s.365 - General protections

Yeronga Services and Community Club Inc. T/A Club Yeronga

Application to deal with contraventions involving dismissal - whether 'forced to resign' - resigned voluntarily - application dismissed

[1] On 26 September 2025, Mr Adam Charles Doncaster applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009. Mr Doncaster alleges that he was dismissed by Yeronga Services and Community Club Inc trading as Club Yeronga (the Club) in contravention of the general protections. Yeronga dispute that Mr Doncaster was dismissed asserting that he resigned from his employment voluntarily.

• [2] The Fair Work Commission generally does not have a determinative function in relation to applications brought under s.365 of the Act unless the parties agree to the Commission arbitrating the matter. Rather, the Commission's role is to convene conference and to issue a certificate to Mr Doncaster, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the Club deny that Mr Doncaster was dismissed within the meaning of s.386 of the Act and object to the application on this basis, the Commission is required first to determine whether Mr Doncaster was in fact dismissed or not.[1]

[3] The Applicant claims that he was forced to resign due to the conduct of the Respondent and, therefore, was constructively dismissed by the Respondent.

[4] Section 365 of the Act establishes a jurisdictional precondition for a person to make an application to deal with a general protection claim involving a dismissal. Relevantly, s.365(a) of the Act requires that the person must have been 'dismissed'.

[5] The word 'dismissed' is defined in s.12 of the Act by reference to s.386:

1. Section 386(1) provides that person has been dismissed if "the person's employment with his or her employer has been terminated on the employer's initiative"; and
2. Section 386(2)(a) provides that a person will not have been 'dismissed' "if the person was employed under a contract of employment for a specified period of time, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season"

• [6] The leading decision setting out the principles relating to section 386(1) of the FW Act is the Full Bench decision of Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli (Bupa).[2]

[7] Having considered the key cases, the Full Bench in Bupa summarised the position under the FW Act as follows:

"(1) There may be a dismissal within the first limb of the definition in section 386(1)(a) where, although the employee has given ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, the employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition of section 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element."[3]

[8] Mr Doncaster was employed by the Club on a casual basis as a Duty Manager from November 2012. Mr Doncaster submitted his resignation to Mr Nathan Young on 5 September 2025 and provided four weeks' notice.

• [9] The following conversation took place between Mr Doncaster and Mr Young over text messages:[4]

Mr Doncaster: "Just time I believe as I'm need a change a from just being a DM plus need a good holiday"

Mr Young: "Are you working tomorrow? If so/not can we catch up for 10 minutes?"

Mr Doncaster: "Mate I'm leaving there's not much to discuss, I've given management plenty of time to discuss things previously. It's time for me to go, so I'd appreciate everyone to leave me alone and let me finish on top of my game. Kind regards Adam"

Mr Young: "I was asking for a chat, I wasn't going to hold a gun to your head! All good."

• [10] Mr Doncaster has submitted that due to "receiving the text about the gun to my head I felt it was best for my own safety to bring the notice period to an end effective immediately that night".[5]

• [11] On 8 September 2025, Mr Doncaster went into the Club at 1:45AM to hand in his uniforms and keys to Mr Rogan Anderson-Grundon (another Duty Manager). Then at 6:56AM on the same day, Mr Doncaster sent an email to Ms Wendy Broom (Assistant Manager) resigning from his employment due to an "unprofessional, intimidating and threating text sent to me yesterday morning by the General Manager Nathan Young".[6]

[12] Shortly after sending this email, Mr Doncaster received a phone call from Ms Broom, and he has submitted that during this phone call he expressed to Mr Broom that he was "emotionally distraught and concerned about Nathan's behaviour" and that he never wanted to speak to Mr Young again.

[13] The same morning around 8:50AM, Mr Young went to Mr Doncaster's unit and Mr Doncaster submit that Mr Young "knocked on the door for 4-5 minutes". Mr Doncaster submitted that he was "extremely worried" because of Mr Young being near his residence. Mr Young accepts that he went to Mr Doncaster's residence because he thought it was appropriate given "the suddenness of his message and his long history with the club" and that he knocked on the door twice, but when there was no response, he left. He also submitted that Mr Doncaster's residence lives a short walk away from the club.

[14] On the same day, Mr Young sent the following text to Mr Doncaster:

[15] Mr Doncaster's employment came to an end on 8 September 2025.

[16] First, I note that casual employees are not required to give notice unless such a requirement arises under an applicable enterprise agreement, modern award, or the terms of an employment contract. On the material before me, there is no evidence that the Applicant was subject to any such requirement. Accordingly, the Applicant was not required to provide notice.

[17] I note that the only relevant events are those that occurred prior to, and led to, Mr Doncaster's resignation. Any events occurring after the resignation are not relevant for present purposes. Further, any claims relating to events said to have occurred in 2021 are not relevant to the matter at hand. Given the significant passage of time, I do not accept that those events could have affected the Applicant's decision to resign in any material way. I therefore treat the submissions concerning those events neutrally.

• [18] Mr Doncaster submits that Mr Young's text message stating "I was asking for a chat, I wasn't going to hold a gun to your head! All good" together with the Respondent's attempt to attend the Applicant's residence, caused him to feel threatened. The Applicant claims that, due to concerns for his own safety, he felt compelled to resign and to bring his notice period to an end effective immediately.[7]

• [19] Regarding the text message, Mr Young has submitted, "This expression was meant figuratively and reassuringly, consistent with the Applicant's and my normal conversational style. It was not a threat, nor intended as one. It is a common colloquialism meaning that someone is not being pressured.".[8]

• [20] In relation to the text message, I agree with Mr Young that the phrase used was figurative in nature. Mr Doncaster and Mr Young have known each other for more than 10 years, which indicates a long-standing and familiar relationship.[9] In that context, I do not consider the text message to be threatening. It is a commonly used expression and, viewed objectively, does not convey any threat.

[21] In relation to Mr Young attending Mr Doncaster's residence, noting that Mr Doncaster lived a short walking distance from his former workplace, there is no evidence before me to suggest that Mr Young engaged in any threatening or intimidating behaviour. The Applicant did not answer the door, and accordingly there was no interaction between the partis. In those circumstances, I do not consider Mr Young's conduct to be threatening.

[22] The Club and in particular Mr Young made various attempts to contact Mr Doncaster to clarify any misunderstandings. The Applicant chose not to respond to those attempts. This is a matter I take into account in assessing whether the Applicant's resignation was a consequence of the Respondent's conduct. Mr Doncaster did not take reasonable steps to engage with the Club or to address the matters now relied upon as the basis for his resignation, before electing to resign with immediate effect. This weighs against a finding that the Applicant's resignation was caused by the Respondent's conduct. In all of the circumstances, I have not been convinced that Mr Doncaster's decision to bring forward his resignation was "forced" by conduct or a course of conduct on the part of his employer.

[23] Following the decision in Bupa above, I am satisfied that there was no constructive dismissal of the Applicant and that the Applicant resigned from his employment voluntarily.

[24] The jurisdictional objection is upheld, and the Application is dismissed. I order accordingly.

[1] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd [2020] FWCFB 5365).

[2] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941.

[4] P.18-19 of the DCB - Annexure A to Form F8.

[5] P.15 of the DCB - Annexure A to Form F8.

[6] P.69 of the DCB - Annexure 3 to Form F8A.

[7] P.48 of the DCB - Witness Statement of Adam Charles Doncaster.

[8] P.65 of the DCB - Witness Statement of Nathan Young.

[9] P.16 of the DCB - Annexure A to Form F8.

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