s.365 - Application to deal with contraventions involving dismissal

Goulburn South Caravan Park Pty Ltd T/A Southern Cross Parks

Application to deal with contraventions involving dismissal - jurisdictional objection - whether applicant was dismissed or abandoned employment - applicant dismissed

• [1] Mrs Carmel Davey has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that she has been dismissed from her employment with Goulburn South Caravan Park Pty Ltd T/A Southern Cross Parks (Southern Cross Parks) in contravention of Part 3-1 of the FW Act.

• [2] Before dealing with the dispute under s.368, I must be satisfied that Mrs Davey was dismissed.

• [3] Mrs Davey, and her husband, Mr Steven Davey, commenced employment with Southern Cross Parks in July 2020 as Park Managers. Both Mr and Mrs Davey ceased employment with Southern Cross Parks on 4 October 2024. Mr Davey has made an application under s.394 of the FW Act.[1] The evidence filed in Mrs Davey's application and Mr Davey's application was identical. Southern Cross Parks claimed that Mr and Mrs Davey abandoned their employment and were not dismissed. This was an issue which required determination in both matters. As the facts and circumstances in each matter are identical, I listed them for hearing together.

• [4] In a separate decision,[2] I have found that Mr Davey was dismissed by Southern Cross Parks. In this decision, I have repeated the Background facts contained in my decision regarding Mr Davey's application and found that Mrs Davey was also dismissed by Southern Cross Parks. My reasons for finding that Mr and Mrs Davey were dismissed are largely identical in both decisions.

• [5] The matter was listed for determinative conference on 10 February 2025. At the conference, Mrs Davey was represented by Ms Emma Thomson, Lawyer who I granted permission to appear pursuant to s.596(2) of the FW Act, as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

• [6] Southern Cross Parks was represented by Mr Paul Dicks, General Manager.

• [7] Mr and Mrs Davey gave evidence on behalf of Mrs Davey. Mr Dicks and Ms Angela Jolly, Operations Manager, gave evidence on behalf of Southern Cross Parks.

• [8] Southern Cross Parks filed submissions in the Commission on 10 January 2025 and submissions in reply on 31 January 2025. Mrs Davey filed submissions in the Commission on 20 January 2025. I have considered the submissions made by the parties and all of the evidence before me in my determination of this matter and the conclusions I have reached.

• [9] Mr and Mrs Davey commenced employment with Southern Cross Parks as Park Managers in July 2020 pursuant to a single contract of employment which covered both of them.[3] They were both contracted on a full-time basis to work 38 hours per week, however, they would generally work in excess of this and would be on call overnight.[4] They worked 20 days on and 8 days off. On their days off, they would return to their home in the Wollongong area and see their family, and Southern Cross Parks would arrange for a replacement park manager.[5]

• [10] Mr Davey received remuneration of $60,000 per annum plus superannuation. Mr Davey was paid a rent allowance, was provided onsite accommodation and received a bonus of $750.00 in or around May and November each year.[6]

• [11] Mr and Mrs Davey initially worked for Southern Cross Parks at Goulburn South Caravan Park. In July 2024, the lease expired, which resulted in Southern Cross Parks ceasing to manage Goulburn South Caravan Park. Southern Cross Parks did not have another role for Mr and Mrs Davey at this time, so they took a period of nine weeks annual leave. They subsequently had discussions with Mr Dicks about other roles, and they were advised about a role at the Queens Beach Tourist Village in Bowen, Queensland (Queens Beach Park).[7]

• [12] On 30 September 2024, Mr and Mrs Davey started working as Park Managers at Queens Beach Park. In this role, they reported to Ms Jolly and Mr Dicks. There was an overlapping period of one week with the former owners, Ms Jennie Greer and Mr Peter Greer, so they could train Mr and Mrs Davey. Southern Cross Parks provided Mr and Mrs Davey with onsite accommodation. Mr and Mrs Davey had a home in Wollongong which they were in the process of building. They anticipated that they would fly back regularly to Sydney and travel to Wollongong to see their family. It appears that the contract of employment which Mr and Mrs Davey and Southern Cross Parks signed in 2020 continued to apply, however, it was not updated to reflect the new work location.[8]

