Fair Work Act 2009

s.365 - General protections

General protections application involving dismissal - jurisdictional objection - whether applicant was dismissed or resigned voluntarily - applicant resigned voluntarily - application dismissed

• [1] The applicant, Alyssa Muriqi, has applied under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a general protections dispute involving dismissal. The applicant's Form F8 application was lodged in the Commission on 19 May 2025.

• [2] The respondent, Uniqlo Australia Pty Ltd, filed its F8A response to the general protections application on 3 June 2025, in which it raised a jurisdictional objection that the applicant was not dismissed as required by s.365(a) of the Act.

• [3] Before turning to a consideration of the submissions and evidence before the Commission, it is helpful to provide brief overview of the procedural history of the matter.

• [4] On 5 June 2025, I issued Directions in relation to the programming of the jurisdictional objection (the Directions). The Directions required the respondent to file and serve any witness statements, other documentary evidence and submissions on which it sought to rely in relation to the jurisdictional objection by no later than 4:00pm on Thursday, 19 June 2025.

• [5] On 19 June 2025, the respondent filed material in accordance with the Direction. The respondent's materials consist of an outline of submissions and a Witness Statement of Deepthi Merudi, HR Director of the respondent and the applicant's direct report during her employment.

• [6] In accordance with the Directions, the applicant was required to file and serve any witness statements, other documentary evidence and submissions on which she sought to rely in relation to the jurisdictional objection by no later than 4:00pm on Thursday, 3 July 2025. She did not do so.

• [7] On Friday, 4 July 2025 at 11:11am, my Chambers received correspondence from the respondent's representative noting that the respondent had not been served with any material from the applicant and that the applicant had not applied for an extension. In this communication, the respondent requested that the jurisdictional objection be determined on the papers in the absence of the applicant's material. The applicant was copied into this correspondence.

• [8] At 12:26pm on 4 July 2025, my Chambers emailed the applicant noting a number of matters and directing her to file her materials by 4:00pm that day. The applicant was also directed, along with her material, to provide any views as to the respondent's request for the jurisdictional objection to be determined on the papers. The correspondence also noted that:

"If you do not respond by 4:00pm today, the Deputy President intends to determine the Respondent's jurisdictional objection on the papers, by reference to the material currently on file, being:

• Your Form F8 and the 2 attachments thereto;
• The Respondent's Form F8A;
• The Respondent's submissions filed on 19 June 2025; and
• The Witness Statement of Deepthi Merudi filed on 19 June 2025."

• [9] The applicant did not respond to the email or file any materials.

• [10] At 2:52pm on Monday, 7 July 2025, my Chambers emailed the parties, noting that the applicant had not provided any response and granting the respondent's request for the jurisdictional objection to be determined on the papers.

• [11] On 7 July 2025, I reserved my Decision in relation to the matter. The relevant material before the Commission and to which I have had regard is as follows:
  • The applicant's Form F8 application form dated 19 May 2025 and the two attachments thereto, being two screenshots of her resignation letter sent by email on 16 May 2025; and
  • The respondent's Form F8A response dated 3 June 2025; and
  • The respondent's outline of submissions dated 19 June 2025; and
  • The witness statement of Deepthi Merudi dated 19 June 2025 and the annexures thereto marked DM-1 to DM-7.

• [12] Section 365 of the Act identifies the persons who are entitled to make a general protections application involving dismissal to the Commission. Relevantly, section 365(a) establishes a requirement that the "person has been dismissed".

• [13] Section 12 of the Act defines the term "dismissed" by reference to s 386. Section 386 is relevantly in the following terms:

(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."

• [14] In Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli (Bupa)[1] a Full Bench of the Commission considered the circumstances in which a resignation by an employee may constitute a dismissal within the meaning of 386(1). The Full Bench held as follows:

'[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 probably result 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.'

• [15] I will consider whether the applicant's resignation did in fact constitute a dismissal within the meaning of s 386, having regard to the tests set out by the Full Bench in Bupa.

• [16] As set out above, the applicant did not file any material in response to the Directions. Consequently, I make the following factual findings based on the witness statement of Ms Merudi dated 19 June 2025and annexures thereto.

• [17] The respondent is a clothing retailer which operates 40 stores across Australia and employees approximately 2,500 employees. It forms part of a multinational group of companies with retail stores in 25 countries, including India and Japan.

• [18] The applicant commenced her employment on 14 December 2022 in the position of HR Operations Lead. From 27 February 2023 until the time that the employment ceased, she was employed in the position of Human Resources Manager. The applicant reported to the Human Resources Director and was effectively second most senior employee in the Human Resources Department. The applicant's responsibilities including managing the day-to-day functions of the HR Department, providing advice to the business on all human resource related matters and supervising other members of the Department.

