1
Fair Work Act 2009
s.365—General protections
Yvette Zaal
v
Terra Schwartz Pty. Ltd.
(C2023/2639)
COMMISSIONER WILSON MELBOURNE, 20 JULY 2023
Application for the Commission to deal with a dismissal dispute under s.365 of the Act –
jurisdictional objection that there was no dismissal – jurisdictional objection upheld –
substantive application dismissed.
[1] This decision deals with the question of whether Ms Yvette Zaal (the Applicant) was
“dismissed” within the meaning of the Fair Work Act 2009 (the Act) from her employment with
Terra Schwartz Pty. Ltd. (Terra Schwartz, or the Respondent) and thus eligible to make a
general protections application involving dismissal to the Fair Work Commission (the
Commission).
[2] Terra Schwartz objects to Ms Zaal’s application on the basis that there was no dismissal
as defined. With such objection having been made the Commission is required to determine
whether the applicant was dismissed before it can proceed any further.
[3] The objection was the subject of a hearing before me on Monday 17 July 2023 at which
Ms Zaal gave evidence and submissions on her own behalf. Mr John Nicholl, a Contract
Manager employed by Terra Schwartz represented the Respondent, and Mr Sven Pekarsky, a
Terra Schwartz General Manager, gave evidence on behalf of the Respondent.
[4] For the reasons set out below, I find Ms Zaal was not dismissed within the meaning of
the Act.
RELEVANT LEGISLATION
[5] Section 365 of the Act outlines when the Commission can deal with a general
protections application involving dismissal:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
[2023] FWC 1647
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1647
2
(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.”
[6] The term “dismissed” is defined in s.12 of the Act by reference to s.386, which provides
this definition:
“386 Meaning of dismissed
(1) 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.
(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
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(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
(c) the person was demoted in employment but:
(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
[2023] FWC 1647
3
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.”
[7] Section 365 states that if a person has been dismissed, and the person alleges that the
dismissal was in contravention of Part 3-1, he or she may apply to the Commission to ‘deal with
the dispute’.
[8] The Commission’s usual process with general protections matters is to deal with the
dispute by conducting a conciliation conference by a staff conciliator. If it is satisfied that all
reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, the
Commission will issue a certificate that allows the applicant to commence proceedings in a
court (s.368(3)) or by arbitration in the Commission if consent is given by each party (s.369).
However, in an application where the respondent denies that it dismissed the applicant and
objects to the application on this basis, the Commission is required to determine whether the
applicant was dismissed.1
[9] Consistent with the Commission’s usual practice on these matters2, this matter has been
allocated to me to determine whether or not there was a dismissal. A person must have been
dismissed to be entitled to make a general protections dispute application and before the
Commission can exercise powers under s.368 to deal with a dispute.3
BACKGROUND
[10] Ms Yvette Zaal made a general protections application involving dismissal to the
Commission pursuant to s.365 of the Act on 10 May 2023. She had earlier made an application
for unfair dismissal remedy, on 21 April 2023, however discontinued the application on 11 May
2023.
[11] The Respondent to Ms Zaal’s general protections application is Terra Schwartz which
provides “business management support to government clients, primarily in procurement and
contract management, and project management. Its personnel are assigned to a client project
for a period of time and may be allocated to work with different clients or projects from time
to time.”4
[12] Ms Zaal commenced working for Terra Schwartz on 10 January 2022. There is a minor
dispute between the parties about the precise nature of Ms Zaal’s position and title which is not
necessary for me to resolve in this decision, although it is agreed she was working as a Senior
Manager working remotely to provide services to the Australian Government Department of
Defence (the Client).5 Ms Zaal performed her role working remotely from her home in
Melbourne.
