Adam Dowoyna-Sylwestrowicz v Orchard Marketing Pty. Ltd. [2025] FWC 2163

Fair Work Commission|2025-07-24

the Applicant was not dismissed within the meaning of s.386 of the Act; and

[5] A hearing was held to determine whether:

the Applicant has been dismissed; and, if so
whether an extension of time should be allowed.

[6] The Applicant filed submissions on 5 February 2025, the Respondent filed submissions on 19 February 2025, and the Applicant filed further submissions on 26 February 2025, addressing both objections.

[7] The Applicant commenced employment with the Respondent on 14 May 2024.[1]

[8] On 13 October 2024 the Applicant sent an email to members of the Respondent's human resources team (13 October Email). In the 13 October Email the Applicant:

indicated that he was writing to confirm his resignation and to "address several matters regarding [his] role, treatment at [the Respondent] and also seek a resolution":
alleged, by way of summary, that:
- he had experienced constant criticism, exclusion, belittling and undermining behaviours that had impacted his ability to perform his role;
- when he tried to raise his concerns, his was made to feel like the problem for speaking up;
said he had maintained professionalism, refrained from discussing the situation with anyone, attempted to re-establish professional rapport with others, completed the tasks assigned to him however nothing had changed;
said he "felt obliged to resign for the better good of [the Respondent]";
stated that raising issues regarding workplace behaviour and exclusion was a workplace right and the treatment he received constituted adverse action;
indicated that it seemed to him the Respondent was "taking the path of least resistance by focusing on [his] performance rather than addressing the toxic workplace environment";
indicated he was seeking compensation for mental anguish, loss of earnings and damage to his professional standing;
requested records of notes on his file including records of meetings, allegations made and mediation notes.

[9] On 14 October 2024 Amy Duncan, the Respondent's Senior People and Culture Business Partner (Ms Duncan) responded stating:

the Respondent "acknowledged and accepted" the Applicant's resignation;
indicated the resignation would be effective 14 October 2024;
stated that the Applicant would not be required to work during his one week notice period and would be paid in lieu of notice;
stated that the issues raised in the 13 October Email would need to be reviewed and responded to separately.

[10] On 15 October 2024 the Applicant responded stating that he was disappointed with the way things ended, had hoped to have had the opportunity to do a handover and that it was unfortunate that did not get a change to say goodbye to colleagues and clients which added to what had been a challenging experience for him.

[11] On 16 October 2024 Ms Duncan responded and said, among other things, that the Applicant's notes were more than adequate for the team and that the Applicant's email of 13 October 2025 would be referred to the legal team.

[12] On 22 October 2024 the Applicant sent a further email to Ms Duncan asking whether he was to expect a response from his resignation email.

[13] On 31 October 2024 the Applicant filed a Form F8C general protections application not involving dismissal. This application was allocated to Deputy President Roberts and was the subject of a conference before the Commission.

[14] Following that conference the Applicant formed the view that the Form F8C application may not have been the correct form for his circumstances and that he should have filed a Form F8 general protections application involving dismissal on the basis that he was constructively dismissed. [2]

[15] On 10 December 2024 the Applicant filed a Form F8 general protections application involving dismissal, alleging he was dismissed in contravention of the general protections provisions in part 3-1 of the Act. This was more than 21 days after the date on which the Applicant alleged, he was dismissed.

[16] Section 12 of the Act refers to s.386 of the Act for the meaning of "dismissed". Section 386 provides:

(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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, 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; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

[17] It is not in contest that the Applicant's employment ceased on 14 October 2024. However, the Applicant's submits that he was forced to resign due to conduct, or a course of conduct engaged in by the Respondent.[3] In his application, the Applicant indicates:

he was forced to resign due to adverse action taken by the Respondent after he exercised a workplace right to raise a formal complaint about bullying and exclusionary behaviour; and

2. his resignation was coerced by the Respondent following his bullying complaint.[4]

[18] In particular, the Applicant submitted that he had no choice but to resign to protect his mental health and professional integrity and that his resignation was a direct result of the Respondent's actions.[5]

[19] The Applicant alleged he was subjected to ongoing bullying, exclusionary treatment and undermining by a senior colleague, Isabella Williams (Ms Williams), which significantly impacted his mental health and ability to perform his role.[6] The Applicant said that:

on his first day, 14 May 2024, he received a cold greeting and felt left out;
on 16 May 2024 Ms Williams invited 'everyone' around the Applicant to lunch but deliberately excluded the Applicant;
on 17 May 2024 Ms Williams rolled her eyes and dismissed the Applicant;
on around 20 May 2024 the Applicant asked a colleague if Ms Williams was "always like this" and they said Ms Williams "had issues with [the Applicant's] role due to past PMs";
on 27 May 2024 he suggested that Ms Williams and the Applicant get to know each other better but Ms Williams dismissed the idea;
on 1 June 2024 Ms Williams left him out of a brainstorm;
on 5 June 2024 Ms Williams spoke over him in a work in progress meeting;
on 7 June 2024 Ms Williams mocked the Applicant's work in front of others;
on 10 June 2024 he felt undermined in a meeting;
on 12 June 2024 a colleague asked him if he was okay and said Ms Williams' behaviour seemed like "bullying";
on 12 June 2024 he made an appointment with his doctor;
on 14 June 2024 his mental health deteriorated to the point where he had to see a doctor who prescribed medication;
on 15 June 2024 he brought up issues with his manager informally, looking for advice;
during his one month check in with Human Resources on 17 June 2024 the Applicant reported issues to Amy Duncan (Ms Duncan) who acknowledged that others had made similar complaints about Ms Williams;
on 20 June 2024 Ms Williams contradicted him openly in a team meeting which he found embarrassing;
on 27 June 2024 he flew to London and during his time there Ms Williams did not ask how his holiday was going;
on 16 July 2024 when back in Sydney he heard Ms Williams say that he and another colleague, Jess, didn't need to sit together even though the Applicant thought it would be helpful to do so;
on 24 July 2024 Ms Williams mocked his methods on a client call;
on 27 July 2024 he attempted to discuss work dynamics with Ms Williams again, but she refused, stating that she and the Applicant did not need to work together;
on 29 July 2024 he had another catch up with Ms Duncan who suggested the Applicant's issues were due to personal matters and denied saying that others had issues with Ms Williams. The Applicant said he "got pretty worked up" and apologised to Ms Adams;
on 7 August 2024 the Applicant formally requested mediation through Human Resources;
on 21 August 2024 the mediation was cancelled due to the human resources representative being ill;
on 21 August 2024, Ms Williams called the Applicant "too defensive" in front of a colleague and stormed out of a team meeting;
he continued to experience exclusion in September and asked Ms Duncan to proceed with mediation;
on 18 September 2024 he received positive feedback from his manager;
on 19 September 2024 a mediation was held and during this mediation:
- the Applicant proposed solutions such as better communication and mutual respect however Ms Williams reacted aggressively and refused to cooperate;

