s.365 - General protections

General protections - jurisdictional objection - whether applicant dismissed - whether applicant forced to resign - jurisdictional objection upheld - application dismissed

• [1] Ms Bailey Richens (the applicant) has made a general protections dismissal application under s 365 of the Fair Work Act 2009 (Cth) against her former employer BDO Administration Pty Ltd (the respondent).

• [2] The respondent has made a jurisdictional objection the application. The respondent says that the Commission has no jurisdiction to deal with the application because the applicant was not dismissed.

• [3] This decision determines the jurisdictional objection.

• [4] For the reasons that follow, I have decided that the applicant was not dismissed and the Commission has no jurisdiction to deal with the application.

• [5] 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".

• [6] 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.

• [7] 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 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.

• [8] On 21 May 2025, the applicant gave the respondent a formal notice of her immediate resignation. Extracts of the letter are set out in paragraph [41] below. The applicant contends that that the resignation was not given voluntarily but constituted a "constructive dismissal compelled by a hostile work environment that was procedurally unjust". The applicant's case amounts to an allegation that she was dismissed within the meaning of s 386(1)(b) of the Act as she forced to resign by the conduct or a course of conduct by the respondent. Consequently, I will consider whether the applicant was dismissed having regard to the test set out in paragraph 47(2) of Bupa.

• [9] The applicant was employed as a legal secretary by the respondent under a contract of employment dated 26 July 2024. The applicant commenced employment on 16 September 2024. The applicant performed work in a legal practice which formed part of the services offered by the respondent or its associated entities. The applicant's role was to provide administrative support to Ms Rebecca Thomson, the principal lawyer of the legal practice.

• [10] In about late March 2025, Ms Thomson informed Ms Jessica Vince (Senior People & Culture Manager) that she had concerns regarding the applicant's performance.

• [11] On 3 April 2025, Ms Vince held a meeting with the applicant. At this meeting Ms Vince informed the applicant that Ms Thomson had concerns about the applicant's performance. The applicant responded that she and Ms Thomson had different working styles and that she felt there had been a communication breakdown between herself and Ms Thomson. The applicant made some suggestions about how communications could be improved. The applicant noted that her workload had increased as the team had grown. The applicant indicated that she loved her role and the team. The applicant did not raise any issue regarding her wellbeing.

• [12] On 8 April 2025, Ms Vince met with the applicant and informed her that they were to have a meeting with Ms Thomson and Ms Naomi Rae the following day. Ms Vince explained to the applicant that Ms Rae was an experienced Executive Assistant and understood the role of an Executive Assistant and the respondent's systems and would be a good source of ongoing support. Ms Vince informed the applicant that she could bring a support person to this meeting.

• [13] On 9 April 2025, a meeting was held between Ms Vince, Ms Thomson, Ms Rae and the applicant. Ms Vince identified that the purpose of the meeting was to improve communication and the level of support the applicant was providing to Ms Thomson and the team. Ms Vince identified a number of areas where the respondent considered that the applicant's performance was not at the expected level. Ms Vince asked the applicant whether there were any matters affecting the applicant's performance. The applicant indicated that there were no matters affecting her performance and that she considered it was a communication issue. There was an ensuing discussion in which the participants exchanged ideas and Ms Rae set out some ideas based on her experience of performing an Executive Assistant role.

• [14] On 11 April 2025, Ms Vince sent the applicant an email which summarised the discussion at the meeting. The email concluded as follows:

Please note that we will monitor your performance and commitment to this process over the coming weeks. If we believe that you need further support and infrastructure to bridge your development areas, we will look to implement a formal Performance Improvement Plan.

• [15] On 23 April 2025, the applicant provided the respondent a medical certificate. The medical certificate certified that the applicant was unfit for work on 22 and 23 April 2025 and advised that the applicant work from home on 24 April 2025.

• [16] On 24 April 2025, Ms Vince sent the applicant a message via Microsoft Teams inquiring how she was feeling and whether she was well enough to work from home that day. The applicant confirmed that she was well enough to work from home.

• [17] On 28 April 2025, Ms Vince and the applicant had a meeting on Microsoft Teams. Ms Vince said that she wanted to check how the applicant was feeling and also inform her that a follow up meeting to the previous meeting of 9 April 2025 was being scheduled for the next day. The applicant told Ms Vince that she was feeling OK and that she was working from home that day and would be back in the office the next day. Ms Vince informed the applicant that she could bring a support person to the meeting scheduled for 29 April 2025.

