Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] Mr Zheqing Zhang has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of allegations that he was dismissed from his employment with J & W Momentum Pty Ltd (JWM) in contravention of Part 3-1 of the Act.

• [2] JWM has objected to the application on the grounds that the application was filed outside the 21 day time limit required by s.366(1)(a), that Mr Zhang was not employed by JWM and that he voluntarily resigned from the working arrangement.

• [3] Before dealing with the dispute under s.368, I must first determine whether the application was filed within the 21-day time limit required by section 366(1)(a). If the application was not filed within this timeframe, I must consider whether to allow Mr Zhang a further period to make the application under s.366(1)(b).

• [4] I must also be satisfied that Mr Zhang was employed by JWM and was dismissed from his employment.

• [5] In summary, I have found that the effective date of termination was 10 April 2025 and that the application was filed in accordance with the requirements of s.366(1)(a). I have also found that Mr Zhang was not dismissed within the meaning of s.365 of the Act. As such, it has not been necessary for me to determine whether Mr Zhang was employed by JWM. I have dismissed the application.

• [6] Mr Zhang started working for JWM on 29 January 2025 as a driver pursuant to an independent contractor arrangement. JWM has a contract with Australia National Courier (ANC) to deliver goods for IKEA purchased by IKEA customers.

• [7] Mr Zhang's work involved carrying out deliveries for IKEA from its warehouse in Tempe, New South Wales.

• [8] Mr Zhang said that his work schedule, methods, and delivery processes were dictated by JWM, and he used a vehicle provided by JWM for work. Mr Zhang said that he was repeatedly threatened with fines or contract termination if he failed to comply with JWM's requirements. JWM explained that Mr Zhang was required to provide his own vehicle to perform the work but that as he did not own a van, JWM provided him with the use of a van pursuant to a rental agreement which JWM provided to the Commission. The rental agreement stated that Mr Zhang would not be charged any rental for the vehicle in relation to deliveries for ANC, but that Mr Zhang would be liable to pay $1,250 of the full amount of the basic excess fee in respect of any damage to the vehicle regardless of fault. Although it appears that JWM paid for the insurance in relation to the vehicle, Mr Zhang was required to pay for petrol and tolls.

• [9] Mr Zhang said that he invoiced under an ABN and that JWM unilaterally deducted GST and never paid the GST component nor issued corresponding payment records. Mr Zhang said that JWM exercised extensive control over his work, including uniform mandates, working hours, KPI monitoring, vehicle use, and financial deductions and said that these factors collectively established that the relationship was one of employment, not independent contracting. Mr Zhang provided a picture of a uniform and hat which he said were issued by ACN. Mr Zhang explained that he was required to be available every day for work apart from Tuesday and that JWM advised him by WeChat message the previous day of the time he was required to commence at the Tempe depot. Mr Zhang provided an example of such a message from 'Angela' assigning a start time for 23 March 2025. It stated:

Dear Driver 5908, You are rostered to load at IKEA Tempe Store on 23/03/2025 at 6:45am on site. You are to be at your first delivery at ...

• [10] Mr Zhang said that when he arrived at the Tempe depot, a representative from IKEA would load the van with items for delivery and provide Mr Zhang with a delivery schedule. The number of hours that Mr Zhang worked each day varied according to the number of items he delivered and the delivery locations. Mr Zhang said that he usually worked at least six hours per day and sometimes worked more than 10 hours per day. Mr Zhang said that on average, he worked about seven hours per day. Mr Zhang was paid for each delivery he undertook for IKEA. He received $17.00 for each delivery Monday to Friday, $20.00 per delivery on Saturday and $22.00 per delivery on Sunday.

• [11] During the course of his engagement by JWM, Mr Zhang acknowledged that he was involved in a collision which caused damage to the vehicle. JWM deducted the insurance excess of $1,250 from Mr Zhang's pay in three instalments. Mr Zhang provided a tax invoice to the Commission which showed that JWM deducted the amount of $400 from his pay for the period ending 9 February 2025. Mr Zhang provided an undated WeChat message exchange to the Commission in relation to this matter which provided:

Mr Zhang: I will pay, but I want insurance proof, like a receipt.

JWM: This is the car you drove. We will deduct it in three payments.

• [12] Mr Zhang attached a screenshot of a WeChat group message from JWM threatening penalties for early deliveries. It stated:

From today onwards, for each early delivery, there will be a $10 penalty. By the fifth, our cooperation will be terminated. We received 3 complaints today. There were 3 early deliveries on Saturday and Sunday.

• [13] Mr Zhang said he expressed concern to JWM about the poor condition of the tyres of his vehicle in March 2025. In response, JWM directed Mr Zhang to swap the vehicle (which was electric) with a diesel vehicle and reduced the number of jobs assigned to him. JWM explained that IKEA preferred using electric vehicles for deliveries, so IKEA assigned less work to Mr Zhang when he was driving the diesel vehicle. Mr Zhang produced a WeChat message which provided:

Mr Zhang: I can only use the petrol car tomorrow. This electric van's tire won't make it.

