s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - Applicant resigned his employment - resignation not forced because of employer's conduct - not dismissed - application dismissed.

• [1] On 13 June 2025, Mr Bryce Harberger made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Mr Harberger resigned his employment with Safetylyne Pty Ltd (the Respondent) on 27 May 2025. He alleges that he was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent, such that he was dismissed.

• [2] In its Form F8A - Response to general protections application, the Respondent raised a jurisdictional objection to the application on the ground that Mr Harberger was not dismissed and instead resigned on his own initiative.

• [3] Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether Mr Harberger was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Mr Harberger was dismissed in contravention of the general protections provisions.

• [4] Section 365 of the Act provides as follows:

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

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

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

• [5] The meaning of "dismissed" is provided in s.386 of the Act:

(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.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part."

• [6] On 28 January 2025, Mr Harberger attended the Respondent's premises to complete a weld test which took two hours to complete. He met with Mr Trevor Collett, Director. He was offered employment and commenced working for the Respondent on 5 February 2025 as a Fabrication Coordinator. He worked in that position until his resignation on 27 May 2025. Mr Harberger's duties involved overseeing fabrication duties and coordinating production operations.

• [7] On 10 February 2025, Mr Harberger discussed completing an induction with Mr Will Bego, Operations Manager. He was told that relevant documentation and other information would be made available to him by the end of that week. On 18 March 2025, Mr Harberger was granted access to Microsoft Teams. He said that he never received any documentation regarding safety for the employees he supervised, despite several requests.

• [8] In the week of 10 February 2025, Mr Harberger became aware that the forklift was being operated by people without a high-risk work licence. Mr Harberger requested these employees be prevented from using the forklift until they became licenced. He learned that only Mr Bego held a high-risk work licence. Mr Harberger alleged that Mr Bego implied that his employment would be jeopardised if he was not willing to operate the forklift and that a training day would be organised. Mr Harberger stated that by the time he resigned, no training day had been arranged.

• [9] On 27 February 2025, Mr Harberger received access to the time recording software used by the Respondent. He noted that he had worked 45 hours the week prior. Despite requests, Mr Harberger was not given an email account by the Respondent, though he did have access to the main operations email account and Microsoft Teams, where he observed a number of emails regarding overdue work, unsatisfactory or incorrect proposals and overdue accounts.

• [10] Mr Harberger alleged that wage payments were made sporadically, with Mr Collett citing issues with the payroll system and changing banks. Mr Harberger considered that the Respondent was trading insolvent, as he found company accounts had been placed on hold, including the gas account which he discovered had been placed on hold due to an unpaid invoice after he attempted to order gas.

• [11] On 2 May 2025 he requested a copy of his employment contract. On 14 May 2025 he was provided with a printed copy.

• [12] In the weeks prior to his resignation, Mr Harberger stated that he attempted to organise an induction of a new employee and requested the relevant paperwork from Mr Bego, who was unable to provide it. On 15 May 2025, Mr Harberger asked Mr Collett for the paperwork, who was also unable to provide it. Mr Harberger stated that he then reiterated his concerns that the Respondent was taking a risk by not inducting employees. The following week, Mr Harberger stated that he found Mr Bego using ChatGPT to draft the induction document.

• [13] Around the same time, Mr Harberger attempted to lift a small pallet to complete a task that had become urgent due to the Respondent's poor planning. He stated that this resulted in back pain, for which he took anti-inflammatories while continuing work. He disclosed this to Mr Collett and Mr Bego.

• [14] During the week of his resignation, Mr Harberger stated that he was pressured by Mr Collett to work unpaid overtime to complete projects. Mr Harberger stated that during this time, shifts would go from 6:30am to 9:30pm, however Mr Collett maintained that he did not ask Mr Harberger to work through breaks.

• [15] On 16 May 2025, Mr Harberger was approached by Mr Collett who informed him that if the Respondent did not complete the task he was working on by the following Monday, it would be sued and would likely go bankrupt. Mr Collett said to him, "I don't think you know how serious this is". Mr Harberger assessed the plans he had been given and found that the Respondent did not have the materials to complete the job. Mr Harberger then told Mr Collett that he could not continue working under these conditions and told him that 16 May 2025 would be the commencement of his one week's notice.

• [16] Subsequently, Mr Harberger found that the plans he had been given were incorrect. Mr Harberger showed Mr Collett, who agreed. Mr Harberger stated that Mr Bego then coordinated replacement plans which were also unusable. Mr Harberger then stated that he took it upon himself to redraft the plans, which was not part of his role. He collected materials from suppliers and organised labour to assist with the task. Mr Harberger stated that the Respondent was hesitant to offer him support, and he consequently worked a 24.5-hour shift, then subsequent shifts of 12-16 hours to complete the task.