• [18] On 29 April 2025, the applicant, Ms Vince and Ms Thomson met in person at the respondent's office. The applicant did not bring a support person. Ms Vince inquired how the applicant was feeling and whether she was comfortable going ahead with the meeting. The applicant indicated that she was feeling better. Ms Vince indicated the areas of discussion at the meeting including her performance since 9 April, clarification of the work the applicant had performed on 24 April 2025 and 28 April 2025, a client issue and a potential breach of the respondent's professional code. Ms Thomson and Ms Vince raised some issues of concern relating to the applicant's performance arising from the respondent's notification tracker involving delays in actioning certain items and the removal of client details. The applicant provided some preliminary explanation but indicated that she would need to know which clients the issues related to in order to provide a more detailed explanation. Ms Thomson identified the clients and inquired whether the applicant understood the risk the issue would pose. The applicant indicated that she understood the risk but could not provide a response regarding specific clients until she had reviewed the records.

• [19] Ms Vince and Ms Thomson then sought to have a discussion with the applicant about her performance between 9 April 2025 and 14 April 2025. They attempted to do so by reference to each of the performance issues discussed at the meeting on 9 April 2025 and subsequently summarised in Ms Vince's email to the applicant of 11 April 2025. However, the applicant indicated that she had not come to the meeting prepared to discuss the performance areas. The applicant indicated that she would like to respond in writing. Ms Vince asked her to do so by lunchtime the next day and provide a response to each of the performance areas and the client issues discussed.

• [20] Ms Vince then asked to the applicant to provide some detail about the work she had performed on 24 April 2025 when she had worked at home. The applicant indicated that she was easing herself back into work and reviewing a backlog of emails. Ms Vince expressed that the respondent's assessment of the work time recorded by the applicant did not reflect the amount of work actually performed by her. The applicant indicated that as it was past 5:00pm, she needed to leave due to a preexisting personal commitment. The parties agreed to reconvene after the applicant had provided a written response regarding performance areas and the client matters arising from the notification tracker.

• [21] After the meeting concluded, Ms Vince sent the applicant an email confirming that she should respond regarding her progress in relation to the performance areas and the client issues arising from the notification tracker. Ms Vince also sent the applicant a meeting invitation for the following day.

• [22] On 30 April 2025, the applicant sent Ms Vince an email response regarding the performance areas. The applicant indicated she needed further time to review the client matter arising from the notification tracker and would respond the following day.

• [23] At about noon on 30 April 2025, Ms Vince and Ms Thomson met with the applicant. There was a further discussion regarding performance matters. Ms Vince raised the issue of an apparent discrepancy between the applicant's recorded work in timesheets for 24 April and 28 April and what the respondent could identify as actual work output. The applicant provided an explanation of those matters involving her engagement on review of emails, catching up on work and technical issues. Ms Vince asked the applicant whether there were any issues affecting her performance of which the respondent should be aware. The applicant indicated that there were none. Ms Vince indicated that, in light of the respondent's performance concerns and the technical issues, the applicant would be required to work in the office 5 days a week going forward.

• [24] On 1 May 2025, the applicant sent an email to Ms Vince setting out a response to the client issue arising from the notification tracker. This matter was the subject of a conversation between Ms Vince and the applicant on 2 May 2025.

• [25] On 5 May 2025, Ms Vince sent the applicant a calendar invitation for a meeting on 6 May 2025. The invitation indicated that the purpose of the meeting was to advise the applicant of the outcome of the performance discussions in the previous week and invited the applicant to bring a support person.

• [26] On 6 May 2025, Ms Vince, Ms Thomson and the applicant met. At the meeting, Ms Thomson indicated that after reviewing the applicant's responses to the performance concerns, the respondent considered that the applicant's performance was not at the required level and that she would be placed on a first and final warning and that the respondent would implement a Performance Improvement Plan (PIP). Ms Vince asked the applicant whether she considered the respondent's assessment was fair. The applicant asked whether they could just move to the PIP as she believed that would happen anyway and that people on PIPs get terminated. Ms Vince indicated that this was not always the case and that she knew of a number of instances where employees on PIPs had retained their employment and continued their careers. The applicant was handed a hard copy of a PIP to review. The PIP was proposed to operate for a four-week period with reviews to occur on 20 May 2025 and 3 June 2025. The PIP referred amongst other things to development areas, action steps, measurables, the availability of a confidential Employment Assistance Program (EAP) and the availability of mentoring and coaching from Ms Rae, Ms Thomson and another member of staff. At the meeting, the applicant indicated that that the action plan in the PIP was achievable. The applicant also indicated that she was finding the frequency and content of the meetings to be stressful. Ms Vince indicated that the next meeting was not proposed to be until 20 May 2025. Ms Vince also indicated that due to the technical issues the applicant said she had experienced, the applicant should work from the office 5 days a week during the PIP process.

