“[14] It is necessary to determine if the Applicant was dismissed pursuant to s.386 of the FW
Act. If I find she was not dismissed pursuant to s.386 of the FW Act, the application will be
dismissed.
[15] The definition within s.386 provides two limbs for consideration, however for present
purposes only one is relevant, being the test in s.386(1)(a) as to whether Ms Smart’s
employment with her employer has been terminated on the employer’s initiative. The Full
Bench in Khayam v Navitas considered at length the correct interpretation of “terminated on
the employer’s initiative” holding, so far as is relevant to Ms Smart’s case, that the analysis of
whether there has been a termination at the initiative of the employer for the purpose of s
386(1)(a) is to be conducted by reference to termination of the employment relationship, not by
reference to the termination of the contract of employment operative immediately before the
cessation of the employment;5
and that the expression “termination at the initiative of the
employer” is a reference to a termination that is brought about by an employer and which is not
agreed to by the employee in which case a focus on the conduct of the employer will be required
with it being insufficient to assert the terms of the contract.”
Smart v Fuse Recruitment Melbourne Pty Ltd [2023] FWC 1448 delivered 22 June 2023 per Wilson C