o Ms Williams was hostile and refused to acknowledge her behaviour;[7]
o Ms Williams threatened to remove herself from the account, placing the Applicant in a precarious position as the Respondent was unlikely to remove Ms Williams from the account;[8]
• on 20 September 2024 he reported bullying at work to his doctor;[9]
• on 23 or 24 September 2024 the Respondent placed him under performance review despite the Applicant receiving positive feedback only days earlier and there being no prior warnings or discussions about performance concerns.[10] The Applicant submitted that this created significant additional stress for him and undermined his ability to continue in the role;[11]
• on 11 October 2024 Ms Williams dismissed his contributions on a team call;[12]

on 11 October 2024, after realising the Respondent had no intention of protecting his well-being, he verbally informed his manager of his resignation and followed up formally via email on 13 October 2024;

• on 14 October 2024 the Respondent immediately terminated his employment without allowing him to work during his notice period.[13]

[20] The Applicant's concerns about Ms Williams were presented differently in the Applicant's Form F8C. In his Form F8C the Applicant also said:

Upon beginning his role, he was met with an unwelcoming atmosphere from the account manager on his team, Ms Williams, who displayed excluding and dismissive behaviours, regularly inviting others around the Applicant to join lunch or asking if they needed anything while intentionally excluding the Applicant.
Ms Williams would ignore the Applicant's input, dismiss or disagree with almost everything he said, speak over the Applicant, roll her eyes and disregard any contribution the Applicant attempted to make.
Ms Williams would routinely ignore the Applicant's ideas and suggestions and devalue his contribution.
Despite needing to work together on projects, Ms Williams consistently left the Applicant out of relevant conversations, excluded the Applicant from email chains and failed to provide timely work briefings.
Ms Williams would belittle the Applicant in front of colleagues and clients.

[21] The Applicant indicated in his Form F8C that he made multiple attempts to address his concerns with Ms Willliams directly, but that Ms Williams dismissed the need or insisted that she did not need to work with the Applicant, which the Applicant said was an inaccurate assertion.

he raised concerns regarding bullying, exclusion and undermining behaviour by Ms Williams with his manager, Human Resources and the Head of Project Management;
no meaningful intervention was made by the Respondent to address the bullying behaviour, leaving the Applicant in an unsupported and toxic environment;
the Respondent failed to provide a safe workplace by allowing bullying to persist without effective intervention and instead placing pressure on the Applicant;
the Respondent retaliated against him for exercising a right to seek intervention for bullying;

• the adverse treatment discouraged him from continuing his employment, forcing him to resign.[14]

[23] In relation to the question of whether the Applicant was forced to resign the Respondent submitted, by way of summary:

• a forced resignation is when an employee has no real choice but to resign;[15]
• to establish a forced resignation the Applicant must show that the Respondent's actions were so severe that he had no real choice or no reasonable alternative to resign.[16]

the Applicant's contemporaneous written and verbal communications and images of him socialising with colleagues were evidence that he enjoyed his time working for the Respondent;
the Applicant experienced a "personal dynamic challenge" with Ms Williams and became obsessed with this relationship;
the Applicant was not excluded or belittled by the Respondent and was invited to attend social events;
for a significant period, the Applicant did not formally complain about the relationship dynamic, instead insisting that as a senior employee he preferred to handle it himself;
the Applicant's performance was being impacted by his obsession with Ms Williams;
to ensure the Applicant successfully completed probation and to resolve any difficulties between the Applicant and Ms Williams, the Respondent simultaneously engaged in dispute resolution and performance discussions, investing significant time, effort and resources in both;
the Applicant never formally disclosed any mental health condition to the Respondent but made casual references to his mental health in various contexts including his past, deceased family, turning 40 and Ms Williams;
this contributed to the Respondent's decision to allocate significant resources to the Applicant, including accommodations beyond those typically offered to staff on probation;
despite the Respondent's efforts the Applicant was not satisfied with the speed at which his relationship with Ms Williams was progressing and he chose to resign and seek monetary compensation;
the Applicant promptly filed a Form F8C application for a claim not involving dismissal;

• despite the Respondent's genuine attempts to resolve that claim, the Applicant was dissatisfied with the outcome and his claim has now evolved into one involving forced resignation.[17]

[25] In relation to the Applicant's concerns with Ms Williams, the Respondent submitted:

• In a Microsoft Teams discussion between the Applicant and Ms Duncan on 22 July 2024, being over a month after the Applicant's first doctor's visit, Ms Duncan checked in on the Applicant to see how the relationship with Ms Williams was going and the Applicant was positive and requested a check-up in a few weeks' time.[18]
• Given the Applicant was a senior employee and noting the nature of the concerns raised, being that he was not invited to lunch on his third day, the Respondent respected these wishes and monitored the progress of the relationship through check ins.[19]
• On 13 August 2024, following a check in, the Applicant made comments to Ms Duncan to the effect of "I don't want people to solve our problem... I'm 40 years old next month...I don't want you to do anything".[20]
• The Respondent initiated the mediation.[21]
• The resolution process was ongoing, and the Respondent was keen to arrange another mediation session.[22]
• The Respondent did not oppose the Applicant's workplace right in raising concerns and on the contrary, actively encouraged and facilitated the Applicant in exercising his workplace right.[23]

[26] The Respondent rejected that there had been no meaningful intervention and submitted that notwithstanding that the Applicant wanted to deal with the issue himself the Respondent took the actions below:[24]

The Applicant met with Ms Duncan and Jared Frere (Mr Frere), separately or together, over a dozen times to discuss his wellbeing and the relationship with Ms Williams.
The Applicant met with the Respondent's Global Head of Learning and Development and Head of People and Culture Australia on numerous occasions regarding Ms Williams.
The Applicant had multiple one-on-one meetings with Narinder Kaur, the head of the department, most notably on 25 June 2024 and 20 August 2024, which were arranged by the Respondent.
On 7 August 2024, the Respondent facilitated a meeting between Mr Frere, the Applicant and Ms Williams in an effort to work through differences.
The Respondent arranged a mediation between the Applicant and Ms Williams through its parent company to ensure impartiality.
In preparation for the mediation, the group representative met with both the Applicant and Ms Williams to discuss their desired outcomes and sent a questionnaire for them to complete.
The mediation was facilitated on 19 September 2024.
The Respondent followed up with the Applicant regarding Ms Williams and/or the concerns raised.
The Applicant was included in all social events arranged and facilitated by the Respondent.
The Applicant was provided with the flexibility to work from home on the Respondent's 'connected days' on which staff are typically required to work from the office.
The Respondent provided 45.4 hours of unpaid leave.
The Respondent engaged in separate conversations with Ms Williams to support a constructive working relationship.

[27] The Respondent submitted that while it does not accept the Applicant's timeline, at its highest the concerns raised by the Applicant include not being invited to lunch or asked about his holidays and the behaviours described are objectively not of a severe nature.[25] The Respondent submitted that while it took the concerns seriously and allocated significant resources to address them, the Respondent cannot be held responsible for alleged personal relationship breakdowns, particularly ones it is actively attempting to address.[26]

[28] In its Form F8D response to the Form F8C application, which the Respondent continued to rely on, the Respondent:

submitted that the unwelcoming atmosphere or hostile tone perceived by the Applicant is isolated to an experience with a colleague and does not translate into the Applicant's experience and/or treatment with his employer;
denied that Ms Adams acknowledged others had made similar complaints about Ms Williams and says that any comments were limited to words to the effect that Ms Williams required some time to 'warm up';
admitted that the Applicant spoke about Ms Williams to the Applicant's line manager the people and culture representative and the Head of Project Development but said that the Applicant repeatedly and explicitly requested that these individuals not directly intervene;

• submitted that throughout the process the Applicant made references to the relationship with the colleague improving.[27]

[29] In relation to the performance management processes implemented by the Respondent, the Respondent submitted:

• it was not taking action with the intent, or which had the probable result, of bringing the relationship to an end but rather, held performance discussions with the Applicant that were designed to ensure the employment relationship did not come to an end;[28]
• it was transparent about what needed to be improved in order for the Applicant to meet probation and succeed in his role;[29]
• the Applicant acknowledged that he was not performing at the level required of a senior employee and the Respondent was within its rights to take steps to address and improve his performance;[30]
• the Applicant acknowledged that he was not performing at the level required of a senior employee and the Respondent was within its rights to take steps to address and improve his performance;[31]
• performance discussions during probation are an ordinary part of the Respondent's practice.[32]

[30] The Respondent submitted that the fact that the Applicant was not satisfied that a resolution was reached with Ms Williams within his subjective timeline does not mean there was a constructive dismissal, or that the actions of the Respondent left him with no choice but to resign.[33] The Respondent submitted that the Applicant had a "surplus of choices other than to resign"[34] including:

• staying with the Respondent and working on the relationship with Ms Williams and other professional relationships;[35]
• remaining and engaging in the dispute resolution process with the Respondent and Ms Williams, which was ongoing;[36]
• focusing on the factors needed to improve and working to achieve success.[37]

[31] The Respondent submitted that if the Applicant was dissatisfied with the ongoing approach from the Respondent, which the Respondent denies was unsatisfactory, and considered the conduct of Ms Williams to be so severe, he had the choice to make a formal external complaint to:

SafeWork NSW;
the Fair Work Commission;
the Australian Human Rights Commission;

[32] The Respondent submitted that the Applicant resigned and explicitly stated the negative impact the relationship with Ms Williams had on his mental health and in consideration of the Applicant's well-being, the Respondent exercised its entitlement to release the Applicant from working his notice period.[39] The Respondent submitted that it is confusing for the Applicant to assert the severe impact the role was having on his life while simultaneously claiming he was willing to work out his notice period and expressing disappointment that he was not required to do so.[40]

[33] In reply the Applicant submitted, by way of summary that:

the Respondent ignored the substantive and consistent nature of his claims, being that his workplace environment became intolerable due to the ongoing harassment and the Respondent's failure to act;
while the Exclusion and belittling was not from the Respondent itself but was from Ms Williams, the Respondent had a duty of care to intervene and manage the workplace conflict appropriately;
the Respondent's attempt to distance itself from responsibility by claiming it was an issue between colleagues does not absolve it of its duty to ensure a workplace free from bullying and harassment;
he provided details to the Respondent about the harm caused but the Respondent did not separate the Applicant and Ms Williams, discipline Ms Williams or offer safer working conditions;
the bullying behaviour and Respondent's inaction had a direct impact on the Applicant's performance and options such as moving the Applicant to another client or implementing effective intervention strategies could have improved the situation;
the Respondent's own evidence demonstrates it was aware of ongoing issues yet it failed to take reasonable and effective measures to stop bullying and instead of proactively addressing the situation, chose to remain passive;
the Applicant's resignation was not due to dissatisfaction with the speed of workplace relationship improvement but was rather due to the cumulative deterioration of the Applicant's mental health from continued mistreatment;
the Respondent's failure intervene and protect his wellbeing forced him to resign to safeguard his mental health;

