1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Claire Drury v Tall Pages Pty Ltd t/a Paperchain Bookstore (C2025/13527) COMMISSIONER SLOAN SYDNEY, 29 APRIL 2026 Application to deal with a general protections dismissal dispute – whether application filed out of time – determination as to when dismissal took effect – application not filed out of time Background [1] Claire Drury was employed by Tall Pages Pty Ltd, which trades as the Paperchain Bookstore. On 10 November 2025, she had a meeting with Tayanah O’Donnell, the Owner and Director of Paperchain, during which she was told that her position was to be made redundant “effective immediately”. [2] At 10.19pm that night, Ms O’Donnell sent an email to Ms Drury (Email), which stated in part: “Dear Claire As discussed at today’s meeting, your position at Paperchain has been made redundant. Your letter of advice is attached. … I understand that this is difficult news. To support your transition, you will see in your attached letter that your 4 weeks notice period is to be had [sic] in lieu. This means you are not required to return to Paperchain, and you can use this period of time to find alternative employment. … Thank you for your contribution to Paperchain Bookstore. If you would like a letter of service, please request this as I would be more than happy to provide it. Please also advise a suitable time for you to collect any belongings and to return any keys or other Paperchain property, by or before 8 December 2025.” [2026] FWC 1546 DECISION [2026] FWC 1546 2 [3] The “letter of advice” to which the email referred was a letter from Ms O’Donnell to Ms Drury dated 10 November 2025, titled “Notice of Redundancy – Paperchain Bookstore” (Letter). The Letter stated in part: “Dear Claire, I am writing to formally advise that your permanent part time position at Paperchain Bookstore has been made redundant. This decision follows a review of the store’s current and future operational requirements, in consultation with management and in line with the Fair Work Act 2009 (Cth). … Accordingly, your employment will end on 8 December 2025 (inclusive). Your required notice period of four weeks will be paid in lieu. Your pay will be as normal during this four week period. Your final pay will include any and all accrued salary and leave entitlements.” [4] Ms Drury did not return to work to perform duties for Paperchain after 10 November 2025. On 19 November 2025, Paperchain paid Ms Drury four weeks in lieu of notice and her accrued annual leave. [5] On 8 December 2025, Ms Drury attended the Paperchain store to return her key to the store and to collect her belongings.1 [6] On 24 December 2025, Ms Drury filed an application for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 20092. The application stated that her dismissal took effect on 8 December 2025. [7] Paperchain raised a jurisdictional objection to the application, namely that the application had been filed out of time. The premise of the objection was the contention that the employment came to an end on 10 November 2025. [8] An application under section 365 must be made within 21 days after the dismissal took effect, unless the Commission allows a further period: section 366(1). If the dismissal took effect on 10 November 2025, the 21-day period ended on 1 December 2025. In that event, the application would be out of time and Ms Drury would require the Commission to allow her an extension of time to file her application. No such concern would arise if the dismissal took effect on 8 December 2025. It is necessary, then, for me to determine the date of Ms Drury’s dismissal. [9] For the reasons which follow, I find that the effective date of the dismissal was 8 December 2025. On that basis, I have determined to dismiss Paperchain’s jurisdictional objection. The parties’ positions in outline [10] Paperchain’s submissions as to why 10 November 2025 should be seen as the effective date of dismissal may be summarised as follows: [2026] FWC 1546 3 (1) The question as to when the dismissal took effect is to be determined by reference to when the employment ended in substance. (2) In this case, the employment relationship ended on 10 November 2025, being the date on which: (a) Ms Drury was verbally informed that her position had been made redundant “effective immediately” and that she was not required to attend work after that date; (b) Ms Drury completed her final shift with Paperchain; and (c) Ms Drury received written confirmation that she was not required to return to Paperchain and would be paid in lieu of notice. (3) The fact that Ms Drury received payment in lieu of notice and for her accrued annual leave supports a finding that the employment came to an end on 10 November 2025. (4) Having regard to these matters, the “practical employment relationship” between