//
[45]
[2026] FWC 782
General information, not legal advice.
Fair Work Commission
2026-03-09
Original judgment source is linked above.
s.365 - General protections
Application to deal with contraventions involving dismissal
[1] Mr Peter Gerber (the Applicant or Mr Gerber) has made an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving his alleged dismissal by the Trustee for Bunbury Boring Co Unit Trust, trading as Bunbury Drilling Company (the Respondent).
[2] The Respondent has raised a jurisdictional objection to the application on the basis that Mr Gerber was not dismissed nor had Mr Gerber resigned from his employment.
[3] The Commission must determine whether Mr Gerber has been dismissed before the matter may proceed.
[4] The jurisdictional objection was the subject of a Hearing on 11 November 2025. Mr Gerber gave evidence on his own behalf and Mr Bill Gardner (General Manager) gave evidence on behalf of the Respondent. The Respondent was granted permission to be represented at the Hearing.
[5] Section 365 of the Act provides as follows:
"365 Application for the FWC to deal with a dismissal dispute
(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."
[6] The meaning of "dismissed" is provided at section 386 of the Act:
(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."
[7] This decision deals only with the jurisdictional objection to be determined.
[8] The Respondent submits that Mr Gerber was not dismissed for the purposes of section 365 of the Act. The Respondent submits that Mr Gerber is still employed by the Respondent as there has been no dismissal by the Respondent and no resignation by Mr Gerber from his employment from the Respondent.
[9] The Respondent denies that it has engaged in any conduct which would lead Mr Gerber no alternative but to resign nor has it engaged in any conduct which has terminated the employment relationship.
[10] The Respondent submits that Mr Gerber is currently medically incapacitated and unable to perform the inherent requirements of his position due to a non-work-related injury. The Respondent submits that Mr Gerber has exhausted his paid leave entitlements as of 2 September 2025 and is currently on leave without payment.
[11] The Respondent submits that placing Mr Gerber on leave without payment in these circumstances, being that Mr Gerber has suffered a non-work-related injury and has no paid leave entitlements left, is an entirely reasonable course of action and not conduct that would terminate the employment relationship or reasonably lead to that conclusion.
[12] Mr Gerber's submissions focused heavily on concerns he had in relation to the conduct of the Respondent's insurance company, GIO, an Independent Medical Examiner (IME), and the involvement of the Respondent with these third parties.
[13] Mr Gerber submits that he was constructively dismissed from his employment with the Respondent. Mr Gerber submits that the communication sent to him by Mr Gardner on 6 August 2025 in effect sought to terminate his employment with the Respondent.
[14] Mr Gerber submits that the conduct of the Respondent and its involvement with GIO and the IME that resulted in his second workers compensation claim being denied by GIO was conduct that resulted in his employment being constructively dismissed by the Respondent.
[15] Central to the consideration in this case is the operation of section 386(1) of the Act. The word 'dismissed' is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act. Section 386(1) of the Act reads:
(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."
[17] The parties agree that there is no evidence that Mr Gerber has resigned from his employment therefore section 386 (1)(b) of the Act is not a relevant consideration in this matter. Mr Gerber has continued to lodge timesheets with the Respondent and verbally confirmed before the Commission that he has not resigned from his employment.
[18] The matter for determination is if the Respondent has dismissed Mr Gerber at its own initiative as described at section 386 (1)(a) of the Act. For the reasons outlined below, I have determined that the Respondent has not dismissed Mr Gerber.
[19] Mr Gerber suffered a workplace injury whilst working with the Respondent on 18 February 2025, following this injury Mr Gerber had a workers compensation claim which was accepted by GIO. the Respondent's insurer. Mr Gerber completed a return-to-work program from 7 April 2025, which required him to work 6 hours per day for 3 days per week. During this return-to-work program, Mr Gerber suffered a subsequent injury. It was the medical opinion of the IME that the initial injury was resolved and there was no evidence that the initial injury had a causal effect on the second injury suffered by Mr Gerber. Consequently, GIO did not accept liability for the second injury suffered by Mr Gerber. GIO also made a decision that, based on the IME report, no further payments would be made to Mr Gerber as of 6 August 2025.
[20] The Respondent submitted that Mr Gerber has provided further medical evidence from his own treating Doctor that he is currently unable to complete all duties and seeks the Respondent to provide Mr Gerber with modified or alternative duties. The Respondent wrote to Mr Gerber, on 6 August 2025, to confirm that he would no longer be in receipt of workers compensation payments effective 6 August 2025 and that, due to the medical information provided by Mr Gerber's own general practitioner, until Mr Gerber had attended a second IME specialist the Respondent had concerns about him being able to safely perform work even in a modified capacity.
[21] The Respondent confirmed that Mr Gerber would have access to his leave entitlements (annual and personal leave), however, once these entitlements were exhausted, Mr Gerber would be on leave without pay. The Respondent included in its letter the following line "we understand that GIO may be exploring a potential settlement offer, which could assist with financial support, continued treatment and enable you to consider future work opportunities outside of BDC".
[22] I do not consider the Respondent's decision to write to Mr Gerber on 6 August 2025, in which it explained that due to his workers compensation payments coming to an end and the need for an adequate medical clearance from a second IME prior to returning to work, in any way amounted to a termination the employment relationship. It was reasonable of the Respondent in the circumstances to request further medical information from an IME to confirm that Mr Gerber is fit to return to work.
[23] It was also entirely reasonable and logical of the Respondent to explain to Mr Gerber that as he is medically unfit for work that he would be required to make use of his paid leave entitlements and further that, once these entitlements were exhausted, he would be placed on leave without payment. Neither of the above actions either independently or jointly would give rise to a situation in which I could conclude the Respondent terminated the employment of Mr Gerber.
[24] I accept that the final sentence, as outlined above at [21], may have created confusion to Mr Gerber in r elation to his employment status and the intention of the Respondent in relation to the ongoing employment relationship. However, having reviewed the submissions and evidence of the parties, there is no evidence that the Respondent has sought to terminate Mr Gerber's employment or acted in a manner that could reasonably lead to that conclusion. I accept that Mr Gerber is rightfully frustrated about how some of the communication has been worded by the Respondent. However, I have determined that there is nothing within the communication which could lead me to be satisfied that the employment relationship was being brought to an end by the Respondent.
[25] I understand that Mr Gerber is frustrated by the workers compensation process and feels aggrieved at the decision of the IME and GIO. However, these decisions do not result in the conclusion that the Respondent had terminated his employment.
Printed by authority of the Commonwealth Government Printer
Peter David Clifford Gerber
Bunbury Drilling Company [2026] FWC 782