1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Mr Carlos De La Rosa Medrano v The Hero Corporation Pty Ltd (C2025/13088) COMMISSIONER CLARKE MELBOURNE, 7 JULY 2026 Application to deal with contraventions involving dismissal [1] Mr Medrano (Applicant) has made an application pursuant to section 365 of the Fair Work Act 2009 (Act), alleging he was dismissed in circumstances involving a contravention of Part 3-1 of the Act. The application was brought against The Hero Corporation (Respondent), in respect of employment that came to an end on 28 November 2025. The application was made on 17 December 2025. [2] The Respondent has objected to the Commission dealing with the application, on the basis that it considers that the Applicant was not “dismissed” within the meaning of section 386 of the Act. The Commission’s usual function in respect of applications brought under section 365 of the Act is to conduct a dispute resolution conference to assist the parties to reach a settlement of their dispute. As was made clear in Coles Supply Chain v. Milford,1 the Commission must determine for itself whether an applicant who brings a claim under section 365 has “been dismissed” before exercising that function, at least where the objection is raised. [3] Following a case management conference, directions were issued providing for the parties to submit an agreed statement of facts, together with their respective submissions and any additional documents. The parties were agreed that the issue of whether there had been a dismissal in this case could be determined on the papers. I have had regard to all of the material provided in deciding the matter. Fixed term contract [4] The Applicant commenced his employment with the Respondent pursuant to a fixed term contract, which specified a start date of 14 April 2025 and a maximum term expiring on 9 May 2025. The contract specified that it would terminate on expiry of the maximum term, if not terminated earlier. The extent of specification of the Applicant’s duties under the contract was as follows: 1 [2020] FCAFC 152. [2026] FWC 2546 DECISION [2026] FWC 2546 2 In your role as Designer, you will be required to faithfully and diligently perform your duties as discussed and you will devote all of your time and attention during working hours to the business of the Company. The principal duties and responsibilities will be discussed in detail, but you may also be required to perform other duties from time to time, as directed by the Company. [5] It is common ground that the Applicant’s contract did not terminate on the expiry of the 9 May 2025 maximum term. Rather, the agreed course of events is that the term of the contract was extended prior to the expiry date being reached, as follows: (a) On 6 May 2025, the Respondent extended the Applicant's contract until 31 July 2025; (b) On 14 July 2025, the Respondent extended the Applicant's contract until 31 October 2025; and (c) On 31 October 2025, the Respondent extended the Applicant's contract until 30 November 2025. Regulation of fixed term contracts [6] At the time the contract was entered into, amendments to the Act had taken effect which are relevant to the operation of fixed term contracts. Those provisions, found in Division 5 of Part 2-9 of the Act, impose limits on the circumstances in which a fixed term contracts of employment may be utilised. The limits are subject to exceptions. In circumstances where the prescribed limits are exceeded and no exception applies, the effect is that the term of the contract that provides for the expiry of the contract upon the end of the period of the contract is taken to have no effect.2 [7] A modern approach to statutory interpretation requires consideration of the text of the statute, its context and purpose.3 The evident purpose of the provisions in Division 5 of Part 2- 9 is to regulate and restrict the use of fixed term contracts. The legislative intervention, as is usually the case, was an effort to strike (or readjust) a balance. In this case, the balance was expressed in the Revised Explanatory Memorandum which accompanied the amendments as being between the “legitimate use” of fixed term contracts and the impacts upon employees of job insecurity: “Fixed term contracts help businesses to source workers to perform discrete tasks for a fixed period and can be used genuinely for many purposes. However, fixed term contracts exacerbate job insecurity for employees when they are used for the same role over an extended period, or where employees are subject to rolling contract renewals for jobs that would otherwise be ongoing. The amendments would limit fixed term contracts for the same role to two consecutive contracts or a maximum duration of two years, while preserving the legitimate use of fixed term contracts in certain circumstances.”4 2 Section 333G. 3 SZTAL v Minister for Immigration & Border Protection [2017] HCA 34 at [14]. 4 Senate Revised Explanatory Memorandum for the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, at [568]. [2026] FWC 2546 3 [8] The legislative provisions do not use the term “fixed term contract” but rather refer to contracts that “terminate at the end of an identifiable period”: “333E Limitations (1) A person contravenes this subsection if: (a) the person enters into a contract of employment with an employee; and (b) the contract includes a term that provides the contract will terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and (c) the employee is not a casual employee of the employer for whom the period referred to in paragraph (b) is identified by reference to the completion of the shift of work to which the contract relates; and (d) subsection (2), (3) or (4) applies. ……” [9] The contract between the Applicant and the Respondent provided that remuneration was on the basis of a 38 hour week plus reasonable additional hours, and the Respondent has not countered the Applicant’s assertion in his application to the Commission that he was not