d) The Applicant had obtained independent advice.

[28] As to s.386(1)(b), I have also adopted the principles outlined by the Full Bench in Tavassoli set out above and have considered:

a) Whether the Respondent engaged in conduct intended to bring the employment to an end; and

b) Was the termination of the Applicant's employment the probable result of the Respondent's conduct such that she had no effective or real choice but to resign?

[29] Having regard to the factual background I have outlined above, I am not satisfied the Respondent engaged in conduct intended to bring the employment to an end. Firstly, while the Respondent had formed the view during the first half of 2024 that Ms Watson's performance was in need of improvement, it did not proceed to sanction her and, instead, was proposing to manage the issues through a PIP. While Ms Watson claims the PIP proposal was a retaliatory move in response to her having made a formal complaint, I consider the Respondent's proposal was a completely orthodox exercise of managerial prerogative. Secondly, the Respondent approved Ms Watson's application for LWOP, endorsing the need for Ms Watson to look after herself and expressing the hope that she was feeling better and recovering well. Thirdly, the arrangements associated with Ms Watson's LWOP that were put in place by the Respondent (outlined in [10] above) were practical, supportive and appropriate. Fourthly, I do not consider the reactions of the Respondent's employees to Ms Watson's application for approval to commence a fixed term role at WSV during her LWOP constituted conduct intended to bring her employment to an end. The expressions of surprise and confusion were spontaneous reactions and any mild incredulity was quickly overcome, with the response moving to practicalities and then to expressions of encouragement and support. Fifthly, I consider there was nothing inappropriate regarding the request for the return of the Respondent's assets and devices. The Respondent was very clear about this from the outset and Ms Watson had been given an early opportunity to nominate a suitable time and date so that this could be coordinated. Sixthly, while overpayments are unfortunate and can be untidy to manage, there was an organisational policy in place to deal with them and Ms Watson had the opportunity to make repayment by instalment. Finally, the notion of there being a mutually agreed separation was first raised by Ms Watson and the Respondent engaged in the dialogue and correspondence carefully and respectfully.

[30] I have noted Ms Watson's reliance on Ms Zahra's observation in the letter dated 15 July 2025 that "Despite the efforts we have made to support you, it is clear that the employment relationship has irrevocably broken down." This comment needs to be viewed in context. It was responsive, made after Ms Watson's letter dated 20 June 2025 (see above at [17]). I have also noted Ms Zahra's subsequent letter to Ms Watson, dated 17 July 2025. This followed the meetings and correspondence regarding a possible mutually agreed separation, was courteous and professional and it identified where Ms Watson could direct any questions and find support. The email of Ms Sormaz that followed, on 11 August 2025, was positive in tone and forward looking. This email very much assumed Ms Watson's return to work. In summary, the Respondent had granted Ms Watson LWOP, acceded to her request to work elsewhere during it, managed the arrangements appropriately and after professional and courteous dialogue about a mutually agreed separation, gave every indication that it aspired, moving forward, for the employment relationship to be positive and productive. Ms Watson herself acknowledged the time that had been taken by the Respondent to consider her separation request. At all times, she had the opportunity to resume her work for the Respondent. However, after taking time to consider her position and obtain professional advice, Ms Watson decided to resign from her employment in order to "continue to pursue appropriate avenues separately". It follows that I am not satisfied that the termination of Ms Watson's employment was the probable result of the Respondent's conduct, such that she had no effective or real choice but to resign.

[31] I have concluded that in this case there was no dismissal within the meaning of s.386 of the Act because I am satisfied there was no termination of Ms Watson's employment on the Respondent's initiative and nor have I been persuaded that Ms Watson was forced to resign because of conduct or a course of conduct engaged in by the Respondent. The effect of my conclusion that Ms Watson was not dismissed is that her application does not meet the requirements of s.365 of the Act and the Commission does not have jurisdiction to deal with it. As a result of my determination, the application made by Ms Watson pursuant to s.365 of the Act is dismissed. Given this conclusion, I will not issue an Order.

K Shepherd on behalf of Transport Accident Commission.

[1] [2020] FCAFC 152.

[3] See for example Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [14]- [15] and Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 at [12].

[4] [2017] FWCFB 3941.

Printed by authority of the Commonwealth Government Printer