Emily Graham v Atc Work Smart Inc - [2025] FWC 1209

[2025] FWC 1209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 365—General protections

Emily Graham
v

Atc Work Smart Inc.

(C2025/1467)

DEPUTY PRESIDENT BEAUMONT

PERTH, 1 MAY 2025

Application to deal with contraventions involving dismissal – jurisdictional objection that there was no dismissal – Applicant dismissed

Issue and outcome

On 25 February 2025, Ms Emily Graham (the Applicant) lodged a general protections application under s 365 of the Fair Work Act 2009 (Cth) (the Act) against Atc Work Smart Inc. (the Respondent) alleging that on 6 February 2025 she was dismissed from the Respondent in contravention of the general protections provisions of the Act.

The Respondent raised a jurisdictional objection to the application on the basis that the Applicant had not been dismissed within the meaning of s 386 of the Act but had resigned from her employment of her own volition.

The Respondent’s objection therefore 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;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

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) and/or (b) of the Act. It would appear uncontroversial that the word ‘dismissed’ as referred to in s 365 of the Act, takes its meaning from ss 12 and 386 of the Act.[3]

In light of the factual dispute over whether the Applicant was or was not dismissed, the matter proceeded to hearing on 22 February 2025. Having considered the evidence of the parties and their submissions, I have found that the Applicant was dismissed. It follows that the matter will now be listed for conference.

Background

The broader context and events leading to the Applicant making her application were as follows.

The Applicant commenced employment with the Respondent on 16 May 2022 in the position of Business Development and Training Officer (albeit at times the Applicant was referred to as an Industry Consultant or Field Officer).[4] The position involved the recruitment of apprentices and trainees, liaising with host employers, and managing training administration.[5] This required the Applicant to travel to various host employers, assist with training documentation and act as a point of contact for issues that might arise with apprentices or trainees.[6]

2.1 The Applicant

The Applicant stated that on 3 July 2023 she notified the Respondent that she…

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 1209
Decision Date: 1 MAY 2025

CaseChat Overview and Summary

The Applicant, Ms Emily Graham, made an application to the Fair Work Commission (FWC) against the Respondent, Atc Work Smart Inc, alleging that she had been dismissed from her employment in contravention of the general protections provisions of the Fair Work Act 2009 (Cth). The Respondent raised a jurisdictional objection to the application, asserting that the Applicant had not been dismissed but had resigned from her employment. The Deputy President of the FWC found that the Applicant was indeed dismissed by the Respondent, thereby rejecting the Respondent's jurisdictional objection. The case will now proceed to a conference to explore the possibility of resolution.

In the case of Emily Graham v Atc Work Smart Inc, the Applicant, Ms Emily Graham, lodged a general protections application under s 365 of the Fair Work Act 2009 (Cth) against Atc Work Smart Inc, alleging that she was dismissed from her employment in contravention of the general protections provisions of the Act. The Respondent raised a jurisdictional objection, claiming that the Applicant had resigned from her employment and not been dismissed. The Deputy President of the FWC found that the Applicant was dismissed by the Respondent, rejecting the Respondent's jurisdictional objection and allowing the matter to proceed to a conference to explore the possibility of resolution.

Orders