1
Fair Work Act 2009
s.365—General protections
Melinda Buckley
v
GBO One Pty Ltd
(C2024/3704)
DEPUTY PRESIDENT BEAUMONT PERTH, 24 JULY 2024
Application to deal with contraventions involving dismissal – jurisdictional objection –
Applicant not dismissed
1 The dispute and outcome
[1] On 4 June 2024, Ms Melinda Buckley (the Applicant) applied to the Fair Work
Commission (the Commission) for it to deal with general protections contraventions involving
dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant commenced
employment with GBO One Pty Ltd (the Respondent) on 2 November 2024, as a part-time
Retail Sales Assistant. The Respondent trades as ‘Silly Solly’s’ a discount retail store.
[2] The Applicant contends she received an email from Ms Azzopardi, the Store Manager
of Silly Solly’s on 15 May 2024, notifying her that her employment was terminated as of that
date. However, the Respondent presses that the Applicant’s employment was terminated by
mistake by Ms Azzopardi on 15 May 2024, in circumstances where Ms Azzopardi did not have
authority to dismiss the Applicant. The Respondent argues that on 16 May 2024, the Applicant
alerted the Operations Manager of the Respondent to Ms Azzopardi’s email dated 15 May 2024
and that the Operations Manager responded the next day with an apology, noting it was a
mistake and advising that the Applicant remained a valued member of staff.
[3] It follows that the Respondent has objected to the general protections application on the
ground that the Applicant was not dismissed within the meaning of s 386 of the Act.
[4] The Respondent’s objection has implications for the application on foot because it is
accepted that a person must have been dismissed to be entitled to make a general protections
dismissal dispute application.1 Section 365 relevantly provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(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;
[2024] FWC 1937
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1937
2
the person, or the industrial association, may apply to the FWC for the FWC to deal with the
dispute.
[5] Where there is a dispute about whether a person was dismissed, the Commission is
obliged to determine that point before exercising its powers under s 368 of the Act.2 Therefore,
the discrete issue for determination is whether the Applicant was ‘dismissed’ from her
employment within the meaning of s 386(1)(a) or/and (b) of the Act.
[6] The matter proceeded to hearing and having considered the evidence of the parties and
their submissions, I have found that the Respondent terminated the employment of the
Applicant on 15 May 2024.
2 Background
[7] The Applicant was employed by the Respondent pursuant to an employment contract.
That contract set out a commencement date of 2 November 2023 and that the Respondent would
notify the Applicant in advance of the numbers of hours to be worked each day, the days of the
week to be worked, and the actual starting and finishing times each day. Clause 10 of the
employment contract provided for the termination of the Applicant’s employment, setting out
that if the Respondent terminated the Applicant’s employment for any reason other than for
misconduct, the Respondent must provide the Applicant with the minimum period of notice in
writing as set out in s 117 of the Act. The employment contract was signed by the Applicant
and Ms Azzopardi.
[8] It appears that the Applicant took holidays over the Christmas period in 2023. After her
return Ms Azzopardi was said to have unilaterally reduced the Applicant’s part-time hours from
25 hours per week to 16 hours per week, absent discussion or consultation prior to the reduction.
Ms Azzopardi was then said to have advertised a part-time position on the Respondent’s
Facebook page on 20 February 2024, albeit the Applicant was not offered any additional hours.
[9] In April 2024, Ms Azzopardi purportedly reduced the Applicant’s hours from 16 hours
per week to 12 hours per week. This was again said to have been done without prior discussion
or consultation with the Applicant, and without notice.
[10] Whilst in March 2024, the Applicant observed that Ms Azzopardi spoke to her with a
certain tone and was abrupt toward her, it was not until after a team meeting on 1 May 2024,
that the Applicant made a complaint about Ms Azzopardi’s purported conduct. It was said that
during the team meeting, Ms Azzopardi addressed the Applicant in an abrupt and
condescending manner, pointing her finger towards her about wrong tickets, and then went on
to reduce the Applicant’s hours from 12 hours per week to four hours per week.
[11] Following the incident on 1 May 2024, the Applicant submitted a written complaint on
3 May 2024, to Ms Yuna Hirai, the Operations Manager. The written complaint apparently
detailed allegations of Ms Azzopardi’s conduct toward the Applicant, as well as the reduction
in the Applicant’s number of hours.
[12] On 8 May 2024, Ms Hirai telephoned the Applicant to obtain more information.
