1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Taylah Carrodus v Tunnelling Solutions Pty Ltd & Ors (C2026/1366) COMMISSIONER MCKINNON SYDNEY, 26 MAY 2026 Application to deal with a general protections dismissal dispute – whether dismissed [1] Ms Taylah Carrodus was employed by Tunnelling Solutions Pty Ltd (Tunnelling Solutions) from 3 October 2022 until 5 or 9 January 2026. On 30 January 2026, Ms Carrodus applied in time for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). The application alleges that Ms Carrodus was dismissed by Tunnelling Solutions in contravention of the general protections in Part 3-1 of the Act and that others were involved in the contravention. Tunnelling Solutions objects to the application on the basis that Ms Carrodus was not dismissed and even if she was, her application is out of time. [2] Applications under section 365 of the Act can only be made by, or on behalf of, a person who has been ‘dismissed’. A person has been dismissed if their employment has been terminated on the initiative of the employer or they resigned but were forced to do so because of conduct by the employer.1 [3] The question is whether Ms Carrodus was terminated at the initiative of the employer for the purposes of s.386(1)(a) of the Act, and if so when. [4] At a hearing on 21 May 2026, I dismissed the jurisdictional objections of Tunnelling Solutions. These are my reasons. Relevant facts [5] Ms Carrodus was employed by Tunnelling Solutions in Victoria. On 24 October 2025, Ms Carrodus requested a flexible working arrangement allowing her to work full time from home from 5 January 2026 in connection with a planned move to Queensland. The request was refused on 14 November 2025. [6] On 24 November 2025, Ms Carrodus asked for a meeting with her superiors to discuss the refusal of her request. This was not agreed. Ms Carrodus was asked to put any response to the refusal decision in writing. Ms Carrodus advised Tunnelling Solutions that she would be [2026] FWC 1914 REASONS [2026] FWC 1914 2 taking personal leave due to stress until a meeting could be arranged. She took leave from 25 November 2025 and did not return to work after that time. [7] On 27 November 2025, Ms Carrodus wrote to Tunnelling Solutions acknowledging the refusal of her flexible work request and proposing a mutual separation. Negotiations followed but were unsuccessful. [8] On 5 December 2025, Ms Carrodus obtained a Certificate of Capacity certifying her as totally unfit for work from 5 December 2025 until 4 March 2026. [9] On either 5 or 10 December 2025, Ms Carrodus made a workers’ compensation claim. [10] On 15 December 2025, Tunnelling Solutions applied to the Commission to deal with a dispute about Ms Carrodus’ flexible work request. It sought the urgent programming and hearing of its application on the basis that Ms Carrodus was due to relocate to Queensland imminently, and no agreement had been reached for her to work from home full-time in those circumstances. After a conference on 18 December 2025 and an exchange of correspondence, the matter was adjourned on the basis that the parties provide a status update by 4 February 2026. [11] On 19 December 2025, Tunnelling Solutions advised Ms Carrodus through her lawyers that ‘absent a granted flexible work request’ it would consider Ms Carrodus to have abandoned her employment as at 5 January 2026 noting that the ‘unilateral relocation’ to Queensland was not agreed to by Tunnelling Solutions. [12] On 28 December 2025, Ms Carrodus moved to Queensland. [13] On 5 January 2026, Ms Carrodus provided a further medical certificate to Tunnelling Solutions. [14] On 9 or 10 January 2026, Ms Carrodus noticed a payment from Tunnelling Solutions in her account. She made enquiries and discovered that this was her final termination payment. [15] On 9 January 2026, Tunnelling Solutions wrote to Ms Carrodus advising that it considered the actions of Ms Carrodus in unilaterally moving her residency to Queensland as a repudiation of her employment. It further advised that the repudiation was accepted and that the employment of Ms Carrodus was ‘now at an end’. Consideration [16] On the facts, Ms Carrodus did not abandon her employment or repudiate the employment contract. At the time of the alleged repudiation, Ms Carrodus was on medically certified leave. Tunnelling Solutions knew this because it had been given a copy of her certificate of capacity. There was a live dispute in the Commission about whether her flexible work request should be granted, and a report back date set for 4 February 2025. In the circumstances, it was not open to Tunnelling Solutions to consider Ms Carrodus’ absence from work on and from 5 January 2026 as a failure to attend work without notice or reasonable excuse. Further, there is no evidence that Tunnelling Solutions made any further attempt to [2026] FWC 1914 3 confirm whether Ms Carrodus had in fact moved to Queensland, and whether she intended to return to work in Victoria, on or after 5 January 2026. [17] Tunnelling Solutions moved directly to treat the employment as ‘at an end’ by sending a letter to Ms Carrodus to this effect on 9 January 2026 and paying out her employment entitlements. These actions brought the employment relationship to an end with immediate effect, including because it was on this date that Ms Carrodus was notified of the termination of her employment. [18] Although Tunnelling Solutions had previously put Ms Carrodus on notice that it would consider her to have abandoned her employment as at 5 January 2026, the notice was conditional – that is, it was ‘absent a granted flexible work request’. At the time, the status of separate Commission proceedings to resolve the flexible work dispute was that the parties were to report back to the Commission by 4 February 2026. The email of 19 December 2025 raised the possibility of the flexible work request being granted – if not by Tunnelling Solutions, then by the Commission. In the circumstances, I do not read the email as clear and unequivocal advice of termination of employment to Ms Carrodus with effect on 5 January 2026 if she failed to return to work at that time. Indeed, Tunnelling Solutions could not reasonably have expected Ms Carrodus to attend for work on 5 January 2026 because it knew that she was medically certified as unfit for work at the time. Conclusion [19] Ms Carrodus has been dismissed by Tunnelling Solutions. The dismissal took effect on 9 January 2026 and her application was made in time. COMMISSIONER Appearances: M Lynch of Gorval Lynch for the applicant. D Klepac of Augmena for the respondent. Hearing details: 2026. Sydney May 21. Printed by authority of the Commonwealth Government Printer <PR810371> [2026] FWC 1914 4 1 Fair Work Act 2009 (Cth), ss 12 and 386.