• [19] On 9 May 2024, the applicant commenced a period of parental leave from which she was due to return on 9 May 2025. On 22 February 2025, Ms Muriqi requested an extension to her parental leave until 12 May 2025, which the respondent granted on 28 February 2025.

• [20] Subsequently, on 11 April 2025, the applicant sent an email requesting both a further extension of her parental leave and a flexible working arrangement. The email was relevantly in the following terms:

"My apologies, however I need to request to return back to the office on Monday 19 May instead of Monday 12 May. My family has booked me a last-minute trip to Japan (lucky me), and I will not be returning back until 16 May.

Additionally, I'm requesting to return to work two full days per week, on a Monday and a Wednesday, as those are the only two days I can get a babysitter at this stage. I'm able to work the normal span of hours each day. I will be able to come back three days a week after approximately 1 to 2 months, however I will have to confirm this at a later stage.

Lastly, I've been made aware that there has been a replacement for HR Director, however I have not been provided with any contact details. If you could please give me the name and email address of the new Director that would be great, alternatively please forward this email onto them as well."

• [21] The respondent granted the applicant's request for an extension to her parental leave and, on 23 April 2025, the applicant attended a meeting with Ms Merudi and Ms Vera Afanasyeva (HR Business Partner). The meeting was to discuss the applicant's request for flexible working arrangements. The discussion at the meeting was to the following effect. The applicant provided further information in support of her flexible work request. Ms Merudi raised alternative flexible work arrangements which the applicant essentially indicated would not be suitable for her needs in light of her family responsibilities. At the conclusion of the meeting, Ms Merudi and Ms Afanasyeva indicated that the respondent would internally consider the request and provide a formal response.

• [22] That formal response was provided by email on 2 May 2025, in which the respondent advised the applicant that it could not accommodate her flexible working arrangements request and provided its business reasons. The essence of these reasons was that a two day week would not be sufficient to perform the duties of human resources manager in light of the mentoring required of junior and new team members, the HR support requirements for the respondent's stores; and the scope of the applicant's position of HR Manager relating to continuity requirements, workplace investigations, dispute resolution, training and swift incident response In the email, the respondent also identified alternative arrangements for the applicant to consider prior to her return to work. The respondent proposed reducing her working hours to 30 per week across 4 days until 16 November 2025 and returning to full time hours from 17 November 2025. The respondent's email concluded by stating:

"If we can't reach a resolution, you have the right to lodge a dispute with the Fair Work Commission regarding this matter."

• [23] On 2 May 2025, the applicant sent a further email and requested that the respondent reconsider her original proposal to return to work two days per week. The email relevantly indicated the following matters:

"As a parent of a child under school age, I am making this request under Section 65 of the Fair Work Act 2009 (Cth), which gives eligible employees the right to request flexible working arrangements, including changes in hours of work, patterns of work, or location of work, following parental leave.

As per the Act, an employer may only refuse such a request on reasonable business grounds. ...

I would like to propose a meeting to explore possible alternative solutions, ...

If we cannot reach a mutually agreeable outcome, I may need to consider lodging an application with the Fair Work Commission to resolve this matter under the dispute provisions relating to flexible work arrangements."

• [24] On 9 May 2025, the respondent sent an email reaffirming that it could not accommodate the applicant's request to work two days a week. The email identified two alternative proposals. One of these proposals was that the applicant could transfer to the position of Sustainability Lead, a role in which she could work two days per week building up to four days a week in six months. The respondent offered a further meeting on 13 May 2025 to discuss the options proposed.

• [25] On 10 May 2025, the applicant alleged that a transfer to a new department and new role was unlawful. Nevertheless, she requested a job description for the Sustainability Lead position and inquired why she could not be transferred to the position of HR Lead, her position prior to promotion to HR Manager.

• [26] On 14 May 2025, the respondent emailed the applicant a job description for the position of Sustainability Lead. In the email, the respondent indicated that a transfer to Sustainability Lead was being put forward as an alternative proposal and would only proceed with the applicant's agreement. This constituted a rejection of the applicant's suggestion made in her previous email that a transfer to Sustainability Lead was unlawful.