the parties came to an end on 10 November 2025. Identifying the “practical cessation of the employment relationship” is the “determinative consideration” in matters such as this. (5) Such an approach is consistent with section 577, which requires the Commission to perform its functions in a manner that is fair and just, and avoids unnecessary technicalities. It is also consistent with the “overall objectives” of the Fair Work Act, which require that “proceedings are to be conciliatory and not punitive”. [11] Ms Drury relied on the terms of the Email and Letter as clearly indicating that her employment was to continue until 8 December 2025. She submitted that this was supported by the fact that she did not receive “payment in lieu” on 10 November 2025, but nine days later. She equated her position to having been placed on “gardening leave” until 8 December 2025. Ms Drury’s legal representation [12] Before addressing the parties’ submissions, it is necessary to deal with a concern that Paperchain raised as to Ms Drury being legally represented. In short, Paperchain took exception to Ms Drury’s submissions having been prepared by a lawyer, when she had not been granted permission under section 596 to be represented by a lawyer. [13] Section 596(1) relevantly provides that, except as provided by the Fair Work Commission Rules 2024 (Rules), a person may be represented by a lawyer or paid agent in a matter before the Commission only with the Commission’s permission. On its terms, that section is not confined to permission for courtroom advocacy.3 [14] However, rule 13 of the Rules provides as follows: 13 Representation by lawyers and paid agents [2026] FWC 1546 4 (1) In any matter before the FWC, a person: (a) must not, without the permission of the FWC, be represented in the matter by a lawyer or paid agent participating in a conference or hearing relating to the matter; but (b) may otherwise, without the permission of the FWC, be represented by a lawyer or paid agent in the matter. [15] Rule 13 qualifies the operation of section 596(1). Under rule 13(1)(b), Ms Drury does not require the Commission’s permission to be represented by a lawyer in the preparation of her submissions. Why I have found 8 December 2025 to be the date of dismissal [16] In Spenser Clarke v Uniti Group Ltd4, to which Ms Drury referred me, the Full Bench observed: “[19] The Commission and its predecessor have, under the Act and the Workplace Relations Act 1996, approached the question of when a dismissal takes effect in a manner consistent with the common law principles relating to notice and the termination of an employment contract. At common law, an effective notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable.” (Footnotes omitted) [17] There is little direct evidence as to what was said during the meeting between Ms Drury and Ms O’Donnell on 10 November 2025. Ms O’Donnell stated only that she told Ms Drury that the redundancy was “effective immediately”.5 Ms Drury did not challenge that evidence. But it does not necessarily follow that Ms Drury was told that her employment was terminated with immediate effect. [18] Paperchain relied on a statement of Shane Strange, a manager in the business. He stated that at about 5.00pm on 10 November 2025, Ms O’Donnell “communicated to [him] words to the effect that Claire would be paid in lieu for the rest of her work week, and was no longer employed by Paperchain Bookstore”. At best, this reflects Ms O’Donnell’s understanding of the outcome of her meeting with Ms Drury. It says nothing about the words used in that meeting. [19] The most probative evidence available to me is the correspondence from Ms O’Donnell to Ms Drury of 10 November 2025. Contrary to Paperchain’s submissions, I do not read that correspondence as reflecting a decision to dismiss Ms Drury with immediate effect. Rather, it conveyed a decision that the employment would come to an end on 8 December 2025. I have drawn that conclusion for these reasons: (1) The Letter expressly stated that Ms Drury’s employment would end on 8 December 2025. [2026] FWC 1546 5 (2) That 8 December 2025 was intended to be Ms Drury’s last day of employment is evidenced by the request in the Email that she return her keys and other Paperchain property “by or before 8 December 2025”. (3) Although the Letter referred to Ms Drury being “paid in lieu” of notice, it informed her that her “pay will be as normal during this four week period”. That suggests the continuation of the employment relationship during that period. [20] As to Paperchain’s reliance on the payment in lieu of notice, I make two observations. [21] First, the Commission has recognised that the phrase “pay(ment) in lieu of notice” is inherently ambiguous.6 In Leech v Preston Borough Council7, Waite J stated: “... it is