s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection raised of 'not dismissed' - termination at the initiative of the employer found - objection dismissed.

• [1] On 19 February 2025, Mr Rupesh Dhondu Jadhav filed an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal against Alpha Flight Services Pty Ltd trading as Dnata Catering & Retail (Dnata).

• [2] Danta filed a Form F8A in which it raised a jurisdictional objection to the application

• that Mr Jadhav was not dismissed from his employment with Dnata.

• [3] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine this point before exercising its Conference powers under s.368 of the Act. Therefore, the issue for determination is whether Mr Jadhav was 'dismissed' from his employment within the meaning of s.386 of the Act.

• [4] Section 386(1) of the Act states as follows:

(1) [When a person has been dismissed] A person has been dismissed if:

(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

• [5] Section 386(2) of the Act sets out the circumstances where an employee has not been dismissed, none of which are relevant to the present matter.

• [6] I issued Directions for material with respect to the determination of the jurisdictional objection and conducted a Determinative Conference on 1 May 2025. At the Determinative Conference, Ms Tammy Akhurst, Manager of People and Culture for Dnata, and Mr Sumit Gera, Executive Chef at Dnata, gave evidence. I noted to the parties that Mr Gera did not file a witness statement to serve as his evidence-in-chief, but noting that there was no objection from Mr Jadhav, determined it appropriate to allow Mr Gera to provide evidence at the Determinative Conference.

• [7] The material filed by the parties in accordance with Directions was compiled into a Digital Hearing Book. I admitted the Digital Hearing Book into evidence, without objection from either party.

• [8] Mr Jadhav commenced full-time employment with Dnata on 25 November 2024 as a sous chef. Mr Jadhav said he made it clear to Dnata during the interview process that he was on a Skills in Demand (subclass 482) Visa and that Dnata would need to sponsor him, as this is a requirement of this visa type.[1]

• [9] Dnata said there was no discussion with Mr Jadhav about the need for Dnata to sponsor his visa prior to him commencing employment.[2] Dnata said that during the recruitment process, it confirmed Mr Jadhav's working rights and also confirmed that he held a current and valid visa. Dnata said Mr Jadhav only raised the issue of sponsorship on 26 November, the day after his employment commenced. Dnata said that when it became aware of Mr Jadhav's sponsorship issue, they sought some advice from an immigration agent about their options and determined, after some consideration, that they were unable to sponsor him.

• [10] Mr Jadhav said that on 19 December 2025, he met with Ms Akhurst and Mr Gera who advised him that Dnata would not be sponsoring him and further, that his employment would be terminated on 31 January 2025.[3]

• [11] Mr Jadhav submits that on 15 January 2025, he requested Dnata give him more time to find a new sponsor, and to continue his employment until the end of March 2025, but this request was denied.[4] It was Mr Jadhav's evidence that his last day of work was 31 January, and that he was not rostered to work after this. He said that he received no further communication from Dnata until a phone call from Ms Akhurst on 7 February 2025.

• [12] In contrast, Dnata said that Mr Jadhav was not dismissed, but that he continued to be rostered to work after 31 January. It was their position that he failed to attend his rostered shifts after 31 January.

• [13] Dnata say that Mr Jadhav resigned on 7 February 2025, on a phone call with Ms Akhurst. Ms Akhurst says that when she called Mr Jadhav on 7 February, it was with the intention of arranging a time for Mr Jadhav to attend a meeting where it was to be put to him that during the recruitment process, he had 'intentionally withheld his expectation and requirement that Dnata would sponsor his visa'.[5] Ms Akhurst says that during this phone call, Mr Jadhav again asked if Dnata would reconsider its decision regarding sponsorship, and when she told him it would not, Mr Jadhav said words to the effect of 'well I guess I'll then have to resign'.[6] Ms Akhurst says she told Mr Jadhav he did not need to resign in writing and that she could accept his resignation verbally and would provide him a letter confirming Dnata's acceptance of his resignation.[7]

• [14] Ms Akhurst sent Mr Jadhav an email on 7 February 2025 stating that she accepted Mr Jadhav's verbal resignation and that the employment would end effective 31 January 2025.[8]

• [15] In considering whether Mr Jadhav has been dismissed, I will first address s.386(1)(a) of the Act. Mr Jadhav says that his employment was terminated by Dnata on 31 January 2025.