• [13] On 30 September 2024, Mr and Mrs Davey attended their first day of work at Queens Beach Park. Mr and Mrs Davey noticed that it was very chaotic as the accounts for emails, EFTPOS machines and booking agency accounts had not been set up by Southern Cross Parks. They tried their best to get through the day.[9]

• [14] On 1 October 2024, Mr and Mrs Davey observed that Mrs Greer had a very complex way of doing things that was totally different to what Mr and Mrs Davey were used to.[10]

• [15] Mrs Davey told Mr Davey that she was finding it difficult not having any structure in place to operate the office as there were no booking agency accounts, and EFTPOS machines had not been set up. That night after they had closed the office, Mr and Mrs Davey and Ms Jolly walked back to their onsite cabins chatting. After Mr and Mrs Davey left Ms Jolly, Mrs Davey started to cry. Mrs Davey was very upset and cried for hours. Mr Davey said that he had never seen Mrs Davey like this during their 14-year relationship. Mrs Davey had never experienced any psychological illness previously.[11] Mrs Davey said that she was worried about the complexity of Mrs Greer's system and was not sure if she was ever going to be able to learn it before Mr and Mrs Greer's departure from Queens Beach Park.[12]

• [16] In the morning, Mr and Mrs Davey left the cabin to do some washing near the office, so Mr Davey decided to advise Ms Jolly about Mrs Davey.[13] After exchanging brief text messages about whether Ms Jolly was available, Mr Davey went to Ms Jolly's cabin and a conversation to the following effect took place:

Mr Davey: I am just letting you know Carmel had a breakdown last night [in response to the work].

Ms Jolly: What was the breakdown about? Do I know? Is she ok?

Mr Davey: The office is not being set up, EFTPOS, booking agency accounts, email account, the complex way Jennie runs the office. Carmel kept saying, 'I hate it, I hate it, why does it have to be so complex, how can I learn stuff when nothing is set up right'.

Mr Davey: I have never seen Carmel like this, it was scary, I have never dealt with anyone having a breakdown.

Ms Jolly: What do we do? Do we give her the day off today?

Mr Davey: No, I don't think so, I did talk to Carmel to give her some reassurance that it won't always be like this, we can change the way things are done once Jennie finishes handover of the park and we get settled in.

Ms Jolly: No, I will take care of that.[14]

• [17] Mrs Davey said that she still felt anxious about the role but was committed to continuing.[15]

• [18] Mr and Mrs Davey opened the office with Mrs Greer that morning and operated all day. Mr Davey thought they had made good progress in understanding the booking system. However, Mr Davey could see that Mrs Davey was still flustered as not everything was properly set up yet. Ms Jolly was still having issues with setting up the booking agency accounts, EFTPOS machines and email accounts.[16]

• [19] While Mrs Davey and Mrs Greer were in the office that morning, they had a conversation to the following effect:

Mrs Davey: I had a mental breakdown last night [in response to the work]

Mrs Greer: You will be ok, as I have trained a previous manager at another park and it took 6 weeks for that manager to say, 'now I get it'.[17]

• [20] At the hearing, Mr Dicks explained that two months before Mr and Mrs Davey started working at Queens Beach Park, he paid for Mr and Mrs Davey, Ms Jolly and himself to do training on the new computer system. Mr Dicks said that he and Ms Jolly and the former owners were all around during the first week, so from his point of view, there was nothing that occurred that was not part of a usual business transfer.

• [21] On 3 October 2024, Mr and Mrs Davey opened the office and operated all day. They started doing end of day accounts at 4pm which took until after 7pm to complete. Mr Davey could see Mrs Davey was getting flustered as Ms Jolly and Mr and Mrs Greer were discussing which cleaners to call in for Friday.[18]

• [22] Mr Dicks said he turned up to work that day and that Mr and Mrs Davey were also at work. Mr Dicks said that at no stage did Mr and Mrs Davey say to him that they were thinking of leaving.

