s.365 - General protections

Application to deal with contraventions involving dismissal - forced resignation - jurisdictional objection - no dismissal - jurisdictional objection upheld - application dismissed.

• [1] Ms Allison McQueen (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 30 May 2025. The Applicant claims that adverse action was taken against her by Rose Life Care Wide Bay Pty Ltd (the Respondent) under ss.340 to 343, and s.352 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed under s.386 of the Act as the Applicant resigned from her employment on 12 May 2025. The Applicant contests the objection on the basis that she was constructively dismissed and forced to resign under s.386(1)(b) of the Act.

• [3] Directions were issued and the matter was listed for hearing on 31 July 2025. The Applicant was represented by Mr Kade Eames, Solicitor of Gold Law. The Respondent was represented by its Operational Manager, Ms Erica Drury.

• [4] The Applicant has been employed with the Respondent since 26 February 2024. The Applicant was employed in the role of Care Consultant.

• [5] The Applicant describes conflict with Ms Bronwyn Finn, one of the owners of the business, commencing in February 2025. It is unclear exactly what this conflict was. The Applicant described a conversation in which Ms Finn was talking about purchasing a house and the Applicant was not interested in this because she felt Ms Finn's financial matters were none of her business. The Applicant said Ms Finn was "less warm" after that.

• [6] There was then a work trip to Port Macquarie between 23 February 2025 to 27 February 2025, which the Applicant and Ms Finn both attended. The Applicant felt "interrogated" by Ms Finn asking questions about her, such as about her past employment. The Applicant said Ms Finn told another colleague that the Applicant "hates" her. The Applicant denies saying this. I asked the Applicant during the hearing if Ms Finn was aggressive or hostile and the Applicant advised that she was not. I note the Applicant said during the hearing that Ms Finn was "too nice" and was trying to "bond with" the Applicant, in an artificial way.

• [7] Following the trip, the Applicant alleged that Ms Finn raised her voice on one occasion and was "abrupt". The Applicant had a discussion with one of the directors of the Respondent, Mr Scott Bone. Mr Scott Bone is also Ms Finn's partner. Mr Scott Bone's brother, Mr Shawn Bone, a director of the Respondent, was also present. The Applicant was reportedly asked by Mr Scott Bone "you're not happy are you?". The Applicant said "no" and explained what happened on the Port Macquarie trip. The Applicant advised that she did not want to interact with Ms Finn one-on-one going forward.

• [8] Following this discussion with Mr Scott and Shaun Bone, the Applicant felt Ms Finn's demeanour had changed.

• [9] The Applicant raised concerns regarding one of her clients, whom she believed still had capacity to make her own decisions. The Applicant was concerned that the client's appointed power of attorney was also a solicitor who also had provided legal services to the Respondent. The Applicant was concerned that this was a conflict of interest.

• [10] On 4 April 2025, the Respondent advertised the role of "Care Manager" on Seek. The Applicant, after later finding this advertisement, felt that she being replaced. I note that the Applicant did not provide a full copy of the advertisement. The evidence of the Respondent seeking to "replace" the Applicant is tenuous at best. I note that the role title is not the same as the Applicant's role title. Even if it is the Applicant's role, there is no evidence she was being "replaced". The evidence of Mr Scott Bone is that the Respondent was seeking to hire someone as an addition to the team, rather than a replacement. There is no evidence from the Applicant to rebut this.

• [11] On 15 April 2025, a meeting was organised between the Applicant and the client's power of attorney, Ms Irana Gray, to discuss the concerns. Mr Scott Bone was present, as well as Ms Gray's paralegal, who was taking notes.

• [12] On 22 April 2025, the Applicant requested a copy of the record of conversation on 15 April 2025. The Applicant was then informed by Ms Drury that Ms Gray had requested, as power of attorney, that the Applicant be removed as care consultant for that client. The Applicant raised further concerns with Ms Drury, alleging that the client had decision-making capacity.

• [13] On 29 April 2025, the Applicant received a letter from Ms Gray alleging that the Applicant had engaged in inappropriate behaviour and that her behaviour was "akin to stalking".

• [14] An hour later on 29 April 2025, the Applicant received an email from Ms Drury directing her not to make any further requests or correspondence with Ms Gray. The email states:

Please be advised that no further requests or correspondence regarding this matter are to be made. Any further action taken without direct authorisation will be considered a failure to follow management instructions.

