DonPhillip Fretton v ProQuest Pty Ltd, Makere Grattan - [2025] FWC 3057

[2025] FWC 3057

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.365—General protections

DonPhillip Fretton
v

ProQuest Pty Ltd, Makere Grattan

(C2025/6379)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 13 OCTOBER 2025

Application to deal with contraventions involving dismissal – jurisdictional objection – not dismissed – objection upheld

Introduction and outcome

Mr DonPhillip Fretton has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that he has been dismissed from his employment with ProQuest Pty Ltd (ProQuest) in contravention of Part 3-1 of the FW Act.

Mr Fretton claims that he commenced employment with ProQuest on 27 May 2025 and the dismissal took effect on 27 June 2025.

ProQuest has objected to the application on the ground that Mr Fretton was not dismissed from his employment as he continues to be an employee of ProQuest.

Before dealing with the dispute under s.368, I must be satisfied that Mr Fretton was dismissed.

On 13 October 2025, I conducted a hearing in relation to the matter which Mr Fretton did not attend. At the conclusion of the hearing, I dismissed Mr Fretton’s application as I found that Mr Fretton was not dismissed on 27 June 2025 within the meaning of s.365 of the FW Act. I now give reasons for that decision.

Factual Background

In his application, Mr Fretton explained that he was employed by ProQuest who placed him as a casual worker for Sigma Company Ltd trading as Sigma Healthcare (Sigma) at its site in Kemps Creek, New South Wales. Mr Fretton said that he worked for a month and was removed from the roster on 27 June 2025 under the stated reason of ‘low volume work.’ Mr Fretton said that he was sent home early three times that week while other workers remained behind to complete their shifts, indicating that work was still available. Mr Fretton attached an email from ProQuest to his application dated 27 June 2025 which provided:

Afternoon Donphillip,
Unfortunately, due to low work volumes onsite, you have been removed from the roster and are no longer required at Sigma Healthcare.
Please contact our office for other available work opportunities.

ProQuest filed a Form 8A Response which stated that Mr Fretton:

·     is still an employee of ProQuest
·     has continued to discuss other work options with ProQuest
·     is being offered work by ProQuest at other sites
·     was not required on site anymore at Sigma but has not been dismissed
·     agreed when he commenced employment with ProQuest to be placed on sites as determined by the labour needs of the host employer business

ProQuest subsequently provided file notes from Hema Mahe, General Manager of Operations which recorded that ProQuest had contacted Mr Fretton in July and August 2025 to offer him roles at other companies.

Mr Fretton named Ms Makere Grattan as an additional respondent to the application. Ms Grattan is employed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 3057
Decision Date: 13 OCTOBER 2025

CaseChat Overview and Summary

The matter before the Fair Work Commission involves an application by DonPhillip Fretton against ProQuest Pty Ltd and Makere Grattan. Fretton claims he was dismissed from his employment with ProQuest in contravention of the Fair Work Act 2009. ProQuest and Grattan, employed by Sigma as Team Manager, object to the application on the ground that Fretton was not dismissed from his employment. The Commission must determine whether Fretton was dismissed and if it has jurisdiction over the matter.

The central issue before the Commission is whether Fretton was dismissed by ProQuest within the meaning of sections 365 and 386 of the Fair Work Act. Section 365 allows an application to be made to the Commission if a person has been dismissed and alleges that the dismissal contravenes the Act. Section 386 defines "dismissed" as having an employment terminated on the employer's initiative or being forced to resign due to the employer's conduct. Conversely, a person is not considered dismissed if their employment was for a specified period, task, or training arrangement and terminated at the end of such period, task, or arrangement.

The Commission considered the evidence and submissions from both sides. Fretton worked for ProQuest as a casual employee assigned to Sigma Healthcare. Sigma decided to no longer require Fretton's services due to low work volumes and conduct issues. ProQuest informed Fretton of Sigma’s decision and offered him other work opportunities, which he did not accept. The Commission found that Fretton remains an employee of ProQuest, as there is no evidence that ProQuest was involved in Sigma's decision or that ProQuest terminated Fretton's employment. Hence, the Commission concluded that Fretton was not dismissed within the meaning of the Act.

The Fair Work Commission dismissed Fretton's application as it found that he was not dismissed by ProQuest. The Commission determined that Fretton remains an employee of ProQuest and that ProQuest has not engaged in any action that resulted in the termination of Fretton's employment. Therefore, the Commission does not have jurisdiction to deal with the matter under sections 365 and 386 of the Fair Work Act.

Orders