clear from the authorities cited to us ... that the expression ‘payment in lieu of notice’ is regularly used throughout industry in one or other of two quite different senses. The first, which is the grammatically correct one, is when it is used to describe the payment to an employee whom it is proposed to dismiss summarily of a lump sum representing compensation for the wages or salary which he would have received if he had been given the notice to which he is entitled by law. The second, which is the colloquial and grammatically inaccurate one, is when the term is used as a convenient shorthand way of telling an employee that he is being given the full period of notice to which he is entitled by law but is at the same time excused any duty (and refused any right) that he would otherwise have under his employment contract to attend at the workplace during the notice period.” [22] To my mind, this case falls into the second category discussed in Leech. That is, Paperchain intended that Ms Drury would remain employed until 8 December 2025, but be excused from performing any duties. Instead, she could use the period of her notice “to find alternative employment”. As Ms Drury submitted, and to use the colloquial expression, the effect of the Email and Letter was to place her on “gardening leave”. [23] Second, the payment in lieu of notice was not made until 19 November 2025. Under section 117(2)(b), an employer cannot terminate an employee’s employment unless “the employer has paid to the employee…payment in lieu of notice of at least the amount the employer would have been liable to pay the employee … at the full rate of pay for the hours the employee would have worked until the end of the minimum period of notice” (my italics). The language of the section makes clear that payment in lieu of notice must be made before or at least at the time the employer effects the dismissal.8 In any event, the payment of the amount in lieu of notice following the termination notice does not change the effect of the termination notice. A notice of termination, once sent, cannot be unilaterally withdrawn or varied in a way which changes its effect.9 [24] I accept Paperchain’s submissions to the extent that they reflect the well-established principle that a dismissal concerns the termination of the employment relationship.10 However, having regard to the matters set out above, I do not accept that the “practical cessation of the employment relationship” occurred on 10 November 2025. An employment relationship may subsist even though the employee is excused from the performance of duties. [2026] FWC 1546 6 Conclusion [25] For these reasons, I conclude that the effective date of Ms Drury’s dismissal was 8 December 2025. It follows that her application was filed within 21 days of her dismissal, as required by section 366(1). The premise of Paperchain’s jurisdictional objection falls away, and so the objection must be dismissed. [26] The matter will be listed for conference under section 368 at a time to be advised. COMMISSIONER Hearing details: Determined on the papers. Final written submissions: Applicant 6 April 2026 Respondent 6 April 2026 Printed by authority of the Commonwealth Government Printer <PR799244> 1 There was some emphasis in the parties’ evidence and submissions as to the events of 8 December 2025. By and large, those events are not germane to the question currently before me. For that reason, I will not traverse them. 2 In this decision, all references to legislative provisions are to provisions of the Fair Work Act. 3 Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797 at [44] 4 [2023] FWCFB 133 5 In a letter to the Commission dated 9 March 2025, Ms O’Donnell stated that she had “diarised notes” of the meeting, but as they appeared alongside confidential business information they were “not provided at this time”. 6 Spenser Clarke v Uniti Group Ltd [2023] FWCFB 133 at [20]. See also Siagian v Sanel (1994) 122 ALR 333 at 352, quoted with approval in Peter Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 at [15] 7 [1985] ICR 192 at 196 8 I observe that the Full Bench in Spenser Clarke v Uniti Group Ltd [2023] FWCFB 133 at [18] recognised that a dismissal, which is principally concerned with the ending of the employment relationship governed by a contract of employment, [2026] FWC 1546 7 may be effective even though notice of termination (or payment in lieu) does not comply with section 117 or the dismissal was otherwise in breach of the employment contract. 9 Rajendra Ranabhat v Lincoln Brokerage Services Pty Ltd [2025] FWC 1053 at [10], citing Peter Mihajlovic v Lifeline Macarthur [2013] FWC 9804 at [13] 10 See Metropolitan Fire and Emergency Services Board v Garth Duggan [2017] FWCFB 4878 at [21] and the cases cited in the footnotes to that paragraph.