Mr Zhang: The repairer said the tire could blow out over 50km.

Mr Zhang: If you insist, I can't drive it due to safety risks.

JWM: If the repairer said that, go work from there. The cost is on you. Everything will be fixed tomorrow. If you don't drive, you pay.

• [14] Mr Zhang said that due to the ongoing pressure and lack of autonomy, he communicated his intention to terminate the agreement on 9 April 2025, but that JWM did not clearly respond. Mr Zhang's resignation message stated as follows:

Today, I submitted my termination application. I may not be in Sydney for some time, and I want to move to another city.

• [15] On 10 April 2025, Mr Zhang said he was ordered to swap the company vehicle. From 11 April to 15 April 2025, Mr Zhang received no work assignments. He returned the company vehicle on 16 April 2025 and declined further work on 17 April 2025 due to no longer having the vehicle. Mr Zhang said that he returned the uniform on 23 April 2025 and considered the working relationship to have concluded on that date.

• [16] Mr Zhang said that he did not receive payment for the period from 3 April to 10 April 2025. Mr Zhang said that this payment was due after he ceased working for JWM. Mr Zhang said JWM demanded he pay either $3758.70 for vehicle damage or a $1250 insurance excess and refused to pay his wages. Mr Zhang said that he initially agreed to pay the excess, but later realised it was unfair. At the hearing, JWM explained that Mr Zhang had been involved in three accidents which caused damage to the vehicle and that the amount that Mr Zhang owed JWM in relation to repairs and/or insurance excess exceeded the amount that JWM owed Mr Zhang for the period from 3 April to 10 April 2025. In support of this claim, JWM provided three photos of damage to the vehicle and three separate emails from its insurance company citing three different claim numbers in respect of the vehicle referred to in the rental agreement between Mr Zhang and JWM. Two of these emails referred to accidents which occurred on 8 May 2025 (which were assigned different claim numbers) and the third email referred to an accident which occurred on 21 April 2025. I note that according to these three emails, the accidents which JWM held Mr Zhang responsible for all occurred after Mr Zhang ceased working for JWM.

• [17] In the application, Mr Zhang advised that he was seeking the following remedy:

I want to be paid back my salary, which is about 2200 Australian dollars from April 3rd to 10th, and all the GST, about 1200 Australian dollars, a total of 3400 Australian dollars.

Void my independent contractor contract and pay back taxes and pension since I have been employed.

• [18] The application has been brought under s.365 of the Act which provides:

365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

• [19] The dictionary at clause 12 of the Act refers to s.386 for the definition of 'dismissed'. Section 386 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.

(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.

• [20] Section 366 makes provision for the timeframe in which an application under s.365 must be made. It states:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position.

• [21] Mr Zhang claims that he was dismissed in contravention of s.358 which provides:

An employer must not dismiss, or threaten to dismiss, an individual who:

in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.

Note: This section is a civil remedy provision (see Part 4-1).

• [22] I have considered the submissions made by the parties and all the evidence in my determination of this matter and the conclusions I have made. As noted above, Mr Zhang alleged that he was dismissed by JWM in contravention of s.358 of the Act. However, this claim cannot be determined until the Commission deals with the matter under s.368, and only if the Commission issues a certificate of attempted conciliation under s.368(3). Under s.368, the Commission may deal with the matter in numerous ways including by mediation or conciliation, or by making a recommendation or expressing an opinion.

• [23] If there is a dispute as to whether an alleged dismissal has occurred, this is a preliminary issue which, according to the Federal Court Full Court decision in Coles Supply Chain Pty Ltd v Milford,[1] 'must be resolved before the powers conferred by s 368 can be exercised at all'.[2]

• [24] In this regard, the Full Bench in Lipa Pharmaceuticals Ltd v Mariam Jarouche[3] stated,

Where the respondent to a s.365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission 'dealing' with the dispute under s.368 including by conducting a conciliation conference.[4]

• [25] JWM claimed that Mr Zhang lodged the application outside of the 21-day time limit. JWM submitted that the effective date of termination was 9 April 2025, because that is the date that Mr Zhang submitted the resignation. The application was lodged on 1 May 2025, which is 22 days after 9 April 2025. JWM did not dispute that Mr Zhang performed work for it on 10 April 2025. In my view, Mr Zhang's performance work for JWM on 10 April 2025 establishes that the working relationship was still on foot on that date. As 10 April 2025 was the last date that Mr Zhang performed work for JWM, I find that 10 April 2025 was the effective date of termination and that the application was filed within the 21-time limit as required by s.365.