a causal employee. It is not in dispute that the Applicant’s contract included a term that provided that it would terminate at the end of an identifiable period.5 Relevant to the current matter, one of the limitations imposed on fixed term contracts relates to entering into consecutive contracts of that character. The terms of that limitation are reflected in subsections (4) and (5) of section 333E: “Consecutive contracts (4) This subsection applies if the contract comes into effect after another contract (the previous contract) of employment between the person and the employee in circumstances referred to in subsection (5). (5) The circumstances for the purposes of subsection (4) are: (a) the previous contract included a term that provided that the contract would terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and (b) the previous contract was for the employee to perform the same, or substantially similar, work for the person as the employee is required to perform under the contract referred to in paragraph (1)(a) (the current contract); and (c) there is substantial continuity of the employment relationship between the person and employee during the period between the previous contract terminating and the current contract coming into effect; and 5 Agreed statement of facts at [6] and Attachment 3 thereto, Respondent’s outline of submissions at [2] and [6]. [2026] FWC 2546 4 (d) any of the following apply: (i) the sum of the period for which the previous contract was in effect and the identifiable period referred to in paragraph (1)(b) for the current contract is greater than 2 years; (ii) the current contract contains an option for renewal or extension; (iia) the previous contract contained an option for extension that has been exercised; (iii) the previous contract came into effect after another contract (the initial contract) that satisfies the requirements of paragraphs (a) and (b) of this subsection and there was substantial continuity of the employment relationship between the person and the employee during the period between the initial contract terminating and the previous contract coming into effect.” [10] In light of the matters set out at paragraphs [4] and [5] above, I am satisfied that the Applicant performed his work as a designer continuously under consecutive contracts, such that not only the final contract but also the penultimate contract and the one preceding it were for the same work and that his employment relationship was continuous under contracts that provided that they would terminate at the end of an identifiable period. It follows that the circumstances set out under subsection (1) and (4) and paragraphs (a)-(c) and subparagraph (d)(iii) of subsection (5) are satisfied. [11] That being the case, section 333G intervenes in the employment relationship to effectively deem an ongoing employment relationship, subject to one of the exceptions in section 333F being made out. In this case, the Respondent submits that the exception in paragraph (a) of subsection 333F(1) applies. It provides as follows: “333F Exceptions to limitations (1) Subsection 333E(1) does not apply in relation to a contract of employment entered into by a person and an employee if: (a) the employee is engaged under the contract to perform only a distinct and identifiable task involving specialised skills; or …” Applying the exception [12] The Respondent operates a marketing agency. The Respondent’s position is that the Applicant was engaged to perform time‑limited, pitch‑specific design work, namely the preparation of speculative design assets (including AI‑assisted image generation) for the purpose of converting unpaid pitches into paid client engagements. The Respondent characterises this pitch work in its submission as work that is regularly undertaken but inherently speculative. It says that each contract and extension offered to the Applicant corresponded with it obtaining further unpaid pitch opportunities requiring completion within defined windows along with others that extended beyond each expiration date of the contract. The Respondent says that the extensions to the Applicant’s contract were not automatic or [2026] FWC 2546 5 routine, but reflected the continuation of identifiable pitch activity requiring specialist design input. [13] The Respondent additionally provided a table based on the Applicant’s time sheets. This indicated that the Applicant worked on forty four projects for twenty four clients over the duration of his employment. Five of the client projects were listed as relating to a “retainer”. [14] The Applicant contends that the exception in paragraph (a) of subsection 333F(1) does not apply. The Applicant takes the view that the work he performed was straightforward business development work, not a distinct type of work which involved specialised skills that were not otherwise possessed by the Respondent. [15] It does not appear to be in dispute that the Applicant was a skilled worker. Prior to living and working in Australia, the Applicant obtained a Bachelor degree in Advertising and Public Relations specialising in design, and a Masters of Fine Arts specialising in Art Direction. He furthered he studies through a Creativity in Advertising Course at Award School while in Australia. It might fairly be said that the Applicant possesses specialised skills, in some sense. [16] However, the word “specialised”, rooted as it is in the word “special”, can often import a character of distinctiveness of difference from that which is not said to be so special or specialised. The Macquarie Dictionary provides the following definitions of the word “specialised”: verb (specialised, specialising) –verb (i) 1. to pursue some special line of study, work, etc.; make a specialty. 2. Biology to become specialised. –verb (t) 3. to render special or specific; invest with a special character, function, etc. 4. to adapt to special conditions; restrict to specific limits. 