s.365 - General protections

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

• [1] Ms Amy Tonkin (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 17 February 2025. The Applicant claims that adverse action was taken against her by Carney Townsville Partnership (the Respondent) under s. 351 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 28 January 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 and, alternatively, that the Respondent terminated her during her notice period.

• [3] Directions were issued and the matter was listed for hearing on 9 May 2025. The Applicant was self-represented. The Respondent was represented by Connolly Suthers Lawyers. Permission was granted for the Respondent to be represented on the basis that the matter would run efficiently given the complexity of the matter.

• [4] The Applicant commenced employment with the Respondent in July 2023 and was employed as a Product Specialist.[1]

• [5] In around October 2024, the Respondent received a complaint from a business customer that there was a "short skirt club" in the business. Management subsequently conducted the review of the uniform policy. On 22 October 2024, all staff were sent an email attaching an updated dress code.[2] Staff were reminded to follow the dress code.

• [6] On 2 January 2025, the Applicant had a meeting with Ms Lyndel Spokes, HR Generalist for the Respondent, regarding the dress code. Ms Spokes noted that there had been a complaint about a "short skirt club" and stated that while the Respondent did not believe that to be the case, the Respondent was now taking steps to ensure staff comply with the uniform policy. The Applicant was advised that her skirt had been identified as being above the knee and was advised to "try on a larger skirt size" ensure it would reach the knee or below. The Respondent would arrange for the skirt to be altered and to fit appropriately.

• [7] The Applicant said the conversation on 2 January 2025 made her feel a bit uncomfortable but that she intended to comply with the uniform policy. She did not have an opportunity to try on skirts over the following weekend.

• [8] On Monday, 6 January 2025, Ms Spokes circulated a memo of the conversation on 2 January 2025 with the Applicant. The memo was sent to the Applicant, as well as the Applicant's line managers. The memo noted that the Applicant's "body proportions have made it challenging to find a skirt that fits properly". The Applicant felt demeaned and taken aback by this memo being circulated to her managers.

• [9] The Applicant then spoke to another female staff member in sales and asked whether she had received a memo. That employee had not received a memo. The Applicant provided evidence that the other female staff member of the sales team was sent an email by Ms Spokes reminding her to review her skirt length, but that email was not copied to her managers. Ms Spokes said this was because that staff member had been identified as being compliant with the policy.

• [10] On 7 January 2025, the Applicant emailed Ms Spokes asking why her managers had been copied in and stated that she felt "mortified":

As discussed in our meeting I am happy to comply with the company's dress policy in accordance with TFL standards, and I will have other skirts tried on and fitted within a reasonable timeframe. as I also explained my current skirts were the best fit and length I could find as issued by the company.

I have tried on the largest size on the rack, in upmost embarrassment caused by this issue and email outlining my 'proportions'. I do however want to say that I was quite upset by the comments about my body shape, and remind the business how much embarrassment I have suffered as a result, and I was mortified that these were copied to

other managers within the business. This action wasn't necessary.

• [11] On 7 January 2025, Ms Spoke replied:

Apologies. I thought it was appropriate to link in your line managers as this pertained to dress regulations.

• [12] On 8 January 2025, the Applicant sent an email to Ms Spokes:

Thankyou for your response, I'd like to seek some clarity regarding the situation.

Could you please clarify if the actions that were taken towards me, have also been taken towards the other females affected by this issue?

The actions include, the written memo, and remarks around body proportions, and copying in line management into the email.[3]

• [13] On 10 January 2025, the Applicant followed up Ms Spokes for a response.

• [14] There was a further meeting on 10 January 2025 in the "war room". The Applicant said that Ms Spokes spoke to her aggressively and told the Applicant that she did not have the right to request information about other employees. The Applicant stated that it had been determined that she was not meeting the dress standards. Ms Spokes produced a record of that meeting:

Record of Conversation- Inappropriate Email Requesting Information- Commentary

I began by advising that we are meeting to discuss her recent emails sent to me.

