s 365 - General protections

Section 365; jurisdictional objection upheld; voluntary resignation; application dismissed

• [1] On 29 September 2025, Mr Ashish Adhikari (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant commenced employment with Karingal St Laurence Limited (the Respondent) on or around 1 October 2013, as a support worker in a permanent capacity. On 13 August 2025, the Applicant gave notice to the Respondent that he resigned from his employment effective 8 September 2025.

• [2] The Respondent has objected to the general protections application on the ground that the Applicant was not dismissed within the meaning of s 386 of the Act but voluntarily resigned.

• [3] The Respondent's objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[1] Section 365 of the Act relevantly provides:

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] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[2] Therefore, the discrete issue for determination is whether the Applicant was 'dismissed' from his employment within the meaning of ss 12 and 386(1)(a) or/and (b) of the Act.

• [5] Given the factual dispute over whether the Applicant was or was not dismissed, the matter proceeded to hearing on 20 November 2025. Having considered the evidence of the parties and their submissions, I have found that the Applicant was not dismissed. It follows that the Respondent's jurisdictional objection is upheld, and the Applicant's application is dismissed. An order[3] issues concurrently with this decision to that effect.

• [7] In respect of the broader context leading to the cessation of the Applicant's employment, evidence was received from the Applicant and consideration extended to the business records of the Respondent and its Form F8A.

• [8] From the Applicant's submissions, it is apparent that he contends that he was forced to resign because of a course of conduct engaged in by the Respondent, and that his decision to resign was given under pressure.

• [9] Whilst employed in a permanent part-time capacity, on 7 August 2025, the Applicant made a request to the Respondent to change from permanent employment to casual employment. The Applicant set out that he made the request due to his parental responsibilities regarding the care of a child who was school age and to allow for a flexible working arrangement in light of his health starting to show signs of strain. The Applicant considered that his request aligned with his rights under the enterprise agreement that covered him and/or the National Employment Standards.

• [10] The Applicant's email to Kim Forster (Forster), his East Metro Team Leader, purportedly dated 7 August 2025, set out the following:

As requested previously in my PDR meeting, I would like to formally request a change in my employment status from part-time to casual, effective from 08/09/2025. [4]

• [11] After setting out the reasons for his request, one of which was parental responsibilities for young children, the Applicant concluded his email noting:

...With all this in mind, I've decided the best step forward is to move to a casual contract. This change will allow me the flexibility I need during this season of life and give me a change to support my family more effectively.[5]

• [12] It appears that Forster replied to the Applicant's email on 7 August 2025, explaining that all 'VOCs' (presumedly variation of contracts) were on hold temporarily, but that Forster would continue to work with 'Rostering' to obtain updates and would keep the Applicant up to date.[6]

• [13] Forster responded to the Applicant on or around 12 August 2025 and set out certain requirements as to what was required for the Applicant to move from permanent part-time to casual employment. These requirements included that the Applicant was required to be available for a minimum of two weekdays and that there would be limited weekend work. Once the Applicant provided his availability, Human Resources would need to approve the conversion, and the Respondent would then require written confirmation that the Applicant understood he would lose entitlements. Four weeks' notice for the change was required and the Applicant would need to take leave without pay until the variation of contract was processed.

• [14] On 13 August 2025, the Applicant responded to Forster (copying in Victoria Amey (Amey), Region Manager) expressing his disappointment that his request to change from permanent to casual had been restricted and that he had never heard of a requirement to provide two weekdays of availability for casual staff and asked when the process was introduced. Notwithstanding this question and the Applicant's observations in the correspondence that he considered that there were vacant shifts, the Applicant proceeded to advise Forster of the following:

I have provided 4 weeks notice stated in the below email, which I believe is more than reasonable notice. If this request cannot be approved, this notice will also serve as my formal resignation, effective from notice period 08/09/2025. I believe it would be both unfair and unnecessary to refuse or delay this change, especially when similar requests have been approved in the past.

Please accept my resignation moving forward and I appreciate the support and thanking everyone for working with you all together.[7]

• [15] On or around 15 August 2025, Amey wrote to the Applicant, acknowledging amongst other matters the following:

Thank you for your email and for outlining your situation.

I acknowledge your notice of resignation, effective from 8 September 2025, and accept it with regret. While we're disappointed to see you go, I want to sincerely thank you for your 12 years of dedicated service and the positive impact you've had during your time with us.

