John Gurung v The Lucas Group Services Pty Ltd Summary

[2025] FWC 555

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

John Gurung
v

The Lucas Group Services Pty Ltd

(C2024/8763)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 24 FEBRUARY 2025

Application to deal with contraventions involving dismissal

The following is an edited version of a decision given on transcript earlier today.

John Gurung has made an application under s 365 of the Fair Work Act 2009 (Act). The respondent, The Lucas Group Services Pty Ltd, objects to the application on the grounds that Mr Gurung was not dismissed and if he were, his application was not lodged within the 21-day statutory timeframe prescribed by s 366(1)(a) of the Act.

The Lucas Group contends that Mr Gurung freely resigned from his employment with the company. In a letter to The Lucas Group dated 29 October 2024, Mr Gurung stated that he was writing to resign from his position, and that he had greatly appreciated the opportunity to work for the company. Mr Gurung said that when he joined the company in September 2022 on a s 482 visa, his primary goal was to work towards obtaining a s 186 visa for permanent residency. After discussions regarding his visa sponsorship, Mr Gurung said that he understood that the company was currently unable to lodge a s 186 application for him and given these circumstances, he had accepted a job offer from another employer who was willing to sponsor him for a s 186 direct entry. Mr Gurung explained that the new position offers better prospects both personally and professionally including a higher salary and greater opportunities for advancement.

In his resignation letter, Mr Gurung said that his last day would be 1 December 2024. In an email reply dated 2 November 2024, The Lucas Group told Mr Gurung that he was not required to work until 1 December 2024, and that he was only required to tender two weeks’ notice with his resignation. The Lucas Group said that his last shift would be on 11 November 2024 being the final day of the required two week notice period having regard to his period of employment and s 117 of the Act.

Mr Gurung said that The Lucas Group had thereby terminated his employment early, however this is not the case. Mr Gurung remained employed until 11 November 2024. Even if The Lucas Group’s decision not to require Mr Gurung to work for Mr Gurung’s preferred, extended period of notice entailed some breach of contract (of which there is no evidence of this before the Commission), that decision did not end the employment relationship (see s 386 of the Act and the decision of the Full Bench of the Commission in Khayam v Navitas English Pty Ltd).[1] The relationship ended because Mr Gurung resigned. This is not a case where the employer terminated the employment during the employee’s notice period. I find that The Lucas Group did not dismiss Mr Gurung.

A person may make an application under s 365 of the Act only if he or she has been dismissed. Mr Gurung was not dismissed by The Lucas Group and therefore had no standing to make this application. For this reason, the jurisdictional objection must be upheld. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

J Gurung, on his own behalf.
S Tuazon with S McDonald, on behalf of the respondent.

Hearing details:

2025
By video (using Microsoft Teams).
February 2025.

[1] [2017] FWCFB 5162

Printed by authority of the Commonwealth Government Printer

The applicant, John Gurung, sought to bring an application under section 365 of the Fair Work Act 2009 for contraventions involving dismissal against the respondent, The Lucas Group Services Pty Ltd. The Lucas Group opposed the application on the basis that Mr Gurung was not dismissed and that, if he were, his application was not lodged within the required 21-day statutory timeframe. The Lucas Group further contended that Mr Gurung had freely resigned from his employment with the company. The case was heard and determined by Deputy President Millhouse of the Fair Work Commission in Melbourne on 24 February 2025.

The central legal issue for the court was whether Mr Gurung had been dismissed by The Lucas Group and, if not, whether he had standing to make an application under section 365 of the Fair Work Act 2009. The Lucas Group argued that Mr Gurung had resigned and, as such, had not been dismissed. The court considered the evidence provided by both parties, including Mr Gurung's resignation letter and the subsequent email from The Lucas Group. The court found that Mr Gurung had indeed resigned, and therefore, he had not been dismissed by The Lucas Group. This finding was based on the principle that the employment relationship ended because Mr Gurung resigned, not because The Lucas Group terminated it during his notice period.

The court concluded that since Mr Gurung was not dismissed by The Lucas Group, he lacked the standing to make an application under section 365 of the Fair Work Act 2009. Consequently, the jurisdictional objection raised by The Lucas Group was upheld, and the application was dismissed. The court's reasoning was grounded in the statutory requirements of the Fair Work Act 2009 and the specific facts of the case, particularly the resignation letter and the email exchange between the parties. The decision underscores the importance of adhering to the statutory timeframe for making an application and the necessity of a valid dismissal for such an application to proceed.

John Gurung v The Lucas Group Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established