• at no point did management inform the Applicant of any pathways to resolve the situation beyond an ineffective mediation process and had the Respondent genuinely desired his continued employment it would have provided protective measures. [41]

Finding regarding whether the Applicant was dismissed

[34] It is not disputed that the Applicant resigned, providing his resignation email on 13 October 2024. The principal issue arising in this matter is whether the Applicant was forced to resign because of conduct, or a course of conduct engaged in by the Respondent.

[35] In putting forward his case that he was forced to resign the Applicant largely relies on bullying he says he experienced by Ms Williams and the Respondent's response to that bullying which he submits did not amount to meaningful intervention. The Applicant also appears to suggest that the Respondent's performance management measures formed part of the Respondent's conduct that forced him to resign.

[36] While Ms Williams did not appear in the proceedings to give evidence, it is apparent that the relationship between the Applicant and Ms Williams was not a positive one. The Applicant filed a copy of a text message said to be between the Applicant and a colleague on 26 July 2024 in which the colleague says, among other things, "hope orchards treating you well". The Applicant has replied "Orchard treating me well. Issy not so much" to which the colleague has replied "Standard". The Applicant filed another series of text messages that appear to be sent by another colleague on 20 August 2024, Jess Orchard, in which she appeared to be complaining although the context in which the messages have been sent is not entirely clear. The Applicant also said that Ms Duncan had indicated that other people had concerns about Ms Williams behaviour. The Applicant appears to advance these matters to demonstrate that he was not alone in the concerns he held about Ms Williams' behaviour.

[37] I am unable to make a firm conclusion about Ms Williams' treatment of others in the workplace however as Ms Williams did not give evidence to contest the Applicant's account of her treatment of him, I accept that and at the very least the Applicant perceived that she was subjecting him to repeated, unreasonable behaviour that would amount to bullying. I also accept that the Applicant raised his concerns with Ms Williams with employees of the Respondent including Ms Duncan from Human Resources, his manager Mr Frere and the Respondent's Head of Project Development on numerous occasions. The Respondent was clearly aware that the Applicant had concerns about Ms Williams' behaviour toward him.

[38] The Applicant's evidence suggests that on 15 June 2024 he brought up issues with his manager informally, looking for advice, and raised concerns during his one month check in with Ms Duncan on 17 June 2024. I do not consider that the Respondent was "passive" or did not act on those concerns. Rather, it seems likely that the Applicant, who had only been employed for a month at this stage, wanted to see if the relationship with Ms Wiliams could be improved via his own actions. It is apparent that the Respondent was actively monitoring the situation and by way of example, the Applicant filed a copy of a Microsoft Teams communication with Ms Duncan on 22 July 2024 when the Applicant had returned from leave in which proceeds as follows:

Ms Duncan: "no in all seriousness, I did want to catch up with you and understand how the relationship dynamic we discussed was tracking"

Applicant: "Perhaps a little unfair and too soon to say given i was away. I still felt like there was a frosty atmos whenever we were on meetings together but will see how being in person is.. I had a lot of time to think about things and deal with the mental side of it so I think I'd be less bothered by it if it were to continue (hopefully).. perhaps we check in in a couple of weeks again?"

Ms Duncan: "I'm glad you've had space to process, but I don't feel you should be in position where you need to."

"Let's pick up end of next week? Want to respect your decision not to escalate etc, but I also think it is important we lean in and support resolve."

[39] The evidence suggests that Ms Duncan was in regular contact with the Applicant about his concerns with Ms Williams and arrangements were ultimately made for mediation, which the Applicant had himself identified as a potential means of resolution. I accept that mediation was not successful, and the Applicant's evidence suggests that Ms Williams did not participate constructively in the mediation process and threatened to remove herself from the account. Despite this, the Applicant's communication with the Respondent suggests that he still believed he could "try to move forward" with his relationship with Ms Williams and that the situation was not so dire that the Applicant had formed the view that could not work with her or for the Respondent. This can be seen from an email sent by the Applicant to his manager Mr Frere following the mediation with Ms Williams on 19 September 2024 in which the Applicant wrote:

Been wfh. Not been ruminating or stressing but have been thinking. Few things on my mind:

Izzy may come round and not go off the account and we try to move forward. I still believe we can but will require effort from her. I'm willing to put in the effort.
I manage TTAS account on my own.. will be a lit of work but I've been a hybrid before. Would need PM support (mid) and unsure how that would affect Jess/her manager.
Could Zach and Izzy swap?"

It was upsetting earlier that the mediation didn't go as I'd hoped. No idea how suggesting we be kind to one another blew things up. Regardless, emotions aside, I don't want to leave. I do like it here. I hear what you said, but Orchard is one of the better agencies I have worked at. I take on your feedback and wise words. I just hope the situation is recoverable.

[40] Further, in an email sent by the Applicant to Ms Williams on 20 September 2024, the day following the mediation, the Applicant wrote;

I've been reflecting on how things went yesterday and tbh I found it pretty upsetting. I had really hoped we'd be able to move forward. I'm still willing to put in any effort to make that happen.

The truth is, I don't care if you dislike me or have an issue with me personally. While I'd love to understand what caused this, I don't need to. What I do care about is being treated with respect and decency. The same that you'd show any other person at Orchard.