• [27] On 6 May 2025, Ms Vince emailed the applicant a soft copy of the PIP and sought an indication whether the applicant proposed any changes by close of business the following day. The email also noted that the applicant would receive the warning within the next day.

• [28] On 7 May 2025, the applicant emailed Ms Vince and said she would respond by COB Wednesday 14 May 2025 whether she had any questions or proposed changes. Ms Vince replied and asked the applicant to prioritise a response, absent which the PIP would be provided to the applicant for her signature. Later that day, the applicant informed Ms Thomson that she was leaving work early as she was not feeling well. The applicant left work at about 4:20pm.

• [29] On the evening of 7 May 2025 between the hours of 9:18pm - 11:48pm, the applicant was evidently logged onto her work laptop. This was well outside the applicant's normal hours of work, noting also that she had gone home early that day. That evening, the applicant used a webmail application to conduct searches of Ms Thomson's inbox and took a series of screenshots using her mobile phone of emails and Microsoft Teams messages to which Ms Vince and Ms Thomson were party. The emails and Teams communications involving Ms Vince and Ms Thomson related to the applicant and other employees. The applicant tendered these communications into evidence and relies on these communications, amongst other things, to sustain her contention of a constructive dismissal or forced resignation. I have noted above that the applicant was logged onto her work laptop between 9:18pm - 11:48pm. This is evident because the numerous photographs of Ms Thomson's emails and Teams messages include the computer clock at the bottom right corner of the screen.

• [30] On 8 May 2025, the applicant notified Ms Thomson that she would not attend work as she was not well.

• [31] Also on 8 May 2025, Ms Vince emailed the applicant a first and final warning. The letter referred to various steps the respondent considered it had taken to assist the applicant improve her performance, indicated that if the applicant's performance did not improve in the next four weeks her employment may be terminated, expressed a hope that her performance would improve and noted the availability of a confidential EAP.

• [32] On 14 May 2025, the applicant sent Ms Vince, Ms Thomson and a third person, being another HR Business Partner, an invitation to a meeting on 20 May 2025 with the subject of 'Discussion of a sensitive matter'.

• [33] On 19 May 2025, Ms Vince spoke to the applicant, referred to the subject of the meeting and enquired whether the applicant had a complaint she wished to make. The applicant indicated that she did not have a complaint but would like to discuss a sensitive matter. Ms Vince indicated she would arrange for Ms Marnie Sanderson (Senior People and Culture Manager) to attend the meeting. Ms Vince also indicated that the meeting on 20 May 2025 would be the first performance check-in under the PIP and that the meeting could be structured to first discuss the sensitive matter the applicant wished to discuss and then have a performance check in.

• [34] On 19 May 2025, Ms Vince sent the applicant an email confirming that the meeting next day would involve a review the applicant's performance against the PIP and asked the applicant to complete a self-assessment document attached to the email.

• [35] On 20 May 2025, at 8:59am the applicant emailed Ms Vince and Ms Thomson a self-assessment which was positive, referring to her pride in her work, attention to detail, meeting of deadlines, monitoring of responsibilities, communication with the team, initiative and resourcefulness, as well as management of various inboxes and calendars. The self-assessment concluded with an overall conclusion that her performance reflected a high level of professionalism, reliability and initiative.