• [17] In evidence given during the hearing, Mr Harberger stated that when he verbally resigned on 16 May 2025, Mr Collett then offered him a draughtsman role so that he could assist with implementing standard operating procedures. In answering questions from me during the hearing, Mr Harberger stated that he did not consider the offer made by Mr Collett to have been genuine.

• [18] On Sunday, 18 May 2025, Mr Harberger sent the following text message to Mr Collett while Mr Harberger was working over the weekend:

"Hey Trevor, I've put some thought into our conversation Friday, and I think I've come up with a solution that will benefit everybody. I'd like to arrange a meeting with yourself, Will, Jim, Huxley, John and Aldo when we are all available. I'm confident that this arrangement will really help the company. Cheers, Bryce."

• [19] Despite having given one week's notice of his resignation on 16 May 2025, he continued to work up until 27 May 2025 as he wanted to complete the job he was working on.

• [20] Mr Harberger sent the following resignation letter to Mr Collett on 29 May 2025:

I am writing to formally resign from my position at SafetyLyne Pty Ltd, with effect from 27/05/2025, and request that my final day of employment be considered as the 30th of June 2025.

Confirmation and notice of this decision were relayed to you personally on Friday, 16/05/2025.

Please note that I expected to celebrate my 30th birthday on this day, and was agreed to be taken off, but I unfortunately had to account for serious planning errors for the [project] and worked instead.

Earlier that week, I was compelled by SafetyLyne to work late into the night to complete another mismanaged project, missing the first pregnancy scans of my second child. Throughout my employment, I have been put in positions that would prevent my involvement in many out-of-hours family activities, flying directly in the face of my core values, which drives some of the reasons behind my decision.

The remuneration until 30th June would be less than the incurred losses that I experienced resultant of employment with Safetylyne, but it would bridge the gap. It would account for the 58.5 hours (approximately) of accrued unpaid overtime, much that should have been paid at double rate, my 36 hours of accrued annual leave,

travel expenses, and the misleading manner in which my contract was explained to me, and my conduct for the 3 months it took for SafetyLyne to produce a true copy for my inspection. I would also affirm that without my actions, including working for 27.5 hours straight, with only 3 hours break, then subsequently working 2 12+ hours shifts with less than 8 hours break between both, was the only thing that prevented the company from being persued [sic] for legal damages when management was near completely uninvolved in the crisis completely born of their actions, and completely avoidable had the company allowed more time for the project, rather than ignoring it and preventing it didn't exist for nearly 7 weeks.

I want to insist that wages continue to be paid at my current agreed rate, with no deductions, up until that date, to ensure compliance and avoid unnecessary complications for either party.

This decision has not been made lightly, but is necessary due to deep concerns I have raised on multiple occasions that have consistently gone unaddressed. These include:

• The company's ongoing failure to adequately deliver outcomes that meet client expectations, despite clear internal and external indicators of underperformance.

• Significant breakdowns in internal communication and seemingly non-existent processes, leading to falsified internal handover dates, materials missing key delivery dates, and critical design phases not completed on time, with serious errors preventing work from going ahead.

• Actions and decisions that indicate breaches of trading insolvent laws under the Corporations Act 2001;

• Persistent disregard and failure to implement systems that led to actions that egregiously breach the Workplace Health and Safety Act 2011 (QLD), putting workers at serious risk of injury/death and exposing the company to serious legal and reputational risk.

My intentions are not to be adversarial but to take responsible steps in light of the above. In seeking a mutually beneficial exit, I propose that I remain on the payroll until June 30, without further duties or involvement in day-to-day operations. This approach ensures a clean and compliant transition, avoids potential disputes regarding entitlements, and gives both parties space to manage the separation without disruption.

I remain willing to assist with any necessary documentation or transitional matters during this period, and I am happy to share detailed reports and information regarding the concerns I have raised since my employment commencement with SafetyLyne Pty Ltd.

Upon reviewing the ad vacancy posted for my position, I do not doubt that you will find the person you are seeking.

Please confirm your acceptance of the proposed arrangement in writing at your earliest convenience.

• [21] On 3 June 2025, Mr Harberger received the following letter in response from Mr Collett:

Thank you for notifying me of your decision to resign from your current position with Safetylyne. This is a formal acknowledgement and acceptance of your resignation.

As you are not working out your notice period of one week, your final pay will be calculated up to your last day of employment being 27 May 2025.

You will also be paid your accrued entitlements, including accrued annual leave, and any outstanding pay, up to and including your last day of employment.

