What is a dismissal under the Fair Work Act?

“[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