This decision of the Fair Work Commission in a general protections’ case contains an excellent summary of the legal principles involved when determining whether the circumstances surrouding the termination of an employee’s employment constitute a dismissal.
“Introduction
[1]
Ms Lucinda Garrido has filed an application under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute concerning her (alleged) dismissal by the Department of Families, Fairness and Housing (Department), a department of the Victorian Government established under s 10 of the Public Administration Act 2004 (Vic) (PA Act). Immediately prior to the termination of her employment with the Department, Ms Garrido held the position of Director, Disability and NDIS Reform. This was an executive position under s 23 of the PA Act. As an executive, Ms Garrido was, in accordance with s 25 of the PA Act, employed pursuant to a contract for a five-year term, which was due to conclude on 1 November 2028. Ms Garrido contends that she was dismissed effective from 24 October 2025 in contravention of ss 340 and 351 of the Act.
[2]
The Department contends, in response, that Ms Garrido’s application was not validly made and, accordingly, is beyond the Commission’s jurisdiction. It does so on two grounds. First, its submits that because Ms Garrido was employed by the Department as an executive under the PA Act, the general protections provisions in Part 3-1 of the Act do not apply to her and thus she is ineligible to make an application under s 365. Section 338(1) of the Act relevantly provides that Part 3-1 applies only to action taken by a ‘constitutionally-covered entity’, being a constitutional corporation, the Commonwealth, a Commonwealth authority, a body corporate incorporated in a Territory or a registered organisation (s 338(2)). The Department, as an emanation of the State of Victoria, is none of those things. Part 3-1 also has an extended operation under (relevantly) s 30G pursuant to referrals of powers by referring States, but only to the extent referred to in the State’s referral law (s 30H). Section 4 of the Fair Work (Commonwealth Powers) Act 2009 (Vic) (Referral Act) referred the ‘referred subject matters’ (defined in s 3 to include the matters dealt with in Part 3-1 of the Act) to the Commonwealth Parliament, but s 5(1)(e) of the Referral Act excludes from the referral matters pertaining to persons employed as executives under the PA Act.
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[3]
Second, the Department submits that Ms Garrido was not ‘dismissed’ within the meaning of s 386 of the Act. Under s 365 as it was at the time Ms Garrido filed her application, it is a jurisdictional prerequisite for dealing with an application made under the section that the Commission be satisfied that the applicant was ‘dismissed’ within the meaning of s 386: Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, 279 FCR 591. The Department submits that Ms Garrido was not dismissed because her employment terminated by an agreement between them whereby Ms Garrido was paid a ‘Targeted Separation Package’ (TSP).
[4]
In response to these contentions, Ms Garrido submits, first, that although she had held an executive position, upon dismissal from that position, she had a ‘right of return’ under s 27 of the PA Act to revert to non-executive employment with the Department. However, the Department issued her with a TSP rather than redeploying her, which constituted her dismissal from employment with the Department. As a result, Ms Garrido was not engaged in an executive position at the time of her dismissal.
[5]
Second, Ms Garrido submits that she was dismissed within the meaning of s 386(1)(a) — that is, she was terminated at the initiative of the Department. She neither resigned, signed a deed of release nor waived her ‘right of return’ under s 27 of the PA Act, and the TSP she was provided upon termination was a compulsory retrenchment package and was not voluntary.
[6]
The Department’s jurisdictional objections were the subject of a hearing before me on 18 February 2026. Ms Garrido made two witness statements for the purpose of the hearing and was not required for cross-examination on these statements. The Department relied upon a witness statement made by Patrick Steele, Director Employee Relations for the Department, and Mr Steele was cross-examined by the applicant. In additional, both parties relied upon a number of relevant documents. At the conclusion of the hearing, I reserved my decision.
[7]
For the reasons which follow, I have determined that the Department’s jurisdictional objections should be upheld, and that Ms Garrido’s application was not validly made, is beyond the jurisdiction of the Commission and must therefore be dismissed.