I advised that she has requested confidential HR information. It is inappropriate of her

to ask for this information and this will not be shared with her.

Her intent to gather this information causes gossip and is not line with our Toyota

It is also not part of our Workplace Behaviour Charter.

I have advised the reason I have included your line mangers in this memo is because

they will be tracking if their staff are meeting uniform and TFL standards. Each month

they will do their performance review with all staff where they will review if the staff have adhered to the uniform policy.

I stated that if she found other employees to not be meeting the uniform standards to

I advised that the commentary on receiving this memo is not necessary and needs to stop.

Paul reiterated that he will be tracking all staff adherence to the uniform policy and will

be bringing this up at monthly performance reviews and team meetings. He stated that

we have new TFL standards to meet and will bring this across to the whole team.

Amy stated that requesting confidential information was not her intention. She advised

that she had compared her memo with the response Georgia received. She also felt that

after having a verbal conversation with myself and receiving a memo felt harsh.

I advised that I won't comment on what has occurred with other staff as that is breaking

privacy. The memo was worded with support and was not intended to be harsh. It was

aimed to summarise what had been discussed, what actions needed to be taken. It also

include added points that her line managers were looped in, it set a time frame to order

the skirt and set the precedence of not adhering to the uniform policy. It was also

instructed by Chris Carney that this is what we do after we have given instruction to

I stated that she had begun the process by ordering her skirt, if she needs support organising the tailoring of the skirt to please reach out. I asked her to raise her hand and

ask for help if she needs it. I ended by advising that the ongoing commentary on the

• [15] Later that day, on 10 January 2025, the Applicant attended a scheduled doctor's appointment. She states that she had a "mental breakdown" after telling her doctor she felt as though her body was the problem and that it was her fault that she did not fit into the uniform. The Applicant received a medical certificate from her doctor certifying her as unfit for work. The Applicant provided the medical certificate to her direct sales manager, Mr Paul Stewart.

• [16] In the afternoon on 10 January 2025, the Applicant received an email from the Former General Manager of the Respondent, Mr Graham Pemberton. The email states:

I understand you submitted a medical certificate to your manager today, I hope that you do feel better very soon. I do apologise in advance for interrupting your rest and recouperation. However, I have just been briefed on a situation that seems to have escalated, with reference to uniform. I would like the opportunity to meet with you in person to understand the issue from your perspective with an aim to mutually resolve the issue. With that in mind please let me know a time and place that would be convenient to you upon your return, and we can look at your request for memos and documentation at that time. I look forward to both your return to health and meeting.

In the mean time I have directed any HR requests to be sent to me.

• [17] The Applicant replied to Mr Pemberton's email and a meeting was organised with Mr Pemberton for 14 January 2025. The Applicant attended with Mr Stewart, as she comfortable with him.

• [18] The Applicant states that Mr Pemberton began the meeting by apologising to the Applicant for the way she had been treated. Mr Pemberton reportedly stated: "it just never should have happened". I note Mr Pemberton is no longer employed by the Respondent and did not produce a witness statement in this meeting. The Applicant requested a formal apology from Ms Spokes, both verbally and in writing. The Applicant states that Mr Pemberton stated that together with the apology would be an acknowledgment by the Applicant that "this cannot be used further against the company in anyway", presumably a release. The Applicant said she would not be signing anything that would "silence her".
• [19] The Applicant returned to work on 20 January 2025. The Applicant said she was at a financial loss because of "being forced to take stress leave because of the company's actions."

• [20] On 23 January 2025, the Applicant had not received a formal apology, so she followed up with her direct manager, Mr Stewart.

• [21] On Friday, 24 January 2025, Mr Pemberton asked to meet with the Applicant. A record of that conversation was produced by the Respondent as follows:

I asked Amy if she had a moment for a conversation about her skirt, she said yes that

was ok. I asked Calyn to accompany me as Paul was on RDO.

