1 Fair Work Act 2009 s.365—General protections Mark Erwood v Hays Specialist Recruitment (Australia) Pty Ltd; Grains Research Development Corporation; Francis Ogbonnaya (C2025/10221) DEPUTY PRESIDENT DEAN CANBERRA, 17 FEBRUARY 2026 Application to deal with contraventions involving dismissal – whether Applicant was dismissed – no dismissal. [1] Ms Mark Erwood (Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 for the Commission to deal with alleged general protections contraventions involving dismissal. The Applicant named three Respondents to the application, those being Hays Specialist Recruitment (Australia) Pty Ltd (First Respondent); Grains Research Development Corporation (Second Respondent) and Francis Ogbonnaya (Third Respondent). [2] The First Respondent raised a jurisdictional objection on the ground that the Applicant was not dismissed within the meaning of s386 of the Act. [3] The Second and Third Respondents objected to the application on the basis that they were not the Applicant’s employer and did not dismiss the Applicant. [4] Section 386 of the Act relevantly provides that 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 (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. [5] A dismissal is a fundamental prerequisite that must be established before the Commission can exercise powers under s.368 of the Act to deal with a dispute about whether a dismissal was in contravention of the general protections provisions.1 [6] The application was heard on 10 February 2026. The Applicant represented himself, the First Respondent was represented by Ms Sophie Joselyn, and the Second and Third Respondents were represented with permission by Mr Liam Meagher of Counsel. When is a person ‘dismissed’? [2026] FWC 489 DECISION [2026] FWC 489 2 [7] In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park2 Deputy President Sams noted the following when considering whether the applicant in that matter was dismissed: a. Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. ‘Initiative’ is relevantly defined in the New Shorter Oxford Dictionary as: “the action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.” b. This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd3 (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, ‘… a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.’ c. In Mohazab, the Full Court also said: ‘In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is 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. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.’ d. A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd4 said, ‘… to constitute termination at the initiative of the employer the termination must be the direct or consequential result of “some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...”5.’ Background [8] The First Respondent operates a labour hire and recruitment business and enters into labour hire contracts with its clients to supply labour. [9] The Second Respondent is a client of the First Respondent, and the Third Respondent is an employee of the Second Respondent. [10] On 16 June 2025 the Applicant signed a “Terms of Engagement” contract with the First Respondent. Relevantly, the Terms of Engagement include the following: 1. Definitions Assignment means the temporary period during which you perform Services for a Client as a casual employee of Hays. [2026] FWC 489 3 Assignment Letter means the email, letter or other document provided to you by Hays, which sets out the details of an Assignment. Client means the person or organisation for which Hays has agreed to provide temporary workers to perform Services. Services means the work you are required to perform for the Client during an Assignment. 2. The engagement 2.1. Hays will offer you Assignments as a temporary casual employee to perform Services, as advised by your consultant, for any Client of Hays on an as required basis. 2.2. The terms of this Agreement apply to any Assignment which you are offered by Hays and which you accept. 2.3. Each Assignment constitutes a separate and distinct engagement with Hays. Each Assignment is not to be regarded as continuous with any previous Assignment you have performed for any Client of Hays. During each Assignment, each day worked will constitute a separate and distinct period of employment such that your employment will terminate at the end of each day worked and re-commence on any subsequent day that you agree to continue to work as part of the Assignment. 2.4. This Agreement can only be varied in writing signed by you and by an authorised representative of Hays. 3. Casual nature of Assignments 3.1. You acknowledge and agree that: 3.1.1. The nature of your engagement as a temporary casual worker means that work is intermittent, irregular and unpredictable and accordingly there may be periods when no suitable work is available for you; 3.1.2. Hays is under no obligation to offer you any Assignments and you are under no obligation to accept Assignments offered to you by Hays; and 3.1.3. Hays has no liability to you for any payment of wages, salary, leave entitlements or otherwise, should Hays not offer you any Assignment or for periods where you are not performing any Assignment. … 3.3 You agree that if the Client varies the length of an Assignment or ends an Assignment as outlined in 3.2, Hays may, at its discretion, terminate your engagement. … 3.7 When performing Assignments for Clients of Hays, you understand and agree that you are engaged and paid on a casual basis. Casual work is typically irregular, intermittent and uncertain, and may vary from day to day and week to week. 3.8 During an Assignment you will be offered hours of work dependent on your availability and Client needs. As a casual worker you can refuse or cancel work offered by contacting your Hays consultant and your Client Supervisor as soon as possible before the start of work. There may be some regularity in your hours [2026] FWC 489 4 worked based on your availability and Client needs but this does not change the nature of your engagement as a casual employee. … 5. Your obligations 5.1 You are not obliged to accept any Assignment offered to you by Hays. However, on acceptance, you must comply with the reasonable directions of Hays and the Client in respect of the Services to be performed during the Assignment. … 7. End or cancellation of Assignment 7.1. Hays may without notice except as required by law, without reason, and without liability (except for remuneration for hours already worked on the Assignment and notice required by law) instruct you to cease working on an Assignment at any time during the Assignment, including (without limitation) for breach of any term of this Agreement. …” [11] On 20 June 2025 the First Respondent offered the Applicant a casual assignment with the Second Respondent as a Procurement Manager (the assignment). The terms on which the assignment was offered include that: “You are engaged and paid as a casual employee of Hays. This means you will perform work on temporary casual assignments in accordance with the Terms of Engagement. The terms and conditions of your temporary casual assignment will be as set out in this email and in accordance with the