Regarding your request to transition from permanent to casual, I understand the personal reasons behind it and appreciate your openness. While we do aim to support flexibility, our current preference is for casual staff to be available during weekdays due to current business needs. With the current transition with the merger our operations are being reviewed, and we currently have no need for extra casuals on weekends.

Kim will inform rostering of your decision and start our processes.[8]

• [16] The Applicant asserts that his primary position is that he was forced to resign because of a course of conduct engaged in by the Respondent therefore rendering his resignation involuntary. Further, the Applicant considers that his resignation was provided in circumstances where he was under pressure.

• [17] Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section is relevant for present purposes given the Federal Circuit Court[9] and Federal Court[10] have accepted that the definition of the word 'dismissed' in s 386(1) is equally relevant to the meaning of the term as used in s 365 of the Act. The word 'dismissed' as defined in ss 12 and 386 of the Act reads:

(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.

• [18] There are exceptions under s 386(2) of the Act regarding when a person has been dismissed; however, those exceptions are not relevant to this case.

• [19] The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration.

• [20] The first element traverses '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'. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli ('Bupa'),[11] and in Lipa Pharmaceuticals Ltd v Jarouche where the Full Bench endorsed the principles established in Bupa in respect of s 386(1)(b) of the Act.[12] In Bupa, it was said:

[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 probable result of 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.[13]

• [21] While a summary of the position under s 386(1) of the Act was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan considered the operation of s 386(1):

[10] It seems clear...that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).

[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression "termination at the initiative of the employer" was:

. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ''termination of employment.'' (references omitted)[14]

• [22] Therefore, the questions before the Commission are whether the conduct of the Respondent left the Applicant no choice but to resign or whether the Applicant's resignation was given in the 'heat of the moment'.

• [23] It is established that there may exist 'special circumstances' which render an apparent indication of resignation on the part of the employee ineffective unless the employer obtains confirmation of the employee's intention to resign after a reasonable period.

• [24] In Bupa,[15] the Full Bench gave detailed consideration to the judgment of the Industrial Relations Court of Australia in Minato v Palmer Corporation Ltd ('Minato').[16] In Minato, the employer purported to accept a resignation of the employee even though it knew that when the employee uttered the words taken as a resignation that she was under personal pressure, not in a 'sensible state', and did not intend to resign.[17] In those circumstances, the acceptance of the resignation was characterised as constituting a termination of employment at the initiative of the employer.[18] The Court in Minato referred to Sovereign House Security Services Ltd v Savage, observing that it set out the legal position in respect of ascertaining whether there was a real resignation. [19]

• [25] Having considered and weighed the evidence before me, I do not consider that the Applicant resigned in circumstances which can be described as in the 'heat of the moment' or when the Applicant was in a state of emotional stress or mental confusion such that the Applicant could not reasonably be understood as conveying a real intention to resign. The Applicant's correspondence to the Respondent of 13 August 2025 was cogent. It detailed that if the Applicant's request to change from permanent to casual employment could not be approved, then the email constituted notice of his formal resignation with the provision of a notice period - such that his employment would end on 8 September 2025. The cogency of the email and the provision of a notice period, sit contrary to circumstances where a real intention to resign is not conveyed. Whilst the Applicant's correspondence of 13 August 2025 may have exhibited a level of frustration directed toward the Respondent, the evidence does not support a finding that the resignation was given in the 'heat of the moment'.

• [26] As to whether the Applicant was forced to resign because of the Respondent's conduct or a course of conduct engaged in by the Respondent, I have found that not to be the case.

• [27] The Applicant provides several reasons why he considers the Respondent's conduct forced him to resign.

• [28] First, he submits that he informed the Respondent that if his request (change from part-time to casual) could not be approved, then his resignation might be necessary. The Applicant has mischaracterised his resignation email of 13 August 2025 in this respect. The Applicant's correspondence to the Respondent does not broach that a resignation 'might be necessary'. The email unequivocally provides that if the Applicant's request (change from permanent to casual) cannot not be approved, then the notice would serve as his formal resignation, effective 8 September 2025. Thereafter, the Applicant asked that the Respondent please accept his resignation moving forward.

• [29] Second, the Applicant observes that the Respondent immediately accepted his resignation. However, the Respondent did not accept the Applicant's resignation until 15 August 2025, having received it on 13 August 2025. It is therefore not the case that the Respondent immediately seized upon an opportunity to accept the Applicant's resignation. A day passed prior to the Respondent providing a response, and in that intervening time it was always open to the Applicant to retract his resignation or otherwise continue his communications about his family circumstances with the Respondent during his notice period.