Factual background and findings
[8]
The primary facts of this matter, as relevant to the determination of the jurisdictional objections, are largely not in dispute and may in any event be ascertained from contemporaneous documents, with the contest between the parties centring on the characterisation of those facts. Ms Garrido commenced employment with the Department in 2015. Immediately before her employment as an executive in the department, she held the non-executive position of Manager, Intergovernmental Relations. In February 2022, she was appointed as an acting executive in the position of Acting Director Intergovernmental Relations. Ms Garrido was then appointed to the executive position of Director, Disability and NDIS Reform, commencing on 2 November 2023. As earlier stated, Ms Garrido’s employment in this position was subject to a five-year term. Clause 14.1 of her contract permitted the Department to terminate the contract prior to the expiry of its term by the provision of four months’ written notice, for which it could elect to provide payment in lieu thereof.
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[9]
Ms Garrido alleged that she had been bullied by two other employees of the Department, which escalated in October 2024 and, as a consequence, she suffered an alleged psychological injury. The bullying claims were assessed by the Department but were not considered to require further investigation. In March 2025, Ms Garrido went off work on personal leave, and she never returned to work thereafter. On 12 May 2025, Ms Garrido lodged a WorkCover claim, which was subsequently rejected. From about 30 June 2025, the Department backfilled her role because of operational need. On 18 August 2025, Ms Garrido requested additional paid leave, which the Department rejected.
[10]
From August 2025, there were discussions and written communications between Mr Steele and Ms Garrido concerning what workplace adjustments the Department could make to enable Ms Garrido to return to work. Relevantly, in an email to Mr Steele dated 2 October 2025, Ms Garrido outlined the adjustments that she sought but proposed as an alternative that ‘the [D]epartment … consider negotiating a separation agreement’. In this email, Ms Garrido identified terms as to payments and other matters which ‘would facilitate my resignation from my contract’. In a reply email of the same date, Mr Steele stated that, while not agreeing to the terms proposed by Ms Garrido, the Department was amenable to a discussion about ‘negotiating a separation’. Mr Steele said he would seek further instructions about what the Department might be prepared to offer in order to reach ‘an agreeable settlement’ and went on to say:
“• As a starting point, if we were to terminate your executive contract, your right of return would be triggered and you would be entitled to either:
o
Be redeployed into the VPS; or
o
Take a Targeted Separation Package (TSP) plus payment of the redeployment period (3 months’ wages) – all calculated using the STS 7 rate of pay.”
[11]
It should be noted that the ‘STS 7’ rate of pay is the highest non-executive rate of pay under the applicable enterprise agreement and the rate that Ms Garrido would, at least initially, be paid if the ‘right of return’ under s 27 of the PA Act was exercised.
[12]
On 15 October 2025, Mr Steele sent a lengthy email which included a proposal for adjustments which would enable Ms Garrido to return to her role but also confirmed that the Department was willing to have further discussions ‘in an attempt to reach a mutually agreeable separation and settlement’. The email stated:
“…I confirm that any separation agreement reached on your employment with the department will not impact your ability to pursue your workers[’] compensation claim, or those terms/items as part of that claim.
If your executive contract were to come to an end, I have requested a calculation in terms of a Targeted Separation Payment and a payment of the 13 weeks / 3 months redeployment period (in lieu of redeployment). This is attached FYI, and I confirm and advise we are prepared to facilitate this as a separation should you agree.”
[13]
On 16 October 2025, Ms Garrido made certain further proposals concerning reasonable adjustments and also asked that the Department provide its ‘counteroffer regarding an executive
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separation package’ by close of business the following day. Mr Steele replied by email the same day and, in relation to this request, said:
“In terms of your request for a counteroffer, our offer is essentially that we facilitate an exit from DFFH as calculated in the estimate I sent to you (as a TSP), including payout of the usual 13 week redeployment period on top of the package.”
[14]
On 20 October 2025, Mr Steele advised Ms Garrido that the above offer would remain open until 12:00 pm on 22 October 2025. At the request of lawyers acting for Ms Garrido, this was extended until 4:00 pm on 24 October 2025.
[15]
On 23 October 2025, lawyers acting for Ms Garrido sent correspondence to Mr Steele responding to the Department’s offer. The letter relevantly stated:
“We refer to the email correspondence between you and our client dated 15, 16 and 20 October 2025, in which the Department of Families, Fairness and Housing (DFFH) has offered to facilitate a “separation”. We are instructed as follows.
Your correspondence demonstrates a concerning disregard for the seriousness of the complaints made by our client about unlawful bullying, victimisation and other detrimental treatment she has been subjected to during her employment since October 2024. In this regard, we note FFH’s failure to appropriately engage with or respond to the matters our client has raised.
