1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Peter Missaghi
v
B&R Recruitment Group Pty Ltd, Australian Agribusiness (Holdings) Pty
Ltd
(C2024/5634)
COMMISSIONER WILSON MELBOURNE, 31 OCTOBER 2024
Application to deal with contraventions involving dismissal – jurisdictional objection;
whether dismissed – dismissal found – jurisdictional objection dismissed. Conciliaiton
conducted; not settled; s.368(3)(a) certificate issued.
[1] The following are my reasons for decision given to the parties at the conclusion of a
hearing held on 30 October 2024. Aspects of the decision have been edited for the purposes of
clarity and to insert extracts of applicable legislation and case references.
[2] On 13 August 2024, Mr Peter Missaghi (the Applicant) lodged a general protections
application against B&R Recruitment Group Pty Ltd (the First Respondent) and Australian
Agribusiness (Holdings) Pty Ltd (the Second Respondent) under s.365 of the Fair Work Act
2009 (the Act) alleging that he was dismissed in contravention of the general protections
provisions of the Act.
[3] After leaving employment on 13 August 2024, Mr Missaghi commenced a general
protections application, involving dismissal against the two respondents. Each of the
respondents identified jurisdictional objections to the continuation of Mr Missaghi’s application
in their respective F8A Employer Responses, filed with the Commission on 27 August and 9
September.
[4] The Second Respondent’s jurisdictional objection is that the application should not
continue, at least in respect of that company, as Mr Missaghi was not an employee of the Second
Respondent and that he was, as a result, not dismissed by the Second Respondent. Because of
the nature of the Second Respondent’s objection and that no evidence was brought forward to
suggest a reasonable case that the objection was unfounded, the Second Respondent was
excused from attending the hearing listed for 30 October 2024. The Applicant agreed in the
hearing that he was not employed by the Second Respondent and thereby was not dismissed.
As a result, I find that Mr Missaghi was not dismissed by Australian Agribusiness (Holdings)
Pty Ltd, and that part of the application cannot proceed.
[2024] FWC 3009
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3009
2
[5] The First Respondent’s jurisdictional objection is that the Applicant has not been
dismissed.
[6] 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
[7] 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
[8] I heard the jurisdictional objection matter on 30 October 2024. At the hearing, Mr
Missaghi appeared on his own behalf and the First Respondent was represented by Mr Torren
Burakowski, its Manager/Director.
[9] This decision deals only with the jurisdictional objection by the First Respondent,
namely that Mr Missaghi was not dismissed. At the conclusion of the hearing I informed the
parties of my decision and its reasoning.
RELEVANT LEGISLATION
[10] Section 365 of the FW 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
(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.”
[11] The term “dismissed” is defined in s.12 of the FW Act which in turn refers to s.386,
with the section providing this definition:
“386 Meaning of dismissed
[2024] FWC 3009
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(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
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.”
[12] 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’.
CONSIDERATION
[13] The matter for determination in this decision is whether Mr Missaghi has been
“dismissed” within the meaning given to that word by s.386 of the FW Act. The enquiry to be
made in that regard is whether Mr Missaghi’s employment was “terminated on the employer’s
initiative” (s.386(1)(a)).
[2024] FWC 3009
4
[14] Mr Peter Missaghi (the Applicant) was first employed by B&R Recruitment Group Pty
Ltd (the First Respondent) on 16 April 2024. He was assigned by the Respondent to work at
the premises of one of its clients, Australian Agribusiness (Holdings) Pty Ltd (the Second
Respondent).
[15] The Applicant’s employment with the First Respondent ended in July 2024, when he
was informed by the First Respondent that his services were no longer required. There is a
dispute between the parties as to the precise date that this took place. The Applicant says he
was notified of the decision on Tuesday, 23 July 2024, and that his last day of employment was
Wednesday 24 July 2024. The First Respondent however, submits that the final date of Mr
Missaghi’s employment was Friday, 26 July 2024, and that, consistent with the company’s
usual practice, Mr Missaghi would have been informed of that decision on the same day.
[16] The First Respondent’s objection is that, succinctly stated, being a casual employee, Mr
Missaghi’s employment could be finished up at any time. This objection is misconceived as a
basis for a jurisdictional objection to the continuation of a general protections application, as it
is well settled that casual employees have access to the Fair Work Act’s general protections
provisions, provided they have been dismissed, as defined.
[17] The expression ‘termination at the initiative of the employer’, as used in section
386(1)(a), is a reference to a termination being brought about by an employer, but which is not
agreed to by the employee. It follows, then, that there is a focus on the conduct of the employer
in ascertaining whether there has been a dismissal.4
[18] In Mohazab v Dick Smith Electronics Pty Ltd (No 2)5 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.”6
[19] The evidence before me is that the First Respondent brought about the end of the
employment relationship when it informed the Applicant that his services were no longer
required. There is no evidence before me that would suggest that the Applicant was subject to
a fixed term contract or one which would otherwise terminate simply because of a particular
circumstance or an affliction of time. Instead, the ending of the working relationship was when
the employer decided to conclude it. Whether or not that was for lawful reasons or meritorious
reasons are not relevant to the decision of whether there's been a dismissal.
[20] So far as is relevant, the Act provides that a person has been dismissed if their
employment “has been terminated on the employer's initiative”. It is clear that Mr Missaghi’s
employment ended in July 2024, either on Wednesday 24 July 2024 or Friday 26 July 2024 and
that it ended when another director of the employer, Kirsten Ridgway, informed him of that
decision.
CONCLUSION
[2024] FWC 3009
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[21] The consequence of the reasoning set out above is that I am satisfied Mr Missaghi was
dismissed within the meaning of the Act.
[22] A conciliation conference held following the 30 October hearing failed to resolve the
matter. Being satisfied that all reasonable attempts to resolve the dispute (other than by
arbitration) have been, or are likely to be, unsuccessful, I will now issue a certificate under
s.368(3)(a) of the Act.
COMMISSIONER
Appearances:
Mr P Missaghi, for the Applicant
Mr T Burakowski, for the Respondent
Hearing details:
30 October.
2024.
Printed by authority of the Commonwealth Government Printer
PR780771
1 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [67]; Lipa Pharmaceuticals Ltd v Marouche [2023] FWCFB
101, [23].
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 Khayam, Saeid v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162, [75] (1).
5 (1995) 62 IR 200, 205.
6 Ibid.
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
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb101.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