• [23] Mr Dicks gave evidence that he was preparing to leave the site on the afternoon of 3 October 2024. Mr Dicks said that he was aware that Mr and Mrs Davey had been out shopping to purchase goods for the managers' residence. He said that he was aware that Mr and Mrs Davey were under a lot of pressure with building their new home in Wollongong which caused them a lot of stress. Mr Dicks acknowledged that taking over a new business can be stressful. He said that he was stressed and so was Ms Jolly, as there were pressures involved. Mr Dicks said he trusted Mr and Mrs Davey and their abilities. There was no mention of them going anywhere. He drove off thinking everything was fine.

• [24] Mrs Davey said that before finishing for the day, she was required to make up a sofa bed for a guest who was checking in that night, and was starting to feel overwhelmed as she was anxious that the guest would arrive before she had made the bed.[19]

• [25] Mrs Davey said she left the office and collected the linen for the bed that she was making. She felt very overwhelmed and was very red in the face. Mrs Davey said she felt unwell mentally, and this was starting to manifest into physical symptoms.[20]

• [26] Ms Jolly passed through the laundry where Mrs Davey was collecting the linen. They had a conversation to the following effect:

Ms Jolly: Gee you're red in the face, you need to go and have a couple of wines.

• [27] Mrs Davey said her response was referring to having to make up a bed when this should have been done much earlier in the day. Mrs Davey said that Ms Jolly did not enquire about her wellbeing.[22]

• [28] At approximately midnight, after both Mr and Mrs Davey had gone to bed, Mr Davey was woken up by a noise. When he got to the loungeroom, Mrs Davey was sitting there visibly upset. Mr Davey sat with Mrs Davey and tried to reassure her. Mr and Mrs Davey went back to bed at around 4am but they did not sleep.[23] Mrs Davey said that she was extremely teary and anxious for hours and barely slept that night.[24]

• [29] Mrs Davey started work at around 6am getting laundry sorted and stripping cabins in which guests had already checked out. At 7am, Mrs Greer and Ms Jolly arrived at the office. Mr Davey approached Ms Jolly, and they had a conversation to the following effect:

Ms Jolly: Well, I will have to find new managers.[25]

• [30] Mr Davey said he was surprised by Ms Jolly's response, but he did not know what to do at the time, so he just walked away.

• [31] Ms Jolly also had a conversation with Mrs Davey. It was to the following effect:

Mrs Davey: Ange, why does it take so long to do the end of day?

Ms Jolly: That's just the way it is.[26]

• [32] Mrs Davey said that Ms Jolly did not make any further enquiry about her wellbeing, nor did she suggest that Mrs Davey seek medical treatment.[27]

• [33] Mrs Davey returned to the residence, and Mr Davey informed her that he had just spoken to Ms Jolly about Mrs Davey having a further breakdown.[28]

• [34] A short time later at approximately 7:30am, Ms Jolly approached Mr and Mrs Davey in their residence, and they had a conversation to the following effect:

Ms Jolly (to Mrs Davey): Well, you are no longer a manager, you can go out and be a cleaner and Steven can run the office with Jennie.

Ms Jolly: I will now have to pay you, I will have to pay them and I will have to pay new managers.[29]

• [35] Mr Davey said he did not understand why Ms Jolly thought she would need to find new managers, as by talking to Ms Jolly, he thought they would figure out a strategy to deal with the stress.[30]

• [36] Mrs Davey left the residence and spent the day cleaning cabins and doing all the cabin laundry.[31]

• [37] Ms Jolly disagreed with aspects of the conversations which Mr and Mrs Davey alleged they had with her. Ms Jolly said that she was not aware that Mrs Davey was suffering from any sort of medical condition but thought she was having difficulty coping. Both Mr Dicks and Ms Jolly gave evidence that Mrs Davey wanted to retire after finishing at Goulburn South Caravan Park and Mr Davey wanted to move to Bowen and work at Queens Beach Park. They said that they were aware that there were a lot of issues in relation to the house which Mr and Mrs Davey were building in Wollongong which also appeared to be causing Mr and Mrs Davey stress.