To clarify, we had not authorised or been made aware of prior, any pre-approved additional hours worked as overtime during your employment that would be eligible for payment or time off in lieu. If you believe there are outstanding payments owed to you, please provide supporting documentation.

As referenced in your signed employment contract, specifically Clause 6.3, your remuneration is set to compensate you for all hours worked, including any hours worked in excess of the ordinary hours. Accordingly, no additional remuneration is payable for such additional hours, as they have already been taken into account in determining your salary. Nonetheless, we will investigate this matter promptly on our end.

In addition, if you believe you are owed any reimbursements for work-related travel or other business expenses, please submit all relevant documentation, in accordance with your obligations under Clause 19.2 of your signed employment contract.

Please be assured it is not our intention to underpay you in any way, and we are committed to fulfilling all our obligations as the Employer and ensure you receive all entitlements you are owed. That said, we take this matter seriously and are committed to reviewing this in good faith.

In accordance with the terms of your employment contract you are required to return all company property in your possession, in a fit state.

Finally, I remind you of your obligation under your contract of employment not to divulge any information of a confidential nature relating to the affairs of the employer or any related or associated employer entity obtained during the course of your employment.

Bryce, on behalf of Safetylyne, I would like to take this opportunity to thank you for your contribution and support during your time with us. Along with the team, I would like to wish you all the best for your future endeavours.

• [22] Mr Harberger sent Mr Collett the following text message at 10:34am on 3 June 2025:

I'd strongly suggest that you carefully consider my offer to remain on the team in a consulting capacity until June 30. Ultimately, this is to take advantage of my genuine 9 years of experience in business management and operations/safety system implementation to ensure the safety of your employees, that I currently consider to be significantly at risk.

I do believe people deserve second chances, and I saw firsthand how much stress you have been under in management of a company that is devoid of operations systems, which is the reason for my offer."

• [23] The following text message were sent between Mr Harberger and Mr Collett from 4 June 2025:

Mr Collett: We will be only going by the award and your agreement...nothing else.

Mr Collett: All we are needing to verify is the overtime you are accounting for because the completed time sheets we have don't add up to much.

Just need hours only and how you have arrived at them so we can reconcile with what we have on file.

I have a copy of the same timesheets, apply a 45 hours week to the weeks not entered.

There was also an error made on one pay, where instead of leave of 7.6 hours being deducted for a day not worked, my pay was docked.

Mr Collett: This a day that I spoke to you about that you weren't actually at work for....trust you remember that conversation and know what I am talking about.

Mr Harberger: Hi Trevor. I had a spare half hour this afternoon, so I've calculated the balance as per the award and the letter of offer. I'll be following up with this to ensure the letter of offer rate complies with the award as I feel that the rate will be very close to the minimum rate, but this is the account of work outside the ordinary hours stated: $7843.33.

Make sure you remember that my resignation notice was given on the 16th of May, not the 27th as you have previously stated. I'm sure you remember that conversation.

The day of the 12th of March should have been deducted from personal leave, and not annual. As such, it has been added to the above amount with relevant loading of 17.5%.

Finally, ordinary hours worked for my final pay cycle come to an additional amount of $1195.19.

I've missed working through meal break allowances on a couple dates but you seem confident the agreed rate isn't going to dip below the award minimum.

• [24] On 19 June 2025, Mr Collett sent the following email to Mr Harberger:

We have been processing final employment settlement payments this week considering your family contribution communication we have received.

It was also found that the system paid the incorrect rate for your unused annual leave with a variance of $7.25 per hour that is included in this payment.

You were also not entitled to leave loading as your employment rate was above the award and you were better off on this rate when on leave as opposed to the Award rate + 17.5% loading.

Also your $150.00 payment in lieu of vehicle use still has not been issued until the above calculations were finalised. This will be processed within the next few days.

Thanks for your patience whilst we worked through this.

At this point I have no confidence you'll be able to accurately calculate the true final figure so I'll refrain from withdrawing the fair work claim.

I should clarify, that while SafetyLyne has been able to satisfy most of the requirements to bring the payments above the minimum rate required for the award rate, the matter still remains that the employment agreement was not for the award rate, and for a figure above.

While I appreciate your change in stance on this matter, to one closer resembling legal compliance, I do believe there is still movement to be made."

• [26] In his Form F8 application to the Commission, Mr Harberger asserted that one of the reasons for the dismissal was because he is not a member of the "Exclusive Brethren" or "Plymouth Brethren Christian Church" group, to which Mr Collett belongs. He asserted that workers are poorly treated or taken advantage of if they are not part of the above religion. In evidence given during the hearing, Mr Harberger stated that it was not until after he had resigned that he asked Mr Collett which religion he practised.