Terms of Engagement signed by you. You will be offered hours of work under this casual assignment dependent on your availability and Client needs. As a casual employee, you can cancel or refuse work offered by contacting me and your Client Supervisor as soon as possible before the start of work.” [12] On 24 September 2025 the First Respondent received an email from the Second Respondent advising that they had elected to end the assignment, effective from 5:00pm on 25 September 2025. [13] On 25 September 2025, Ms Kelly, the Applicant’s primary contact at the First Respondent, contacted the Applicant by telephone and told him that the assignment had ended. [14] There is a dispute between the Applicant and Ms Kelly as to whether Ms Kelly told him that the ending of the assignment would not affect his employment relationship with Hays. Ms Kelly provided a copy of her contemporaneous note that she took regarding that conversation which included words to this effect. I am satisfied on the evidence that she did in fact convey this to the Applicant, and this finding is supported by the actions she took shortly thereafter to find other work for the Applicant. [15] On 29 September 2025 the Applicant sent an email to Ms Kelly which concluded with the Applicant thanking her for her efforts and ended with following words: [2026] FWC 489 5 “I look forward to staying in touch about possible new roles, if you could let me know what the market is like soon would be great”. [16] Ms Kelly replied the following day in which she confirmed that she was “very happy to support [his] search for the next role”. She also noted she had a contract available for around 6 weeks and she needed him to supply her with an updated resume if he wanted to be put forward for that role. [17] The Applicant did not reply to Ms Kelly’s email. [18] Ms Kelly sent a further email to the Applicant on 1 October 2025 in which she provided details of another available role and again asked him to provide an updated resume if he wanted to be considered for that role. [19] The Applicant did not reply to Ms Kelly’s email until 3 October 2025 in which he said he had been “offline for a few days and missed it”, and that he would send through an updated resume the following week. [20] It is not in dispute that the Applicant did not send an updated resume to Ms Kelly the following week or at all. [21] The next correspondence was dated 2 December 2025 in which Ms Kelly advised the Applicant that she had still not received an updated resume from him and provided details of an available role. She asked him to indicate whether he was interested in the role. The Applicant did not reply, and she followed up with a further email on 18 December 2025 with details of another available role. Again, there was no response from the Applicant. Who was the Applicant’s employer, and was he dismissed? [22] The Applicant contends that he was informed by the First Respondent on 25 September 2025 that his “job was gone” and that “nothing could be done” about it. He says he did not remain employed by the First Respondent after 1 October 2025 because he was not paid and did not perform work. [23] In his submissions, the Applicant also contended that the Second Respondent was the true employer. He said the Commission’s role was to “discharge its statutory duty under section 15AA of the Fair Work Act 2009 to determine the identity of the employer based on the practical reality of the work performed”. [24] He gave evidence as to the extent of the control the Second Respondent had over his work. The Second Respondent acknowledged that the Applicant performed work for it at its premises, used its computer equipment, and gave him directions about his work, and does not dispute that it instructed the First Respondent to end the assignment. [25] However, for the reasons given below I am satisfied and find that the Applicant was employed on a casual basis by the First Respondent and was not employed by the Second or Third Respondent. [2026] FWC 489 6 [26] First, there is no dispute that the Applicant entered into a contract with the First Respondent, the key details of which were set out earlier in this decision. Further, he accepted an assignment from the First Respondent to perform work for the Second Respondent, and in doing so accepted and agreed that he was a casual employee of the First Respondent. I am satisfied on the evidence that the Applicant was an employee of the First Respondent. [27] Second, there is no evidence of any alleged independent contractor arrangement, or in fact any contractual relationship at all, between the Applicant and the Second Respondent that would give rise to s.15AA considerations. Section 15AA was inserted into the Act to deal specifically with the High Court decisions in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd 6 and ZG Operations Australia Pty Ltd v Jamsek7, both of which relate to the test for determining whether a person is an employee or an independent contractor. [28] The evidence demonstrates a standard three-way labour hire arrangement in which the Applicant was employed by the First Respondent and performed work for a client of the First Respondent. In such an arrangement, there is no employee-employer relationship between the client of the First Respondent and the Applicant. [29] I note that the Second and Third Respondents acknowledged that they could be named as Respondents to the application, consistent with the Full Bench decision in Dr Reuben Kirkham v Monash University & others8. Their submissions were made in support of the First Respondent’s objection that it did not dismiss the Applicant. They are not required to be the Applicant’s employer to be named as respondents to the application. [30] I am also satisfied that the Applicant was not dismissed. I accept the evidence of Ms Kelly as to the efforts she made to provide further casual work to the Applicant. I am satisfied that the employment relationship between the Applicant and the First Respondent did not cease when the assignment ended given these ongoing efforts by Ms Kelly. As a result, I am not satisfied that the employment ended at the initiative of the employer. Rather, the employment ended because the Applicant did not provide an updated CV and did not engage with Ms Kelly to secure alternative assignments. [31] As noted earlier, the only matter the Commission is required to determine is whether the Applicant was dismissed within the meaning of s.386. I have found that the Applicant has not discharged his onus to demonstrate that he was dismissed within the meaning of the Act and as a result, this application is dismissed. DEPUTY PRESIDENT [2026] FWC 489 7 Appearances: M Erwood on his own behalf. S Joselyn for Hays Specialist Recruitment. L Meagher of Counsel for Grains Research Development Corporation and Francis Ogbonnaya Hearing details: 2026. By video: February 10. Printed by authority of the Commonwealth Government Printer <PR796807> 1 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152. 2 [2012] FWA 2473. 3 62 IR 200 [1995]. 4 Print Q0008, 9 April 1998. 5 Rheinburger v Huxley Marketing, 16 April 1996 per Moore J. 6 [2022] HCA 1. 7 [2022] HCA 2. 8 [2024] FWCFB 429.