s.365 - General protections

The Trustee For Nehal Family Trust T/A Singh Auto Sales Group and Yadvinder Nehal

Application to deal with contraventions involving dismissal - jurisdictional objection dismissed

• [1] Mr Ugyen Tsheden (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 15 September 2025. The Applicant claims that adverse action was taken against him by The Trustee For Nehal Family Trust T/A Singh Auto Sales Group and Yadvinder Nehal (the Respondents) under s.340 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Respondents raised the jurisdictional objection that there was no dismissal under s.386 of the Act.

1. The primary objection raised by the Respondent is that Mr Ugyen Tsheden was not dismissed within the meaning of section 386 of the Fair Work Act 2009 (Cth). This constitutes a jurisdictional objection.

1. The Respondent contends that the cessation of Mr Tsheden's employment was not a dismissal but rather resulted from a series of ongoing behavioural issues. These issues included:

1. A failure to demonstrate improvement despite repeated reminders and opportunities provided by the Respondent.

1. Unauthorised access to customer records and other confidential documents.

1. A primary focus on obtaining visa sponsorship, rather than meeting workplace performance requirements, demonstrated a lack of genuine commitment to the role.

1. The Respondent asserts that it provided training and multiple opportunities for Mr Tsheden to address and improve his conduct, which were not utilised. Therefore, the Respondent maintains that the employment relationship was concluded due to these unresolved behavioural concerns, not through a dismissal initiated by the employer.

1. Further to the above, the Respondent asserts that Mr Ugyen Tsheden was not an employee in the conventional sense. The Respondent states that Mr Tsheden commenced his engagement as a "learner," and a formal employment contract was not executed. This raises a jurisdictional question as to whether an employment relationship, as contemplated by the Fair Work Act 2009, existed, which is a prerequisite for a general protections' dismissal application.

• [4] On 31 October 2025, my Chambers wrote to the Respondents and their solicitor as follows:

I refer to the above matter, which has been allocated to Deputy President Lake. The Deputy President is required to determine the jurisdictional objection prior to holding a conference.

The Deputy President notes the Respondent has raised the following objection:

The Respondent contends that the cessation of Mr Tsheden's employment was not a dismissal but rather resulted from a series of ongoing behavioural issues.

The Deputy President notes that dismissal under s.386 is an objective assessment. The reasons for the termination of employment are not relevant in assessing whether a dismissal has occurred in fact.

The Deputy President further notes that the Form F8As raise an objection on the basis of no employment relationship. However, the response in part 2.1 of the form refers to the Applicant's "employment".

The Respondent is to advise by close of business, 7 November 2025, whether they are continuing to press a jurisdictional objection and, if so, on what basis. The Deputy President is minded to determine the jurisdictional objections, if pressed, on the papers.

• [5] No reply was received from the Respondents. On 8 December 2025, my Chambers wrote to the Respondents requesting submissions and evidence in relation to the jurisdictional objection. To date, no submissions or evidence have been received. I have determined the jurisdictional objection on the papers.

• [6] As I understand it, the objection is that the Applicant was not dismissed because the end of his employment was due to ongoing behavioural issues. There appears to be a second, half-hearted objection that the Applicant "was not an employee in the conventional sense."

• [7] Both of these objections are fundamentally misconceived.

• [8] Section 386(1) of the Act relevantly provides that 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.

• [9] A finding that the employee has been dismissed is not an assessment of whether the dismissal was for a valid reason. Put another way, it is irrelevant whether the Respondent had a good reason for terminating the applicant's employment. What is relevant is whether the Respondent initiated the termination of the Applicant's employment as a matter of law. The Form F8A itself states:

The cumulative effect of the Applicant's performance deficiencies, disruptive conduct, and unauthorised actions led to management's decision to end the employment relationship. This decision was a consequence of the Applicant's actions and performance, rather than a dismissal in the conventional sense.

• [10] I do not understand the Respondent's reference to a "dismissal in the conventional sense". What the Act is concerned with is whether there was a dismissal within the meaning of s.386. The termination letter states:

On 22/8/25 around 1.30pm, it was observed that you accessed customer and workshop records other company system and attempted to take photographs of this information. This behaviour is unacceptable and represents a serious breach of confidentiality, privacy, and trust.

Customer and workshop records contain sensitive information. Copying or attempting to remove such data without authorisation is a serious matter under workplace law and privacy obligations in Queensland. These actions put both our customers and the business at significant risk.

Given the seriousness of this incident, management has made the decision that this will be your final week of employment. Your last working day will be 23/08/25. You are expected to complete your duties professionally during this period.

• [11] If the Respondent is relying on a repudiation of an employment contract giving rise to an entitlement to terminate, that argument does not appear to have been made out and is, further, antithetical to the Respondent's second objection that the Applicant was not an employee. I find the Applicant was dismissed within the meaning s.386(1)(a) of the Act.

• [12] The Respondent argues, in a somewhat confusing manner, that the Applicant was perhaps not an employee. This appears to be premised on the basis that there was no written employment contract and that the Applicant was initially described as a "learner".

• [13] The Respondent's argument is misconceived. An employment contract may be oral. In this case, the Applicant performed work for the Respondent and received pay for that work. Further, when determining whether a person was an employee, the Commission looks at the substance and practical reality of the relationship, rather than merely the labels applied to it (s.15AA of the Act).

• [14] The Respondent has not provided evidence to prove that the Applicant was not an employee. Further, the material submitted by the Applicant with the Form F8 tends to indicate that he was an employee. The Applicant was included on the Respondent's payroll. He received payslips with superannuation and PAYG. He was subject to directions of the Respondent.

• [15] I note further that the Respondents appears to be applying a revisionist history as they have referred to the Applicant as an employee in the termination letter, the written warning letter and in the Form F8A itself.

• [16] The Applicant was dismissed at the initiative of the employer in accordance with s.386(1) of the Act. The jurisdictional objection is dismissed.

The matter will be programmed for a conciliation conference in accordance with s.368 of the Act.

Printed by authority of the Commonwealth Government Printer