I spoke with Amy and asked why she was wearing her skirt again today; she replied that I only have one pair of work trousers and so I have to wear my skirt until my uniform arrives. I asked her could she wear some black pants of her own, she said that then everyone would ask why I am wearing that and I simply replied to its because you are waiting for your uniform to arrive, she mentioned she didn't have any. I said, Amy I want to resolve this today so we can move on and get on with more work-related matters". I empathised about her feelings.

I then reiterated that this is a simple request to wear some appropriate clothing. So, to

resolve the issue I asked he if she could go to the shops now and buy some trousers that

conform and give me the receipt and the matter is then closed as far as the dealership

is concerned. Amy mentioned an apology and I said that won't be forthcoming from the

dealership. This is a simple request, so lets just resolve this now, and I asked her is that was ok, and she agreed.

• [22] The Applicant's recollection of the meeting more or less accords with the substance of Respondent's record of the meeting although she stated that Mr Pemberton told her he wanted to "bury this issue" so everyone could move on.[5] The Applicant said she explained that the reason she continued to wear the skirt which was deemed to be inappropriate is because it was one which was issued to her by the company. The Applicant said that she wanted the apology she was promised so that she was able to move on from the situation.[6]

• [23] The Applicant acknowledges that she had agreed to go purchase new clothing and move on.

• [24] However, the Applicant felt she was not in the right headspace to work and notified the Respondent on 24 January 2025 that she would not be returning to work the next day. The Applicant states that she made the decision to resign that weekend after reflecting on her treatment by the Respondent.

• [25] On 28 January 2025, sent an email resigning:

I am writing to resign from my position as Product specialist at Mike Carney Toyota.

Please consider this letter as my formal notice effective from today the 28th of January 2025.

If there is anything I can do to assist with the transition please let me know.

• [26] On 29 January 2025, Mr Pemberton sent the Applicant a letter:

You resigned from your position of employment with us on 28 January 2025. You have stated in your letter of resignation that your notice period will take effect from the 28th of January 2025. We understand that you intent to finish your employment up today

We agree to you fishing work today, 29 January 2025. You will be paid all wages and accrued entitlements up and including today.

As part of your resignation of employment with us, we asked that you complete the "Exit Interview" form (referred to as the "Exit Form"), which you have completed as requested.

There are comments you have Included in the Exit Form that management will properly review in due course. Of concern to us is the following comments that you have completed in the Exit Form:

Additionally, the HR department struggled to handle matters confidently which resulted in myself being sexually harassed, discriminated and bullied. The business also reneged on the promise to formally apologise to me after this incident. This matter has not yet been resolved and is the factor for myself wishing to leave the business.

We believe it is important to address these comments.

The business implements a dress code, as it contributes to the morale of all employees and contributes to a positive work environment in the dealership. Having a dress code which sets clear expectations about appropriate attire in the workplace also ensures that we create a positive first impression for visitors and customers in the dealership, it demonstrates professionalism, it builds credibility with clients and colleagues, it boosts confidence, and it reflects our business image. This is of particular importance considering our global business brand.

As you know, we have a workplace policy relating to our dress code titled "Dress Standards" (referred to as the "Dress Code"). The Dress Code focuses on general appropriateness in the work environment and maintains equality, applying to all employees of the business.

It was after a complaint was received from a business customer about there being a "short skirt club" that management decided to review the Dress Code.

All staff received an email in October 2024 with the updated Dress Code and reminding staff that it is a requirement that all staff adhere to the Dress Code. You were made aware of the customer complaint, and that it was not directed towards any individual staff member.

Importantly, the relevant section of the Dress Code relating to skirts was not altered. At all times you have been employed with us the Dress Code has provided that skirts should be knee-length or longer.

It was noted that your skirt was mid-thigh and did not comply with the Dress Code.

Lyndel Spokes (HR Generalist) with you on 2nd January 2025. The Dress Code was discussed during this meeting. You were informed during this meeting that the purpose of the meeting was to remind staff about the necessity to comply with the Dress Code.

