X Y v ABC - [2025] FWC 1892

[2025] FWC 1892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

X Y
v

ABC

(C2025/2905)

COMMISSIONER CLARKE

MELBOURNE, 2 JULY 2025

General protections – whether employee “dismissed”.

X Y has filed with the Commission an Application under section 365 of the Fair Work Act 2009 (‘Act’), seeking that the Commission deal with a general protections dismissal dispute. The Applicant’s former employer disputes that the Applicant is entitled to do so, on the basis that the Applicant resigned from their employment. This decision deals with the competing contentions of the parties as to whether Applicant was “dismissed” as defined in section 386 of the Act. The Commission must satisfy itself that the Applicant has been dismissed, before exercising its powers to deal with the dispute.[1]

Protection of the Applicant’s identity

As is apparent from the foregoing and the titles assigned to the parties in the heading, the Applicant has sought and obtained from the Commission an order to protect their identity. Such orders are rare in dismissal related matters. In general terms, orders to that effect may be available in exercise of the Commission’s discretionary procedural powers under paragraph (c) of subsection 593(3) in the case of a hearing, or paragraph (b) subsection 594(1) in matters generally. In either case, such orders are expressed as being able to made “…if the FWC is satisfied it is desirable to do so because of the confidential nature of any evidence or for any other reason”. In applying that expression of conspicuously wide ambit in other contexts, the Commission has taken into account the need to balance the principle of open justice against the interests of the party seeking to benefit from the order (including any pre-existing expectations or commitments as to confidentiality), and has identified that mere embarrassment, preference, distress or damaging publicity are an insufficient basis upon which to make such an order.[2] Particular factors that persuaded me to make the order sought in the instant case were as follows:

(a)The Applicant has indicated in their Form F8 Application to the Commission that the nature of the relief he is ultimately seeking is in the nature of injunctive relief to protect his reputation and other interests, including in connection with conduct associated with the making by him of whistleblower disclosures to external authorities. Whilst it is not necessary to rehearse all the details of those disclosures in a decision concerning whether there has been a dismissal or resignation, something must and will be said about them. There is some risk that putting these matters on the record in a decision naming the Applicant may diminish the availability or utility of the remedies that the Applicant may in due course pursue in an eligible Court entitled to make “Any order it considers appropriate”[3] in respect of a future General Protections Court Application.

(b)At least one of the whistleblower disclosures that the Applicant has made was made pursuant to Part IVD…

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.

Continue reading X Y v ABC

Details

AGLC: X Y v ABC [2025] FWC 1892
Case: [2025] FWC 1892
Decision Date: 2 JULY 2025

CaseChat Overview and Summary

In the case of X Y v ABC, the applicant, X Y, sought to have the Commission deal with a general protections dismissal dispute. The employer, ABC, argued that the applicant was not entitled to do so as they had resigned from their employment. The decision of the Commission hinged on whether the applicant had been "dismissed" within the meaning of section 386 of the Fair Work Act 2009. The Commission found that the applicant had been forced to resign by the conduct of the employer, which left the applicant with no real or effective choice but to resign. The Commission held that the applicant had been dismissed within the meaning of section 386(1)(b) of the Act, and as such, was entitled to have the Commission deal with the dispute.

The Commission found that the applicant had been given a clear and unambiguous instruction to resign on 24 January 2025, which was never rescinded or changed. The applicant had no alternative but to resign, and the delay in giving the resignation did not alter the fact that the applicant had been forced to resign. The Commission rejected the employer's argument that the applicant must demonstrate, beyond reasonable doubt, that the resignation was not voluntary, and that the employer's conduct was a principle cause of the resignation.

The Commission held that the applicant had been dismissed within the meaning of section 386(1)(b) of the Act, and as such, was entitled to have the Commission deal with the dispute. The Commission dismissed the employer's jurisdictional objection and listed the matter for a conference in relation to the section 365 dispute.

Orders