1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Roula Bekai v Samma Real Estate (C2025/9831) COMMISSIONER CLARKE MELBOURNE, 6 MAY 2026 Application to deal with contraventions involving dismissal – Applicant not dismissed – application dismissed. [1] Ms Bekai (Applicant) has made an application to the Commission under section 365 of the Fair Work Act 2009 (the Act), relating to her former employment as Operations Manager – Property Development in a real estate business operated by The Trustee for Samma Real Estate Unit Trust (Respondent). [2] In her application, the Applicant contends that she was dismissed by the Respondent with effect from 28 September of 2025. The Respondent contends that the Applicant was not dismissed. [3] The objection was put on the basis that the Respondent did not consider that the Applicant had been dismissed within the meaning of section 386 of the Act. Section 386(1) relevantly provides as follows: 386 Meaning of dismissed (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 (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. [4] The matter proceeded by way of hearing via Microsoft Teams on 6 February 2026, at which the Respondent was given permission to be legally represented. Pursuant to directions issued on 23 December 2025, both parties filed written submissions and witness Statements. At the hearing, the Applicant gave evidence on her own behalf and Mr Abdelmalak gave evidence for the Respondent in his capacity as a Director thereof. Both were minimally cross examined. Closing submissions were provided in writing following the hearing. [2026] FWC 1635 DECISION [2026] FWC 1635 2 Dismissal [5] The Commission’s usual function in respect of applications brought under s. 365 of the Act is to conduct a dispute resolution conference under s. 368 to assist the parties to reach a settlement of their dispute. As was made clear in Coles Supply Chain v. Milford1, the Commission must determine for itself whether an applicant who brings a claim under s. 365 has “been dismissed” before exercising that function, at least where the objection is raised. [6] In the present matter, the parties are agreed that the Applicant gave notice of her resignation in writing. The Applicant is not advancing a case that her resignation was forced, in the sense contemplated by paragraph (b) of subsection (1) of section 386. Rather, the Applicant’s case is that the Respondent has unilaterally altered her notice period to bring forward the termination of her employment and thus dismissed her during her notice period. The Respondent contends that it has done no such thing, but has rather elected, as it is entitled to do, to pay the remainder of the Applicant’s notice period in lieu rather than demand service through the notice period. [7] When an employee gives their employer notice of their resignation, the employee is acting (and is entitled to act) unilaterally. The employee may have an obligation to provide a particular period of notice to their employer, under the terms of a workplace instrument or contract of employment. However, there is nothing preventing the resigning employee giving more than the bare minimum notice required of them (and many employers are often appreciative of additional notice). Occasionally, the notice period given is the subject of negotiation and agreement, but it need not be. If the employer acts unilaterally during the notice period to bring the employment to an end before the end of that notice period, that is an act of its own initiative to terminate the employment.2 [8] The Applicant’s contract of employment was in evidence.3 It provided a notice period of four weeks along with rights for the employer to direct limited duties (or no duties) during the notice period or elect to pay the notice period out in lieu of it being served. It is not in dispute that, by her written notice of resignation on 22 September 2025,4 the Applicant gave more notice than that which was required by her contract, by stipulating that her last day of employment would be 30 October 2025. If the Respondent were to have countered that with a decision that it would limit that period to the four weeks required in the contract, it could not simultaneously insist that it had taken no action at its own initiative to bring the employment to an end. Had it done that, the employer would be unilaterally stipulating its own notice period, in respect of its own decision to end the employment sooner than the employee’s notice of resignation had determined. But I do not consider that that is what the employer did in this case. [9] The dispute in this case centres on e-mail communications between the Applicant and Mr Abdelmalak on 25 September 2025.5 These commence with the Applicant informing Mr Abdelmalak of how she proposed to manage her transition and handover during the remainder of her employment while also managing some health and wellbeing concerns. Mr Abdelmalak’s response was as follows: “Thank you for your note and for outlining your proposed arrangements. I’m sorry to hear that you are unwell, and I hope you’re able to focus on rest and recovery. Please [2026] FWC 1635 3 know that your wellbeing is most important, and I hope you’re back on your feet and in good health soon. With that in mind, I believe it’s best that we finalise your employment as of today. We will of course pay out all your leave and entitlements in full. This way, you can turn your attention fully towards your well-being. I want to acknowledge and thank you for your contributions and for the effort you’ve made to support the team during your time here. Your work has helped set up strong systems and processes that will continue to benefit the department. Please arrange early next week to return off company property (such as laptop, access cards, or other items) so we can close things off smoothly. I sincerely wish you the very best for the future, both personally and professionally.” The Applicant is of the view that this communication effected a termination of her employment at the employer’s initiative. She considers this view to be confirmed by the employer’s failure to make a “clear and contemporaneous” payment in lieu of notice.6 The Respondent’s view is that the communication was an election to waive the requirement to work out the notice period and to instead pay the remainder of the notice period in lieu. The Respondent