[2024] FWC 1937
3
[13] On 10 May 2024, the Applicant received a text message from Ms Azzopardi informing
her that she had to cut the Applicant’s hours, that she did not have any more hours for her and
would let her know when she did have more hours. The Applicant forwarded that same text
message to Ms Hirai on 13 May 2024,3 to ascertain if the text message had come from head
office. Ms Hirai replied:
“Yes it was from the boss told her to cut hours down to meet the budget as we are in quiet time
of the year. This is nothing to do with complaint you made.4”
[14] The Applicant said that on 14 May 2024, she received an email from Ms Hirai in
response to her complaint made on 3 May 2024. According to the Applicant, Ms Hirai’s
response was that she believed all problems were solved.
[15] On the 15 May 2024, the Applicant received an email from Ms Azzopardi that stated:
“Good afternoon, Melinda due to hours and wages being cut we no longer have a position her
[sic] for you at Silly Solly’s effective immediately. Sorry for any inconvenience and if you need
a reference any time, please feel free to use me as one.5”
[16] On 16 May 2024, the Applicant sent the email dated 15 May 2024 (from Ms Azzopardi)
to Ms Hirai, asking Ms Hirai to confirm whether the email had come from head office, and
requesting a copy of her employment contract.
[17] On 16 May 2024, Ms Hirai responded to the Applicant via email, apologising for the
confusion that the correspondence may have caused and confirming that the Applicant remained
a valued employee of Silly Solly’s. Ms Hirai stated in the email:
The Company is committed to undertaking a thorough, internal investigation into this matter.
Should you have any concerns or questions regarding this, do not hesitate to contact me to
discuss.
The Company is committed to support your continuing employment and thank you for your
cooperation throughout this time.6
[18] On 22 May 2024, the Applicant emailed Ms Hirai thanking her for her response and
asking how long the investigation would take and when she would be advised of the outcome.7
That same day, Ms Hirai said that she believed she could email an outcome by the end of the
week and that she was awaiting the HR Team to get back to her, the email continued:
Meantime I have discussed with Tracey and [six] like to welcome back on board at Townsville
store as attached roster starting 29/may 2024. Could you please have a look at and let men [sic]
know if you can perfume [sic] those shifts?8
[19] On 27 May 2024, the Applicant sent a letter to Ms Hirai in the following terms:
I refer to your recent email received 22 May 2024, as well as the email I received from
Ms Tracey Azzopardi, Store Manager, terminating my employment on the 15 May 2024. After
careful consideration, I have concluded that returning to the workplace following the handling
of the bullying compliant [sic] would not be conducive to my well-being. Regrettably, the
manner in which the bullying complaint was addressed did not reflect the seriousness of the
[2024] FWC 1937
4
issue, and I fear it may have exacerbated the hostile environment and directly resulted in
Tracey’s decision to terminate my employment.
As a result, I have experienced significant adverse effects on my mental health and I believe I
have no other option than to decline your offer of re-employment at Silly Solly’s Townsville.
Considering these circumstances, I kindly request that you provide me with copies of all my
payslips from the commencement of my employment and a copy of my contract. Ensuring that
my records are complete and up to date is essential for my future endeavours.9
3 Consideration
[20] The Applicant asserts that she was dismissed on 15 May 2024 by Ms Azzopardi’s email
of that same date. Alternatively, the Applicant states that her correspondence to Ms Hirai of
27 May 2024 constituted her resignation, a resignation that fulfilled the requirements of
s 386(1)(b) of the Act.
[21] Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-
2, which concerns unfair dismissal. That section is relevant for present purposes given both the
Federal Circuit Court’s10 and Federal Court’s11 acceptance that the definition of the word
‘dismissed’ in s 386(1) is equally relevant to the meaning of the term as used in s 365 of the
Act. The word ‘dismissed’ as defined in ss 12 and 386 of the Act reads:
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.
[22] There are exceptions under s 386(2) regarding when a person has been dismissed;
however, those exceptions are not relevant to this case.
[23] The definition of dismissal in s 386(1) of the Act has two elements, both of which have
been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and
the second, ‘resignation in circumstances where the person was forced to do so because of
conduct, or a course of conduct’. This bifurcation was explained by the Full Bench in
Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa),12 and in Lipa Pharmaceuticals Ltd v
Jarouche13 where the Full Bench endorsed the principles established in Bupa in respect of
s 386(1)(b). In Bupa it was said:
“[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
[2024] FWC 1937
5
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.”14
[24] While a summary of the position under s 386(1) was proposed in Bupa, a later decision
of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan (City of Sydney
RSL) considered the operation of s 386(1)(a):
“[10] It seems clear…that the concept of constructive dismissal is to be accommodated by
s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the
meaning of termination (of the employment relationship) at the initiative of the employer.