• [36] On 20 May 2025 at about 9:00am, the applicant, Ms Vince, Ms Thomson and Ms Sanderson met. The applicant read out some pre-prepared points which included a statement to the effect "I am aware that the firm intends to terminate my employment effective on 3 June 2025." Ms Vince indicated that the respondent had instituted the PIP to support the applicant to get her performance back to the required level and that no outcome had been determined. Ms Vince asked the applicant whether she had any evidence to support her claim that the firm intended to terminate the applicant's employment. The applicant responded by stating that Ms Sanderson should undertake her own investigation. Ms Sanderson said that this matter should be taken "offline". Ms Vince then indicated that the discussion would now move to reviewing the applicant's performance and progress during the PIP and the applicant's self-assessment. A discussion about the applicant's performance ensured during which Ms Thomson indicated that the applicant's self-assessment was not a true representation of the applicant's performance and that it did not address performance measurables. Ms Vince indicated that the meeting would pause and that Ms Sanderson would contact the applicant.

• [37] Shortly after the meeting, the applicant sent Ms Vince, Ms Thomson and Ms Sanderson an email documenting the points she raised in the first part of the meeting. The points raised included an observation that the applicant's experience with the respondent "had not aligned with [her] expectations", that the applicant had in monitoring Ms Thomson's inbox, seen emails and Teams messages between Ms Thomson and Ms Vince which referred to the applicant and had caused her distress and made her feel uncomfortable in the past few months, an assertion that the respondent intended to terminate the applicant effective 3 June 2025, that the applicant was "seeking a professional and equitable resolution to this matter" and a "request that the we explore options to resolve this amicably".

• [38] About one hour letter, the applicant emailed Ms Sanderson extracts of performance feedback from three other staff of the respondent that the applicant had obtained from the respondent's "MyCareer platform". While is not clear why or when this feedback was input into the platform by those staff, it is fair to say that the observations of those other staff regarding the applicant was positive.

• [39] At about 3:18pm on 20 May 2025, the applicant sent an email to Ms Sanderson in response to a Microsoft Teams message and an invitation to a meeting Ms Sanderson had sent the applicant. In the email, the applicant indicated that she had not requested a "formal investigation" and said further "nor do I intend to pursue one internally at this stage", requested all communications be in writing, declined to attend a meeting for the following day and indicated that she remained willing to engage in confidential negotiations to resolve matters.

• [40] On 20 and 21 May 2025, the applicant and Ms Sanderson engaged in without prejudice communications arising from the applicant's request to explore options for an amicable resolution. On 21 May 2025 at 2:29pm, Ms Sanderson sent the applicant an email indicating that an offer made by the respondent the previous day would lapse at close of business and that if the applicant did not accept the respondent's offer the respondent would not enter into further negotiations with the applicant. Ms Sanderson's email also affirmed that if the respondent's proposal was not accepted, the applicant's employment would continue in accordance with the terms of the applicant's contract of employment and the PIP would remain in place.

• [41] On 21 May 2025 at 6:03pm, the applicant emailed Ms Sanderson and Ms Thomson a letter entitled "Formal Notice of Resignation - Constructive Dismissal", substantial excerpts of which are set out below:

I write to formally resign from my position as Legal Secretary at BDO Administration Pty Ltd (BDO), effective immediately.

This resignation is submitted on the basis of constructive dismissal, as contemplated under the Fair Work Act 2009 (Cth). It is not a voluntary decision, but one compelled by sustained conduct on the part of the firm which has materially breached the fundamental obligations of trust, procedural fairness, and psychological safety, and has rendered the continuation of my employment untenable.

Unfortunately, a sustained pattern of conduct has progressively undermined the employment relationship and caused significant harm to my health and wellbeing.

Without limiting the full scope of concerns or potential claims, I outline the following matters by way of example:

• Internal communications referencing an impending termination on 3 June 2025, identified by me in the course of my duties, and prior to the commencement of any formal performance management process;

• The subsequent imposition of a Performance Improvement Plan (PIP) on 6 May 2025, without prior warning, substantiated performance concerns, or procedural fairness;

• The issuance of a first and final written warning on 8 May 2025, while I was on a period of medically supported leave;

• An opportunity to respond which, while offered, was not reasonable in timing or substance, and did not provide a genuine chance to address the issues raised; and

• My formal request for a mutual separation via Deed of Release (deed), which was met with a reluctance to engage in written communication, and the subsequent lapse of the deed as of close of business today, despite my stated willingness to resolve the matter amicably and professionally

Despite my repeated efforts to raise concerns in good faith and seek a fair and respectful resolution, BDO has failed to provide a psychologically safe workplace or a procedurally sound process.

