1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Mr Moustafa Guessab v Active Managed Logistics Solutions Pty Ltd, Ozstaff Holdings Pty Ltd (C2025/12385) COMMISSIONER REDFORD MELBOURNE, 8 MAY 2026 Application to deal with contraventions involving dismissal [1] Mr Moustafa Guessab has made an application pursuant to s 365 of the Fair Work Act 2009 (the Act) claiming that the termination of his employment occurred in a manner that contravened Part 3-1 of the Act. The application was directed against Active Managed Logistics Solutions Pty Ltd (AML). The application was filed on 4 December 2025. [2] On 20 April 2026, I granted leave to Mr Guessab to amend his application to add Ozstaff Holdings Pty Ltd as a second Respondent (Ozstaff). [3] The type of application Mr Geussab has made is often described as a “general protections” application. The Commission generally does not have a determinative function in relation to a general protections application unless the parties agree to the Commission arbitrating the matter. Rather, the Commission’s usual role is to convene a conference and either the matter is settled, or a certificate is issued to the Applicant if the Commission is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. From there an Applicant may, if they wish to do so, pursue a remedy in the Court. However, where it is said the Applicant was not dismissed withing the meaning of s 386 of the Act, the Commission is required first to determine whether the Applicant was in fact dismissed or not1. [4] Both AML and Ozstaff claim Mr Geussab was not dismissed. AML says that it was never Mr Geussab’s employer, and the application, in so far as it is directed against AML should be dismissed. Ozstaff who did employ the Applicant says that it did not dismiss the Applicant. [5] A hearing was conducted on 6 May 2026 to determine this question. Mr Geussab represented himself at the hearing. Mr Pillay, HR and OHS Manager, appeared for Ozstaff. Mr Shoenfeld appeared for AML. I conducted the hearing as a determinative conference and Mr Guessab, Mr Pillay, and Mr Shoenfeld gave evidence under oath. Prior to the hearing, both parties filed written submissions in relation to their respective position. [2026] FWC 1636 DECISION [2026] FWC 1636 2 Introductory background [6] Mr Geussab began working for Ozstaff on about 10 November 2025 on a casual basis. Ozstaff is a labour hire agency. [7] Mr Pillay confirmed that under the contract of employment between the parties, Ozstaff was obliged to provide offers of work placements to Mr Guessab in accordance with his skills and capability, subject to what placements it had available from time to time. He agreed that as a casual employee, Mr Guessab was free to accept or reject these offers. [8] From the commencement of his employment, Mr Guessab was placed by Ozstaff with one of its clients - AML. Mr Guessab worked at the CEVA distribution centre in Truganina. [9] Mr Guessab is aggrieved about several aspects of the way in which he was treated by AML. Not long after he started at the Truganina site, his shifts with AML were cancelled. Mr Guessab believes this was for reasons that included his refusal to fist bump his supervisor, to stay and engage in extended personal goodbyes and to stay back after his shift without pay. His last shift at AML was on 26 November 2025. [10] This is not the end of the story. To determine this matter, is has been necessary to consider what happened after Mr Guessab’s placement with AML ended on 26 November 2025. This is dealt with further below. Was Mr Guessab dismissed by AML? [11] Section 368 of the Act says: (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. [12] Mr Guessab conceded at hearing that AML was never his legal employer. He is undoubtedly aggrieved at conduct he says AML engaged in. But, if it was never his legal employer, it could not have “dismissed” him within the meaning of the Act. [13] Mr Guessab was not dismissed by AML. Was Mr Guessab dismissed by Ozstaff? [2026] FWC 1636 3 [14] It is important to note that Mr Guessab’s application was filed on 4 December 2025. An application can only be made pursuant to s 365 of the Act if the person has been dismissed2. It is therefore necessary to inquire as to whether Mr Guessab was dismissed, within the meaning of s 386 of the Act, at the time his application was filed – on 4 December 2025. [15] It is not in dispute that between 26 November 2025 and 2 December 2025, some effort was made to determine the circumstances as to why AML had decided it no longer wanted Mr Guessab’s services. Mr Guessab made a complaint to Ozstaff about his treatment at AML. About a week passed before it appeared to have been determined that there was no prospect of Mr Guessab being permitted to return to AML. [16] For this reason, it was not until 2 December 2025 that Ozstaff began to contact Mr Guessab with alternative work options. [17] The evidence as to Ozstaff’s attempts to provide Mr Guessab with other work was weak and messy. Largely, Mr Pillay relied on what he said he had been told by his office manager who he said had attempted to contact Mr Guessab on various occasions and had spoken to him about work opportunities. Mr Guessab’s evidence was also hazy - particularly on dates and times - perhaps understandably, given some time has now elapsed. [18] Mr Guessab does not dispute that on about 2 December 2025 he was contacted by Ozstaff about work at a location called Elite Logistics in Truganina. It appears to me that around