1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms. L. Phillips, Ms. S. Blanchard & Ms. B. Tighe
v
D.B. and T. Bache trading as Dartra Enterprises/Glenwood Caravan Park
(C2024/8502, C2024/8505 & C2024/8506)
DEPUTY PRESIDENT ROBERTS SYDNEY, 26 MARCH 2025
Applications to deal with alleged contraventions involving dismissal – objections that
applicants not employed by Respondent - whether applicants dismissed – whether applications
validly made - applications dismissed
[1] Ms. Belinda Tighe, Ms. Stephanie Blanchard and Ms. Lilly Phillips (collectively, the
Applicants) have each made applications under s.365 of the Fair Work Act 2009 (Cth)(Act)
alleging that their employment has been terminated by D.B. and T. Bache trading as Dartra
Enterprises/Glenwood Tourist Park (jointly, the Respondent) in contravention of the general
protections provisions contained in Part 3-1 of the Act.
[2] The Respondent has objected to the applications on the basis that none of the Applicants
were employed by them. They say that they were each engaged as independent contractors and
therefore could not have been “dismissed” - as that term is defined in s.386 of the Act - by the
Respondent. Further, the Respondent says that as a matter of fact, each of the Applicants
voluntarily brought the relationship between themselves and the Respondent to an end and for
that reason, the Applicants were not dismissed for the purposes of s.365 of the Act.
[3] The question of whether or not an applicant under s.365 has or has not been dismissed
goes to the validity of the application and is a matter that must be determined in favour of an
applicant before the Commission can proceed to deal with the dispute under s.368 of the Act.1
[4] Directions were made for the parties to file evidence and submissions going to that issue
and the matters were listed to be heard concurrently on 5 March 2025. The Applicants did not
file any material in response to the directions and did not attend the hearing on 5 March. The
Respondent filed statements and submissions and attended the hearing.
[5] Section 365 of the Act provides as follows:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
[2025] FWC 845
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 845
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] Section 386 of the Act sets out when a person is taken to have been dismissed for the
purposes of s.365. It provides, relevantly:
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.
[7] As is readily apparent from s.386, in order for there to be a dismissal under that section
(and therefore a valid application under s.365), there must be a relationship of employment
between the parties2 and the employment must be brought to an end in one or other (or
potentially both), of the circumstances described in subsections (1)(a) and (b) of that section.
The Applicants have not provided any evidence going to either of those issues, or any other
matter. The Respondent has provided evidence relating to both issues.
[8] The determination of the question of whether the Applicants were employees or
independent contractors is not a straightforward task. It would involve an overall assessment of
the relationships between the parties and, since the proceedings were initiated after the changes
made by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth)
commenced operation on 26 August 2024, the application of the provisions of s15AA of the
Act. It would involve the detailed consideration of a range of different factors to determine the
real substance, practical reality and true nature of the relationship. The difficulty of attempting
to arrive at a concluded view about the matter in each case is highlighted by the fact that none
of the Applicants appeared or provided any evidence directed at the objection that has been
raised. On the other hand, the evidence relating to the question of whether there was a dismissal
as a matter of fact is relatively confined. For present purposes I propose to assume, in the
Applicants’ favour and without determining the matter, that the relationship between the parties
was in each case that of employer and employee and that the Applicants were therefore each
capable of being dismissed from their ‘employment’ with the Respondent.
[9] The evidence relating to the circumstances in which the relationship between the parties
came to an end was provided by Mr. Bache. The uncontested evidence of Mr. Bache was that
Ms. Phillips attended the Respondent’s office at approximately 12 noon on 15 November 2024
and said that she was terminating her contract with the Respondent effective immediately. Mr.
Bache said that later on the same day, Ms. Tighe sent a text message to the Respondent advising
that she was terminating her contract with the Respondent effective immediately and enclosing
her final invoice. A copy of the text message was provided. It said “Hi Tracy here is my invoice
[2025] FWC 845
3
for this week to be paid. I will not be returning.” Mr. Bache said that on 19 November 2024
Ms. Blanchard sent a text message to Ms. Bache to cancel her contract and say she would not
be returning. A copy of this text message was also in evidence. It said that Ms. Blanchard had,
after careful consideration, “decided to resign from (her) position effective immediately” and
that she would not be returning for the rest of the week.
[10] On the basis of the evidence before me I conclude that each of the Applicants decided
to bring their relationship with the Respondent to an end. There is no evidence to show the
relationships were brought to an end on the Respondent’s initiative3 or that the Applicants were
forced to ‘resign’ because of conduct or a course of conduct engaged in by the Respondent4. I
am not able to conclude that the Applicants were dismissed for the purposes of s.386. It follows
that the applications were not validly made and must, in each case, be dismissed.
DEPUTY PRESIDENT
Appearances:
No appearance for the Applicants.
Mr Field, for the Respondent.
Hearing details:
By Video using Microsoft Teams at 12:00pm AEDT on Wednesday, 5 March 2025.
Printed by authority of the Commonwealth Government Printer
PR785562
1 Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591.
2 See for example Grass v. NSW Chinese Tennis Association Inc [2021] FWCFB 3443 at [11].
3 See Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200], Barkla v
G4S Custodial Services Pty Ltd (2011) 212 IR 248 and Khayam v Navitas English Pty Ltd t/a Navitas English [2017]
FWCFB 5162.
4 Mohazab op cit. See also Bupa Aged Care Australia t/a Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941.
THE WORKCO THE S 1 MMISSION
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb3443.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
