1 Fair Work Act 2009 s.365—General protections John Gurung v The Lucas Group Services Pty Ltd (C2024/8763) DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 24 FEBRUARY 2025 Application to deal with contraventions involving dismissal [1] The following is an edited version of a decision given on transcript earlier today. [2] John Gurung has made an application under s 365 of the Fair Work Act 2009 (Act). The respondent, The Lucas Group Services Pty Ltd, objects to the application on the grounds that Mr Gurung was not dismissed and if he were, his application was not lodged within the 21-day statutory timeframe prescribed by s 366(1)(a) of the Act. [3] The Lucas Group contends that Mr Gurung freely resigned from his employment with the company. In a letter to The Lucas Group dated 29 October 2024, Mr Gurung stated that he was writing to resign from his position, and that he had greatly appreciated the opportunity to work for the company. Mr Gurung said that when he joined the company in September 2022 on a s 482 visa, his primary goal was to work towards obtaining a s 186 visa for permanent residency. After discussions regarding his visa sponsorship, Mr Gurung said that he understood that the company was currently unable to lodge a s 186 application for him and given these circumstances, he had accepted a job offer from another employer who was willing to sponsor him for a s 186 direct entry. Mr Gurung explained that the new position offers better prospects both personally and professionally including a higher salary and greater opportunities for advancement. [4] In his resignation letter, Mr Gurung said that his last day would be 1 December 2024. In an email reply dated 2 November 2024, The Lucas Group told Mr Gurung that he was not required to work until 1 December 2024, and that he was only required to tender two weeks’ notice with his resignation. The Lucas Group said that his last shift would be on 11 November 2024 being the final day of the required two week notice period having regard to his period of employment and s 117 of the Act. [5] Mr Gurung said that The Lucas Group had thereby terminated his employment early, however this is not the case. Mr Gurung remained employed until 11 November 2024. Even if The Lucas Group’s decision not to require Mr Gurung to work for Mr Gurung’s preferred, extended period of notice entailed some breach of contract (of which there is no evidence of [2025] FWC 555 DECISION [2025] FWC 555 2 this before the Commission), that decision did not end the employment relationship (see s 386 of the Act and the decision of the Full Bench of the Commission in Khayam v Navitas English Pty Ltd).1 The relationship ended because Mr Gurung resigned. This is not a case where the employer terminated the employment during the employee’s notice period. I find that The Lucas Group did not dismiss Mr Gurung. [6] A person may make an application under s 365 of the Act only if he or she has been dismissed. Mr Gurung was not dismissed by The Lucas Group and therefore had no standing to make this application. For this reason, the jurisdictional objection must be upheld. The application is dismissed. DEPUTY PRESIDENT Appearances: J Gurung, on his own behalf. S Tuazon with S McDonald, on behalf of the respondent. Hearing details: 2025 By video (using Microsoft Teams). February 2025. Printed by authority of the Commonwealth Government Printer <PR784683> 1 [2017] FWCFB 5162