The repeated behaviour - ignoring me, undermining me, talking over me, rolling your eyes, excluding me, has all been quite hurtful tbh. I've kept track of over 30 instances of this kind of behaviour since I started working at Orchard. Things like not being asked about lunch or being excluded from conversations like the one about Uber ratings might seem minor. They are in isolation. Perhaps this is me being overly sensitive but when these things happen repeatedly, it starts to feel intentional and excluding.

You mentioned that there's an uncomfortable vibe in the office. There absolutely is. It's hard for others not to notice. Jess in particular, sees it more than most, and it puts her in a tough spot. People have asked me if I'm okay because it's visible that things between us aren't working.

I've tried to handle this professionally. I don't have any personal issue with you. I never have. I've only ever tried to be respectful and focused on our work for the sake of the team, for jess, and for TTAS. But it's gotten to a point where I hesitate to speak up in meetings, both internal and client facing, because of how you react towards me. It's noticeable by all.

I would love for us to put any personal issues or differences aside and work together with mutual respect and professionalism. I'm not looking for a friendship, just a functional working relationship. I've tried to make small efforts to improve things but can refrain from doing so moving forward.

I'd really like to draw a line under this and move forward. I'm not sure how things escalated the way they did yesterday, but I can move past it if you can. I believe we can still work well together on TTAS and be a strong team.

I don't hold any hard feelings. I just want to enjoy coming to work, fell like part of the team, and do great work. I'm sure you want the same.

If I've done or said anything in the past that upset or annoyed you, I'm sorry. I really hope we can put this behind us."

[41] It is apparent that at this stage, being three weeks prior to the Applicant's resignation, he was still actively trying to improve his relationship with Ms Williams and believed the issues could be resolved.

[42] It is however apparent that the Applicant's performance was impacted and that the Respondent undertook performance management processes to deal with this. On 24 September 2024 the Applicant sent an email to Ms Duncan and Mr Frere which said:

Thank you both for taking the time to meet with me this afternoon. I wanted to follow up to confirm my thoughts and commitments following our conversation.

I fully accept the feedback provided an appreciate being given the opportunity to turn things around during the remainder of my probation period. I acknowledge that I haven't consistently conducted myself at the senior level expected of me recently, largely due to the impact the situation has had on my ability to perform at my best. Moving forward, I will make every effort to demonstrate my full potential and refocus on performing at the high standard that's expected in my role.

I understand your desire to address the two matters separately, but I believe the challenges I've faced are closely linked to the behaviour I've been experiencing. That said, I'm encouraged by the positive steps we've taken over the past few days and remain hopeful that we can resolve these issues without further need for mediation. I am still keen to hear about any next steps from the mediation last week, if required.

I look forward to regrouping in a few weeks to review my progress, and I am committed to ensuring that the situation continues to improve.

[43] The above email indicates that the Applicant acknowledged that he had not consistently conducted himself at the senior level expected of him and that he was willing to put in the effort to change this.

[44] Ms Duncan replied to the Applicant's email of 24 September 2024 on that same day and wrote:

And also wanted to follow up and re-iterate what I mentioned re being away. If you need to escalate anything or any issues, AK, Amy and Martin are around to help."

[45] This indicates that despite Ms Duncan being away, she wanted to ensure that the Applicant knew there were others around to support him. It is also apparent that Ms Duncan maintained contact with the Applicant about his concerns with Ms Williams as can be detected from an email sent by Ms Duncan to the Applicant at 4.27pm on 3 October 2024 in which Ms Duncan wrote:

Great to chat briefly yesterday and glad to hear things appear to be going better between you and Izzy!

Do you think it is worthwhile having a check-in session to follow up the last mediation? Keen to ensure things remain on track.

[46] The above email, sent only 10 days prior to the Applicant's resignation, suggests that the Applicant had communicated to Ms Duncan that his relationship with Ms Williams had improved but nevertheless Ms Duncan was monitoring this and seeking the Applicant's views on a further check in session.

[47] In an email sent by the Applicant to Ms Duncan on 3 October 2024 at 6.01pm the Applicant said:

Thank you for putting in a catch up and for the constructive feedback from last week's meeting. I fully acknowledge the areas for improvement, particularly around demonstrating senior-level leadership and contributing to more efficient work processes, and I appreciate the opportunity to work on these moving forward.

That being said, I feel it's important to reiterate that the relationship issues and workplace behaviour I've experienced have had a significant impact on my ability to perform at the level expected of me. While I recognise the positive changes recently, I believe it's crucial to acknowledge that my performance and behaviours are intrinsically linked to the challenges I've faced with Izzy. The repeated instances of undermining and exclusion have affected my ability to contribute fully and have impacted my mental health.

I want to be clear that I am committed to turning things around and will focus on demonstrating the necessary improvements. However, for me to succeed and perform at the senior level expected, I need to be working in an environment where I am respected and collaboration is fostered.

I remain hopeful that we can continue to make progress in resolving these interpersonal issues, as they are key to my ability to meet expectations and fully contribute to the team.

Thank you again for your understanding, and I look forward to continuing to improve in the weeks ahead."[43]

[48] The above communication suggests the Applicant held a view that there had been recent positive changes and remained hopeful that the progress toward resolving the interpersonal issues could continue but that the challenges with Ms Williams had impacted his performance and he wanted to turn this around. The email communications on 3 October 2025 suggest the situation with Ms Williams was improving rather than deteriorating. While the Applicant

attributed his performance issues to the challenges with Ms Williams, the Applicant's email does not suggest he had concerns about being provided with performance feedback but rather considered that the feedback provided to him was "constructive".

[49] It seems the ultimate trigger for the Applicant's resignation was an event on Friday 11 October 2024 in which the Applicant considered that Ms Williams had dismissed his contributions on a team call.[44] The Applicant said that on 11 October 2024, after realising the Respondent had no intention of protecting his well-being, he verbally informed his manager of his resignation and followed up formally via email on Sunday 13 October 2024.

