Elizabeth Porteous v Lauren Mitchell & Aaron Beasley - [2025] FWC 2508

[2025] FWC 2508

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Elizabeth Porteous
v

Lauren Mitchell & Aaron Beasley

(C2025/4706)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 26 AUGUST 2025

General protections applications involving an alleged dismissal – whether applicant was dismissed.

Introduction

Ms Porteous has lodged an application pursuant to s 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections dispute involving an alleged dismissal. The Respondents to the dispute are Ms Lauren Mitchell and Mr Aaron Beasley, both directors of Affordable Makeover Pty Ltd trading as Mitchell & Beasley. Ms Porteous was employed by Affordable Makeover in the position of Assistant Property Stylist & Marketing Assistant.

Ms Porteous contends that she was dismissed in contravention of the general protections provisions in Part 3-1 of the Act. The Respondents raised a jurisdictional objection to the application. They contend that Ms Porteous was not dismissed.

The Commission must determine whether Ms Porteous was dismissed before it can exercise powers under s 368 of the Act to deal with a dispute about whether Ms Porteous was dismissed in contravention of the general protections.[1]

On 22 August 2025, I conducted a hearing, by video conference, in relation to whether Ms Porteous was dismissed. Ms Porteous gave evidence at the hearing. The Respondents adduced evidence from Ms Mitchell, Mr Beasley and Ms Paige Jones, a Scheduler employed by Affordable Makeover.

Dismissal

The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:

“(1)     A person has been dismissed if:
(a)    the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b)    the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”

Ms Porteous denies that she resigned. She contends that she her employment was terminated on her employer’s initiative.

General principles

The expression termination “on the employer’s initiative” in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment[2] that is brought about by an employer and which is not agreed to by the employee.[3]

The focus of the inquiry under s 386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[4]

The question of whether an employment relationship has ceased to exist does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.[5]

Summary of relevant facts re alleged dismissal

On 19 May 2025, Ms Porteous asked for a meeting with Ms Mitchell and Mr Beasley to…

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 2508
Decision Date: 26 AUGUST 2025

CaseChat Overview and Summary

Elizabeth Porteous lodged an application under section 365 of the Fair Work Act 2009 with the Fair Work Commission, alleging that she was dismissed from her position as Assistant Property Stylist and Marketing Assistant by Affordable Makeover Pty Ltd (trading as Mitchell & Beasley), represented by directors Lauren Mitchell and Aaron Beasley. The application was made to determine if the dismissal contravened the general protections provisions in Part 3-1 of the Act. The Respondents contested the application on jurisdictional grounds, arguing that Ms Porteous was not dismissed but had instead resigned. The Commission needed to first establish whether Ms Porteous was dismissed before it could proceed to address the dispute.

The legal issues before the Commission centred on whether Ms Porteous was dismissed as defined under section 386 of the Act, which specifies that dismissal occurs when an employee's employment is terminated on the employer's initiative or when the employee resigns due to employer conduct. Ms Porteous argued that her employment was terminated on the employer's initiative, while the Respondents contended that she had resigned. The key issue was to determine whether the termination of Ms Porteous’s employment was at her own initiative or at the initiative of the employer.

The Commission, after reviewing the evidence presented, found that Ms Porteous's employment did not cease due to any action by the employer. The evidence from Ms Mitchell and Mr Beasley indicated that Ms Porteous had requested a meeting to discuss her role, and during the meeting, she expressed her dissatisfaction and desire to leave immediately. The Commission preferred the evidence of Ms Mitchell and Mr Beasley over Ms Porteous's account, finding that the meeting's dynamics and subsequent communications indicated that Ms Porteous had resigned voluntarily. The Commission concluded that there was no employer action that forced Ms Porteous to resign, and therefore, she was not dismissed within the meaning of section 386(1) of the Act.

Consequently, the Respondents' jurisdictional objection was upheld, and Ms Porteous’s general protections application was dismissed. The Commission did not find any evidence of employer conduct that forced Ms Porteous to resign, and it was determined that the termination of her employment was at her own initiative.

Orders