In Mohazab the Court considered that the expression “termination at the initiative of the
employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not
agreed to by the employee. Consistent with the ordinary meaning of the expression in
the Convention, a termination of employment at the initiative of the employer may be
treated as a termination in which the action of the employer is the principal contributing
factor which leads to the termination of the employment relationship. We proceed on
the basis that the termination of the employment relationship is what is comprehended
by the expression ‘‘termination of employment.’’” (references omitted)15
[25] The Full Bench in City of Sydney RSL placed reliance on the decision of the Industrial
Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd [No 2] (Mohazab).16
This is unsurprising given the Full Court of the Federal Court in Mahony v White observed that
the Act had retained the use of the phrase and that the judgment in Mohazab remained good
authority as to the connotation of that formula.17
[26] While finding it unnecessary and undesirable to endeavour to formulate an exhaustive
description of what constituted ‘termination at the initiative of the employer’, the Court in
Mohazab identified that an important feature was that the act of the employer resulted directly
or consequentially in the termination of the employment and the employment relationship was
not voluntarily left by the employee.18 Furthermore, while a termination of employment may
involve more than one action, it is important to ask oneself what was the critical action or
actions which constituted a termination of employment.
[27] Whether the Applicant was dismissed requires an objective finding of fact.
[2024] FWC 1937
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[28] The Applicant gave evidence that Ms Azzopardi was responsible for managing staff
hours, hiring, and dismissals, as far as she was aware. The Applicant said that Ms Azzopardi
interviewed her for the position, offering her full-time hours, and after the Applicant made it
clear during the interview that she was only available from 8:30AM to 2:30PM Monday to
Friday, extending until 3:00PM after Christmas, the Applicant was employed part-time,
Monday to Friday from 9:00AM to 2:00PM (25hrs a week).19
[29] It is an incontrovertible fact that the Applicant’s employment contract was signed by
Ms Azzopardi. Further, Ms Azzopardi had, on more than one occasion, notified the Applicant
of a reduction in her hours and, when the Applicant questioned Ms Hirai on one occasion as to
whether the reduction of her hours had come from head office, Ms Hirai confirmed that to be
the case.20 The Respondent did not argue that Ms Azzopardi was absent authority to enter into
an employment contract with the Applicant, to reduce her hours or to otherwise supervise the
Applicant within the workplace.
[30] In this case, it is evident that Ms Azzopardi was responsible for the day-to-day activities
of the Silly Solly’s Townsville and she was entrusted with the apparent authority to act on
behalf of the Respondent in respect of managing the employees at the Respondent’s Townsville
store. Whilst the Respondent submits that the Ms Azzopardi did not have authority to dismiss
without reference to others, this was a proposition advanced by submission, not evidence.
Further at hearing when Ms Azzopardi was asked whether she thought she had authority to
manage employee wages, rosters, hire staff and run the Townsville store, Ms Azzopardi noted
that she thought she did, but that obviously that was not the case.
[31] Whilst the Respondent asserts that Ms Azzopardi did not have authority to dismiss
employees, this does not in turn mean that Ms Azzopardi did not have ostensible authority to
dismiss if in fact, as I have found, she was the Applicant’s immediate report and had told the
Applicant that her employment was terminated.21
[32] It is accepted, in the Commission at least, that the decision of the Full Bench in Ayub v
NSW Trains22 is authority for the proposition that a dismissal takes effect when it is
communicated to the employee.
[33] Notification to an employee that they have been dismissed is often predicated upon the
notion that it is the employer who has communicated that message to the employee. The
notification may take the form of a verbal discussion between employee and employer and/or
written correspondence (whether electronic or other). In this case Ms Azzopardi unequivocally
notified the Applicant by email that as of 15 May 2024, ‘we no longer have a position her [sic]
for you at Silly Solly’s effective immediately.’
[34] I find that Ms Azzopardi had ostensible authority to act on behalf of the Respondent and
accordingly the termination of the Applicant’s employment was at the Respondent’s initiative,
with the Applicant’s dismissal having taken effect on 15 May 2024. Ms Azzopardi made it
unequivocally clear that the Respondent had no position for the Applicant – ‘effective
immediately.’ Objectively considered, the Respondent engaged in conduct with the intention
of bringing the employment to an end. If, however, I am wrong on this point then the following
should be said.
[2024] FWC 1937
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[35] The Respondent’s action on receipt of the Applicant’s email to Ms Hirai dated 16 May
2024, warrants examination. That action may affect the validity of the decision to terminate,
and whether such actions confirmed, clarified or countered the decision.