[13] On 19 April 2023, Mr Pekarsky contacted Ms Zaal by telephone to discuss likely
changes the Department of Defence sought from Terra Schwartz in considering renewal of its
contract from 1 July 2023.6 Ms Zaal had not expected to discuss her work location and instead
had expected to discuss her application for a higher security clearance which had been under
consideration for some time. Mr Pekarsky gave evidence that he advised Ms Zaal in the
conversation on 19 April 2023 that:
[2023] FWC 1647
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“our Client had sought the possibility for personnel to work on site at a Client office
location in Canberra, Melbourne, or other location rather than a work-from-home
arrangement. For her position this would mean attending an office, of which the location
was yet to be discussed and agreed, on a regular basis. There were 2 months to prepare
and negotiate a satisfactory arrangement for both the Applicant and the Client.”7
[14] Mr Pekarsky recalls the conversation with the Applicant as follows:
“The Applicant told me she did not want to move to Canberra and I said that we can
explore alternatives. These alternatives included formally requesting the Client to
consider the Applicant continue to provide service via remote working in Melbourne or
remote working from a Defence facility in Melbourne. Another possibility was if this
approach was not successful, the Respondent could look to find an alternative position
in Melbourne with a different Client. The Applicant stated she was not preferable to
move to Canberra but would like to discuss further options to continue working with the
Client or on another project based in Melbourne.”8
[15] Ms Zaal disputes she was told the position could be located to “Canberra, Melbourne,
or other location rather than a work-from-home arrangement”.
[16] The above conversation took place, on Ms Zaal’s account at about 10:11 AM on 19
April 2023. In the evening on the same day, 19 April 2023, Mr Pekarsky was provided with an
email from a Director in the Department of Defence requesting Ms Zaal cease providing
services under the contract between the Respondent and the Client. I do not detail the allegations
as they are highly general, not particularised and have not been investigated; they are though
described by the email’s author as pertaining to “serious error”.9 The email is dated 19 April
2023 at 1:39 PM and was addressed to a person within Terra Schwartz other than Mr Pekarsky,
who then later provided it to Mr Pekarsky.
[17] Mr Pekarsky and Ms Zaal spoke by phone again the following day on 20 April 2023 at
about 3:30 PM. Ms Zaal expected the call would discuss her security clearance, however Mr
Pekarsky instead spoke to her about the email received from the Department of Defence and
discussed with her the possible next steps including the Department investigating the alleged
activities and the possible outcomes.10 He also discussed that if disciplinary action was taken
the Respondent may be obligated to report the action to the Australian Government Security
Vetting Agency since the Applicant held a Security Clearance with the Australian
Government.11 Ms Zaal’s evidence is that she asked Mr Pekarsky to provide her with a copy of
the email, however he refused. Shortly after the phone call on 20 April 2023 at 3:46 PM Ms
Zaal sent an email to Mr Pekarsky which consisted of the following:
“Hello Sven
Further to our discussion, please accept my resignation with immediate effect.
Regards,
Yvette Zaal
Senior Manager”.12
[2023] FWC 1647
5
CONSIDERATION
[18] The matter for determination in this decision is whether Ms Zaal has been “dismissed”
within the meaning given to that word by s.386 of the Act. The enquiry to be made in that regard
is whether Ms Zaal’s employment with Terra Schwartz was “terminated on the employer’s
initiative” (s.386(1)(a)), or whether she resigned from her employment “but was forced to do
so because of conduct, or a course of conduct, engaged in by” Terra Schwartz (s.386(1)(b)).
[19] In Mohazab v Dick Smith Electronics Pty Ltd (No 2)13 it was recognised that a
termination will be at the initiative of the employer where the act of the employer results directly
or consequentially in the termination of employment – that is had the employer not taken the
action, the employee would have remained in employment; and the employment is not
voluntarily left by the employee.
[20] After an extensive analysis of the law surrounding s.386(1) the Full Bench in Bupa Aged
Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli14 held that the
Commission needed to distinguish whether it was argued the dismissal was not legally effective,
such as for reason of a “heat of the moment” communication or incapacity of some kind or
whether it had been “forced” through conduct or a course of conduct by the employer with an
intentional purpose of procuring a resignation:
“[47] Having regard to the above authorities and the bifurcation in the definition of
“dismissal” established in s.386(1) of the FW Act, we consider that the position under
the FW Act may be summarised as follows:
(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 probably 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.