5. to restrict payment of (a negotiable instrument) by endorsing over to a specific payee. 6. Biology to modify or differentiate (an organism or one of its organs) to adapt it to a special function or environment. 7. to specify; particularise. [17] Both the first and the third limbs of the definition provided, which are most apt to describe the sense in which the word “specialised” in paragraph (a) of subsection 333F(1), import the notion of something that is “special”. The word “special” is defined as follows: adjective 1. of a distinct or particular character. 2. being a particular one; particular, individual, or certain. 3. relating or peculiar to a particular person, thing, instance, etc.: the special features of a plan. 4. having a particular function, purpose, application, etc.: a special messenger. 5. dealing with particulars, or specific, as a statement. 6. distinguished or different from what is ordinary or usual: a special occasion. 7. extraordinary; exceptional; exceptional in amount or degree; especial: special importance. 8. especially beloved or favoured: Myra was special to us. –noun 9. a special person or thing. [2026] FWC 2546 6 10. a special train. 11. an item sold at a special, usually bargain price. 12. Australian History a convict receiving special indulgence because of ability or birth. 13. a special edition of a newspaper. 14. a special constable [18] The element of distinctiveness or difference is pervasive in many of the above definitions. The question arises therefore in what sense must a skill be specialised for it to fall for consideration under paragraph (a) of subsection 333F(1)? Or in other words, against what is the difference or distinctiveness to be judged? [19] In my view, the answer to the question may be readily discerned from the context in which the phrase appears in the provision itself, being “….a distinct and identifiable task involving specialised skills” as well as the broader context of the relevant provisions and their evident purpose as discussed at paragraphs [6] and [7] above. Both are suggestive of “specialised skills” signifying that the skills are distinct by virtue of their necessity to completing a particular task, with necessity also arising because of distinction or difference relative to the skills otherwise available to the employer for deployment to that task. Indeed, this view is echoed in paragraph 583 of the Revised Explanatory Memorandum which accompanied the amendments: “Clause 333F would provide limited exceptions to the prohibition in clause 333E. An employer may enter into a contract of employment with an employee that is for longer than two years, contains more than one option for extension or renewal, or is a third or more consecutive fixed-term contract where: • the employee has specialised skills that the employer does not have, but needs, to complete a specific task; ……….” [20] The Respondent notes in reply that although it may have employed other individuals with comparable skills to the Applicant, this does not answer the question of whether the Respondent had sufficient available capacity to meet the particular pitches in which it was participating during the Applicant’s engagement. The issue of available capacity, the sense of whether there are sufficient numbers of employees with the relevant skill to meet demand at a particular time, detracts from the inquiry. The Respondent suggests that to not account for flexing up the number of similarly skilled workers would negate the practical operation of the exclusion. However, it must be recalled that the exclusion operates within a suite of provisions that limit – but do not prohibit – the use of fixed term contracts. An employer is given some latitude to use fixed term contracts, including in the matter that the Respondent has done. The point is that these rolling contracts cannot be continued ad infinitum without regard to the interests of employees in job security, so a balance must be struck. The balance struck by the legislature might not, and probably does not, suit everybody. But to acknowledge that takes the present matter nowhere. [21] Turning now to whether it could fairly be considered that the Applicant was “…engaged under the contract to perform only a distinct and identifiable task”, I note the Respondent’s concession, appropriately made, that the terms of the Applicant’s contract do not expressly describe his engagement in pitch work. However, the Respondent says that this does not [2026] FWC 2546 7 “…negate the task based character of the work actually performed, which was directed primarily to speculative pitch activity rather than revenue-generating client work”. The word “primarily” stands in contrast to the requirement in the exception that the person be engaged under the contract to perform “only” a distinct and identifiable task. Furthermore, the contractual terms as extracted at paragraph [4] above conferred considerable latitude on the Respondent to instruct the Applicant to work as directed. [22] Something must also be said about how the reference to a “task” or “distinct and identifiable task” is to be understood. The identification of a task has, over several generations of industrial relations legislation, been of significance in establishing whether an employee seeking to invoke the unfair dismissal jurisdiction is entitled to do so.6 In that context, it has been established that a task is an identifiable project or job or piece of work.7 In this current context, such task must be both identifiable and distinct. The industrial relations understanding of what a “task” is, together with the requirement that it be “distinct”, sits uncomfortably with the notion of engagement across forty four projects for twenty four different clients for a character of work that the employer “regularly undertakes”8 as part of the ordinary course of business. [23] Having given the matter due consideration, I am not satisfied that the Applicant was engaged under his contract to perform only a distinct and