• [38] Ms Jolly said she was about to leave the site on Friday, 4 October 2024, when Mr Davey had a conversation with her about Mrs Davey. Ms Jolly's version of the conversation was:

Mr Davey: We can't do this anymore. I have to get Carmel out of here.

Ms Jolly: We'll have to get new managers or temporary managers in.

• [39] Ms Jolly said that Mr Davey told her that he did not want to leave. Ms Jolly was planning to return to the site on Tuesday, 8 October 2024. Ms Jolly explained that when a couple is engaged as Park Managers, usually one person works in the office and one person works outside and manages the cleaners. Ms Jolly suggested that as the office work was upsetting Mrs Davey, she should stay outside and manage the cleaners, and Mr Davey should work in the office. Ms Jolly denied that she demoted Mrs Davey or told Mrs Davey that she was no longer a manager. Ms Jolly said that she referred to getting temporary managers as an interim solution until she returned to the site on 8 October 2024. Ms Jolly gave evidence that she said to Mr Dicks:

Steve is worried about Carmel. Everything will settle back down when Jennie and Peter are gone.

• [40] During the hearing, I asked Ms Jolly whether she told Mr Dicks that Mr and Mrs Davey were leaving. Ms Jolly said,

No. I never thought they were leaving. I knew when we got back on Tuesday we would sort it out.

• [41] Ms Jolly said that she had a really good relationship with Mr and Mrs Davey and that:

We wanted them to be there. We knew that Carmel was not that keen. Last time I saw [Mr Davey], he was staying at the park and not going anywhere.

• [42] Mr Dicks said that on the morning of 4 October 2024, Ms Jolly called him and said, 'they're out'. Ms Jolly advised him that Mr Davey had told her, 'Carmel can't do it' and that 'he needed to take her away from here'.

• [43] After this phone call, Mr Dicks said that he called Mr Davey, for the purpose of advising him that if Mrs Davey had stopped performing the role, he needed to engage relief managers.

• [44] At 8:19am, Mr Davey received a text message from Mr Dicks asking him to call as soon as possible. Mr Davey called Mr Dicks, and they had a conversation to the following effect:

Mr Davey: Hi mate, I guess Ange has told you what has happened with Carmel.

Mr Davey: Sorry, so sorry, I have never seen her like this before.

Mr Dicks: Do not worry, you do not need to apologise, I just need to know that you can stay for a few weeks, 2 or 3 or as long as you can until I find someone.

Mr Davey: Paul, I am not going anywhere, you do not need to stress or worry about that. I am staying, I will be staying for as long as you need me, do not stress about that. I am here 100%.

Mr Dicks: Ok, thanks. I appreciate that, but you will have to send Carmel home ASAP.

Mr Davey: She cannot go home Paul, she has nowhere to go, we have no house, our caravan is in storage full of furniture, I cannot just put her on a plane and say goodbye and hope she will be ok.

Mr Dicks: Ok, well just let her stay in the residence but she must not go into the office, and she needs to stay out of sight.

Mr Dicks: Thanks, I appreciate it. Please do not tell anyone and keep this conversation to yourself.

• [45] Mr Davey worked with Mrs Greer in the office for the day. Mr Davey said that Ms Jolly had demoted Mrs Davey and asked her to clean for the day.[33]

• [46] Later that afternoon, Mr Dicks sent a text message to Mr Davey at 3:15pm asking Mr Davey to call him. Mr Davey called Mr Dicks on speaker in the presence of Mrs Davey. They had a conversation to the following effect:

Mr Dicks: How is Carmel doing? She must be feeling awful.

Mr Davey: She is mate, she feels terrible and upset that she has let everyone down.

Mr Dicks: I have managed to secure some managers so I need you and Carmel to finish up at the close of business today and leave the park as soon as possible, I will need the residence for the new managers.

Mr Davey: Paul, it is school holidays and a long weekend. I do not think we will get flights until next week sometime, if we are lucky. I will have a look and see how we go.

Mr Dicks: Ok, just as soon as you can you need to leave the park, you can stay in the residence, but you need to stay clear of the office, you are not permitted to enter the office.