I am left with no reasonable alternative but to resign. I have obtained legal advice and formally reserve all rights available to me under the Fair Work Act 2009 (Cth) and any other applicable legislation, including but not limited to the right to pursue a claim for constructive dismissal, unfair dismissal, and any applicable general protections matters.

• [42] The letter also referred to various effects on her health that the applicant claimed had been caused by her employment at BDO.

• [43] It is abundantly clear to me that the applicant was not forced to resign because of the conduct or a course of conduct engaged in by the respondent.

• [44] It is apparent that in late March 2025, the respondent had a concern about the applicant's performance. The respondent took steps to address those performance concerns. There was nothing untoward or improper about this. The applicant is evidently of the view that her performance was at an acceptable standard. But there is no basis for me to conclude that the respondent's concerns were capricious, irrational or generated for an ulterior, improper or unlawful purpose.

• [45] The respondent initially sought to address its performance concerns informally. However, the respondent assessed that the applicant's performance had not reached the required standard after those initial efforts. The respondent gave the applicant a warning and then commenced a PIP process intended to operate for a four-week period. At each stage it gave the applicant an opportunity to respond both in respect of the process adopted and the respondent's assessment of the applicant's performance. The respondent invited the applicant to bring a support person to meetings. I am satisfied that the respondent sought to address its concerns regarding the applicant's performance in a reasonable manner. I do not consider that the steps the respondent took to address its concerns regarding the applicant's performance was conduct of a nature that, on its own, or in combination with any other matter forced the applicant to resign.

• [46] The applicant submits that the fact that she was issued with a warning by email on 8 May 2025, a day when she was absent from work due to illness, was a ground which forced her to resign. I do not consider that the issuing of a warning on 8 May 2025 constitutes a ground which forced the applicant to resign on 20 May 2025. In that regard, the applicant had already been told at the meeting on 6 May 2025 that she would be issued a first and final written warning and that the respondent would commence a PIP. On 7 May 2025, Ms Vince emailed the applicant the PIP and the covering email noted that she would receive the warning the following day. On 8 May 2025, the applicant was absent from work, and the warning letter was emailed to her work email address. The warning letter recounted information previously conveyed to the applicant at the meeting on 6 May 2025. In the circumstances, the act of sending the warning letter on 8 May 2025, was not an act by the respondent which either alone, or in combination with any other matter, forced the applicant to resign.

• [47] The applicant relies on screenshots of the communications involving Ms Vince and Ms Thomson relating to the applicant as being a ground of a forced resignation. I have reviewed these communications. The communications are not improper. They do not demonstrate predetermination of any outcome in relation to the performance process. At most, they demonstrate that the respondent was considering and assessing aspects of risk which may arise from one possible outcome of the performance process, being dismissal. I infer nothing more from such communications other than that the respondent was acting prudently. I also note that these communications were not intended by the respondent to be accessed by the applicant. It is clear that the applicant had no proper cause arising from her ordinary duties to inspect and take screenshots Ms Thomson's emails or Teams messages on the evening of 7 May 2025. The screenshot communications involving Ms Vince and Ms Thomson do not, either alone or in combination with any other matter, constitute conduct by the respondent which forced the applicant to resign.

• [48] The applicant also relies on various communications involving Ms Thomson and Ms Vince concerning other employees. These communications were also mobile phone screenshots of Ms Thomson's emails and Microsoft Teams messages taken by applicant in the evening on 7 May 2025. Based on these communications, the applicant refers somewhat vaguely to a "broader organisational pattern" and "systemic planning to exit staff using retrofitted PIPs". The communications concerning the other employees do not sustain any such contention. Furthermore, I have reviewed these communications, and I do not consider them improper. The communications the applicant relies on relating to the employment of those other employees does not, either on its own or in combination with any other matter, assist the applicant in establishing that she was forced to resign.

• [49] The applicant also relies upon the respondent's alleged failure to enter into an agreement for a mutual departure as a ground to assert that she was forced to resign. This proposition is obviously without foundation. It is apparent that the applicant invited the respondent to engage in discussions regarding a mutually agreed departure. The respondent took up the applicant's invitation. The parties clearly exchanged proposals. The mere fact that that the respondent rejected the applicant's proposed terms, that agreement was unable to be reached or that the respondent made clear that its proposal expired by close of business 21 May 2025, are not matters which, either alone or in combination with any other matter, support a finding that the applicant was forced to resign.