During the meeting on 2nd January 2025, you made reference to body proportions and the difficulty in obtaining the correct size skirt. It was agreed that you would try different skirts and/or arrange for a tailor to fit the skirt properly at our expense. You were reminded that your line managers could provide assistance and support.

The Dress Code relating provides that staff are to liaise with their direct supervisors in the first instance (being the line managers) should there be any concerns with adhering to the Dress Code. It is the responsibility of the line managers to ensure that all staff adhere to the Dress Code. The line managers can also provide you with direction and support as and when that may be required. This is the primarily reason why your direct supervisors were included in the email with the memo dated 6th January 2025.

The memo dated 6th January 2025 was issued to you and your line managers, being Paul Stewart and Todd Sciacca. This memo was a summary of our meeting on 2nd January 2025.

You requested information on what had occurred with other staff. A meeting occurred on 10th January 2025 with yourself, Lyndel Spokes, Paul Stewart, and Geoff Wilson (HR). During this meeting you made reference to comparing the memo you received dated 6th January 2025 and the communication another staff member received. You were informed during this meeting that we would not release confidential information relating to other staff members to you. It does not align with our values and is not part of our Workplace Behaviour Charter. I am sure you understand why.

You contacted me (Group HR Manager) and a further meeting occurred on 14th of January 2025, with Paul Stewart also in attendance. During this meeting we again discussed the memo dated 6th January 2025 and the reasonably necessity to ensure that staff are complying with the Dress Code. We informed you that the Dress Code applies to all staff and is to be adhered to by all staff. You were informed that if you believed another staff member was not complying with the Dress Code and then you are welcome to provide us with the relevant details and we will look into it further.

After the meeting on 14th January 2025 we understood that this matter was resolved and that you would comply with the Dress Code moving forward.

However, a further meeting occurred on Friday, 24th January 2025, with Calyn Ward (New Vehicle Sales 2IC) in attendance. During this meeting you requested an apology from the business. You were informed that this would not occur. We discussed this being a simple and reasonable uniform compliance issue and should not be contentious. We offered to assist in any reasonable way we could.

During this meeting on 24th of January 2025 you said you did not have a sufficient amount of uniforms. We were not aware of this prior to this meeting and offered to purchase you new uniforms. It was confirmed that if you wished to purchase your own skirts or slacks (or something similar), we would reimburse you for the cost of those items. You said it was not fair that you go shopping outside of work hours, so we allowed you to leave work early. You left work at around 3pm so that you could go shopping during your normal work hours and whilst receiving full pay.

You did not attend work on Saturday, 25 of January 2025.

We have attempted to be reasonable in our dealings with you relating to your compliance with the Dress Code. That has not been reciprocated by you. To the contrary, you have been argumentative and confrontational in our dealings

We do not believe that there can be any suggestion that you have been sexually harassed, discriminated against, or bullied in the workplace. All matters relating to your compliance with the Dress Code have been appropriately and reasonably attended to by us.

It is unfortunate that you feel this way and that the employment will end in this manner. However, we sincerely wish you all the best with your future endeavours in the legal industry.

Was the Applicant terminated during her notice period?

• [27] I will deal firstly with the factual question of the effective date of the Applicant's resignation and whether she was terminated during her notice period.

• [28] The Applicant states that she gave two weeks' notice. I struggle to understand this argument. The resignation letter states quite clearly:

Please consider this letter as my formal notice effective from today the 28th of January 2025.

• [29] A reasonable person reading that letter would understand the Applicant to be resigning effective immediately, or effective from the end of that day. At no point in the letter does the Applicant state she is providing two weeks' notice.

• [30] It is true that the Applicant was paid two weeks' notice in lieu. However, the Respondent's decision to pay the Applicant's notice period out does not change the effective date of resignation which she provided in her letter. I note the Respondent stated during the hearing that it is standard company practice to pay two weeks in lieu to all staff when they leave.