Notwithstanding this, and in the interests of avoiding a protracted dispute and further mental injury to our client, we are instructed that Ms Garrido is willing to accept the Targeted Separation Payment as set out in the attachment to your email of 15 October 2025 (Offer), subject to the below confirmations and requests. These requests are reasonable and we trust will not be a barrier to finalising this matter in both parties’ interests.
Our client accepts the Offer subject to the following: … ”
[16]
The letter then set out four requests as conditions for acceptance of the offer. The first of these was a request for agreed ‘messaging’ to stakeholders about Ms Garrido’s departure from her role as follows:
“Lucinda Garrido contributed significant expertise on disability reform and intergovernmental relations during her two years as Director, Disability and NDIS Reform. Lucinda led critical negotiations with the Commonwealth and other states and territories during the development of Foundational Supports and NDIS legislative reforms. Lucinda also led Victoria’s response to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and Victoria’s engagement with the NDIS Review. Lucinda has decided to resign from her role at DFFH to explore other opportunities. We thank Lucinda for her 11 years’ service to the department and wish Lucinda well in her future endeavours.”
(underlining added)
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[17]
The letter then concluded:
“On the basis that DFFH agrees to the above clarifications, our client proposes that her employment will end on Tuesday 28 October 2025 at which time the Targeted Separation Payment would be payable.
We look forward to your response. Please contact me if you wish to discuss.
All of our client’s rights are reserved.”
(underlining added)
[18]
Mr Steele provided the Department’s response to Ms Garrido’s conditional requests in an email the same day. In relation to the first of these, the Department said it was prepared to accept this subject to the resolution of concerns about the second condition (which concerned a requirement for certain senior officers to provide references consistent with the above messages), and agreed to the third (being an outplacement service requirement) and fourth conditions (being a matter concerning back pay calculations). On 24 October 2025 at 8:58 am, Ms Garrido’s lawyers advised by email that Ms Garrido did not press the second condition and stated:
“As this means there are no outstanding items, our client will await payment on Tuesday 28 October 2025 to bring her employment to an end. Our client will arrange to return her security pass and laptop to Geelong before this date, or she can have them available for collection by a courier if DFFH would prefer.’
[19]
Mr Steele provided the following response at 9:25 am:
“Thank you for your email for that advice, and for you and your client’s understanding of our concerns.
Yes, we consider that agreement has been reached.
To finalise this agreement:
•
I assume we will be recording the agreement by a deed of release. I am happy to draft and provide you with the draft today for your consideration[.]
•
As for cessation date of employment, we would prefer that be today with a payment period of 7 days from execution of the deed. Can you please advise if this is acceptable to your client. I advise our payroll will not be able to complete payment by 28 October as sought.
•
We will arrange a courier to pick up departmental equipment. We ask for your client’s cooperation in this regard. Similarly, if your client has any personal property to be returned, we will cooperate and facilitate its return.”
[20]
Ms Garrido’s lawyers responded as follows at 12:30 pm:
“The offer was not subject to a deed of release, so that will not be necessary here (and in any event, is not agreed).
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However, our client agrees to bring forward the cessation of her employment to 5:30 pm today and accept payment seven days from today. Please let us know when the courier is scheduled so our client can ensure she is home. We are instructed she does not need any personal items returned.”
[21]
Mr Steele then responded at 12:52 pm to the effect that the Department agreed to there being no deed but requested that, in exchange, Ms Garrido ‘resign effective today’, with the provision of notice not being required, and that the Department would record that as the reason for the cessation of employment. He further advised at 2:05 pm that he had commenced arrangements with payroll in anticipation of there not being any issues. At 2:15 pm, Ms Garrido’s lawyers responded by email as follows:
“We have let our client know about the payment terms outlined below.
Our client does not agree to resign. Amongst other reasons, that does not reflect the terms of the offer she has accepted. As a result, it is not appropriate or necessary for any undertakings to be made or given.”
[22]
At 2:17 pm, Mr Steele replied:
“Well then, we have a problem. In the absence of a Deed, we are not prepared to terminate employment at our initiative.
I ask your client to reconsider.”
(underlining added)
[23]
At 3:03 pm, Ms Garrido’s lawyers responded as follows:
“As you know, our client was provided with a separation offer proposed by DFFH and, subject to some minor clarification of terms, our client accepted that offer. The written correspondence in relation to this is clear. That offer did not contemplate a deed or resignation by our client.
