A casual tour guide at Coral Bay Ecotours was not dismissed, the Fair Work Commission has found. The finding stands even though the office manager went to a meeting with her on 13 March 2026 carrying a letter terminating her employment. Deputy President O’Keeffe upheld the employer’s jurisdictional objection and dismissed her general protections application involving dismissal under s.365 of the Fair Work Act 2009. That is a claim that a worker was dismissed for a reason the Act prohibits, and it cannot proceed unless a dismissal occurred.
The employer, Fresleven Pty Ltd as trustee for The Muley Graves Unit Trust, trading as Coral Bay Ecotours, contended that it had never ended the worker’s employment. It relied on the Full Bench in Burns v Aboriginal Legal Services of Western Australia, that a termination “does not take effect unless and until it is communicated” to the employee, and on Castro v Espresso Warriors, that the communication “must be unequivocal”.
The worker submitted that Burns and Castro concerned the timing of late applications. She relied on the Full Bench in Ayub v NSW Trains, which held that an employer must communicate “by plain or unambiguous words or conduct that the contract is terminated”, judged by how a reasonable person in the employee’s position would understand it. She gave evidence that she was told she was being “let go”. The office manager denied using any such words, and another employee who joined the meeting by phone said she did not hear them.
The Deputy President accepted that the office manager attended intending to terminate the worker, on the instruction of the business’s manager, and had the letter with her. It was not in dispute that she did not deliver it. He accepted the evidence of the employee on the phone and found, on the balance of probabilities, that the worker was not told she was terminated. He rejected the worker’s argument that Burns and Castro were irrelevant, reading them as requiring that an employee be told clearly and unequivocally that their employment has ended. The Deputy President wrote that it “is not sufficient to allude or insinuate”, and that conduct relied on under Ayub “would have to be very clear and unambiguous”.
He also examined the emails exchanged after the meeting. The employer’s email of 23 March 2026 said its intention was to have the worker “on the company roster once your medical clearances were received”. The Deputy President found nothing in the correspondence that a reasonable person could treat as notice of dismissal, whether through words or conduct.
The application named the employer and three individuals as respondents. Both sides were permitted legal representation under s.596(2)(b). The decision, [2026] FWC 4171, was issued in Perth on 26 October 2026, and an order dismissing the application will issue. Because the matter ended at the jurisdictional stage, the Commission made no finding on whether any of the reasons the worker alleged contravened the general protections provisions.
Source: [2026] FWC 4171
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