If you require clarification regarding this directive, you are to raise it directly with me.

• [15] The Applicant was shocked after receiving this direction. She stated:

I attended my doctor to discuss the impact on me and review my medications. I was very stressed that I was being accused of conduct which could be considered criminal and that my excellent reputation, that I have worked hard to achieve, could be ruined if I continued to perform my duties for my employer. I felt that if management could target me in the manner they have done on this occasion, what might come next for me if I dared do what I was employed to do in the future by advocating for client's where I saw something I believed to be of concern occurring.

• [16] The Applicant subsequently took a period of medical leave.

• [17] On 9 May 2025, the Applicant received a notification that her system access had been removed. The Applicant received an email from Ms Drury as follows:

As part of our updated IT policy, we will be temporarily pausing system access for any team members on extended leave, including sick leave. This helps us keep our systems secure, manage resources while staff are away and ensure you are able to focus on your health and wellbeing while on leave.

As you're currently on extended leave, your access will be temporarily paused and will be reactivated when you return.

We have coverage for your clients during this time amongst the team and will strive to ensure we are covering all bases.

If you do happen to need access to anything while you're away, feel free to get in touch and we'll help however we can. However, please focus on resting and getting better.

• [18] On 9 May 2025, the Applicant replied as follows:

I acknowledge the update regarding system access during extended leave. I would appreciate it if you could please send me a copy of the updated IT policy for my records.

Additionally, as I no longer have access to the CRM, I would like to request a copy of my entire timesheet records to date in Excel format.

Please let me know if anything further is needed from me to process this request by COB today.

• [19] On 11 May 2025, the Applicant attended an appointment with her doctor. The Applicant's doctor issued the Applicant with a certificate certifying her as unfit for work for two weeks.

• [20] On 12 May 2025, the Applicant sent an email with her resignation to Ms Drury:

I am writing to formally resign from my position at Rose Life Care Wide Bay Pty Ltd, effective two weeks from today, with my final date of employment being Friday, 23 May 2025.

This decision has not been made lightly, but it is the right choice for my mental health and overall wellbeing. I have discussed it with my treating doctor, who fully supports my decision and has provided a medical certificate covering the notice period.

I kindly request a full Statement of Service to be issued to me. This should include:

• My start and end dates
• My official job title(s)
• Employment status (e.g. full-time)
• A summary of my duties and responsibilities
• A record of my total hours worked during my employment

I also wish to note that on Friday, 9 May 2025, I requested a copy of the updated IT policy and a copy of my full timesheet records logged in the Monday.com database. I would appreciate these being provided as part of the offboarding process.

I would like to arrange a suitable time on Monday, 12 May 2025, to:

• Return all company property in my possession, including office keys, fuel card, and any other documents or equipment
• Collect my personal belongings from the office

Additionally, as I was required to sign in with my personal Apple ID on work-issued devices, I ask that you please confirm it has been fully removed from all such devices. This includes ensuring that:

• My Apple ID is signed out
• All personal data (such as Notes or iCloud content) is deleted
• The device is unlinked from my iCloud account and "Find My iPhone"

Thank you for the opportunity to be part of the team. I wish you and the organisation all the best moving forward.

• [21] On 12 May 2025, the Applicant attended the workplace to collect her belongings.

Was the Applicant forced to resign under s.386(1)(b) of the Act?

• [22] Section 386(1) of the Act relevantly provides that 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.[1]

• [23] The Applicant's contention is that she was dismissed within the meaning of s.386(1)(b) of the Act as she was forced to resign.

• [24] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee to be terminated at the initiative of the employer.[2] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[3]

• [25] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[4] It is sufficient that the employer's conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[5]

• [26] All the circumstances - including the conduct of both the employer and employee - must be examined.[6] In other words, it must be shown 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."[7]

• [27] The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) said, in relation to determining whether the ending of an employment relationship is a voluntary or forced resignation:

"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination.

The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively.

The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."[8]

• [28] Furthermore, in Pawel v Australian Industrial Relations Commission,[9] the Full Bench noted:

"Mere "causation" or "motivation" will not satisfy the requirement that the termination be at the initiative of the employer."

• [29] Forced resignation has been interpreted by the Commission in the following ways:

• • the actual conduct of the employer forced to do so, such that there was an element of compulsion present;[10]
• • a 'critical action' or 'critical actions' of the employer which was intended to bring the employment relationship to an end;[11]
• • as a result of some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect;[12] and
• • the employer's conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.[13]

• [30] There is a high bar required to establish forced resignation. The onus is on the Applicant to prove that she had no real choice but to resign. I find that the Applicant's evidence does not establish that she was forced to resign.