this time there were several back and forth communications between Ozstaff and Mr Guessab about this work placement, in relation to which Mr Guessab wanted more information. [19] Mr Guessab said that at some point he was told the work placement at Elite Logistics was no longer available. Ozstaff say that on 8 December 2025 it contacted Mr Guessab to say that shifts at this site had been cancelled due to insufficient work volume. [20] Mr Guessab says that when he was told the job at Elite Logistics was no longer available, he concluded Ozstaff was not serious about finding him another role, and further concluded that in effect, his employment was terminated. This is the basis upon which he says he was “dismissed”. [21] As I have said, the evidence from both parties as to the efforts to find Mr Guessab another role after his position at AML ended was vague. I was asked to accept, on the basis of palpable hearsay evidence, that Ozstaff had offered Mr Guessab other roles throughout December 2025, but those efforts had either been rejected or ignored. Mr Guessab disputes this although he did concede that he had made several attempts to contact Ozstaff throughout December 2025 by phoning the office manager and speaking to them. I was also asked to find – also largely on the basis of hearsay evidence – that Mr Guessab had indicated he could not work other than a 6 hour shift, because of his family responsibilities, making it very difficult for Ozstaff to find a suitable placement, where most involved 8 hour shifts. Mr Guessab conceded he told Ozstaff he would prefer a 6 hour shift but did not refuse 8 hour placements. I consider on the basis of this rather vague evidence that at least some effort to find Mr Guessab [2026] FWC 1636 4 work during December 2025 occurred, but no work eventuated. The fact that no work eventuated supports the notion, to some extent, that these efforts were less than rigorous. [22] Ozstaff conceded that it did not offer Mr Guessa any further work shifts after the end of December 2025 and has not done so since. [23] Mr Guessab concedes he was never told he was dismissed, or was sacked, or his employment was terminated. The closest thing to have occurred along these lines was on 23 December 2025, when Mr Guessab was issued with a Separation Certificate by Ozstaff. Mr Guessab said he asked Ozstaff to issue this certificate because he had been told to do so by Centrelink. Ozstaff says it issued the certificate because Mr Guessab asked him to. The certificate was not provided in evidence although doubtless was issued in its standard form. It apparently indicated the reason for the end of the employment was “unavailability of work”. [24] In the absence of having been told he was sacked, Mr Guessab asks me to find that he was dismissed at the initiative of Ozstaff by inferring from its conduct that this was so. This conduct is its failure to offer him work placements after the AML shifts were cancelled, after about 3 December 2025 (although his dates were somewhat uncertain). Ozstaff conceded it made no further attempts to place Mr Guessab after the end of December 2025 despite work being available in, for example, January and February 2026. [25] On this basis, Mr Guessab might be reasonably well placed to argue he was dismissed by about January 2026, when on his evidence some weeks had elapsed since he was made any offers of work at all, or indeed by February 2026 or later, when some months had elapsed without an offer of any work. [26] However, I must determine whether Mr Guessab was dismissed on 4 December 2025 – when he made his application. On his own case, I am asked to reach this conclusion because I should assume – like he did – that simply because the first offer after the AML job came to nought, Ozstaff had not genuine intention of offering any more work. [27] The evidence simply does not provide a sound basis for such an assumption to be made. The evidence supports the notion that the job at Elite Logistics was still a possibility on or around 4 December 2025. If an inference can be drawn that by not offering Mr Guessab work, Ozstaff had dismissed him, this inference is not open to be drawn until at least some time had passed during which there was not offer of work. Perhaps by the end of December 2025 such a conclusion could be reached, albeit Ozstaff claims (based on weak evidence) that it made further offers of work throughout December. By later in January 2026, or by February 2026, when months had elapsed with no offers of work, Mr Gussab’s argument is much stronger. But I cannot find that on 4 December 2025 Mr Guessab had been dismissed by inferring as such based on Ozstaff’s conduct. [28] For these reasons I do not consider Mr Guessab was not dismissed by Ozstaff on 4 December 2025 when he made his application in the Fair Work Commission. Conclusion [2026] FWC 1636 5 [29] The Commission is not empowered to deal with a dismissal dispute unless there has been a dismissal. As I explained above, it is clear he was not dismissed by AML. I also do not consider that at the time he made his application; he had been dismissed by Ozstaff. Mr Guessab’s application must be dismissed. COMMISSIONER Appearances: Mr Guessab, for himself Mr Schoenfeld, for the First Respondent Mr Pillay, for the Second Respondent Hearing details: 2026 Online via Microsoft Teams Wednesday 6 May Printed by authority of the Commonwealth Government Printer <PR799782> 1 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 2 Ibid [54], [64]