s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - was the employee dismissed - employee was dismissed - application within jurisdiction

• [1] Ms Zeinab Akbari has applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth). Ms Akbari says that her former employer Diamond Services Pty Ltd dismissed her in contravention of Part 3-1 of the Act. Diamond Services objects to Ms Akbari's application on the basis it did not dismiss her.

• [2] Before Ms Akbari's application can proceed, I must determine whether Diamond Services dismissed her. In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court held that where there is a question over jurisdiction - as is the case here - the Commission must determine the jurisdictional issue before exercising its powers under s 368 of the Act.[2]

• [3] I conducted a determinative conference to hear evidence on the jurisdictional issue on Monday 28 April 2025. Ms Akbari represented herself and gave evidence in support of her case. Mr Kennedy Ogbonna (Director and Operations Manager) and Dr Michael Nwoakeiwu (Director) represented Diamond Services and gave evidence.

• [4] Having heard from the parties, I find that Diamond Services dismissed Ms Akbari.

• [5] My detailed reasons for my decision follow.

2. What were the events that led to the end of the employment relationship?

• [6] Diamond Services is a WA-based company that provides disability care services. Ms Akbari's employment with Diamond Services started on or around 1 July 2024. Ms Akbari was employed as a Service Coordinator on an annual wage of $70,000 per annum.

• [7] On Saturday 24 August 2025, Ms Akbari raised concerns regarding her wages. Ms Akbari's concern was that she was being paid $33.60 per hour with a travel allowance of 70 cents per kilometre, when her understanding was her rate of pay was $35 per hour with a travel allowance of 80-90 cents per kilometre.[3]

• [8] Ms Akbari raised her concerns multiple times with Diamond Services, it appears without a satisfactory resolution.[4] The parties strongly disagree as to what the relevant pay arrangement was meant to be and how it should have been approached. I do not recount the parties' positions on this as it is ultimately not relevantly to the question of whether Ms Akbari was dismissed.

• [9] Ms Akbari was asked to attend a meeting on Thursday 30 January 2025. Mr Ogbonna and the Diamond Services Office Manager attended the meeting in person and Dr Nwoakeiwu attended via Microsoft Teams.

• [10] The parties have opposing accounts of what occurred.

• [11] Ms Akbari's evidence is that during the meeting, the Office Manager and Mr Ogbonna explained issues that Diamond Services had with her conduct. Mr Ogbonna handed her a blue envelope and indicated Diamond Services' view she had not passed her probation. Ms Akbari did not open the envelope at the time. Ms Akbari asked if she could resign so that it would look better to future employers. Ms Akbari then typed up the following resignation letter in the meeting on her laptop:

Please accept this letter as formal notice of my resignation from my position as service coordinator at Diamond Care Disability Services, effective 30 January.

The reason for my resignation is due to the discrepancy in my salary rate. Despite my efforts to address this issue, I have not received the correct compensation as per our initial agreement. I have made the decision to seek new opportunities where my skills and experience are valued and compensated fairly.

I appreciate the experience and skills I have gained while working at Diamond Care Disability Services and I am grateful for the opportunity to work with the team.

• [12] The letter was printed out and Ms Akbari signed it. When Ms Akbari left the meeting, she opened the blue envelope that Mr Ogbonna had given her. Inside was a letter that read:

Re: Letter of Unsuccessful probation and notice of termination

While we thank you for your short time with us at Diamond Care & Disabilities Services in the last six months, we also acknowledge the great times we all shared.

Your probation period with us at Diamond Services WA Pty Ltd is due to end on 31 January 2025.

We confirm that we have decided not to continue your employment beyond your probationary period. As a result, your employment will end on 31 January 2024.

However, and as per your contract, we offered you a probationary period of six (6) months which would have come to an end on 31 December 2024, but you took leave for a month to travel overseas which extended your probationary period to 31 January 2025.

Though your probation period ended on date as written above, all your entitlements and days worked till the probation period end must be paid.