• [27] There was a further exchange of emails on 14 May 2025. The applicant sent an email inquiring whether the start date was 19 May 2025, sought confirmation that the work would two days a week for the first three months and whether her salary remained unchanged. The respondent's reply noted that under the proposal, the applicant would initially work two days a week, increasing to three days a week after three months and then four days a week after six months. It further confirmed that the applicant's salary would be unchanged but pro-rated with her days of work. The respondent's email reads:

"Please confirm if you would like to proceed with this proposal and we will enter into a new employment contract with you reflecting this transfer. We understand that you are travelling at the moment and guided by your circumstances, we are open to extending your parental leave for an additional week (return date 26 May 2025) to facilitate the opportunity for us to have a meeting. Please let us know your best availability if you would like to discuss further."

• [28] The applicant did not immediately respond to this email. The applicant's extension to her parental leave was due to expire on 19 May 2025.

• [29] On 16 May 2025, the respondent sent a follow up email to the applicant inquiring how she would like to proceed and again inquired whether she wished to extend her parental leave by an additional week. Later that day, at around 1:48pm, the applicant indicated that she did wish have her parental leave so extended. Shortly thereafter, the respondent sent an email to the applicant confirming the one-week extension of the parental leave "to facilitate the opportunity for us to have a meeting". By reply email at 5:46pm, the applicant indicated that she would be available to attend such a meeting on Thursday or Friday the following week.

• [30] Sixteen minutes later, at 6:02pm on 16 May 2025, the applicant sent an email to the Respondent entitled "Resignation Letter" which was in the following terms:

I am writing to formally resign from my position as HR Operations Manager at Uniqlo, effective immediately.

This resignation relates to the full-time role I have held under my existing employment contract, which I am currently on maternity leave from. I have made repeated requests to return to my substantive position on a flexible, part-time basis in line with my entitlements under the Fair Work Act 2009. Unfortunately, I believe the reasons provided for rejecting my request are not lawful and amount to adverse action.

Accordingly, please be advised that I have already commenced pursuing a General Protections claim with the Fair Work Commission on the basis of this conduct.

I am willing to either work through my eight-week notice period or be placed on garden leave, or alternatively, I am open to receiving payment in lieu of notice. Please confirm how you wish to proceed.

I remain grateful for the opportunities I have had with Uniqlo and wish the team all the best for the future.

• [31] The applicant apparently took unpaid personal leave on Monday, 19 May 2025 and Tuesday, 20 May 2025. This period was subsequently paid by the respondent as part of a payment in lieu of notice.

• [32] On Tuesday, 20 May 2025, the respondent sent an email to the applicant confirming that it would elect to pay out her notice period and that the last day of her employment would be on 20 May 2025. The respondent was entitled to do so under the contract of employment. The applicant's response was to query the amount of notice to be paid out. The respondent clarified this issue by email at 2:49pm on 20 May 2025, advising the applicant that she would be paid 8 weeks' in lieu of notice with no reduction made in respect of the two days of unpaid leave that the applicant had apparently taken on 19 May and 20 May 2025 and requesting that the respondent's property be returned by 21 May 2025. The applicant's response by email at 3:27pm on 20 May 2025 is set out below:

Unfortunately, I will not be able to personally deliver the items back to the office therefore could you please arrange for someone to come and pick up the items from my house or you can send an Uber to pick up the items and deliver them back to the office?

• [33] The applicant's employment with the respondent ceased on 20 May 2025.

Consideration - whether the applicant was dismissed (s 386 of the Act)

• [34] The matter for determination in this decision is whether the applicant has been "dismissed" within the meaning given to that word by s.386 of the FW Act.

Whether Resignation is a Dismissal within s 386(1)(b)

• [35] In her resignation email, the applicant seems to contend that her resignation was because her "repeated requests" for flexible work arrangements were rejected by the respondent and this rejection was not lawful and constituted adverse action.

• [36] In her Form F8, the applicant contends that she was constructively dismissed in breach of s 351 of the Act, with three attributes in that provision identified.

• [37] Consequently, in light of her written resignation and having regard to the applicant's contentions referred to immediately above, it is appropriate to consider whether the applicant was dismissed within the meaning of s 386(1)(b). This requires me to assess whether the applicant resigned from her employment "but was forced to do so because of conduct, or a course of conduct, engaged in by" the respondent.

• [38] Having regard to my factual findings, I am satisfied that the applicant was not forced to resign because of conduct or a course of conduct engaged by the respondent. The fact that the applicant's request for a particular flexible working arrangement was not granted by the respondent, provides no proper basis to conclude that the respondent refused the applicant's requests with the intention of bringing the employment to an end; or that termination of the employment was the probable result of respondent's refusal, such that the applicant had no effective or real choice but to resign.