• [30] Third, the Applicant appears to contend that the obligation upon the Respondent to agree to change the Applicant's employment from permanent part-time to casual arises under the Act and the Activ - United Workers Union - Direct Care Enterprise Agreement 2021[20] (the Agreement).

• [31] The Applicant asserts that the Respondent acted contrary to its obligations under s 65 of the Act. Whilst the Applicant requested a change in his employment status from part-time to casual, and, amongst other factors, cited parental responsibilities for school aged children, there was no express reference in the Applicant's correspondence to the Respondent that he was seeking a flexible working arrangement pursuant to the National Employment Standards (s 65 of the Act). Notwithstanding, if it was the case that the Applicant's correspondence constituted a request for a flexible working arrangement and the Applicant considered that there was a dispute between him and the Respondent in respect of the request, it was, at all material times, including within the Applicant's notice period, open to the Applicant to raise a dispute with the Respondent about the denial of his request, and if resolution of that dispute was not achieved between the parties, he was thereafter able to refer the dispute to the Fair Work Commission to deal with pursuant to s 65B of the Act. If it was the Applicant's intent to remain employed with flexibility, then it was open to the Applicant to research the flexible working arrangement provisions of the Act and pursue this course. Instead of exploring this option, the Applicant chose to resign.

• [32] The Applicant further asserts that he queried with the Respondent where in the enterprise agreement, policy or contract, the requirement arose for him make himself available for two weekdays a week if moving to a casual employment status. The Applicant asserts that he was informed that it was a 'new thing' because there was 'no work on the weekends'.

• [33] In the absence of the Applicant's employment contract, I am unable to reflect on whether the contract precluded the Respondent from putting forward a proposal of casual employment subject to the Applicant being available to work two weeks days a week. However, it strikes me that in circumstances where the Applicant's substantive position was permanent part-time and he had requested a change to casual employment, subject to what I have said above in respect of the operation of s 65 of the Act (and clause 11 of the Agreement to which I will turn shortly), the Respondent retained a managerial prerogative to inform the Applicant of what it could accommodate based on its operational requirements. The Respondent's communication in respect of ascertaining the Applicant's availability, noting the limited number of weekend shifts and the pause on variations of contracts (because of the merger between 'Activ' and 'GenU' (the Respondent)', was not unreasonable in the circumstances.

• [34] Clause 9 of the Agreement sets out the types of employment under the Agreement. There is no prohibition in the Agreement that limits the Respondent's authority to request that casual employees provide their availability for two weekdays a week. Clause 11 of the Agreement provides that employees may request a change in their working arrangements in accordance with the National Employment Standards, and that nothing within clause 11 precludes an employee from pursuing a dispute under clause 61, the dispute resolution clause. Therefore, it was open to the Applicant to raise a dispute under the Agreement pursuant to clause 61 in circumstances where a dispute had arisen in respect of clause 11. Again, it was open to the Applicant to raise a dispute with the Respondent pursuant to the terms of the Agreement. The Applicant's choice was not so negated that the only option available to him was resignation.

• [35] The Applicant submits that as a result of sustained employer pressure, lack of fair process, and refusal to accommodate his reasonable needs, he was either forced to resign by a course of conduct engaged in by the Respondent, or that his resignation was essentially provided in the 'heat of the moment'. On balance, neither argument is compelling because the evidence does not support such findings. There were alternative options available to the Applicant other than resigning from his employment. Furthermore, it was open to the Applicant to research and explore those options before deciding to bring his employment to an end - a decision he exercised and a choice he made, voluntarily.

• [36] I find that the Applicant was not 'dismissed' as that term is understood by reference to ss 12, and 386(1)(a) and (b) of the Act.

• [37] The jurisdictional objection is upheld, and the substantive application under s 365 of the Act is dismissed.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591, 603 [54], ('Milford'); special leave to appeal declined in Coles Supply Chain Pty Ltd v Milford [2021] HCASL 37.

[3] PR794107.

[9] Morris v Allied Express Transport Pty Ltd [2016] FCCA 1589, [117].

[11] [2017] FWCFB 3941 ('Bupa').

[12] [2023] FWCFB 101, [18].

[14] [2018] FWCFB 5 [10]-[11].

[16] (1995) 63 IR 357 ('Minato').

[19] [1989] IRLR 115, 116. cited in Minato (n 16) 361-2.

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