[50] The approach to be adopted in considering whether there has been a dismissal within the meaning of s.386(1) of the Act was described as follows by the Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli:[45]

"[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an 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, 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 in s.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".

[51] While the Applicant communicated to the Respondent that he enjoyed working in the business, I accept that the Applicant was unhappy with his working environment and sought medical treatment as can be seen in a report for WorkCover from the Applicant's doctor which records that:

The Applicant consulted his doctor multiple times throughout his employment with the Respondent "citing ongoing exclusion, bullying, and inadequate management support. The described workplace environment directly correlated with the onset and deterioration of his mental health, with symptoms intensifying due to the hostile conditions he reported."
In the doctor's opinion "employment has been the main contributing factor to the psychological injury. The persistent bullying, exclusion, and lack of effective resolution from management in response to [the Applicant's] concerns have directly led to a deterioration in his mental health, requiring active medical treatment."

[52] However, the Respondent submitted that at no point did the Applicant advise the Respondent of any formal mental health conditions but rather advised he was "hypersensitive"[46] and made casual references to his mental health in various contexts including his past, deceased family, turning 40 and Ms Williams.

[53] The Respondent pointed out that in the Applicant's Form F8C the Applicant stated:

"My mental health began to suffer, and I did not feel safe fully disclosing the extent of my mental health challenges to HR for fear of repercussions."

[54] The Respondent could not have known about the nature and extent of the Applicant's psychological injury. Rather, the materials before the Commission suggest a situation in which:

the Applicant had sought to deal with poor behaviour from Ms Williams directly, reaching out to management and human resources, letting them know he was doing so and seeking his manager's advice;
when the situation did not improve the Applicant suggested and the Respondent arranged for mediation which was not ultimately successful in resolving the issues;
while mediation was not successful the Applicant had identified some potential scenarios post mediation, one of which involved moving forward and working with Ms Williams;
the Applicant had again sought to directly address his concerns with Ms Williams;
Ms Duncan was monitoring the situation and as of 3 October 2024 it seemed that there had been some improvement in the relationship between the Applicant and Ms Williams;
Ms Duncan had suggested another check in on 3 October 2024 to ensure things remained on track;
the Applicant encountered some performance issues, possibly because of the challenges he was having with Ms Wiliams, and the Respondent was implementing processes in parallel to deal with this, providing feedback the Applicant described as "constructive;

• after Ms Williams dismissed his contributions on a team call on 11 October 2024 the Applicant decided to resign.[47]

[55] While the approach adopted by the Respondent may not have been effective in resolving the Applicant's concerns regarding Ms Williams, it is apparent that it was attempting to deal with the issue and that its efforts to do so had not yet been exhausted. Notwithstanding that there had been some improvement as of 3 October 2024, Ms Duncan was clearly intending to engage further with both the Applicant and Ms Williams about the issues between them.

[56] In this context, I consider there were other avenues that the Applicant could have pursued instead of resignation. The Applicant could have made clear to the Respondent that continuing to work with Ms Williams had caused him psychological harm and enabled the Respondent to explore an alternative approach to dealing with the issue beyond mediation and direct communication between the Applicant and Ms Williams. While the Applicant may have held fears about repercussions or his job security when making such a disclosure, it would have assisted the Respondent to have this information noting that the Respondent's efforts toward resolution were ongoing. Had the Applicant been so doubtful about the Respondent's ability to effectively address his concerns regarding Ms Williams, he could also have sought external assistance from SafeWork New South Wales or the Fair Work Commission via an application for orders to stop bullying.

[57] I also consider that the Respondent's actions in identifying opportunities for the Applicant to improve his performance to be reasonable and indeed of benefit to the Applicant in circumstances where he was in his probation period and was motivated to perform to the standard expected. The evidence does not establish that the resignation was coerced by the Respondent, as alleged by the Applicant in his application. To the contrary, the Respondent was actively trying to assist the Applicant in resolving concerns he had about Ms Williams and giving him feedback about his performance so he could improve.

[58] When all the circumstances are considered, I do not accept that the Respondent's conduct was such that it forced the Applicant to resign. More specifically, I do not accept that the Respondent engaged in conduct with the intention of bringing the employment to an end or that termination of the Applicant's employment was the probable result of its conduct such that the Applicant had no effective or real choice but to resign.

[59] I find that the Applicant was not dismissed within the meaning of s.386(1) of the Act.

[60] The application was filed on 10 December 2024, 58 days after the dismissal and more than 21 days after the dismissal took effect. Had I found that the Applicant was dismissed, the Applicant would have required an extension of time for the application to proceed.

[61] Section 366(2) of the Act provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness between the person and other persons in a like position.

his resignation was not voluntary but was the result of constructive dismissal caused by persistent bullying and exclusionary behaviour by Ms Williams;
at the time of his resignation he was experiencing significant psychological distress, as evidenced by a medical diagnosis of Major Depressive Disorder and prescribed anti-depressants;

• due to the stress the Applicant mistakenly submitted an incorrect application form, being a Form F8C instead of a Form F8, and this was not an intentional delay, but a procedural misunderstanding exacerbated by his mental state.[48]

[63] The Respondent submitted that there is nothing unusual, special or uncommon for someone who simply "misunderstood" the appropriate form to submit or "made a mistake".[49] The Respondent submitted that it rejected that the Applicant's mental health impacted his ability to understand the correct form in circumstances where he engaged in formal dealings such as:

obtaining legal advice within two days of resigning;
writing to the Respondent on 14 October 2024 with a detailed explanation of his position and requesting compensation;
following up with the Respondent on his resignation and including his request for compensation six times over a week;
completing the Form F8C in substantive detail on 31 October 2024;
drafting the first iteration of a detailed timeline by 6 November 2024;

• making a workers compensation claim by 6 November 2024, including substantive details.[50]

[64] The Respondent referred to the matter of Ballarat Truck Centre Pty Ltd v Kerr[51] in which the Commission found that despite the applicant suffering anxiety and depression, evidence showed that the applicant could engage in formal dealings related to her dismissal because she was able to contact JobWatch and WorkSafe for assistance, write to the owner of the employer, meet with a solicitor to complete a WorkCover claim and provide a written summary of events. The Respondent submitted that the matter is of extreme similarity, despite the Applicant suffering anxiety and depression, he engaged in formal dealings of the nature referred to earlier in this decision.

