Xanthie Thomson v Tristan Rasmussen - [2025] FWC 1822

[2025] FWC 1822

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Xanthie Thomson
v

Tristan Rasmussen

(C2025/1526)

DEPUTY PRESIDENT LAKE

BRISBANE, 25 JULY 2025

Application to deal with contraventions involving dismissal – jurisdictional objection - whether resignation or dismissal – factual dispute – jurisdictional objection upheld – application dismissed

Ms Xanthie Thomson (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 27 February 2025. The Applicant claims that adverse action was taken against her by Tristan Rasmussen (the Respondent) under s.340, 341 and 343 of the Fair Work Act 2009 (Cth) (the Act).

The Respondent raised the jurisdictional objection that there was no dismissal under s.386 of the Act as the Applicant resigned from her employment. The Applicant contests the objection and alleges that the Respondent dismissed her.

I conducted a determinative conference on 2 May 2025. Both parties were self-represented.

Background

The Applicant is a film maker and producer and was employed on a part-time basis as a producer for a small film studio, Pluggas, owned and run by the Respondent.[1]

The Respondent engaged her for a couple of days a week with a varied range of duties that included administrative and project duties as well as broader business functions and the opportunity to undertake some creative work.

Separately, the Applicant also had some other employment activities with other organisations, some voluntary and some paid, on the days that she was not working for Pluggas. The Applicant was also working on her own feature film, which she stored on the Respondent’s server.

The Applicant was employed by the Respondent since August 2023. The events leading up to the alleged dismissal occurred in January and February 2025.

From 13 January 2025 to 16 January 2025, the Applicant was involved as an employee in managing a filmmaking workshop.[2] On the second day of that project, 14 January 2025, the Applicant had a disagreement with the Respondent’s partner, Ms Sabrina Dervis.[3] Ms Dervis is also an employee of the Respondent. The Applicant states that she felt she was being bullied and undermined by Ms Dervis throughout the project.[4]

On 25 January 2025, the Respondent sent the Applicant an email regarding her timesheet. The Respondent stated that the Applicant had been spending more time on the tasks than had been allocated. The Respondent requested that the Applicant seek approval for work beyond her allocated hours. The Respondent said: “I can understand your desire to work longer on these short film and series projects to make them better, but we only have a specific amount of time/wages allocated.”[5] The Applicant submitted 48.5 hours for the week in question, including time spent on a freelancing project. The Respondent approved 32 hours.[6]

The Applicant felt offended by the Respondent’s email and said she wanted to speak with him privately.[7] The Applicant felt that the Respondent was not accommodating her disability which caused her to spend more time on tasks. The Applicant texted…

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 1822
Decision Date: 25 JULY 2025

CaseChat Overview and Summary

Xanthie Thomson (the Applicant) brought a general protections application against Tristan Rasmussen (the Respondent) before the Fair Work Commission (the Commission) alleging that she had been dismissed by the Respondent. The Respondent raised a jurisdictional objection arguing that the Applicant had resigned. The Applicant contested the objection. The Deputy President found in favour of the Respondent on the jurisdictional objection, finding that the Applicant had resigned and was not dismissed. The Applicant was therefore not eligible to lodge an application under s.365 of the Fair Work Act 2009 (Cth) (the Act). The Deputy President considered the relevant statutory provision, s.386(1) of the Act, which provides that a person has been dismissed if their employment has been terminated on the employer's initiative or if they have resigned but were forced to do so by the employer's conduct. The Deputy President found that the Applicant's conduct over the period of 4 February 2025 to 6 February 2025 conveyed to a reasonable person that the Applicant resigned. The Deputy President rejected the Applicant's argument that the Respondent had forced her to resign and found that the Applicant was not dismissed within the meaning of s.386(1)(a) of the Act. The Applicant was not eligible to lodge an application under s.365 of the Act and the jurisdictional objection was upheld. The application was dismissed.

Orders