• [50] The applicant further asserts that she experienced a hostile work environment that had a significant effect on her health and safety and that the respondent failed to provide a psychological safe and legally compliant workplace. The applicant contends that these are further grounds upon which she claims she was forced to resign. I appreciate and understand that the commencement of a performance process and PIP process affected the applicant's wellbeing. These processes are inevitably challenging for an employee and may well have a detrimental psychological impact. However, as I have noted, the conduct of the performance process and the institution of the PIP by the respondent was reasonable. There is no basis for me to find that the steps the respondent took to address its performance concerns were conducted in an unsafe manner in breach of any safety standard. On various occasions during the process, Ms Vince inquired of the applicant whether there were any matters affecting the applicant's performance. The applicant was invited by the respondent to bring a support person to meetings. Furthermore, several of the respondent's emails to the applicant and the PIP itself notified the applicant of the availability of an EAP through an external provider. The applicant further asserts as a ground of forced resignation that the respondent ignored complaints recorded via the EAP. However, it is clear that any complaint raised by the applicant with the EAP provider did not and would not have come to the attention of the respondent because of the confidential nature of the EAP. The applicant was or should reasonably have been aware of the confidential nature of her communications with the EAP provider, including because a number of the respondent's notifications to the applicant indicated that the EAP service was accessed confidentially. Furthermore, I do not consider that it can be said that the respondent ignored complaints made by the applicant. The applicant made an allegation at the meeting on 20 May 2025 with the apparent intent of negotiating a mutually agreed resolution. In an email sent to Ms Sanderson later that afternoon, the applicant specifically indicated to the respondent that she was not seeking a formal investigation and did not at that stage intend to do so. Insofar as the applicant asserts that she suffered an injury due to the conduct of the respondent, this is the not the subject of any probative medical evidence in the form of any medical report by a treating practitioner. The little medical evidence produced by the applicant provides no proper basis to reach such a conclusion. In these circumstances, I do not consider that the work environment was a hostile or unsafe environment such as to force the applicant to resign.

• [51] Ultimately, I am satisfied that the applicant was not forced to resign by the conduct or any course of conduct by the respondent. The applicant was therefore not dismissed within the meaning of s 386(1) of the Act. The applicant made a decision to resign and to characterise this resignation as a "constructive dismissal". By doing so, the applicant pre-empted the outcome of the PIP, noting that the second PIP review meeting was to occur on 3 June 2025. The outcome of the PIP may well have been that the respondent assessed the applicant as not meeting the required standard of performance. In light of the respondent's assessment of the applicant's performance as at 20 May 2025, it may be that dismissal was the likely outcome of the PIP. But the applicant's immediate resignation on 21 May 2025 and characterisation of that act as a "constructive dismissal" on the various grounds set out in the resignation letter, does not make her resignation a forced resignation within the meaning of s 386(1)(b) as explained in paragraph 47(2) of Bupa.

• [52] Finally, I observe that the expression "constructive dismissal" is not a verbal incantation which transforms a resignation into a dismissal. It is not even an expression used in the Act. While it may be a superficially attractive concept, it is terminology of little actual utility. In that regard, it is useful for parties who may be disposed to somewhat loosely assert "constructive dismissal" in unfair dismissal or general protections dismissal applications made under s 394 or s 365 of the Act to consider the following observation of the Full Bench in Bupa:

[49] We do not consider it is particularly helpful in applying s.386(1) to refer to the concept of "constructive dismissal" - an expression nowhere used in the FW Act. In saying this, we acknowledge that the expression has been used in a number of the authorities and also in the passage from the explanatory memorandum earlier quoted. However, as explained by Greg McCarry in his 1994 article "Constructive Dismissal of Employment in Australia", the concept of "constructive dismissal" in UK law was not a development of the common law, but rather a description of a statutory extension to the ordinary meaning of dismissal to encompass a situation where "the employee terminates the contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct". That is a much wider concept than just "forced" dismissal and is conducive of confusion ...

• [53] As a result of my determination that the applicant was not dismissed within the meaning of s 386(1) of the Act, the Commission has no jurisdiction to deal with the applicant's application made under s 365 of the Act. Consequently, I order that the application be dismissed.

A Hopkins, Senior Legal Counsel for the Respondent

[1] [2017] FWCFB 3941; (2017) 217 IR 245 at [47].

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