Rupesh Dhondu Jadhav v Alpha Flight Services Pty Ltd - [2025] FWC 1378

[2025] FWC 1378

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Rupesh Dhondu Jadhav
v

Alpha Flight Services Pty Ltd

(C2025/1228)

COMMISSIONER FOX

MELBOURNE, 12 JUNE 2025

Application to deal with contraventions involving dismissal – jurisdictional objection raised of ‘not dismissed’ – termination at the initiative of the employer found – objection dismissed.

On 19 February 2025, Mr Rupesh Dhondu Jadhav filed an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal against Alpha Flight Services Pty Ltd trading as Dnata Catering & Retail (Dnata).

Danta filed a Form F8A in which it raised a jurisdictional objection to the application

– that Mr Jadhav was not dismissed from his employment with Dnata.

Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine this point before exercising its Conference powers under s.368 of the Act. Therefore, the issue for determination is whether Mr Jadhav was ‘dismissed’ from his employment within the meaning of s.386 of the Act.

Section 386(1) of the Act states as follows:

Meaning of ‘dismissed’

(1)[When a person has been dismissed] 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

Section 386(2) of the Act sets out the circumstances where an employee has not been dismissed, none of which are relevant to the present matter.

I issued Directions for material with respect to the determination of the jurisdictional objection and conducted a Determinative Conference on 1 May 2025. At the Determinative Conference, Ms Tammy Akhurst, Manager of People and Culture for Dnata, and Mr Sumit Gera, Executive Chef at Dnata, gave evidence. I noted to the parties that Mr Gera did not file a witness statement to serve as his evidence-in-chief, but noting that there was no objection from Mr Jadhav, determined it appropriate to allow Mr Gera to provide evidence at the Determinative Conference.

The material filed by the parties in accordance with Directions was compiled into a Digital Hearing Book. I admitted the Digital Hearing Book into evidence, without objection from either party.

Background

Mr Jadhav commenced full-time employment with Dnata on 25 November 2024 as a sous chef. Mr Jadhav said he made it clear to Dnata during the interview process that he was on a Skills in Demand (subclass 482) Visa and that Dnata would need to sponsor him, as this is a requirement of this visa type.[1]

Dnata said there was no discussion with Mr Jadhav about the need for Dnata to sponsor his visa prior to him commencing employment.[2] Dnata said that during the recruitment process, it confirmed Mr Jadhav’s working rights and also confirmed that he held a…

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 1378
Decision Date: 12 JUNE 2025

CaseChat Overview and Summary

Rupesh Dhondu Jadhav filed an application against Alpha Flight Services Pty Ltd (trading as Dnata Catering & Retail) for the Fair Work Commission to deal with a general protections dispute involving his dismissal. The employer raised a jurisdictional objection, arguing that Mr Jadhav was not dismissed. The central issue was whether Mr Jadhav had been dismissed within the meaning of the Fair Work Act 2009. The Commission determined this by assessing whether the termination was at the employer's initiative, considering all relevant circumstances.

The Commission found that Mr Jadhav had been dismissed by Dnata effective 31 January 2025. This conclusion was based on an email from Ms Tammy Akhurst, Manager of People and Culture for Dnata, which clearly stated that Mr Jadhav's employment would end on 31 January 2025, and he should look for alternative employment. Despite Dnata's arguments that Mr Jadhav continued to be rostered to work after 31 January, the Commission found their evidence unconvincing and preferred Mr Jadhav's evidence that he was not rostered to work beyond that date. The Commission also noted that neither Ms Akhurst nor Mr Gera followed up with Mr Jadhav when he failed to attend his rostered shifts after 31 January, further supporting the finding of dismissal.

Although Mr Jadhav resigned on 7 February 2025, the Commission found that this resignation occurred after his employment had already been terminated. The resignation did not alter the fact that Mr Jadhav had been dismissed by Dnata effective 31 January 2025. Consequently, the employer's jurisdictional objection was dismissed, and the matter will proceed to a conciliation conference.

Orders