Mr Davey: Ok, well moving forward, where does this leave us with Southern Cross Parks, we have had a good relationship with you guys and Southern Cross, and we would like it to stay that way.

Mr Dicks: Do not worry about that, we will discuss that further down the track, you just need to get Carmel home and get her to a doctor.

Mr Davey: Ok, I will have a look tonight and see if I can get some flights, talk soon.[34]

• [47] During the hearing, Mr Dicks said that his version of the conversation was as follows:

• Mr Dicks had been told by Ms Jolly that morning that Mr and Mrs Davey had ceased working.
• Mr Dicks needed to talk to them about this because the ramifications were that he needed to employ someone.
• Mr Dicks would need to bring in a relief as he would need to recruit, as a result of Mr and Mrs Davey's actions.
• Mr Davey was saying that Mrs Davey was not coping, and he needed to take her away.
• Mr Dicks said, 'what does that look like Steven? If you need to take her away, you need to leave the business.' Mr Dicks said that Mr Davey was probably in shock and Mr Davey said that he would talk to Mrs Davey and come back to Mr Dicks.
• Mr Dicks said that Mr Davey never came back to him, and they never talked about when he was taking Mrs Davey away, so it was a shock when Mr Davey took Mrs Davey away the next day.
• Mr Dick denied that he said, 'you need to finish up today'. He did say that he would need the residence because he had a relief manager coming in, as Mr Davey was taking Mrs Davey away.
• Mr Dicks said there was no reference in their conversation to school holidays. Mr Dicks agreed that he said that Mr and Mrs Davey could stay in the residence but to stay away from the office because as far as he was concerned, they had stopped working and he did not need them in the office.
• Mr Dicks said that they did not have a conversation about where Mr and Mrs Davey stood with Southern Cross Parks and that this discussion took place via email 11 days later.

• [48] Mr Dicks said that he expected that Mr and Mrs Davey would remain on site until he found replacement managers, but that he was never given the chance to have that conversation as they left the next day and abandoned their employment.

• [49] During the hearing, I asked Mr Dicks whether it was possible that when he had the conversation with Ms Jolly, there was some misunderstanding where he thought Mr and Mrs Davey were leaving employment when they were not. Mr Dicks said that he did not think there was any misunderstanding.

• [50] Mr Dicks does not recall any conversations about taking Mrs Davey to a doctor.

• [51] Mr Davey said that he and Mrs Davey went back to the office and that he had a conversation with Mrs Greer to the following effect:

Mr Davey: Jennie, Paul has found new managers and told us to leave the park ASAP. We will be leaving as soon as I find some flights.

Mrs Greer: Well, I think you need to do what is best for Carmel, her health is more important than a job.

Mr Davey: Yes, her health is more important, we will get her home and get her to the doctor, so I guess the pin has been pulled for us here.

Mrs Greer: I have been asked to stay on for a couple of weeks.

Mr Davey: Yes, I suspected that would possibly be the case.[35]

• [52] Later that night, Mr Davey purchased flights for the next morning.[36]

• [53] On Saturday, 5 October 2024, Mr and Mrs Davey made their way to the airport. Mr and Mrs Davey stayed with their daughter following their return to Wollongong, as their new home was not yet completed and was still under construction.[37]

• [54] On Friday, 11 October 2024, Mrs Davey attended the first available appointment with her GP who advised that she had high blood pressure and an issue with her thyroid which would require a scan and ongoing monitoring. Mrs Davey advised her GP about her mental state, which had largely eased by the time she returned to Wollongong.[38] Mrs Davey said that she is currently fit for work.[39]

• [55] On 11 October 2024, Mr Davey called Ms Jolly to give her an update about Mrs Davey and they had a conversation to the following effect:

Ms Jolly: Hello, how are you going, how is Carmel doing?

Mr Davey: She has been to the doctors today, her blood pressure is through the roof, the GP found another issue that I am concerned about with her thyroid, there is a lump that she has to go get a scan, there will be ongoing monitoring with her doctor.