• [16] Section 386(1)(a) of the Act requires an objective assessment of whether the employee was dismissed at the initiative of the employer. This objective assessment requires contextual consideration of all the circumstances to determine whether Mr Jadhav's employment was terminated at the initiative of the employer. The legal question to be answered is whether the employer's action 'directly and consequentially' resulted in the termination of employment and, had the employer not taken this action, whether the employee would have remained employed.[9]

• [17] Mr Jadhav says that on 27 November 2024, he was advised by Ms Akhurst to not attend work and to forward her a copy of his visa.[10] On 29 November 2024, Mr Jadhav says he received a call from 'Sarah' of Dnata's people and culture team advising him to return to work from 3 December.[11] He says that after returning to work, he was later advised by Dnata that it was giving him notice and that whilst he could continue working until 31 January 2025, he should look for a new sponsor.[12]

• [18] Mr Jadhav filed an email dated 19 December 2024 from Ms Akhurst which states:[13]

As we discussed in the meeting, at this stage we are unable to provide visa sponsorship for you.

We can allow for you to continue working with us until 31 January 2025, however, should you find alternate employment prior to this we will be happy to accommodate any final date of working that you advise us of.

I have looked for some agencies that you may be able to reach out to, I do not have any experience with these agencies however they specialise in hospitality.

• https://jrmhospitality.com.au/
• https://www.placedrecruitment.com.au/
• https://black-betty.com.au/

• [19] It was Mr Jadhav's evidence that he has had many years of work experience, in several different countries, and this email was not difficult or confusing to understand. He understood the email to mean that his employment was being terminated, effective 31 January 2025.

• [20] At the Determinative Conference, Ms Akhurst said that it was not the intention of her email to communicate the termination of Mr Jadhav's employment, but rather that she was referring to Mr Jadhav's sponsorship. She said this email was about revisiting the sponsorship issue on 31 January. Having reviewed the email itself, I consider it fair to say that if this was Ms Akhurst's intention, it is not reflected in the actual words she has used. Plainly put, the email states that Dnata cannot allow Mr Jadhav to continue working after 31 January and refers to him finding alternative employment prior to this date. Ms Akhurst then provides Mr Jadhav with links to the websites of hospitality recruitment businesses. The email is clear and unequivocal and makes no mention of revisiting the sponsorship issue on 31 January.

• [21] Further, Mr Jadhav said he was not advised there would be a meeting on 31 January, and that no such meeting took place on 31 January. Ms Akhurst says that she did not schedule the meeting with Mr Jadhav on 31 January because she was very busy at the time as they had lost a staff member and it slipped her mind. I do not find Ms Akhurst's explanation convincing in that the reference in her email to the date of 31 January was a reference to a meeting about revisiting the sponsorship discussion, rather than a reference to the duration of Mr Jadhav's continued employment with Dnata.

• [22] Curiously, Ms Akhurst and Mr Gera both gave evidence that they had received advice from an immigration agent that Mr Jadhav could continue work without a sponsor for a period of 180 days. Mr Gera said this was spoken about at the meeting on 19 December. Ms Akhurst said this was not spoken about at the meeting on 19 December. Mr Jadhav said he was never made aware of the 180 days and said that he repeatedly asked to continue working for Dnata post-31 January so as to allow him time to try and find a new sponsor.

• [23] Mr Jadhav said his termination on 31 January is further evidenced by the fact he was not rostered to work after 31 January and that his co-workers were all aware that 31 January was his last day.[14] Mr Jadhav did not file any evidence regarding his co-workers' understanding.

• [24] Dnata says that Mr Jadhav was rostered to work shifts after 31 January, but he failed to attend them.[15] However, Dnata did not provide any evidence of Mr Jadhav being rostered to work after 31 January.