[65] In its response to the Form F8 application the Respondent submitted that it did not accept that the Applicant had suddenly "realised" he may not have submitted the correct form for the following reasons:

The Applicant has indicated in his curriculum vitae that he has a background in law.
The Applicant's resignation email dated 13 October 2024 states "Based on legal advice, I'm confident that I have strong grounds for an adverse action claim under General Protections" indicating that the Applicant also received legal advice on general protections claims.
The Form F8C chronologically comes after the Form F8 and the Respondent did not accept that someone with a legal background and who had received legal advice somehow landed on the Form F8C before the Form F8 but rather contends that the Applicant knew the relevant form to submit based on his circumstances of non-dismissal.
The first words that appear on the Form F8C are enlarged in bold font and state "General Protections application not involving dismissal".
There is an entire section on the first page of the Form F8C titled "Who can use this form" which states that it is for "a general protections dispute not involving dismissal".
The phrase "General Protections application not involving dismissal" is repeated 13 times and the phrase "not involving dismissal" is repeated 17 times in the Form F8C document that the Applicant completed in substantive detail.
The Form F8C is designed to be clear for individuals submitting claims that are often self-represented without legal training.
The Applicant's Form F8C does not mention constructive dismissal, which the Respondent submits is a new, vexatious claim.

[66] The Applicant submitted that his legal education occurred over 15 years ago, is outdated and is not relevant to his current professional skill set.[52]

[67] In his Form F8C the Applicant states:

• "It became apparent that the actions taken by the Respondent were intended to manage me out of the organisation rather than address the root issue of bullying. Consequently, I felt I had no other choice to resign to protect my mental health and professional integrity."[53]
• "2. Section 343 - Coercion: I was pressured into resigning from my role due to continued mistreatment and exclusion, instigated by [Ms Williams] who not only threatened to remove herself from our shared account but also repeatedly threatened to resign herself. These threats - which she knew were unlikely to be enacted - created additional pressure on me, knowing that management would instead direct adverse action toward me. This sustained negative treatment and positioning by the Respondent effectively coerced me into resignation, infringing upon section 343, which protects employees from coercion in workplace situations."[54]

[68] These statements indicate that the Applicant raised that he was forced to resign when he lodged his Form F8C. However, there are also differences between the Form F8C and Form F8. In the Form F8C application the Applicant alleges a broader range of breaches, involving ss.340 and 343 as well as s.344 (concerning undue influence or pressure), s.352 (discrimination on the basis of a physical or mental disability) and s.355 (coercion in allocation of duties);[55] In the Form F8 application the Applicant only alleges breaches of ss.340 and 341 (concerning workplace rights) and s.343 (concerning coercion).[56]

[69] As pointed out by the Respondent, the Applicant's Curriculum Vitae indicates that the Applicant has a background in law. The Curriculum Vitae also indicates that the Applicant has an undergraduate law degree (LLB) from a tertiary education provider in the United Kingdom from which he graduated with distinction. While the Applicant may have studied abroad and 15 years ago, I consider that the Applicant was equipped with the skills to be able to undertake legal research, comprehend the concept of constructive dismissal and make the basic distinction between an application dealing with dismissal and one that was not. This is particularly the case in circumstances where the Form F8C:

is titled "Form F8C - General protections not involving dismissal";
states in its description on the first page, "This is an application for the Fair Work Commission (Commission) to deal with a general protections dispute not involving dismissal under Part 3-1 of the Fair Work Act 2009";
refers to a "non-dismissal related dispute" in the context of question 1.2;
refers to a "general protections application not involving dismissal" in the context of question 3.2.

[70] The Applicant's correspondence to the Respondent also indicates that he has sought legal advice and no representative error is alleged or established on the evidence. Further, I do not accept that the Applicant's evidence concerning his mental health establishes that he was unable to make the distinction between different types of applications. Rather, his conduct demonstrates that he has been able to engage in formal dealings and make claims in different jurisdictions. While there is some overlap in the issues that are raised in the Form F8 and Form F8C, I consider that they are ultimately different applications and that it is unlikely that the Applicant made a mistake and confused the two. The probable reason for the delay is that the Applicant lodged the Form F8C, seeking to deal with a broader range of alleged breaches, and when the dispute did not resolve to his satisfaction at the conciliation conference, he sought to make a subsequent application of another kind, albeit out of time. However, even if the Applicant did make a mistake, which seems unlikely, I agree with the Respondent that there is nothing unusual, special or uncommon about a person making such a mistake when this factor is considered in isolation.

Section 366(2)(b) - any action taken by the Applicant to dispute the dismissal

[71] The Applicant submitted that he took immediate action to dispute his dismissal via the following steps:

on 11 October 2024, he verbally informed his manager of his resignation, citing the psychological impact of workplace bullying;
on 13 October 2024 he formally submitted his resignation email, reiterating that the toxic workplace environment left him no choice but to resign;
within the 21-day timeframe he lodged a Form F8C with the Commission to dispute his treatment and resignation;

• upon realising the procedural error, he promptly submitted the Form F8 to ensure the claim accurately reflected the substance of his concerns.[57]

[72] In his resignation of letter of 13 October 2024, the Applicant said he "felt obliged to resign for the better good of [the Respondent]" and stated that raising issues regarding workplace behaviour and exclusion was a workplace right and the treatment he received constituted adverse action. However, I do not consider that the Applicant went so far as to dispute his actual dismissal in this letter, i.e. by alleging that his resignation was forced or that he had no other no choice but to resign.

