26/8, Can you submit a timesheet?'. Mr Ducco responded to say: 'I have not signed a contract as I'm currently being forced to agree to all onsite work without proper consideration requested flexible working arrangements.' The payroll person apologised, saying that they didn't know and would await the outcome.

• [19] On 29 August 2025, Mr Cawasji wrote to Mr Ducco:

"Thank you for your email and feedback around the new role that has been offered to you at Bundanon.

The new role has been offered requiring two-days per week onsite, to allow close collaboration and contact with the Marketing & Communications team, and Bundanon leadership, across the scope outlined, during this important transition period.

You have indicated in our correspondence that the new role isn't viable for you to accept as a two-day on-site offer. Bundanon understands your position that the contract terms may not be agreeable.

We would like to emphasise how much we have valued your contribution to Bundanon."

• [20] On 1 September 2025, Mr Ducco's access to his work email was removed. This had the practical effect of preventing him from doing any more work for Bundanon. Mr Ducco wrote to Bundanon to say that there had been a misframing of his position. He clarified that he had not refused the role but had sought a continuation of the flexible arrangement (or similar) that had worked without issue for the past 12 months. He asked it to confirm whether the requirement for full on-site presence was a formal position or the CEO's preference so that he could understand what changed, and when.

• [21] On 2 September 2025, the CEO, Ms Rachel Kent, responded, explaining the reason for wanting the two days to be worked on site and saying: 'Yashaan advised Rae and myself that you had let him know via email that you could not consider the role without flexibility on the second day. To clarify, no one has said you have refused the role, but your correspondence to him indicated the structure of two onsite days is not feasible.' The email left open the possibility of further discussion about the 'new role and contract'. The following day, Mr Ducco applied to the Commission to deal with a dispute about flexible work arrangements. The application was later withdrawn by Mr Ducco to pursue this application instead.

• [22] I am unable to conclude on these facts that Mr Ducco has been dismissed. His fixed term contract came to its natural end on 11 August 2025, and the parties operated on this mutual understanding on and from that time. There is no evidence that Mr Ducco performed any work in the period after 11 August 2025. From 12 August 2025, Mr Ducco's communication with Bundanon was limited to the finalisation of his earlier contract's terms, and the negotiation of another, including whether its terms were acceptable to each.

• [23] It is clear that the parties considered themselves 'in between contracts' after 11 August 2025 rather than bound by a continuing contract of employment, notwithstanding that for much of that time, they each remained hopeful of a successful end to the negotiation. This explains, at least in part, why others may have sought to keep Mr Ducco apprised of what was going on in the organisation during that period. Others, of course, may not have known about the status of Mr Ducco's employment at the time they included him in work emails.

• [24] In summary, in the period after 11 August 2025, I agree with Mr Ducco that he was a 'prospective employee'. That is, he was not an employee. Only an employee can be dismissed under s.365. On the facts, I find that Mr Ducco's employment terminated on 11 August 2025 by effluxion of time. Mr Ducco has not been dismissed.

• [25] For completeness, some of the confusion in this case appears to have arisen from a conflation of legal issues in the submissions of Mr Ducco. If that was caused by reliance on artificial intelligence tools, it is a matter for concern. Section 372 of the Act deals with general protections disputes that do not involve the dismissal of an employee. Noting Mr Ducco's previous application under s.372, this is a matter about which he may wish to get some legal advice before deciding on his options going forward.

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