• [39] Furthermore, I note that the applicant was a senior Human Resources practitioner. At the time of submitting her resignation, the applicant has clearly aware of the process in s 65B of the Act to initiate a dispute in the Commission about an employer's refusal to grant a request for flexible working arrangement. The applicant's email of 2 May 2025, expressly refers to her request as being made under s 65 and foreshadowed an application to the Commission "under the dispute provisions relating to flexible work" if agreement was not reached.

• [40] I note that s 65B confers a significant jurisdiction on the Commission to resolve disputes about an employer's refusal to approve ae request for a flexible work arrangement made on particular grounds, such as parental or caring responsibilities for a child of school age or younger. The Commission may deal with such a dispute by conciliation, mediation, making a recommendation or expressing an opinion. The Commission may also arbitrate a dispute including ruling on whether or not an employer's grounds of refusal constitute reasonable business grounds and order that the employer grant the request or make specified changes other than those requested, to accommodate an employee's needs.

• [41] In this light, it very clear that the respondent's refusal of the request was not a circumstance which gave the applicant no effective or real choice but to resign. The applicant was well aware of her right to take her dispute about flexible work to the Commission under s 65B.

• [42] In fact, as set out in paragraph [22] above, on 2 May 2025 the respondent notified the applicant of her right to refer a dispute about flexible work to the Commission. I also note that the respondent proposed alternative flexible working arrangements for the applicant, including a transfer to another role at the same salary level in which her request for a two-day week could be accommodated for a three-month period with a build up to a four-day week. These matters are indicative that the respondent's conduct was not engaged in with the intention of bringing the employment to an end or that a termination was the probable result of the respondent's conduct.

• [43] I note that the view I express above, should not be construed as determining whether or not the respondent had reasonable business grounds to decline the applicant's r request to work two days a week in the position as HR Manager. The particular grounds upon which the respondent relied to decline the applicant's request, may or may not have been reasonable business grounds. The relevant point is that there was a means to deal with the dispute in the Commission under s 65B and the applicant was aware of this mechanism well prior to submitting her resignation.

• [44] In relation to the applicant's reference to constructive dismissal in paragraph 2.2 of her Form F8, the belief of the applicant that she was 'constructively dismissal' does not make it so. The applicant makes various allegations and identifies her various beliefs which go to firstly, the three alleged prohibited reasons in s 351, and secondly to alleged circumstances which she says compelled her to resign. These two matters are conflated in paragraph 2.2

• [45] For the purpose of determining whether the applicant was dismissed within the meaning of s 386(1)(b), I have made factual findings in paragraphs [16] - [30] above. Except where they are subject to my factual findings above, based on the evidence before me I am not satisfied of any of the alleged factual matters of the applicant set out in paragraph 2.2 of the Form F8. I am also not satisfied of any of the beliefs expressed by the applicant in paragraph 2.2 of the Form F8. Consequently, I reject the applicant's contention that the matters and beliefs referred to in paragraph 2.2 of the Form F8 gave rise to a constructive dismissal by the respondent within the meaning of s 386(1)(b).

Whether Resignation a Dismissal within s 386(1)(a)

• [46] The applicant's claim of dismissal does not seem to have been made on the basis that her dismissal was given in the heat of the moment or given in a state of emotional stress or mental confusion such that she could not reasonably be understood to be conveying a real intention to resign. However, from an abundance of caution, I have considered whether the applicant's resignation could constitute a dismissal within the meaning of this test for the purposes of s 386(1)(a) of the Act.

• [47] I cannot find that the applicant's resignation was given in the heat of the moment or in a state of emotional stress or confusion such that the applicant could not be reasonably understood by the respondent as conveying a real intention to resign. On 16 May 2025, the supplicant accepted the respondent's proposal to extend her the parental leave for a further week to facilitate a proposed meeting. The applicant's resignation email of 16 May 2025 was not in terms which would indicate to the respondent that it was given in in a state of emotional stress or mental confusion, such that she could not reasonably be understood to be conveying a real intention to resign. Furthermore, the applicant and respondent exchanged emails in the days after the resignation email, in which the applicant engaged about the quantum of the payment in lieu of notice. None of the applicant's post dismissal communications are indicative of state of emotional stress or mental confusion, such that she could not reasonably be understood to be conveying a real intention to resign.

• [48] I conclude that the applicant was not dismissed within the meaning of s 386(1)(a) of the Act. The applicant 's resignation was given voluntarily.

• [49] An order dismissing the applicant's general protections involving dismissal application has been issued at the same time as this decision.

[1] [2017] FWCFB 3941

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