• [31] Even if Applicant had provided two weeks' notice, it was open to the Respondent to pay out the notice period instead of requiring the Applicant to serve out the notice period. This is particularly common in industries where an employee may know sensitive commercial information about the employer.

• [32] I find that the Applicant's resignation was effective from 28 January 2025. Her employment was not terminated at the employer's initiative during her notice period.

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

• [33] 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.[8]

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

• [35] 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.[9] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[10]
• [36] 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.[11] It is sufficient that the employer's conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[12]

• [37] All the circumstances - including the conduct of both the employer and employee - must be examined.[13] 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."[14]

• [38] 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."[15]

• [39] Furthermore, in Pawel v Australian Industrial Relations Commission,[16] the Full Bench noted:

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

• [40] 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;[17]
• • a 'critical action' or 'critical actions' of the employer which was intended to bring the employment relationship to an end;[18]
• • 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;[19] 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.[20]

• [41] Firstly, the Respondent's approach to the issue of the Applicant's skirt length was poorly handled from start to finish. To be clear, discussing an employee's skirt length in the context of a uniform policy is within management's prerogative. However, it should be obvious to any employer that a discussion regarding the length of an employee's skirt should be handled sensitively.

• [42] To include explicit reference to the Applicant's "body proportions" in a written memo advising her to obtain a larger skirt and then copy in several of the Applicant's line managers, was not acceptable. The Applicant felt understandably embarrassed by the memo. In that regard, I am sympathetic to the Applicant, and I agree that she should been provided with an apology. I also agree that a cursory response of "Apologies" at the start of an email is not sufficient.

• [43] Additionally, it is not clear why the Applicant was told that asking if she was the only employee to receive a memo is a breach of confidentiality. Instead of acknowledging the Applicant's perspective, the Respondent told the Applicant to end the "ongoing commentary regarding the memo".

• [44] However, I accept that the Respondent is entitled to set a uniform policy. In this case, they decided to specify a skirt length. The policy is lawful and reasonable. It is also within the remit of the employer to investigate compliance with the policy. The Applicant was determined to be non-compliant with the uniform policy, whereas her colleague was not.

• [45] Ideally, the Respondent should have been very precise about what "knee-length" means, as that imprecision caused more confusion for the Applicant. That being said, the Applicant understood that the skirt she regularly wore had been deemed non-compliant with the uniform policy. She also agreed to order a new skirt and have it tailored. Further, on 24 January 2025, the Applicant agreed that she would purchase new trousers. I do not accept the argument that as the skirt had been issued by the Respondent it must have been compliant. The Applicant knew the Respondent was telling her it was not compliant. The Respondent is also entitled to update its uniform policy, which it did in October 2024.

• [46] 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. The Applicant has not sufficiently established how she went from accepting that she would purchase new trousers and move on, to being forced to resign a few days later.

• [47] While I accept that the Respondent ideally should have apologised to the Applicant, a failure to apologise does not amount to forced dismissal. The conduct by the employer must be outside the ordinary course of events and must compel the Applicant's resignation. In this case, a fumbled HR investigation does not satisfy the requirements of forced resignation, particularly where the objective evidence shows Applicant had expressed agreement to moving on a few days prior.

• [48] I am sympathetic to the Applicant's concerns regarding the investigation process. However, in relation to the Applicant's pre-existing mental health concerns relating to her body image, I have not seen any evidence that the Respondent was aware of these prior to the Applicant's resignation.

• [49] I find that the Applicant chose to resign of her own volition on 28 January 2025.

As a result, 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.

B Gaeta of Connolly Suthers Lawyers for the Respondent

[1] Exhibit C Respondent Submissions - Employment Contract

[2] Exhibit E to Respondent Submissions.

[3] Attachment D to Applicant Witness Statement

[4] Exhibit M to Respondent Witness Statement.

[7] Attachment L to Applicant Submissions.

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

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

[11] 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.

[12] 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].

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

[14] 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].

[16] (1999) FCA 1660 at 58.

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

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

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

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

Printed by authority of the Commonwealth Government Printer