[2023] FWC 1647
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[48] It is necessary for an applicant for an unfair dismissal remedy whose employment
has terminated because the employer has acted on a communication of resignation on
the part of the employee to articulate whether they contend they were dismissed in the
first or the second scenario above (although it may be possible for both scenarios to
arise in a particular factual situation). Where the applicant is self-represented or
inadequately represented, it may be necessary for the member of the Commission
hearing the matter to clarify with the applicant the precise basis upon which it is
contended that the applicant was dismissed. If this is not done, it may lead to the wrong
test being applied to the matter.”
[21] The acts committed or undertaken by an employer in relation to a termination of
employment are not the only points of consideration. It is also necessary to consider the
circumstances giving rise to the termination; the seriousness of the issues involved; and the
respective conduct of the employer and employee.15
[22] An employer is generally able to treat a clear and unambiguous resignation as a
resignation. However, where a resignation is given in the heat of the moment or under extreme
pressure, special circumstances may arise. The Commission accepts that in special
circumstances an employer may be required to allow a reasonable period of time to pass and
may have a duty to confirm the intention to resign if, during that time, they are put on notice
that the resignation was not intended.16
[23] Assessment of Terra Schwartz’s objection will be assisted by the summary of the
general principles enunciated recently by Deputy President Hampton in Tao Yang v SAL HR
Services Pty Ltd (Tao Yang):
“• The question as to whether there was a dismissal within the meaning of the FW Act is
a jurisdictional fact that must be established by the Applicant;
• A termination at the initiative of the employer involves the conduct (or course of
conduct) engaged in by the employer as the principal constituting factor leading to
the termination. There must be a sufficient causal connection between the conduct
and the resignation such that it “forced” the resignation;
• The employer must have engaged in some conduct that intended to bring the
employment relationship to an end or had that probable result;
• Conduct includes an omission;
• Resignations that are clear and unambiguous may be treated on face value unless
special circumstances are present which warrant the employer confirming the
intention of the employee;
• Considerable caution should be exercised in treating a resignation as other than
voluntary (forced) where the conduct of the employer is ambiguous and it is
necessary to determine whether the employer’s conduct was of such a nature that
resignation was the probable result such that the employee had no effective or real
choice but to resign; and
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• In determining the question of whether the termination was at the initiative of the
employer, an objective analysis of the parties’ conduct is required.”17
[24] Terra Schwartz argues that the Commission has no jurisdiction to deal with Ms Zaal’s
claim because no dismissal occurred. It argues that the written resignation provided by Ms Zaal
was just that.
[25] Ms Zaal claims that she did not willingly resign from her employment, rather her written
resignation from her full-time position was provided due to a fear of her security clearance
being affected and that she was forced to resign in order to protect her reputation.18 Whilst the
Applicant resigned from her employment by email on 20 April 2023, she submits it was forced
and that the Respondent took adverse action against her because she exercised a workplace right
raising complaints/enquiries in relation to her employment regarding the possible relocation.19
[26] Shortly stated, the following is a distillation of the submissions of both parties.
The Applicant’s case
[27] Ms Zaal submits that on 19 April 2023 she was notified by Terra Schwartz of a change
in her work location, which was not suitable to her due to the distance involved.20 She argues
that she then raised an enquiry pertaining to the change in employment and possible
alternatives. Ms Zaal accepts that she was advised in the discussion of the client’s request that
she “change work location from Melbourne home office to Canberra Client office” however
does not recall a Melbourne office location being mentioned, saying that “no client alternatives
were offered by Respondent”.21 She also says Mr Pekarsky was asked by her to discuss
Melbourne clients and Canberra clients flexible work options yet his only comment was to the
effect that “Applicant can resign or ring team recruitment colleagues”.22 On 20 April 2023 Ms
Zaal received a call from the General Manager advising that there were allegations of serious
misconduct made against her. She was overwhelmed with shock and requested reasons;
however, none were particularised. She heard Mr Pekarsky to say that the Department of
Defence had drawn its conclusions based on audit findings against her, which were not
elaborated upon. Later the same day she resigned with immediate effect.
[28] Ms Zaal submits that she felt forced to resign in order to protect her reputation23 and
security clearance status.24 Further, there was no attempted contact from the Respondent
following her resignation.25 She says that her intention with the communication “please accept
my resignation with immediate effect” was that it was notice of her resignation with immediate
effect in accordance with her contract of employment which required her to give four weeks’
notice of resignation and to work out that notice.
