s.365 - General protections

Application to deal with contraventions involving dismissal

[1] Prashila Mohini (the Applicant) commenced employment with The Trustee for R Angele Family Trust (the Respondent) on or about 25 July 2023. The Applicant was employed in the position of an Administration Clerk.

[2] The Applicant made an application to deal with contraventions involving dismissal under section 365 of the Fair Work Act 2009 (the Act). That application was lodged on 29 January 2026. The applicant in her Form F8 stated that she was informed of her dismissal on 31 December 2025 and that it took effect on 1 January 2026. If there was a dismissal that took effect on that date, then the application was lodged 7 days out of time. Accordingly, the matter was listed for an extension of time hearing.

[3] The Respondent lodged Form F8A and submitted in that document that the Applicant was not dismissed within the meaning of the s.386 of the Act as she was employed on a contract for a specified period of time and her employment ended in accordance with the terms of the contract at the end of that specified time.

• [4] The Fair Work Commission (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 a conference and to issue a certificate to the Applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the Respondent denies that the Applicant was dismissed within the meaning of s.386 of the Act and objects to the application on this basis, the Commission is required first to determine whether the Applicant was in fact dismissed or not.[1] Secondly, if there is a dismissal, the Commission must determine what the date of effect of the dismissal is in order to establish whether or not the application was lodged within the statutory time period.

[5] A Hearing took place via Microsoft Teams on 13 February 2026 in order to provide the parties with an opportunity to be heard and give evidence in the matter. Ms Mohini represented herself and Mr Pranesh, representative of the Trustee For R Angele Family Trust, trading as Ital Biscuits & Cakes, appeared on behalf of the Respondent. Mr Arif, the Respondent's Chief Financial Officer, also gave evidence on behalf of the Respondent after I required him to appear before me.

• [6] As set out above, the Applicant filed an F8 application in which she stated that she was told about being dismissed on 31 December 2025 and that her dismissal took effect on 1 January 2026. Inconsistent with this, the Applicant also stated that her employment status was unclear and that the first clear indication that her employment was terminated was when she received a payslip recording her accrued annual leave payout on 14 January 2026. The Applicant further stated that "once it became clear that my employment had ended and that my employer would not respond, I took steps to lodge this application."[2]

• [7] The Applicant provided an email dated 7 January 2026 addressed to the 'Manager HR'. In that email the Applicant states that she was informed on 31 January 2025 (which the Applicant noted was a typo and should have read 31 December) that she would no longer have a position after taking her approved annual leave. That email also seeks "clarification regarding her employment status". In her oral evidence, the Applicant stated that she had, earlier in 2025, made an application for annual leave through the usual on-line application process, but that request was never responded to. The Applicant accepted that she never received an approval through the usual internal processes to take annual leave. However, her evidence is that despite that, Mr Pranesh approved her leave verbally at the 31 December meeting. When I asked what the period of leave was that Mr Pranesh approved the Applicant's evidence was extremely vague. She thought it was 18 or 19 days but also said "I'm not sure".[3] Her evidence on this point was not credible. As it was her application for leave, it seems unlikely she did not know what length of leave she had applied for. At one point she indicated it was for a period of 18 days, then conceded it may be 11 days when I pointed to the dates on the payslip that recorded her annual leave payout.

[8] Mr Pranesh strongly denied that he had verbally approved the Applicant's request to take leave in January 2026 when they met on 31 December 2025. Mr Pranesh agreed that there was a discussion on that day at what he described as the "seeing off" meeting with the Applicant but that at no point did he approve the Applicant's leave application. He wished the Applicant all the best for the future but did not approve her taking of leave. Further, he stated that he would not approve any employees leave application verbally as there is a protocol for applying for leave that has to be followed. Mr Pranesh's evidence is that 31 December 2025 was the last day of the Applicant's employment. I do not accept that the Applicant had leave approved verbally by Mr Pranesh. Her annual leave accrual of some six weeks leave was simply paid out in the next pay.

[9] The Applicant's evidence was vague, inconsistent and conflicted with the objective facts, particularly with respect to the written contract of employment, which is in evidence, which I will turn to later in the decision. In contrast, Mr Pranesh was a responsive and consistent witness. Mr Mudassir Arif gave limited evidence on the matter of the contract dealt with below and was not challenged on it. I prefer the evidence of Mr Pranesh and Mr Arif where it conflicts with that of the Applicant.

[10] The Applicant was clear in her evidence that the last day that she worked for the Respondent was 31 December and that she did not perform any work for the Respondent after that date. I do not accept, for the reasons set out above, that the Applicant had a period of leave approved verbally by Mr Pranesh. The Applicant was well aware her last day of employment was on 31 December. Her accrued annual leave of some 6 weeks (based on the Applicant's part time position of 24 hours per week) was paid to her in the next pay cycle after her employment ended. I now turn to the contract of employment.

[11] A contract of employment was provided to the Commission. It is titled: Part Time Fixed Term (Award) Employment Contract, Ital Food Group Pty Ltd and Prashila Mohini. It includes the following:

"2.2 Your employment is for an initial fixed term of 23rd July 2023 Your employment will automatically terminate on 31st December 2025. There is no expectation of continuing employment after this date."[4]

[12] The Applicant's signature is on that contract and dated 17 July 2023. The Applicant's signature is witnessed by Mr Arif. The Applicant's evidence as to the contract was at first that she had never signed the contract and had never seen the contract. Later her evidence was that she couldn't remember signing the contract. The Applicant accepted that her signature on a separate document on page 33 of the Digital Hearing Book was signed by her. When I put to her that the signature on the contract appears to be virtually identical to that signature, she agreed but maintained that she did not sign the contract. Mr Pranesh gave evidence that he was present when the Applicant signed the contract. I compelled the witness to the Applicant's signature, Mr Arif, the Chief Financial Officer for the Respondent, to give evidence. His evidence was that he witnessed the Applicant sign the contract. I see no reason to doubt his evidence, nor that of Mr Pranesh. The Applicant's claim that she did not sign the contract and had never seen it are simply not credible. I am satisfied that the Applicant signed the contract and its terms applied to her.

[13] I note that as this contract operates for a period of greater than 2 years it would, if entered into after 6 December 2023, contravene the limitations on fixed term contracts provided in section 333 of the Act. However, the provisions of s.333 of the Act do not apply to contracts entered into before 6 December 2023. As the contract was entered into on 17 July 2023 the provisions of s.333 of the Act do not apply.

(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.

[15] For the reasons set out above, I am satisfied that the Applicant's employment ended on 31 December 2025. Having regard to the terms of the contract, her employment was clearly to be for a specified period of time, that time ending on 31 December 2025. It therefore falls into the exception in s. 386(2)(a). That is, the Applicant has not been dismissed as she was employed under a contract for a specified period of time and the employment was terminated at the end of that period.

• [16] As the Applicant has not been dismissed within the meaning of the Act, there is no jurisdiction to make an application under s. 365 and the application is dismissed. An order[5] to this effect will be issued concurrently.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

[2] Digital Hearing Book (DHB) at page 3.

[5] PR796764.

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