s.365 - General protections

Application to deal with contraventions involving dismissal

[1] Ms Amy Doran (Ms Doran) has made an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving her alleged dismissal by The Jewellery Group Pty Limited (the Respondent).

[2] The Respondent has raised a jurisdictional objection to the application on the basis that Ms Doran was not dismissed. Ms Doran does not dispute that she resigned but claims that she was forced to resign from her employment due to the conduct of the Respondent. The Commission must determine whether Ms Doran was dismissed before the matter may proceed.

[3] The jurisdictional objection was the subject of a Hearing on 2 September 2025. Ms Doran and Ms Christine Gray gave evidence on behalf of the Applicant. Mr David Webber and Ms Narelle Madden gave evidence on behalf of the Respondent.

[4] Ms Doran commenced employment with the Respondent on 13 February 2025 in the position of Manager in Training. Ms Doran provided a written letter of resignation dated 8 June 2025 to the Respondent on 9 June 2025. The parties agreed that Ms Doran would work her one week's notice period, making the effective date of resignation 13 June 2025.

[5] The reasons for Ms Doran's resignation as provided in her 8 June 2025 letter largely related to an unplanned meeting on 30 April 2025 with Narelle Madden (Head of Brand Mazuchellis), Raff Verdi (Regional Manager South) and Joanne Paterson (Regional Manager North). Ms Doran stated that she felt her concerns regarding onboarding and training were invalidated and that she was subject to intense scrutiny during the meeting, during which she says she was visibly distraught. She further states that it is not practical to pursue a Store Manager role if she cannot feel safe or supported in the presence of her divisional manager, and that following the meeting on 30 April 2026, she would be unwilling to participate in any future meetings with her.

[6] Section 365 of the Act provides as follows:

"365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."

[4] The meaning of "dismissed" is provided at section 386 of the Act:

(a) the person's employment with his or his employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his 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 his remuneration or duties; and

(ii) he or he 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."

[7] This decision deals only with the jurisdictional objection to be determined.

[8] The Respondent argues that Ms Doran was not dismissed for the purposes of section 365 of the Act. The Respondent submits that Ms Doran resigned from her employment on 8 June 2025 and proceeded to work out her notice period of one weeks before her employment ended on 13 June 2025.

[9] The Respondent denies that it engaged in any conduct that forced Ms Doran to resign or that it left her with no effective choice other than to resign. The Respondent confirms that on 30 April 2025, Ms Narelle Madden spoke to Ms Doran. The Respondent states that this was an informal check in with Ms Doran and not a discussion about her performance, rather, the purpose of the conversation was to establish how Ms Doran was settling into the position. The Respondent submits that, at a later date, Ms Madden attended Ms Doran's store to find two new employees that had not been inducted. It is the position of the Respondent that Ms Madden assisted Ms Doran with the induction process for the new staff and submits that neither of these interactions in isolation or together had the probable effect of eliciting a resignation from Ms Doran.

[10] The Respondent submits that Ms Doran did not raise any concerns about these interactions with Ms Madden or with the Respondent more broadly, including with Mr David Webber, who was the Head of Human Resources at the time.

[11] The Respondent argues that Ms Doran's resignation was clear and unambiguous, and provided in writing. It submits there is no evidence that Ms Doran resigned in the heat of the moment, as the letter had been prepared the day prior to it being provided to the Respondent.

[12] The reasons for the resignation were that Ms Doran had formed a view that she could not achieve the requisite professional growth desired due to what she had concluded was an 'impracticality' of pursuing a Store Manager role whilst also not wishing to engage with the Divisional Manager. In those circumstances, the Applicant's choice to resign was a free and voluntary choice which she made to avoid the circumstances that she saw as impractical. The Respondent submits that there are two critical elements that must be established by Ms Doran; firstly, that the employer's conduct created the situation that the Ms Doran was in; and secondly, that the situation created was one where resignation was the only effective option. The Respondent submits that Ms Doran being dissatisfied with the work environment is insufficient to demonstrate that the Respondent had engaged in a course of conduct of which the probable result was that Ms Doran would feel forced to resign. Second, there were other options open to Ms Doran. The evidence suggests that Ms Doran's reasons for resigning were based on her having considered her position and preferring to leave her employment, rather than pursue the available alternatives.