Mr Davey: I haven't heard from Paul, I thought we might be able to discuss where we go from here.

Mr Davey: No, I have never mentioned resigning to anyone, I asked Paul about where we go from here on our last phone call and he said he will discuss that later, just get Carmel home and get her to the doctor.

Ms Jolly: But what would you both do; would you go back to Bowen?

Mr Davey: No, I think that it would be too much for Carmel after what has happened, but I know there are positions at other parks such as Dubbo or Narrabri. I know I said I would never go there but I am open to that.

Ms Jolly: But everyone is under the assumption that you resigned.

Mr Davey: Ange, Carmel had a breakdown, it knocked me for a six and I did not know how to deal with this type of thing. I have never dealt with someone having a breakdown and being Carmel I was so worried, but I never ever mentioned resigning to you or Paul.

Ms Jolly: Well, we assumed you did, even Jennie thinks you resigned.

Mr Davey: I have never mentioned anything to Jennie about resigning. I have never mentioned the word resigning. If I was going to resign, I would put it in writing as I always have and inform you and Paul.

Ms Jolly: Well, you better talk to Paul about other parks. I don't look after the employment/hiring.

Mr Davey: Ok, no worries, talk soon.[40]

• [56] On 14 October 2024, Mr Davey provided Mrs Davey's medical certificates for her absences from work to Mr Dicks and they engaged in an exchange of emails, where Mr Dicks alleged that Mr and Mrs Davey had abandoned their employment.[41]

• [57] Mr Dicks' email, dated 16 October 2024, relevantly provided:

After months of preparation and discussions leading up to Southern Cross Park's acquisition of the Queen Beach Holiday Park, I was totally blindsided by you both when you told Ange that you couldn't manage the park after only 2 days, despite having almost three months off prior.

All Park Manager positions are for two people and when you revealed that Carmel could not and would not continue working at the park, this forced me into emergency recruiting mode as I had no back up plan and you gave me no notice, as per your employment contract.

It was simply not realistic to think that Steve could manage the park as a single Park Manager.

Ange and I were both present at the park and I would have expected some professionalism by you by requesting a meeting at the very least, to discuss your decision not to manage the park. We could have worked together but you chose not to give me that opportunity.

I do not think you realise the enormity of your actions and the stress it caused on all parties; it simply was not good enough. The financial implications and costs to our business by you leaving were and are still enormous and ongoing.

I spoke with Steve to contact me when you were going to leave the property and you did not do this, you just left. Of which I was told days after the fact and not by you.

You abandoned the job and the park. By both of your actions, you terminated your employment with Southern Cross Parks as per your employment contract.[42]

• [58] Mr Davey's response, dated 16 October 2024, relevantly provided:

This certainty [sic] wasn't our plan for this to happen, Bowen was meant to be my/our dream park and I certainly did believe that when we arrived.

"Carmel had a severe breakdown Tuesday night", and that certainly wasn't our plan.

I notified Ange on Wednesday morning of Carmels breakdown and the fact that I had never seen her that distressed. However, I convinced Carmel it was going to be fine and she continued on.

Thursday night, Carmel went through another breakdown at end of day and could not function. This went on through the night to which she/we could not sleep and she was in deep distress. Again I notified Ange on Friday morning of Carmel having a breakdown, Ange's response was what are you going to do, my reply was I don't know, Ange then said we will have to get new managers. I said to Ange that I'll call Paul and Ange said no she will do it.

Ange then approached Carmel and told her she is no longer a manager and told her she can clean.

I received a txt msg from you (Paul) at 8:19am (can you call me ASAP) I called you, you asked me if I could stay on for a few weeks, could be 2, could be 3 or more, I told you it's not a problem, I am fine, you then told me Carmel would need to leave the park ASAP and to send her home, I told you she has nowhere to go, you then said she will just need to stay away from the office.