submits that to the extent there were delays and adjustments made in payroll processing of the Applicant’s entitlements, these do not alter the characterisation of the communication itself. [10] It was conclusively established in NSW Trains v. James7 that a dismissal for the purposes of section 386(1)(a) may be given effect to either by the termination of the employment relationship or the contract of employment. In either case though, the termination must be “on the employer’s initiative” to qualify as a dismissal under that paragraph. The unfair dismissal jurisdiction has, since its inception, required that there be a termination of employment “at the initiative of the employer” as one of the essential elements. This is rooted in the historical constitutional underpinnings of Commonwealth laws providing for remedies in respect of unfair dismissal, yet the expression has remained a centrepiece of the scheme notwithstanding the shift to reliance on the corporations power and referral of State powers in recent decades. [11] The breadth of matters that might qualify as a termination on the employer’ initiative is wide, and even before the Act and its predecessors expressly conferred rights of action on employees who were “forced to resign” (as paragraph (b) of subsection (1) of section 386 does presently), it was found that a termination might be regarded as “on the employer’s initiative” even where the final act that brought the employment to an end was an act of the employee. In considering whether employment “has been terminated on the employer’s initiative”, a Full Bench of the Australian Industrial Relations Commission in O’Meara v. Stanley Works8 held that there must be: “…some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions [2026] FWC 1635 4 which adopt the shorter formulation of the reasons for decision should be treated with some caution”9 [12] In a similar vein are the following principles referred to in the decision Full Court of the Industrial Relations Court of Australia in Mohazab v. Dick Smith Electronics (No2)10: • An important feature of a termination at the initiative of the employer 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. • 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. • A termination may involve more than one action, but it is necessary to ask what was the critical action, or what were the critical actions, that constituted a termination of employment. [13] When looking upon the conduct that is claimed to give effect to a termination, an objective analysis is required. That is, whether a reasonable person with knowledge and background of the dealings between the parties would regard the conduct of the employer as terminating the employment.11 [14] In the current circumstances, there is no doubt that the employer took some action at its initiative, but that action was not to terminate the Applicant’s employment. The language of the communication by Mr Abdelmalak on 25 September 2025 is genuinely sympathetic to the Applicant and appears to be a well-intentioned effort to spare her the difficulty of managing a handover and transition in the circumstances while paying out her “entitlements in full”. I accept that what was being communicated was an election to relieve the Applicant of the requirement to continue to work through her notice period and to pay the remainder of her notice in lieu. [15] Mr Abdelmalak’s evidence was that he engaged the services of an external human resources consultant to deal with the remaining “operational items” arising from the Applicant’s resignation and to liaise with the Applicant and the Respondent’s external payroll provider to processes the Applicant’s entitlements.12 The communications from the HR consultant13 are consistent with the consultant having been instructed that the Applicant had resigned and the employer’s decision was to pay the remainder of the notice period after 25 September as payment in lieu of notice. However, those communications and Mr Abdelamalak’s evidence at the hearing14 indicated that the payment in lieu of notice component of the Applicant’s final pay was calculated on the basis that notice period ended on 20 October 2025, rather than 30 October 2025. This was an error. [16] The Respondent sought to rely on Zhang v. Medlab Clinical15 in support of the proposition that the payments made on termination or administrative documents associated with a resignation “does not of itself convert a resignation or mutual separation into a dismissal for the purposes of section 386”.16 Ultimately, all of the relevant evidence must be considered. In a case such as this one it would offend basic notions of fairness for the Respondent to have its [2026] FWC 1635 5 cake and eat it too – to avoid scrutiny on the basis of a resignation on notice while paying the (lesser) termination benefit that would have applied if it itself had determined to terminate the employee on the minimum notice. [17] However, I am satisfied that the proper objective conclusion here is that the employment was brought to an end by way of resignation and that the Respondent chose to relieve the Applicant of the requirement to continue to perform duties during the notice period. The fact that the Respondent may ultimately have made errors in the payment in lieu component of the Applicant’s final pay is not a matter that the Commission is able to rectify in the context of a jurisdictional objection to an application made under section 365. One hopes that Respondent would rectify this voluntarily. Disposition [18] Because I am not satisfied that a dismissal as defined in section 386 of the Act has occurred, I am unable to further deal with the application before me. The application is therefore dismissed. COMMISSIONER Appearances: Ms R. Bekai, Applicant. Mr D. Bean, for the Respondent. Hearing details: 6 February. 2026. Printed by authority of the Commonwealth Government Printer <PR799778> 1 [2020] FCAFC 152. 2 Passmore v. The Trustee for the CBC Lawyers & Anor [2025] FWC 575; Nohra v. Target [2010] FWA 6857. 3 Exhibit R2. 4 Exhibit R3. [2026] FWC 1635 6 5 Exhibit R4. 6 Exhibit A1 at [10]. 7 [2022] FWCFB 55 8 [2006] AIRC 496. 9 Ibid. at [23]. 10 [1995] IRCA 645. 11 Fatallah v. Gallawah; Lemana v. Gallawah [2023] FWC 2542 at [114] 12 Exhibit R1. 13 Exhibit R5, at hearing book page 31. 14 PN128-135. 15 [2021] FWCFB 243. 16 Respondent’s submissions at [8B].