[73] Despite this and while I have found that the Applicant is unlikely to have made a mistake in submitting the form that he did, as noted above, the Form F8C does explain that the Applicant felt he "had no other choice to resign to protect [his] mental health and professional integrity."[58] While the Applicant filed a different application within the 21 day timeframe, this concern is the substance of the application currently before the Commission. As such, had I found that the Applicant was dismissed, I would have found that the Applicant did take action to dispute his dismissal in raising this concern within his Form F8C.

Section 366(2)(c) - prejudice to the Respondent (including prejudice caused by the delay)

[74] The Applicant submitted that granting an extension of time will not cause any undue prejudice to the Respondent because:

the Respondent had already assembled a detailed response to his claim and participated in the Commission's preliminary processes;
no operational or procedural disruptions to the Respondent would arise from the extension, as it has been aware of the Applicant's complaints and surrounding circumstances since the Applicant's resignation;

• the Applicant has not demonstrated any material disadvantage caused by the extension.[59]

[75] The Respondent submitted that it would suffer prejudice if the claim were allowed[60] as:

it has a small in-hours legal team, and has been engaged on the matter for a significant time expending significant resources;
it engaged with the Applicant through his Form F8C application in an attempt to resolve the matter, but the Applicant was not satisfied with the outcome;
the Respondent should not be burdened with the cost of defending another action simply because the Applicant was not satisfied with the outcome or alternatively "made a mistake";

• there is a genuine risk that the Applicant will continue to evolve his claim, further consuming the Respondent's time and resources unnecessarily;[61]
• the Respondent is expending resources on the Applicant's workers' compensation claim which is still undergoing an investigation.[62]

[76] While the Respondent has engaged in proceedings regarding a general protections application not involving dismissal and in the workers' compensation jurisdiction, I do not consider that granting an extension would give rise to prejudice to the Respondent as there is nothing to prevent an applicant from making claims for both dismissal and non-dismissal related matters and workers' compensation. The Respondent would still need to engage in proceedings regarding all three claim types. I am unable to identify any prejudice to the Respondent.

Section 366(2)(d) - the merits of the application

[77] The Applicant submitted that his claim has strong merits because:

his resignation was directly caused by bullying, exclusionary behaviour and the Respondent's failure to intervene;
the Respondent's own evidence acknowledges that concerns about Ms Williams' behaviour were raised yet it took no meaningful action to address the toxic environment;

• the Applicant sought to resolve the issues and repeatedly expressed a desire to remain employed, refuting any suggestion that his resignation was voluntary.[63]

[78] The Respondent submitted that the Applicant's claims have extremely poor merits because in consideration of all the circumstances, the performance review is unlikely to be seen as adverse action, regardless of dismissal or not.[64]

[79] Had I found that the Applicant was dismissed I would have found that the merits of the application will necessarily turn on the evidence and developed legal arguments and that it is not possible to make any firm assessment of the merits of the application based on the material before me.

Section 366(2)(e) - fairness between the person and other persons in a like position.

[80] In respect of this consideration the Applicant submitted:

denying the extension would prevent him from seeking redress for significant harm caused by the Respondent's failure to provide a safe workplace;
he is at a disadvantage compared to a corporate entity with resources and legal expertise and dismissing his claim due to a procedural misunderstanding would exacerbate this imbalance and deny justice in a matter with significant implications for workplace safety and mental health;

• the Respondent's assertions about the delay focus on procedural points rather than addressing the substance of the claim.[65]

[81] The Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[66]

[82] The Applicant did not bring to my attention any matters currently before the Commission or others previously decided by the Commission relevant to this consideration.

[83] I consider this to be a neutral consideration.

[84] Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[67] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[68]

[85] As I have found that the Applicant was not dismissed, the application must be dismissed. However, even if I had found that the Applicant was dismissed, taking into account my findings regarding the matters in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances after considering those matters individually as well as in combination.

[86] I have found that the Applicant was not dismissed within the meaning of s.386(1) of the Act and the application is dismissed on that basis.

[87] Further, having regard to all of the matters at s.366(2) of the Act, I would not be satisfied that there are exceptional circumstances and as such there would be no basis for the Commission to allow an extension of time. Even if I had found that the Applicant was dismissed, the application would also be dismissed on this basis.

[1] Applicant's Form F8 Application, response to q. 1.2.

[2] Applicant's Form F8 Application, response to q. 1.5.

[4] Applicant's Form F8 Application, response to q. 2.2.

[8] Applicant's Form F8 Application, response to q. 2.2.

[10] Applicant's Submissions, Applicant's Form F8 Application, response to q. 2.2.

[11] Applicant's Form F8 Application, response to q. 2.2.

[14] Applicant's Form F8 Application, response to q. 2.2.

[15] Respondent's submissions at [11] - [12].

[16] Respondent's submissions at [13].

[17] Respondent's submissions at [9].

[18] Respondent's submissions at [17], Annexure A.

[19] Respondent's submissions at [17].

[23] Respondent's submissions at [18].

[24] Respondent's submissions at [33].

[25] Respondent's submissions at [41].

[26] Respondent's submissions at [43].

[27] Respondent's Form FD response, Annexure A.

[28] Respondent's submissions at [19].

[30] Respondent's submissions at [21].

[32] Respondent's submissions at [26] - [29].

[33] Respondent's submissions at [47].

[34] Respondent's submissions at [46].

[35] Respondent's submissions at [49].

[36] Respondent's submissions at [51].

[37] Respondent's submissions at [50].

[38] Respondent's submissions at [52].

[39] Respondent's submissions at [69].

At a glance

Court

Decision date

Source

Judgment (220 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

Adam Dowoyna-Sylwestrowicz v Orchard Marketing Pty. Ltd. [2025] FWC 2163 (24 July 2025)