Friday, I received another txt msg from you (Paul) at 3:15pm to call you at 3:30pm, I called you at 3:30 and you told me that we had to finish up today Friday afternoon at close of bus and leave the park ASAP as you were lucky and found someone, i asked you at this time moving forward where do we go from here with Southern Cross Parks, you replied we'll talk about at another time, you just need to get home and get Carmel to the Dr's, I then informed you that it's a long weekend I may not be able to get flights etc but I'll do my best however it could be a couple days, you said that is fine. Friday night I searched for flights, accommodation, transport as per your instructions to leave the park ASAP, I was lucky enough to find some flights for Saturday morning.[43]

• [59] In his email, Mr Davey referred to attempting to call Mr Dicks on 11 October 2024, but that Mr Dicks did not return his call. Phone records produced by Mr Davey show that Mr Davey attempted to call Mr Dicks on 9 October 2024.[44]

• [60] At the time of this email exchange, Mr and Mrs Davey had not been paid for working the week of 30 September 2024. When they were eventually paid, Southern Cross Parks deducted three weeks' notice from their pay and annual leave entitlements, for Mr and Mrs Davey's alleged failure to give notice.

• [61] The application has been brought under s.365 of the FW Act which 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.

• [62] The issue between the parties which the Commission has been asked to determine is whether Mrs Davey was dismissed by Southern Cross Parks. The dictionary at clause 12 of the FW Act refers to section 386 for the definition of 'dismissed'.

(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.

(2) However, a person has not been dismissed if:

(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.

• [64] Mrs Davey alleged that she was terminated by Southern Cross Parks because she had a disability and because she was temporarily absent from work due to illness. However, these claims cannot be determined until the Commission deals with the matter under s.368, and only if the Commission issues a certificate of attempted conciliation under s.368(3). Under s.368, the Commission may deal with the matter in numerous ways including by mediation or conciliation, or by making a recommendation or expressing an opinion.

• [65] If there is a dispute as to whether the alleged dismissal which is the subject of the application has occurred, this is a preliminary issue which, according to the Federal Court Full Court decision in Coles Supply Chain Pty Ltd v Milford,[45] 'must be resolved before the powers conferred by s.368 can be exercised at all'.[46]

• [66] In this regard, the Full Bench in Lipa Pharmaceuticals Ltd v Mariam Jarouche[47] stated:

Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission 'dealing' with the dispute under s 368 including by conducting a conciliation conference.[48]

• [67] As Southern Cross Parks has claimed that Mrs Davey was not dismissed, I must find that a dismissal occurred before conducting a conciliation conference or otherwise dealing with this matter under s.368.

• [68] The expression 'terminated on the employer's initiative' in s.386(1)(a) is well understood to be a reference to a termination that is brought about by an employer, and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[49]

• [69] The events of 4 October 2024 are critical to determining whether Mrs Davey was dismissed. Mr Dicks said that Ms Jolly had advised him on the morning of 4 October 2024 that 'they're gone'. On that basis, Mr Dicks believed that Mr and Mrs Davey were leaving their employment and had discussions with Mr Davey about staying in the residence but not attending the office. Ms Jolly said that she did not tell Mr Dicks that Mr and Mrs Davey were leaving because as far as she was concerned, they were staying and everything would be sorted out when Ms Jolly returned to the site on 8 October 2024. Mr Davey's evidence is that he organised flights and left on 5 October 2024, in response to Mr Dicks advising him that he and Mrs Davey should leave as soon as possible. Mr Davey said that he asked Mr Dicks where he and Mrs Davey stood with Southern Cross Parks and Mr Dicks said that they would discuss this in the future.

• [70] The events during the week commencing 30 September 2024 were clearly very stressful for Mr and Mrs Davey, Mr Dicks and Ms Jolly. There is no dispute that Mrs Davey was not coping with the new systems, however, Mr Dicks and Ms Jolly said that they were not aware that Mrs Davey was suffering from a medical condition. I have no reason to doubt Mrs Davey's belief that she experienced a 'breakdown', or a psychological condition, was genuine. However, there is no medical evidence before me which establishes on an objective basis that this was the case. The medical certificates in evidence simply state that Mrs Davey was suffering from a medical condition. They do not refer to a psychological condition and Mrs Davey said that although she informed her GP about her mental state, this had largely eased by the time she returned to Wollongong.

