s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdiction objection - whether applicant was dismissed - voluntary resignation - application dismissed.

• [1] Mr Adeola Bankole has applied under s 365 of the Fair Work Act 2009 ("Act") for the Fair Work Commission ("Commission") to deal with a general protections dispute involving dismissal.

• [2] Section 365 of the Act applies to employees who were "dismissed" and Mr Bankole's claim under s 365 cannot go ahead unless he was dismissed. The term "dismissed" has a particular meaning under the Act and means either:

• His employment with his employer was terminated on the employer's initiative; or
• He resigned from his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his employer.

• [3] There are some further exceptions to the definition of dismissal but none are presently relevant.

• [4] The employer's[1] Form F8A response attached a resignation letter from Mr Bankole sent on 7 February 2025. That letter states (formalities excluded):

I am writing to formally announce my resignation from my position as a Machine Operator at the Melton Recycling Centre. This decision comes as I look to advance my career.

I would like to express my gratitude for the opportunity to work at the Melton Recycling Centre. It has been a rewarding experience, and I truly appreciate the support and opportunities I have received during my time here.

Should the company require my assistance in the future, please feel free to reach out. I would be more than happy to respond.

I believe that there some in consistence with my super payment, I will advise that the company kindly do the need-full to kindly pay the outstanding own me in regards to that area.

I wish the company continued success in all its endeavors.

• [5] Unsurprisingly in light of the above letter, the employer states that Mr Bankole resigned and did so voluntarily. There is no dispute that the resignation was accepted the same day. Mr Bankole's application form attaches a response from the employer accepting Mr Bankole's resignation the same day.

• [6] Nonetheless, Mr Bankole says that he was forced to resign. Mr Bankole says, in his Form F8 application, "I was force to resign due to wrong allegation, lies and for pretence". The reference to "allegation[s]" would appear to be to an investigation the employer was conducting in relation to possible performance and conduct concerns regarding Mr Bankole. It is not necessary to set them out - and I express no views on their substance - but correspondence regarding the allegations and the investigation process was attached to the employer's response.

• [7] As the question of whether Mr Bankole was dismissed or not is a threshold matter going to the Commission's power to hear the dispute, I am required to determine that issue first.

• [8] Upon the matter being allocated to my Chambers, I issued directions on 25 February 2025 requiring (among other matters) Mr Bankole to file and serve any material supporting his claim that he was dismissed or forced to resign by no later than 4:00pm Wednesday 12 March 2025. The directions were emailed to the parties via their nominated email addresses. Among other matters, the directions also stated that "Failure to comply with these Directions or to attend any conference or hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission".

• [9] Mr Bankole has not filed any material or provided any explanation for not filing that material. He has not sought to contact chambers.

• [10] On 14 March 2025, further correspondence was sent to Mr Bankole noting Chambers had not received any material from him by the due date of 12 March, or any explanation for not doing so. Absent advising chambers he wished to discontinue his matter, he was directed to file and serve by 5:00pm that day all material that ought to have been submitted by 12 March together with his reasons for non-compliance, including supporting evidence. The correspondence also stated that failure to comply with these requirements might lead to Mr Bankole's matter being dismissed without further notice, including by determination of the employer's jurisdiction objection based on the material before me.

• [11] To date chambers has received no response from the Applicant, whether about his substantive claim he was "forced" to resign, his matter being dismissed, or me proceeding to determine the jurisdictional issue based on the material before me. In the circumstances, I can readily determine the jurisdictional issue and now do so.

• [12] Mr Bankole resigned and did so voluntarily, as is clearly reflected in his resignation letter. That letter was not at the initiative of the employer and there is no evidence before me that convinces me that the employer's acceptance of it somehow took place in a situation such that Mr Bankole could not reasonably be understood to be conveying a real intention to resign.[2] Indeed, it is difficult to conclude how a prepared resignation letter might be considered action in the 'heat of the moment' such that submitting it would not reasonably - and objectively - be understood to be conveying a real intention to resign.

• [13] Mr Bankole nonetheless says he was 'forced' to resign but has provided no evidence that convinces me this is the case. The limited evidence before me of the employer's investigation does not rise close to the level of constituting a forced resignation.[3] An investigation process without more does not 'force' a resignation that might be made in the face of that investigation.[4]

• [14] As Mr Bankole was not "dismissed", his application fails and itself must be dismissed. An order[5] giving effect to these reasons will separately issue.

[1] As a matter of administration under s.586(a) of the Act, I have amended the name of the respondent to 'Outlook (Aust.) Limited', from 'Outlook' as was listed in Mr Bankole's Form F8 application. The amendment is consistent with the documentary material filed by the Respondent and a company search.

[2] Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli [2017] FWCFB 3941 at [47](1).

[4] See, for example, Moore v Woolworths Group Limited [2020] FWC 963 (Lake DP), Tovey v The Trustee For Tillbrook Melaleuka Group hospitality Trust [2023] FWC 1889 (O'Keeffe DP).

[5] PR785262.

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