The Respondent’s case
[29] Terra Schwartz submits it neither asked Ms Zaal to resign or suggested to her that she
should resign. The discussion on 19 April 2023 was in the context of discussions the firm’s
client had sought in order to renew the Respondent’s contract. Mr Pekarsky says he told Ms
Zaal that the client had sought the possibility for people working on the contract to work from
its Canberra or Melbourne or other location offices and not to work from home. Mr Pekarsky
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says that Ms Zaal said she did not want to move to Canberra and that he replied by saying
alternatives could be explored,26 a statement which is agreed by Ms Zaal.27 On 20 April 2023
the Respondent received Ms Zaal’s notice of resignation by email which requested it take
immediate effect. Mr Pekarsky attempted to contact Ms Zaal on several occasions by phone
after receiving her resignation but without success,28 a contention which is rejected by Ms Zaal.
[30] Terra Schwartz also submits that it took Ms Zaal’s resignation “with immediate effect”,
as being precisely that; she intended to communicate she would not be performing further work
for the company. Terra Schwartz also submit that Ms Zaal did not attend work following her
notice of resignation and that it suffered a loss due to Ms Zaal’s resignation.
[31] As set out above, Ms Zaal bears the burden of establishing she was dismissed. She does
not argue her dismissal was in the “heat of the moment” of the type that would satisfy the first
limb of the definition of “dismissed” in s.386(1)(a). I am not satisfied with respect to the second
limb in s.386(1)(b) that she has established on the balance of probabilities that her resignation
was because she was forced to do so because of conduct, or a course of conduct, engaged in by
Terra Schwartz.
[32] The onus of proof in respect of s.386(1)(b) pertinent to forced dismissals is not
insignificant and many who assert they have been forced to resign will struggle to meet the
onus. The section requires an objective analysis of the parties’ conduct, delving deeper than the
simple assertion. The conduct or course of conduct pointed to must be such as to overcome the
additional hurdle that the employee resigned “but was forced to” do so. As referred to in Tao
Yang above, there must be a sufficient causal connection between the conduct and the
resignation such that the employer “forced” the resignation and at least some of the conduct
must have been intended to bring the employment relationship to an end.
[33] Ms Zaal argues that the relevant conduct was two events, a day apart; on 19 April 2023
she was told her job had to move from Melbourne to Canberra and on 20 April 2023 she was
told the Department of Defence had complained about her and requested she be taken off the
services contract to which she had been assigned. She sees this as conduct designed to unseat
her from her job; her inability to move to Canberra coupled with her being removed from the
work she was performing meant her situation was untenable. What happened was probably at
the instigation of the Department, with the complaint letter being template and a common tactic
used by the Department when a disaffinity with a contractor arose.
[34] Mr Pekarsky and Terra Schwartz more generally reject these constructs. Mr Pekarsky
points to the conversation about work location as being the product of a general requirement of
the Department of Defence. He concedes he asked Ms Zaal if she would move to Canberra and
was prepared to discuss alternatives when she said that was not possible. In relation to the
Department of Defence’s complaints the evidence shows the relevant email was not provided
to Mr Pekarsky until after the conversation with Ms Zaal on 19 April 2023. In his evidence Mr
Pekarsky said the complaint would need to be investigated by the Client and that alternative
work could be found for Ms Zaal either on other contracts within the Department of Defence
or within other clients for whom Terra Schwartz performed work.
[35] On these matters at least I prefer the evidence given by Mr Pekarsky to that given by
Ms Zaal where there is an inconsistency.
[2023] FWC 1647
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[36] While the evidence of neither is without blemish or minor inconsistency, the answers to
questions given by Ms Zaal lead me to conclude she may not have heard all things said by Mr
Pekarsky, causing her to believe, with adamance, that things that might have been said were not
said. In short, her active listening may have let her down in these critical conversations. Despite
referring to her hand-written notes in the hearing, said to be contemporaneous, Ms Zaal did not
provide the notes in her evidence, and where she did refer to them has provided them as a high-
level, tendentious summary only. Terra Schwartz did not call for the notes to be produced to
the Commission.