• [25] When I asked Ms Akhurst and Mr Gera if anyone followed up with Mr Jadhav when he failed to attend all his rostered shifts, neither said they followed up to check if he was unwell or intending to come in. I find this curious. It is commonplace when someone has repeatedly failed to attend their rostered shifts that someone (likely their manager) would attempt to contact them to check if they were okay. Mr Gera said that normally an employee would contact the workforce planning team to advise if they are unwell, running late, or on leave. He said the workforce planning team would send an email each day advising him of any employee absences. Mr Gera could not recall if he was advised of Mr Jadhav's absence from work after 31 January and could not recall if he tried to contact him, but did notice that he was not around after 31 January. While Ms Akhurst and Mr Gera both gave evidence that normally someone would do so at this workplace, it appears that neither Mr Gera (Mr Jadhav's direct manager), or anyone else, reached out to Mr Jadhav when he failed to attend his rostered shifts.

• [26] Overall, I find the evidence of Ms Akhurst and Mr Gera unconvincing. At the Determinative Conference, both witnesses initially gave answers referring to Mr Jadhav's 'job', however, this then changed to 'sponsorship' when prompted by questions from Dnata's representative. On several occasions during the Determinative Conference, I had to advise the representative to refrain from asking Dnata's witnesses leading questions. My assessment of the credibility of their evidence is negatively impacted by the willingness of both witnesses to change the substance of their responses when prompted by leading questions.

• [27] I prefer the evidence of Mr Jadhav to that of Ms Akhurt and Mr Gera as to whether Mr Jadhav was rostered to work any shifts after 31 January. There was no evidence of Mr Jadhav being rostered after 31 January. While giving evidence, Ms Akhurst suggested she had material to show that Mr Jadhav was rostered after 31 January, but I did not grant permission for this to be tendered, noting that Dnata had the opportunity to file material in reply and did not do so. Further, I do not find it credible that Mr Jadhav's manager, was unaware, or would not know, if one of his direct reports (of which he only had two) was not at work. It is strange that if Mr Jadhav had been rostered to work, as Dnata has said he was, that Mr Gera did not contact him to see if he was okay.

• [28] When objectively viewed, I find that Mr Jadhav was dismissed at the initiative of Dnata, via the email of 19 December 2024, and that the dismissal was effective on 31 January 2025.

• [29] Dnata submits that Mr Jadhav was not dismissed as he resigned from his employment on 7 February 2025. As I have determined above that Mr Jadhav was dismissed effective 31 January 2025, I will only briefly address the resignation of 7 February.

• [30] It is not contested that Mr Jadhav resigned on 7 February.

• [31] Mr Jadhav says that he was told by Ms Akhurst that he needed to resign to get his entitlements paid out. Ms Akhurst denies this. Dnata filed a witness statement from Ms Sarah Noureddine of Dnata's People and Culture team, who said she was present and overheard this phone conversation between Mr Jadhav and Ms Akhurst.[16] Ms Akhurst conducted this phone call in an open office, on loudspeaker, allowing Ms Noureddine to overhear the call.[17] Ms Noureddine's evidence is consistent with Ms Akhurst's and was not contested by Mr Jadhav.

• [32] On the evidence, it is clear that Mr Jadhav resigned on 7 February. However, I consider that the resignation came after Mr Jadhav had already been dismissed and after the employment relationship had already ended. I accept the evidence of Mr Jadhav that he believed he was required to resign in order to access his entitlements, but I am not convinced he was instructed by Ms Akhurst to do so. The evidence of Ms Akhurst and Ms Noureddine is consistent, and uncontested. I believe that Mr Jadhav did ask Ms Akhurst whether Dnata would reconsider the sponsorship decision, and when he was advised that the answer was 'no', I believe that Mr Jadhav then responded that he would have to resign. I am of the view that Mr Jadhav, in light of all the circumstances - being Dnata's refusal to reconsider sponsorship and provide him with any work after 31 January - that Mr Jadhav was of the mistaken understanding that he had to resign to get his entitlements paid out.

• [33] Regardless of Mr Jadhav's resignation on 7 February, I do not consider this to have any bearing on the determination I have made above that Mr Jadhav was dismissed by Dnata effective 31 January 2025.

• [34] Having considered the evidence of the parties and their submissions, I have found that Mr Jadhav was dismissed. The jurisdictional objection of the Respondent is dismissed, and an Order[18] to this effect will be issued with this Decision. It follows that the application meets the requirements of s.365 of the Act. The matter will now be listed for a conciliation conference and a Notice of Listing for the conference will be issued to the parties.

[1] Digital Hearing Book (DHB) page 4.

[9] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 at 205.

[18] PR788122.

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