We shall not enumerate the reasons why the probation period has ended unsuccessfully but some of the reasons will be discussed in our meeting with you.

We wish you well in your future endeavours and we thank you once again for being part of Diamond Care & Disability Services.

• [13] Mr Ogbonna's evidence is that the meeting started with a discussion of the issues with Ms Akbari's conduct. Mr Ogbonna and Dr Nwoakeiwu gave muddled accounts of what occurred next. It seems that approximately 10 minutes after the meeting started, Ms Akbari left the meeting. When she returned, she had the resignation letter referred to in [11]. The effect of their evidence is that the letter referred to in [12] was prepared by Dr Nwoakeiwu during the meeting and was then emailed to Mr Ogbonna to print out and give to Ms Akbari.

• [14] Both insisted that the letter was prepared and given to Ms Akbari after she announced her resignation. Both Mr Ogbonna and Dr Nwoakeiweu explained that the letter was a template letter in their system and was given to Ms Akbari as statement of service to help Ms Akbari with applications for future employment. Both also gave evidence that Ms Akbari was not told during the meeting that she had not passed probation.

• [15] 'Dismissed' is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides:

(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."

• [16] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[7] considered the relevant authorities and principles on what it means for an employee's employment to be terminated at the employer's initiative as follows:

• It is insufficient to simply show that the employee did not voluntarily leave their employment.

• While it may be that some action on the employer's part intended to bring the employment to an end, it is not necessary to show that the employer held that intention.

• It is sufficient that the employer's conduct would - on any reasonable view- be likely to bring the employment relationship to an end. This can also be framed by asking the question: did the employer's conduct have the probable result of bringing about the end to the employee's employment or leaving the employee with no effective or real choice but to resign?

• [17] In weighing up the competing versions of events, I have considered the fact that Mr Ogbonna and Dr Nwoakeiwu do not speak English natively. However, I note that at the determinative conference they spoke in English coherently and competently.

• [18] With respect to Mr Ogbonna and Dr Nwoakeiwu, their version of events simply does not make sense.

• [19] The letter that Diamond Services gave to Ms Akbari is unequivocally a termination letter. It states that she had failed her probationary period, and that Diamond Services would not be continuing with her employment. I do not see how it could be used as a positive statement of service that would assist in Ms Akbari's future employment endeavours.

• [20] Given the content of the letter, it also does not make sense that they would give it to Ms Akbari after she resigned. The date of the letter and the reference to a meeting to discuss why Ms Akbari did not pass probation also support a finding that the letter was prepared before the meeting on 30 January 2025.

• [21] Diamond Services did not provide any supporting material, such as the alleged email that Dr Nwoakeiwu sent to Mr Ogbonna during the meeting with the termination letter.

• [22] During the determinative conference, Mr Ogbonna and Dr Nwoakeiwu also spoke at length regarding all the issues they had with Ms Akbari and how it was difficult for them to see how she could pass her probation. Though they did not answer my questions directly on this, I find that their statements support Ms Akbari's version of events: namely, that they had reached a view before the 30 January 2025 meeting that she had not passed her probationary period.

• [23] I found Ms Akbari to be the more credible witness. Her evidence was fulsome and logical. I accept Ms Akbari's evidence that she was told that she had not passed probation and was given the termination letter in an envelope. It makes sense that she wanted to resign after being told that she had not passed her probationary period.

• [24] I find that Ms Akbari's employment was terminated on Diamond Services' initiative. By telling Ms Akbari that she had not passed probation and handing her a letter that could only objectively be seen as termination letter, Diamond services dismissed Ms Akbari. Ms Akbari then handing in a resignation letter does not negate this. Ms Akbari's application is within the Fair Work Commission's jurisdiction. A conference will be listed pursuant to s 368 of the Act.

[1] [2022] FCAFC 152.

[5] Digital Court Book page 81.

[7] [2017] FWCFB 3941.

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