• [27] Mr Harberger submitted that he was constructively dismissed within the meaning of s.386(1)(b) of the Act. He argued that the Respondent engaged in a course of conduct which fundamentally altered the employment relationship, leaving him with no option but to resign. Mr Harberger submitted that the Respondent engaged in the following conduct:

(a) the Respondent failed to provide a sufficient and legally compliant employment contract;

(b) the Respondent failed to provide adequate safety protections at work; and

(c) the Respondent failed to provide protections against religious discrimination.

• [28] In respect of the failure to provide a sufficient contract, Mr Harberger submitted that despite repeated requests from the commencement of his employment, the Respondent failed to provide a "comprehensive and legally sufficient employment contract". He argued that this created uncertainty around his terms and conditions of employment, thereby undermining the employment relationship. Mr Harberger said that this demonstrated a lack of due diligence and care by the Respondent. He stated that once the contract was supplied on 14 May 2025, it did not have the required information to form "a full and legally compliant document".

• [29] Mr Harberger submitted that the Respondent failed to provide adequate safety protections, exposing him to unacceptable risks. He argued that the Respondent failed to address safety hazards when notified and discouraged him from using appropriate filing mechanisms. Mr Harberger stated that he raised safety concerns on multiple occasions, but these were either ignored, inadequately addressed or dismissed by the Respondent. Mr Harberger submitted that this conduct continually jeopardised his health and safety.

• [30] Mr Harberger submitted that the combined effect of this conduct was that it created a "hostile and untenable working environment". He contended that he exhausted all reasonable avenues to address these issues, including by raising concerns with management. Accordingly, Mr Harberger submitted that he had no reasonable alternative but to resign to protect the Respondent's professional interests and his own personal safety.

• [31] Mr Harberger submitted that his resignation was not voluntary and was a direct result of the Respondent's course of conduct, and he was therefore dismissed within the meaning of s.386(1)(b) of the Act.

• [32] Mr Collett stated that Mr Harberger voluntarily resigned from his position.

• [33] Mr Collett noted that at the time of Mr Harberger's resignation, Mr Harberger was not subject to any disciplinary proceedings or similar action that would typically precede a dismissal. Further, he stated that Mr Harberger actively sought reemployment with the Respondent in a different role. Mr Collett stated that this shows that Mr Harberger resigned as part of a strategic career move or due to personal circumstances, and then later reevaluated his options. Further, Mr Collett stated that the fact that Mr Harberger sought reemployment in a different role further supports the contention that Mr Harberger resigned voluntarily.

• [34] In evidence given during the hearing, Mr Collett stated that the offer made to Mr Harberger on 16 May 2025 for him to move into a draughtsman role was genuine. He considered Mr Harberger could perform that role for the next six months. He stated that he was shocked when Mr Harberger resigned his employment.

• [35] The Respondent has reviewed Mr Harberger's remuneration and has settled all monies owed to him. Mr Collett stated that Mr Harberger has been paid over and above his agreed remuneration package and approved overtime. During the hearing there was some discussion regarding an asserted underpayment, and I assisted the parties with a rough calculation on what that might look like if they could reach agreement.

• [36] Regarding any talk of religion within the business, Mr Collett stated that religion is not discussed in the Respondent's workplace. He was not aware of any member of the Respondent's team having any religious discussions with Mr Harberger.

• [37] Mr Collett denied that Mr Harberger was asked to work through meal breaks. He stated that Mr Harberger was aware that the Respondent was undertaking an external review of its policies, training and safety procedures, which had been completed by the time of the hearing. Following the hearing, Mr Collett provided copies of the policies signed by Mr Harberger when he was initially employed. Finally, Mr Collett stated that Mr Harberger's statement about the Respondent's accounts being placed on hold was taken out of context. Mr Collett explained that this related to the Respondent adjusting its credit account limits with suppliers, and that supplier accounts are now open and actively being used.

• [38] Section 386 of the Act provides that a person has been dismissed in several circumstances, including when their employment has been "terminated on the employer's initiative". Such a situation refers to a termination that is brought about by an employer and which is not agreed to by the employee.[2]

• [39] When analysing whether there has been a "termination at the initiative of the employer" for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.[3]

• [40] Although applied under the previous Act,[4] the following approach of the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd[5] in my view remains generally apposite to the consideration of s.386(1) of the Act:

"[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

"[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous."

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

"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."

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign." (footnotes omitted)

• [41] A more recent Full Bench reinforced the relevance of the above approach in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[6] in the following terms:

"[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a "forced" resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the "termination at the initiative of the employer" formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:

"1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign."