Our client does not accept the last-minute introduction of a proposed deed or recharacterization of the cessation of her employment raised in your emails this afternoon. We note this with some concern.
Please confirm that the cessation of our client’s employment will proceed today at 5:30 pm, as agreed.”
(underlining added)
[24]
Mr Steele responded at 3:09 pm:
“Similarly, we are concerned that we have been misled.
To be clear, all we are asking for, is for your client to resign which is consistent with the messaging that your client suggested and is seeking.
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Could you please, as a matter of priority, advise whether your client will resign today or not?”
(emphasis in original)
[25]
At 4:22 pm, Ms Garrido’s lawyers responded as follows:
“As outlined below, our client does not agree, and has not agreed, to resign.
She has agreed to the cessation of her employment at 5:30 pm today. It is not unusual for an announcement to refer to resignation notwithstanding different arrangements in the background. If the announcement wording is the issue here, please let us know.”
(emphasis added)
[26]
Mr Steele then replied that he would seek further instructions and, at 5:24 pm, sent the following email:
“I’ve now had the opportunity to seek further instructions, and confirm we will agree to your client’s cessation today at 5:30 pm.
I will proceed with the arrangements per below.”
(underlining added)
[27]
Ms Garrido’s lawyers replied at 5:58 pm: ‘Noted, thank you Pat’.
[28]
Ms Garrido’s termination of employment proceeded in accordance with the agreement recorded in the above emails. On 3 November 2025, the Department sent an email to a large number of its employees which described the circumstances of her departure in terms which were, in substance, the same as the agreed communication set out in paragraph [16] above, including a reference to Ms Garrido resigning. On 13 November 2025, the Department made the agreed termination payment to Ms Garrido, consisting of the payments pursuant to the agreed TSP arrangement and some very small payments for accrued leave. The total amount she was paid was $163,417.95 (gross). Ms Garrido was not paid out for four months’ notice at her executive rate of pay pursuant to clause 14.1 of her executive contract, which was a smaller sum in the vicinity of $75,000.
[29]
The day after Ms Garrido received the termination payment, she lodged the application in this matter in the Commission.
Consideration
[30]
It is convenient to consider first whether Ms Garrido was dismissed within the meaning of s 386 of the Act. Section 386(1) of the Act defines ‘dismissed’ in the following way:
“(1) 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
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(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.”
[31]
Notwithstanding Ms Garrido’s proposal, which the Department agreed to and implemented, that stakeholders should be informed that she had resigned, it is clear that she did not actually resign. Ms Garrido’s contract of employment provided for termination by resignation, which requires the employer to give four weeks’ written notice. The emails exchanged on 24 October 2025 make clear enough there was no resignation in this sense or otherwise. Therefore, the question is whether Ms Garrido’s termination fell within the first limb of the definition in s 386(1)(a) — that is, whether her employment with the Department was terminated on the Department’s initiative. A termination of employment will be at the initiative of the employer where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship, and it is an important feature of a termination at the initiative of the employer that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee”: Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645, 62 IR 200 (Mohazab) at 205–6 (emphasis added); see also Mahony v White [2016] FCAFC 160, 262 IR 221 at [22]–[23]. In order to determine whether an employee has been terminated at the initiative of the employer, it is necessary to evaluate all the evidence and determine as a matter of fact what caused the termination: Alouani-Roby v National Rugby League Ltd [2024] FCA 12, 328 IR 226 at [82].
[32]
On the basis of the findings of primary fact I have earlier made, I am satisfied that the termination of Ms Garrido’s employment was not at the initiative of the Department. The termination was, instead, a mutually agreed termination voluntarily made by both parties. Prior to 2 October 2025, there is no evidence of any intent on the part of the Department to terminate Ms Garrido’s employment. It was Ms Garrido who, on 2 October 2025, raised the possibility of negotiating a ‘separation agreement’ as an alternative to her returning to work, and it was this that initiated the subsequent communications about such an agreement. Although some of the early emails exchanged are somewhat contradictory about whether what was being discussed was simply the termination of Ms Garrido’s executive contract or the termination of her employment with the Department, the Department’s offer made on 16 October 2025 made it clear that what was envisaged was an ‘exit’ from the Department, not just from the executive position. This offer was open for acceptance or rejection by Ms Garrido, making her response to that offer the principal contributing factor that led to the termination of her employment. There is nothing in the evidence to suggest that the Department would have terminated Ms Garrido’s executive contract or her employment had she rejected the offer.