[37] For his part, Mr Pekarsky’s explanations to Ms Zaal both on the matter of relocation
and the content and consequences of the Department of Defence’s complaints were likely
restrained and not full, and certainly not with a problem-solving nature of “how do we get you
beyond this difficult situation”. Mr Pekarsky has no contemporaneous notes of the
conversations which, at their lowest, would be of great concern to any employee and which
reasonably could be the subject of further dispute. Mr Pekarsky contends as well that he
unsuccessfully attempted to contact Ms Zaal after her resignation email to discuss the matter,
however, offers no evidence of the number and dates of the calls and I note that Ms Zaal rejects
that calls were made to her by Mr Pekarsky at any time following the resignation email.
[38] I also take into account that Mr Pekarsky withheld from Ms Zaal the Department of
Defence’s email to his colleague. Its contents are innocuous and not inflammatory, and it raises
no issues of defence or other security. He was wrong to withhold it, with the fact that he did
allowing Ms Zaal to believe it demonstrated some sort of conspiracy on the Department’s part.
That in itself does not taint his evidence generally to such a point that it cannot be accepted.
[39] Having regard to all the evidence before me and the demeanour of each witness I am
satisfied it is likely that on 19 April 2023 Mr Pekarsky indicated to Ms Zaal that home-based
work could not continue for her; that the Department wanted her to work from Canberra; and
that when she declined, he suggested locations other than Canberra could be considered. There
is no question on the evidence of either Mr Pekarsky or Ms Zaal that the subject of Ms Zaal’s
work location after 1 July 2023 had been concluded; no direction had been given, and it is plain
the subject was going to be discussed again.
[40] I am satisfied as well that the phone discussion between the two on 20 April 2023 did
not involve a statement or direction from Mr Pekarsky to Ms Zaal either that she should resign,
or that it would be better if she did resign. However, it is likely Mr Pekarsky discussed with Ms
Zaal that one response to the situation might be for her to resign; however, in context of all the
evidence as well as my impression of each person I am not satisfied that this could reasonably
be viewed as a direction to her. I am though satisfied that Mr Pekarsky explained to Ms Zaal
that the Department of Defence’s complaints would have to be investigated by the department,
however it is likely he did not give an especially comprehensive explanation of how the
investigation would be conducted or what may occur depending on its findings. I am not
satisfied that Mr Pekarsky explained to Ms Zaal what alternative work could be found for her;
while his evidence to the Commission about those possibilities answered the question posed, it
does not stand as evidence that he told Ms Zaal those things.
[2023] FWC 1647
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[41] Following these assessments, the question needs to be asked: when Ms Zaal submitted
her resignation no more than a few minutes later, at 3:46 PM, was it her intention to actually
resign and no longer work for Terra Schwartz?
[42] I am satisfied that such was her intention. Reasonably, the things said by Mr Pekarsky
could not be construed as “you must resign”. The evidence of the parties does not support such
a conclusion. In fact, Ms Zaal’s written documents do not go as far as to claim that she was told
she must resign; her application form says that she “felt forced to resign in order to protect her
reputation”29 and her written witness statement/response document says only that Mr Pekarsky
gave verbal advice to resign “in order to maintain a reputable security clearance”30
[43] Ms Zaal assumed that the resignation would take effect four weeks later; however, the
words she chose to use in the email let her down and were taken by Terra Schwartz as meaning
she was finishing her employment then and there. No enquiries were made of Ms Zaal by Terra
Schwartz about what she intended in the days after 20 April 2023, and I do not accept Mr
Pekarsky’s evidence that he attempted to contact Ms Zaal on several occasions by phone after
receiving her resignation but without success; the evidence he gives on the subject is no more
than an assertion, with no phone or other records provided that would support the assertion. On
the other hand, Ms Zaal did not contact Terra Schwartz again until 10 May 2023 when she
requested a payslip be provided. The product of these considerations is two-fold; a finding is
not open to me that Ms Zaal had second thoughts about whether she had or should have
resigned; and no finding is available that Ms Zaal queried whether she was expected to work
out her period of notice.