[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that "The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd" (footnotes omitted). The body of pre-FW Act decisions concerning "forced" resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust." (footnotes omitted)

• [42] Accordingly, the general principles to be applied in this case are well settled. Stated succinctly, they include:

• the question as to whether the resignation was forced within the meaning of the Act is a jurisdictional fact that must be established by the applicant;

• a termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it "forced" the resignation;

• the employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;

• considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer's conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and

• in determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer's conduct is required.

• [43] In light of the terms of the Act and the authorities, it is necessary to consider whether Mr Harberger was forced to resign. In making that assessment, it is appropriate to make an objective analysis of the Respondent's conduct to determine whether it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign. The line distinguishing conduct that leaves an employee no real choice but to resign from an employee resigning at their own initiative is a narrow one. The line, however, must be "closely drawn and rigorously observed".

• [44] The onus is on Mr Harberger to establish that he did not resign voluntarily, proving that the Respondent forced his resignation.[7] I must find that the Respondent took action with the intent or probable result to bring the employment relationship between Mr Harberger and the Respondent to an end.[8]

• [45] Mr Harberger had been employed by the Respondent only around 3.5 months by the time the employment ended. In that time, he says he considered the safety culture to be very poor. That may have been true in respect of forklift use. I do not, however, consider that this constituted a substantive reason for Mr Harberger to resign.

• [46] When Mr Harberger offered his verbal resignation on 16 May 2025, this took Mr Collett by surprise. Mr Collett then, I accept, genuinely offered to keep Mr Harberger in the business in an alternative role; one less physical and one which would allow Mr Harberger to use his skills to improve the Respondent's practices and procedures.

• [47] Mr Harberger clearly gave thought to this over the weekend and, on 18 May 2025, sought to plan to advance those discussions. There is no further evidence as to what eventuated, but Mr Harberger continued to perform work beyond his stated one week's notice. He did not finish working until 27 May 2025, at his own volition. He did so because he wanted to complete the particular task.

• [48] An employee who resigns their employment, continues to work beyond their stated notice period and rejects an offer from their employer to continue working in the business has an extraordinarily high hurdle to demonstrate that they were forced to resign because of conduct engaged in by the employer.

• [49] Mr Harberger was not at risk at work. In evidence he stated that he performed forklift duties approximately 10% of his time. I am satisfied that if he insisted on not performing forklift duties until he was licensed, this would have been accommodated. There is no evidence of him having raised this concern with Mr Collett. I accept that he considered the Respondent's operations to be disorganised, however he had been employed there a short time and did not give the Respondent time to demonstrate its capacity. It employs 25 employees and is still trading.

• [50] Mr Harberger resigned his employment and sought to be paid out an additional five weeks' pay. This was rejected by the Respondent, and even when rejected, Mr Harberger continued to offer his services to the Respondent, as demonstrated at [22], in a value-add, consultancy capacity because he considered that is what the Respondent needed. This was again rejected by the Respondent.

• [51] Mr Harberger rejected the genuine offer made by Mr Collett to have him move into a draughtsman role. Understandably, when Mr Harberger put in writing on 27 May 2025 that he insisted that he ought to be paid until 30 June 2025 without performing any work, the Respondent was no longer interested in Mr Harberger's suggestions.

• [52] There is no conduct or omission engaged in by the Respondent to have intended to bring the employment relationship to an end or had that probable result. Quite simply, Mr Harberger wanted out, demanding that he be paid nearly five weeks' pay without performing work. When that was not achieved, he wanted to benevolently provide some expertise for the period up to 30 June 2025 because he considered that Mr Collett was overworked. That conduct does not display any semblance of being forced to resign one's employment.

• [53] The suggestion that Mr Harberger and others were treated unfairly on account of not being of the same religion as Mr Collett and others within the Respondent cannot be relied upon when Mr Collett did not broadcast his religious views and Mr Harberger only learned of Mr Collett's faith when Mr Harberger asked him after the verbal resignation of his employment.

• [54] For the reasons set out above I have determined that the resignation of Mr Harberger was not caused by conduct, or a course of conduct, on the part of the Respondent. I find that Mr Harberger was not a person dismissed from employment and the jurisdictional objection raised by the Respondent is upheld.

I must dismiss the application for lack of jurisdiction. An Order [PR794007] will be issued with this decision.

[1] [2020] FCAFC 152.

[2] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162 at [75]; see also Mohzaba v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200.

[3] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162 at [75].

[4] Workplace Relations Act 1996 (Cth).

[5] [2006] AIRC 496 (PR973462).

[6] [2017] FWCFB 3491.

[7] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at para. 30,

[8] O'Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at

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