• [31] The Applicant suggested that I should consider Ms Finn's absence as "deemed admission". If I accept Ms Finn's absence as a deemed admission, what is it an admission of? It cannot, in my view, be said to reach the threshold of bullying. The Applicant's evidence is that Ms Finn attempted to tell that the Applicant about Ms Finn's purchase of a house. That is not bullying, it is sharing personal information with a colleague. When the Applicant was not interested in this information, Ms Finn allegedly became "cold" towards the Applicant. This is a vague assertion and does not reach the threshold of bullying. When Ms Finn reportedly asked the Applicant questions about her background, including her past employment, the Applicant characterised this as an "interrogation". However, the Applicant also said that Ms Finn was not aggressive or hostile but was instead "too nice". Again, this does not meet the threshold of bullying behaviour. The Applicant alleged that Ms Finn raised her voice in the Applicant's presence on at least one occasion. I am not satisfied that this evidence establishes bullying. Further, it appears that the Applicant caused or contributed to the interpersonal issues by making it clear that she was not interested in hearing about Ms Finn's purchase of a house, which may be considered a rude response.

• [32] In relation to the Applicant's claims regarding Ms Gray, I note Ms Gray is not an employee of the Respondent. She is a solicitor who has acted for the Respondent before. That is a quite different to being an employee of the Respondent. I consider that any conduct of Ms Gray is not conduct of the employer for the purposes of s.386. Further, it is clear from the correspondence that Ms Gray was acting in her capacity as power of attorney for the client when she interacted with the Applicant. I reject any claim that the conduct of Ms Gray somehow represents the Respondent.

• [33] In relation to a vague assertion that the Respondent failed to support the Applicant following the letter from Ms Gray on 29 April 2025, I note the following. The Respondent was not required to take the Applicant's side. The matter was properly one which involved Ms Gray and the Applicant. The Respondent formed the view on the evidence before it that there was no conflict of interest and the matter was concluded. If the Applicant remained concerned, she could have reported her concerns to the relevant aged care authority.

• [34] I reject the argument that Ms Drury impliedly threatened termination when she issued a directive to the Applicant. It is true that the employment contract states that serious misconduct includes failure to follow a lawful and reasonable direction. However, that is no more than a restatement of regulation 1.07 of the Fair Work Regulations 2009. With respect, it is a leap in logic to assert that issuing a direction implies a threat of termination. The threat of termination may follow if the employee does not follow that directive. The Applicant was not threatened with termination, she was issued with a directive. It is up to the employer how they treat failure to comply with a lawful and reasonable direction.

• [35] In relation to the Applicant's system access being deactivated, I note evidence was adduced during the hearing which casts doubt upon when exactly that policy was formulated. That being said, I am not satisfied that there is sufficient evidence that the Applicant was effectively forced out. It seems entirely reasonable to have a policy to deactivate system access while an employee is on extended personal leave. I note an employee should not be working while they are on sick leave.

• [36] The Applicant's case for constructive dismissal is entirely subjective. The Applicant felt she was unwanted in the workplace. I appreciate that that may have been the genuine belief held by the Applicant, but it does not satisfy the test for constructive dismissal. Constructive dismissal is determined objectively. Lastly, I note that the Applicant claims her doctor "supported" her decision to resign. It is, of course, entirely within the Applicant's doctors' remit to make a recommendation that the Applicant focus on her health. However, does not establish that the Respondent engaged in a course of conduct which left the Applicant with no choice but to resign.

• [37] Accordingly, I do not find the Applicant's resignation to meet the threshold of a forced resignation per s.386(1)(b) of the Act. Therefore, the Applicant is not eligible to lodge an application under s.365 of the Act. The jurisdictional objection is upheld, and the Application is dismissed.

[1] Fair Work Act 2009 (Cth) s 386(1)(b).

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

[4] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200.

[5] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [31].

[6] Whirisky v DivaT Home Care [2021] FWC 650 at [77].

[7] Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [28].

[9] (1999) FCA 1660 at 58.

[10] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.

[11] Boulic v Robot Building Supplies [2010] FWA 6905, [16].

[12] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [1995] IRCA 625; (1995) 62 IR 200, 205-206.

[13] Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].

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