[36] On 16 May 2024, the Applicant enquired with Ms Hirai whether Ms Azzopardi’s email
dated 15 May 2024, had come from head office and on 17 May 2024, Ms Hiari responded to
the Applicant via email, apologising for the confusion that the correspondence may have caused
and confirming that the Applicant remained a valued employee. Ms Hirai noted in the email
that the Respondent was committed to supporting the Applicant’s continuing employment and
thanked her for her cooperation throughout this time.23 Further, Ms Hirai advised the Applicant
that the Respondent was committed to undertaking a thorough, internal investigation into the
matter.24 At hearing, the Applicant clarified she understood that the scope of the investigation
included enquiry about the termination of her employment.
[37] The Applicant replied to Ms Hiari on 22 May 2024, asking how long the investigation
would take and when would she be advised of the outcome.25 I have noted that Ms Hirai’s
response was prompt, advising the Applicant that same day that she believed she could email
an outcome to the Applicant by the end of the week and in the meantime, having had a
discussion with Ms Azzopardi, the Applicant was welcome back on board at the Townsville
store – an attached roster having been provided. The action of the Respondent in this regard
was misguided.
[38] It appears that the Respondent considered it appropriate to inform the Applicant that
discussions had been held with Ms Azzopardi about the Applicant’s return to work.
Ms Azzopardi had been the representative of the Respondent that had communicated to the
Applicant that the Respondent had dismissed her. On any objective level, it is open to find that
all trust and confidence the Applicant may have had in the Respondent was eroded not only by
the action of Ms Azzopardi but thereafter by the action of Ms Hirai, who still appeared to defer
to Ms Azzopardi, about the Applicant’s return to work. Essentially, the Respondent was
proposing to place the Applicant back within an employment relationship, where the person
who dismissed her, purportedly without the Respondent’s authority to do so, would continue to
be her line manager. The Applicant was rostered to commence work in the week of 29 May
2024. By 27 May 2024, the Applicant had not received an outcome of the investigation
notwithstanding that Ms Hirai had communicated she believed she could have an outcome to
the Applicant by the end of the week. Further, Ms Hirai appeared to have taken no step to
explain to the Applicant that there may be some delay in providing an investigative outcome.
Whilst the Respondent submits that the Applicant had a choice to await the outcome of the
investigation and return to work, I consider that conclusion is unavailable on the evidence.
Given the aforementioned circumstances, it can only be concluded that the Applicant had no
effective or real choice but to resign.
4 Conclusion
[39] I am satisfied the Applicant’s employment was terminated on the initiative of the
Respondent and if I am wrong on this point, I am nevertheless satisfied that the Applicant was
left with no choice but to resign given the course of conduct engaged in by the Respondent –
hence s 386(1)(b) of the Act, having been met. Consequently, there is jurisdiction for the
[2024] FWC 1937
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Applicant to pursue a general protections application involving dismissal because the
requirement in s 365(a) of the Act is satisfied.
[40] As a result of my determination, the application made by the Applicant pursuant to s 365
will shortly be programmed for a conciliation conference.
DEPUTY PRESIDENT
Appearances:
Melinda Buckley, Applicant
Nicole Visedo for the Respondent
Hearing details:
2024
Perth (video via Microsoft Teams):
22 July.
Printed by authority of the Commonwealth Government Printer
PR777424
1 Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37
(Milford).
2 Ibid 602 [51].
3 Digital Hearing Book, 26 (DHB).
4 Ibid 27.
5 Ibid 18.
6 Ibid 30.
7 Ibid 31.
8 Ibid 32.
9 Ibid 33.
10 Morris v Allied Express Transport [2016] FCCA 1589, [117].
11 Milford (n 1), 603 [54].
WORK MMISSION
[2024] FWC 1937
9
12 (2017) 271 IR 245 (Bupa).
13 (2023) 324 IR 375.
14 Bupa (n 12) 268–9 [47].
15 (2018) 273 IR 126, 129–30 [10]–[11].
16 (1995) 62 IR 200 (Mohazab).
17 (2016) 262 IR 221, 228 [23].
18 Mohazab (n 16) 205.
19 Witness Statement of Melinda Buckley, [2].
20 DHB (n 3) 27.
21 Mr Bernarbe Expinoza Muga v BIC Services Pty Ltd [2022] FWC 1708, [74].
22 (2016) 262 IR 60, [48].
23 DHB (n 3) 30.
24 Ibid.
25 Ibid 31.
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc1708.htm