[13] The Respondent submits that the facts support a conclusion that Ms Doran's resignation was the result of a carefully considered decision by her, and that the Respondent was entitled to rely on it as representing her true intent. The Respondent submits that on 12 June 2025, Ms Doran confirmed that she wished for her concerns to be investigated as it was important for any remaining and future staff_._ However, Ms Doran did not, at any stage, indicate that she had any inclination to resolve the issues instead of resigning.

[14] Ms Doran submits that she had no alternative but to resign from her employment with the Respondent as she could no longer work safely under the management of Ms Madden. Ms Doran submits that during her employment she was subjected to repeated workplace bullying and unreasonable treatment by her manager. Ms Doran submits that on 20 April 2025, she was called into an informal meeting without notice or a support person. Ms Doran submits that her performance was being scrutinised in a manner which she felt was hostile and intimidating. Ms Doran submitted that she was not able to respond due to being distressed at the conduct of Ms Madden. Ms Doran submits that she raised her concerns with her line management and human resources, however no action was taken.

[15] Ms Madden submitted that the Respondent's conduct caused her psychological injury, stress, and anxiety and that ultimately, she felt she has no option but to resign as remaining employed by the Respondent was impacting her health.

[16] Ms Christine Gray provided evidence in support of Ms Doran. Mr Gray is a former employee of the Respondent. Ms Gray submitted that Ms Doran was visibly upset following the meeting of 30 April 2025, furthermore Ms Gray submits that senior management were aware of the factors that were impacting Ms Doran's development. Ms Gray submitted that she felt Ms Madden deliberately intimidated fellow employees.

[17] Central to the consideration in this case is the operation of section 386(1) of the Act. The word dismissed is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act.

Section 386(1) of the Act reads:

1. the person's employment with his or his employer has been terminated on the employer's initiative; or

1. the person has resigned from his or his employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer."

[19] The first concerns termination on the employer's initiative and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct.

• [20] The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.[1]

[21] In my assessment of the circumstances, the relevant test is that under section 386(1)(b) of the Act.

[22] Having determined that section 386(1)(b) of the Act is the relevant test for this matter, I now turn to consider the conduct of the Respondent and the decision of Ms Doran.

[23] The line distinguishing conduct that leaves an employee no real choice but to resign from an employee resigning at their own initiative is a narrow one. In this case particularly, whether this line was crossed is not immediately transparent.

[24] The onus is on the employee to prove that the resignation was forced.

[25] In my assessment of the evidence, I am not satisfied that the Respondent engaged in conduct or a course of conduct, that left Ms Doran with no alternative but to resign. My reasons are as outlined below. It is also evident that Ms Doran did not resign in the heat of the moment.

[26] I accept that Ms Doran was not comfortable about what had occurred at the meeting of 30 April 2025, and that if Ms Madden intended the discussion to be an informal check in, Ms Doran certainly did not feel supported and did not feel that the meeting was beneficial. However, on the evidence before the Commission, I am not satisfied that the conduct of Ms Madden was to such a degree that Ms Doran was left with no alternative but to resign from her employment with the Respondent.

[27] Likewise, there is no evidence before the Commission that the Respondent was seeking to commence a formal performance management process with Ms Doran, which could have resulted in her employment being terminated by the Respondent.

[28] Not being satisfied that Ms Doran has been dismissed for the purposes of section 386 of the Act, I have no alternative but to dismiss the application for want of jurisdiction.

• [29] The application is dismissed. An Order to this effect is issued concurrently.[2]

[1] [2017] FWCFB 3941.

[2] [PR797418].

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