Fair Work Act 2009

s.365 - General protections

Application to deal with a general protections dismissal dispute - whether dismissed

• [1] Ms Yeny Espanol Galeano was employed as an order fulfilment specialist for Ricoh Australia Pty Limited (Ricoh) from 11 December 2023 until 31 March 2025. On 20 April 2025, Ms Galeano applied in time for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (Cth) (the Act). Ms Galeano alleges that she was dismissed in contravention of the general protections when Ricoh denied her access to parental leave entitlements.

• [2] An 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 conduct by the employer.[1]

• [3] Ricoh objects to the application. It says that Ms Galeano was not dismissed and that her employment came to an end by agreement at the end of her fixed term contract.

• [4] The question is whether Ms Galeano was dismissed, and the answer is 'No'. These are my reasons.

• [5] Ms Galeano was initially employed under an 'outer limits' contract from 11 December 2023 to 9 May 2024. By agreement between the parties, the term of the contract was extended to 31 March 2025.

• [6] In October 2024, Ms Galeano advised Ricoh that she was pregnant, and due in February 2025. Self-evidently, this affected her ability to work until the end of her contract. Ms Galeano was advised that because she was a temporary employee, she was not entitled to paid parental leave under Ricoh's Parental Leave Policy (the Ricoh Policy).

• [7] In an exchange of correspondence on 27 November 2024, Ms Galeano wrote to Ricoh stating:

"As per our last meeting with Vinu and considering I have been advised I won't be covered by the Ricoh Paid parental leave, I have decided:

• I will be working until the 31/01/2025 as you mentioned.
• Following that date I will log all my accrued annual leave.
• Whatever will be remaining on my contract I will take the unpaid parental leave which I am entitled to according to the National employee scheme, also validated with the Business Equipment Award referenced on my contract."

• [8] These arrangements were approved by Ricoh on the mutual understanding that the employment would end as previously agreed on 31 March 2025.

• [9] On 1 November 2024, Ms Galeano sought advice about her parental leave entitlements from Redfern Legal Centre. The advice she received was to the effect that she was entitled to paid parental leave under the Ricoh Policy as a permanent employee. Ms Galeano engaged with Ricoh about a change in position to give effect to the advice but was unsuccessful.

• [10] On 17 January 2025, Redfern Legal Centre wrote to Ricoh on behalf of Ms Galeano claiming that she was entitled to 12 months' unpaid parental leave under the National Employment Standards and 12 weeks' paid parental leave under the Ricoh Policy, and that the effect of these entitlements was to extend the contract of employment to 31 January 2026.

• [11] On 23 January 2025, Ricoh advised Redfern Legal Centre that it maintained the position as stated by Ms Galeano on 27 November 2024.

• [12] On 21 February 2025, Ricoh sent Ms Galeano a letter confirming the "details of [her] separation" including that her last working day would be 31 March 2025.

• [13] On 20 April 2025, Ms Galeano made this application.

• [14] On the materials, Ms Galeano was not dismissed. Her employment came to an end at the expiry of her contract of employment on 31 March 2025. The contract of employment, as varied in writing by the parties, was a legitimate, operative and genuine agreement between them. It provided for the employment to end on a specified date and this is what occurred. In the circumstances, the employment was terminated by reason of the agreement between the parties.

• [15] The question of what parental leave entitlement(s) Ms Galeano had in connection with her contract of employment is separate to the question of whether she was dismissed. An entitlement to leave does not alter the fact of an earlier agreement for employment to come to an end on a specified date. Leave is a period of authorised absence from work. If there is no requirement to work, the question of leave does not arise. In this case, Ms Galeano was not required for work once her contract of employment expired. Any entitlement to leave she may have had was necessarily limited to leave during the period of employment.

• [16] Ms Galeano's employment ended when her employment came to an end by agreement on 31 March 2025. It follows that Ms Galeano was not dismissed for the purposes of s.386 of the Act.

• [17] The jurisdictional objection is upheld and the application is dismissed.

[1] Fair Work Act 2009 (Cth), ss 12 and 386.

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