• [26] JWM has recently been the subject of a similar application brought by a former driver, who, like Mr Zhang, claimed that he was employee of JWM and that his resignation constituted a dismissal.[5] In dealing with that application, Deputy President Roberts observed that the determination of the question of whether the applicant in that case was an employee or independent contractor involved the application of the provisions of s.15AA of the Act which required a detailed consideration of a range of different factors to determine the real substance, practical reality and true nature of the relationship.[6] The Deputy President concluded that as the evidence relating to the question of whether there was a dismissal as a matter of fact was relatively confined, it was convenient to deal with the issue whether the circumstances constituted a dismissal in the first instance.[7] For that purpose, the Deputy President assumed, without determining the matter, that the relationship between the parties was one of employer and employee and that the applicant was therefore capable of being dismissed from his 'employment'.[8] I have decided to take the same approach in the matter before me and have assumed that Mr Zhang was employed by JWM for the purpose of determining whether he was dismissed.

• [27] Mr Zhang did not articulate whether he was relying on s.386(1)(a) or s.386(1)(b) of the Act in claiming that he was dismissed. After reviewing the relevant authorities, the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli[9] stated the following in relation to the proper construction of s.386(1) of the Act with respect to resignation:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

• (2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[10]
• [28] Mr Zhang did not claim that he resigned 'in the heat of the moment' or when he was in a state of emotional stress or mental confusion. Mr Zhang claimed that he was forced to resign by unfair conduct by JWM which appears to be a submission that he was forced to resign from his employment because of conduct, or a course of conduct, engaged in by JWM. I have therefore applied s.386(1)(b), and not s.386(1)(a), when determining this matter.

• [29] Mr Zhang claimed during the hearing that there were a number of matters which led to his resignation, being JWM's failure to address his concerns in relation to the tyres on his vehicle and deducting fines from his pay. Mr Zhang complained that JWM stopped assigning him work after he submitted his resignation and requested that he return the vehicle. Mr Zhang did not provide any evidence which established that JWM deducted fines form his pay. However, Mr Zhang produced a tax invoice which showed the deduction of $400 from his pay which was part of the excess that Mr Zhang was required to pay pursuant to the rental agreement.

• [30] I accept that the evidence demonstrates that JWM threatened to 'fine' Mr Zhang and was not supportive about Mr Zhang's concerns about the tyres on the vehicle. It is understandable that these matters may have caused Mr Zhang unhappiness and concern. However, Mr Zhang appeared to continue to work for some time after these events occurred.

• [31] Mr Zhang did not point to any specific event which immediately preceded his resignation on 9 April 2025 which provides a clear nexus between the conduct he now complains about and his decision to resign. Further, I note that Mr Zhang did not refer to his concerns about JWM's conduct in his resignation and simply said that he was submitting his resignation as he wanted to move to another city. The first time that Mr Zhang claimed that he was forced to resign was in the application filed on 1 May 2025.

• [32] In my view there was nothing unreasonable about JWM acting on the resignation and ceasing to assign work to Mr Zhang after receiving Mr Zhang's communication on 9 April 2025. There is insufficient evidence before me to establish that JWM engaged in the conduct which Mr Zhang complained about with the intention of bringing the employment to an end or that termination of the employment was the probable result of JWM's conduct such that Mr Zhang had no effective or real choice but to resign. If this was the case, Mr Zhang would not have waited until 9 April 2025 to submit his resignation.

• [33] For these reasons, I do not accept that Mr Zhang was forced resign because of conduct, or a course of conduct, engaged in by JWM. As such, I find that Mr Zhang was not dismissed.

• [34] I have found that Mr Zhang was not dismissed within the meaning of s.386(1) of the FW Act. Mr Zhang is therefore not eligible to make an application under s.365. The application is dismissed.

• [35] Although I have not considered Mr Zhang's substantive claim in this decision, it appears to me that the dispute between the parties, having regard to the remedy sought by Mr Zhang, is more likely to be about the outstanding payment owed to Mr Zhang by JWM in relation to work performed from 3 to 10 April 2025 than a claim under s.365. In expressing this view, I note that Mr Zhang does not allege in the application that he was employed by JWM and that he was dismissed or forced to resign so that JWM could engage him as an independent contractor to perform the same, or substantially the same, work under a contract for services. The basis upon which Mr Zhang claims that he was dismissed in contravention of s.358 is therefore unclear.

• [36] Mr Zhang is free to pursue his claim for outstanding payment for work performed from 3 to 10 April 2025 in a court of competent jurisdiction and does not require a finding that he was in an employment relationship or dismissed to do so. JWM submitted that it had not made payment to Mr Zhang because he owes JWM money is respect of three accidents however this explanation is not convincing given that the three accidents all appear to have occurred after Mr Zhang ceased working for JWM.

[1] [2020] FCAFC 152

[3] [2023] FWCFB 101

[5] Mr Geng Geng v J & W Momentum Pty Ltd., Mr Xiaofeng (Kelvin) Wan, [2025] FWC 2037

[9] [2017] FWCFB 3941

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