identifiable task involving specialised skills. It follows that insofar as his contract specified that it would terminate at the end of an identifiable period, that specification had no effect. It also follows therefore, for the purposes of section 333G, that his employment did not end by effluxion of time. However, that does not compel a conclusion that he was dismissed within the meaning of section 386. Was the Applicant dismissed? [24] It will be recalled that the Respondent’s objection was 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. [25] Neither party contended that there was a resignation of any sort, and in those circumstances the requirements of paragraph (b) of subsection (1) of section 386 need not discussed. Nor was there any suggestion that the exceptions set out in subsection (2) or qualified in subsection (3) had any application to the facts in this matter. The immediate issue for 6 This is currently reflected in sub-sections 386(2)(a) and 386(3) of the Act. 7 Appeal by Brisbane City Council (2008) 172 IR 39. 8 Respondent’s submissions at [5]. [2026] FWC 2546 8 determination is whether there has been a termination of the Applicant’s employment at the initiative of his employer, as referred to in paragraph (a) of subsection (1). [26] There has been a great deal of consideration, in this Commission and elsewhere, of what circumstances will amount to a termination of employment at the employer’s initiative. Before delving into the detail of that, it is helpful to conceive of the ending of employment in the sense that Deputy Boyce did in the matter Lattouf v. ABC9 as follows: “In my view, in its most simple terms, the bringing of an employment relationship to an end concerns the ending of an employee’s ‘service’, such that (for whatever reason) it is, or becomes, no longer necessary for the employee to perform any work for the employer. A determination by an employer to cease an employee’s service will end the employment relationship, although it may not bring the employment contract to an end until the employee makes an election for that to occur. A wrongful failure to allow an employee to continue in the employer’s service is equally a breach of contract, giving rise to a ‘wrongful’ dismissal at common law. As Higgins J stated in Lucy v Commonwealth: The contract [of employment] is not a mere promise to pay money, but to pay wages for service; and the breach of contract consists in not allowing the employee to continue in the service so as to get the wages. This is the view which I accepted in Williamson v Commonwealth, (citations omitted)10 It was conclusively established in NSW Trains v. James11 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. [27] 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 Works12 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 9 [2024] FWC 1441. 10 At [86]. 11 [2022] FWCFB 55. 12 [2006] AIRC 496. [2026] FWC 2546 9 which adopt the shorter formulation of the reasons for decision should be treated with some caution”13 [28] 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):14 • 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. [29] 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.15 [30] In this case, such conduct as has occurred needs to be understood in the light of my conclusion in paragraph [23] above that by the time that the employment did in fact come to an end, there was no legally effective expiry date in the contract between the Applicant and the Respondent. The expiry date that had hitherto been so specified was 30 November 2025, a Sunday. [31] The agreed facts in this matter include that: (a) The Applicant was told by the Respondent’s National Executive Creative Director during a telephone call on 14 November 2025 that his employment would not continue past the date of 30 November 2025 (which had been the end date specified in the final extension); (b) The Respondent’s staff participating in a regular “Work in progress” meeting on Monday 24 November 2025 were informed that this would be the Applicant’s final week working for the Respondent; (c) The Respondent’s National Executive Creative Director sent an email message on Friday 28 November 2025 to all staff (including the Applicant) which, inter alia, stated that it was the Applicant’s last day of work and acknowledged and praised the Applicant’s contributions. 13 Ibid. at [23]. 14 [1995] IRCA 645. 15 Fatallah v. Gallawah; Lemana v. Gallawah [2023] FWC 2542 at [114]. [2026] FWC 2546 10 It is not seriously arguable that this chain of events does not disclose a desire on the part of the Respondent that the Applicant’s service come to an end on 30 November 2025. The Respondent communicated the end of employment clearly, and effectively offered a “thank you and goodbye” on the final day of work. There is a clear course conduct on the agreed facts that had the probable result of bringing the employment to an end. The fact that the Respondent may have been operating on the misapprehension that the contract was going to expire on 30 November 2025 does not alter the objective characterisation of these events. I accordingly find that the Applicant was dismissed for the purposes of section 386 of the Act. [32] I note the Respondent’s submission16 that I should find that the Applicant’s employment ended by effluxion of time rather than by dismissal, even if I find (as I have) that the exception in section 333F(1)(a) is not applicable. I do not consider that course open to me, having regard to the effect of section 333G of the Act. Conclusion [33] This application was objected to by the Respondent on the basis that the Applicant had not been dismissed. I have dismissed that objections. The matter will be listed in due course for a private dispute resolution conference in accordance with section 368 of the Act. COMMISSIONER Final written submissions: 2026 15 April 2026 Printed by authority of the Commonwealth Government Printer <PR811795> 16 At [12] of its written submissions.