[33]
In respect of Ms Garrido’s conditional acceptance of the Department’s offer on 23 October 2025, two matters may be noted. First, although as earlier stated Ms Garrido’s request for her departure from the Department to be publicly presented as a resignation does not mean that she actually resigned, nor is it consistent with any understanding on her part that her acceptance of the offer would result in a termination of her employment on the initiative of the Department. As the emails the following day attest, the Department took this proposed public messaging, to which it agreed, as meaning that Ms Garrido would resign. Second, Ms Garrido herself proposed that her employment would end on 28 October 2025 — a proposal that is likewise inconsistent with a termination on the initiative of the employer. This
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termination date was subsequently, by agreement, moved forward to 5:30 pm on 24 October 2025.
[34]
The emails exchanged on 24 October 2025, by which the terms of the agreement between the Department and Ms Garrido were finalised, further confirm that there was no termination at the initiative of the employer. Mr Steele’s email of 2:17 pm makes clear that, without a deed of release, the Department would not terminate Ms Garrido on its own initiative. No subsequent email from Ms Garrido’s legal representative sought to contradict the position that the termination being negotiated would not be at the initiative of the employer or contend that this represented a misrepresentation of what had been agreed. What was communicated in the email of 4:22 pm was that Ms Garrido ‘had agreed to the cessation of her employment at 5:30 pm today’, and it was this position which the Department ultimately accepted.
[35]
Finally, it is relevant that the evidence demonstrates that Ms Garrido’s executive contract was not terminated pursuant to the mechanism for unilateral termination by the employer without cause in clause 14.1 of the contract. Termination under clause 14.1 would have required, in the absence of the provision of actual notice, payment of four months’ wages at the executive rate of pay. But this was not an element of Ms Garrido’s separation package. She secured an amount significantly higher that this sum.
[36]
All these matters satisfy me that the termination of Ms Garrido’s employment with the Department, including the termination of her executive contract as an element of this, occurred by mutual agreement between her and the Department. A termination of employment which is agreed to by the employee is not one that occurs at the initiative of the employer: Mohazab at 205; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162, 273 IR 44 at [75]. The fact that the Department’s standard TSP is usually applied in circumstances of involuntary retrenchment cannot operate to recharacterise the facts concerning the termination of Ms Garrido’s employment.
[37]
I now turn to the Department’s other jurisdictional objection. As earlier stated, Ms Garrido relies on s 27 of the PA Act in answer to this objection. Section 27(1) provides:
“27 Right of return
(1) An executive who—
(a) immediately before his or her first employment as an executive (whether before or after the commencement of this section) was a non-executive employee; and
(b) since that first employment has been continuously employed as an executive—
is entitled, on ceasing to be employed as an executive for any reason on the initiative of the employer (other than where his or her employment was terminated for misconduct within the meaning of section 22) or because of the expiry of his or her contract of employment, to be employed as a non-executive employee in the public service body in which he or she was last employed as an executive.”
(underlining added)
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[38]
The ‘right of return’ for which s 27(1) provides did not apply to Ms Garrido because, as I have found, her employment as an executive did not terminate on the initiative of the Department, nor did it end upon expiry of her contract. Accordingly, s 27 is simply inapplicable. In any event, even if s 27 was applicable, Ms Garrido effectively waived her right to any entitlement to continuing employment under that section when she agreed to the termination of her employment with the Department on 24 October 2025. Ms Garrido remained in executive employment immediately prior to her termination, and she was never in fact employed as a non-executive employee pursuant to s 27. Ms Garrido’s submission that, at the instant of 5:30 pm on 24 October 2025, her executive contract was terminated, she reverted to non-executive employment with the Department, and this employment was in turn extinguished by the payment of the TSP, is a novel forensic construct but finds no support in the evidence. Part 3-1 of the Act therefore did not apply to the termination of Ms Garrido’s employment with the Department.
[39]
Ms Garrido’s application is dismissed. An order1 to this effect will be issued in conjunction with this decision.”
Garrido v Department Of Families, Fairness And Housing [2026] FWC 3056 delivered 21 August 2026 per Bell DP