[44] In the context of all the evidence before me the only findings I can make lead to the
conclusion that Ms Zaal resigned of her own volition and was not dismissed having been forced
to resign because of conduct, or a course of conduct, engaged in by Terra Schwartz. She may
well have acted in haste, she may be uncomfortable with its result and may regret her actions,
however those matters are not synonymous with being forced to resign because of conduct, or
a course of conduct, engaged in by Terra Schwartz.
[45] Returning to the summary of relevant considerations given by Deputy President
Hampton in Tao Yang:
• The above analysis approaches the question as one of jurisdictional fact and concludes
there is no jurisdiction for the reasons stated;
• There is no or no sufficient causal connection between Terra Schwartz’s conduct and
Ms Zaal’s resignation;
• The evidence does not support a finding that Terra Schwartz engaged in conduct with
the intention or the probable result of bringing the employment relationship to an end;
• There are no relevant omissions to be considered;
• The resignation is clear and unambiguous and may be treated on face value as being a
resignation. There are no special circumstances that would have required Terra
Schwartz to check her intention;
[2023] FWC 1647
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• The conduct of Terra Schwartz is not established as ambiguous;
• The above conclusions have been drawn on the basis of an objective analysis.
[46] On the material before me, I am satisfied that the Respondent’s jurisdictional objection
has been made out. I find the Applicant resigned from her employment and was not forced to
do so because of conduct, or a course of conduct, engaged in by her employer within s.386(1).
CONCULSION
[47] Having determined Ms Zaal was not dismissed, she is not entitled to apply under s.365
of the Act for the Commission to deal with her dismissal dispute.
[48] The jurisdictional objection is upheld. The application is dismissed.
COMMISSIONER
Appearances:
Ms Y. Zaal for herself
Mr J. Nicholl for the Respondent
Hearing details:
2023.
Melbourne (via video conference);
17 July.
Printed by authority of the Commonwealth Government Print
PR764015
1 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [67]; Lipa Pharmaceuticals Ltd v Marouche [2023] FWCFB
101, [23].
WORK NORK 0 COMMISSION ISSION AUSTRALIA, THE SEAL OF THE F
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb101.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb101.pdf
[2023] FWC 1647
12
2 Following the decision in Lipa Pharmaceuticals Ltd v Marouche [2023] FWCFB 101 the Commission changed its case
management practices from 1 June 2023 for General Protections cases involving dismissal where certain jurisdictional
issues arise.
3 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54].
4 Exhibit R2, Witness Statement of Sven Pekarsky, 21 June 2023, [1].
5 Ibid, [2].
6 Ibid, [3].
7 Ibid, [3].
8 Ibid, [4].
9 Ibid, [6].
10 Ibid, [7]-[8].
11 Ibid, [9].
12 Ibid, Attachment A.
13 (1995) 62 IR 200, 205.
14 [2017] FWCFB 3941.
15 Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000).
16 Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999), [12].
17 [2023] FWC 1325, [53].
18 Form F8, General protections application involving dismissal, item 3.3.
19 Ibid.
20 Ibid.
21 Exhibit A1, Applicant’s response to Witness Statement of Sven Pekarsky, 28 June 2023, Attachment Applicant Impact
Statement.
22 Ibid.
23 Form F8, General protections application involving dismissal, item 3.3.
24 Exhibit A1, Applicant’s response to Witness Statement of Sven Pekarsky, 28 June 2023, Attachment Applicant Impact
Statement.
25 Exhibit A1, Applicant’s response to Witness Statement of Sven Pekarsky, 28 June 2023, [13].
26 Exhibit R2, Witness Statement of Sven Pekarsky, 21 June 2023, [3] – [4].
27 Exhibit A1, Applicant’s response to Witness Statement of Sven Pekarsky, 28 June 2023, [4].
28 Exhibit R2, Witness Statement of Sven Pekarsky, 21 June 2023, [13].
29 Form F8, General protections application involving dismissal, item 3.3.7.
30 Exhibit A1, Applicant’s response to Witness Statement of Sven Pekarsky, 28 June 2023, Applicant Impact Statement, p. 4
of 8.
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb101.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1325.pdf