• [71] There was an implicit criticism throughout Mrs Davey's evidence that Ms Jolly did not inquire about her well-being or offer her medical treatment. However, Mr Davey's evidence was that on 2 October 2024, Ms Jolly queried whether Mrs Davey should be given the day off and Mr Davey said, 'no I don't think so.' Further, in Mr Davey's email to Mr Dicks of 16 October 2024, he stated that he convinced Mrs Davey that it was going to be fine, and that she continued to perform work.

• [72] In my view, if Mrs Davey was suffering from a medical condition, she should have taken the day off on 2 October 2024 as sick leave and sought medical attention. It may well be that Mr and Mrs Davey were both too stressed to make a rational decision about the best course of action, but this did not result in the responsibility for Mrs Davey's well-being shifting to Ms Jolly. I do not accept that there is any basis for criticism of Ms Jolly who appeared to be doing her best to manage a difficult situation.

• [73] It appears from the evidence that Mr Dicks and Ms Jolly were not based in Queensland and were only present on site during the week commencing 30 September 2024 to settle Mr and Mrs Davey into their new role. As Mr and Mrs Davey were well regarded and trusted employees, it appears that Mr Davey, Ms Jolly and Mr Dicks were all taken by surprise by Mrs Davey not coping and that none of them knew how to handle the situation. I believe that this created an environment where quick decisions were made without regard to the consequences and communication between the parties was not particularly clear.

• [74] One of the difficulties was that most conversations about Mrs Davey took place through Mr Davey rather than with Mrs Davey directly. In making this observation, I am not intending to be critical as this was clearly designed to avoid exposing Mrs Davey to further stress. However, it created a situation where Ms Jolly and Mr Dicks may not have been aware of the extent of Mrs Davey's distress and is likely to have impeded communication between the parties.

• [75] In circumstances where Mr Dicks and Ms Jolly were leaving the site and Mrs Davey was not coping, it was reasonable for Mr Dicks and Ms Jolly to make arrangements for relief managers to manage the site until Ms Jolly returned on 8 October 2024. This was consistent with the practice of Southern Cross Parks to arrange for a replacement Park Manager when Mr and Mrs Davey had time off while working at Goulburn South Caravan Park. However, Mr Dicks said that these arrangements were made in response to Mr Davey telling Ms Jolly that he and Mrs Davey were leaving. Ms Jolly does not allege that Mr Davey ever made such a statement to her.

• [76] Further, Mr Dicks' claim that Mr Davey told Mr Dicks that he was taking Mrs Davey away, is not supported by Ms Jolly's evidence or Mr Dicks' email to Mr Davey dated 16 October 2024. Ms Jolly does not allege that Mr Davey ever made such a statement to her. Mr Dicks' evidence is that when Mr Davey told Mr Dicks that he was taking Mrs Davey away, Mr Dicks advised Mr Davey that he would have to leave the business. This was confirmed in Mr Dicks' email to Mr Davey of 16 October 2024. The email stated that all Park Manager positions are for two people and when Mr Davey stated that Mrs Davey could not continue working at Queens Beach Park, this forced Mr Dicks into emergency recruiting mode as it was not realistic for Mr Davey to manage Queens Beach Park as a single Park Manager. Mr Dicks had no back up plan and Mr Davey gave him no notice. However, the email referred to Mr Davey advising Ms Jolly that Mr and Mrs Davey could not manage the park. The email did not state that Mr Davey conveyed this advice directly to Mr Dicks.

• [77] Ms Jolly's evidence is that prior to her leaving Bowen on 4 October 2024, there was no indication that Mr and Mrs Davey intended to leave the site. I therefore believe that it is unlikely Mr Davey advised Mr Dicks that he intended to take Mrs Davey away shortly after Ms Jolly left. I believe that the more likely scenario is that Mr Dicks became concerned after leaving the site and after speaking with Ms Jolly, that Mrs Davey was not coping and would not be able to fulfil her Park Manager duties. I believe that Mr Dicks pre-empted what he thought would be an evitable outcome by immediately locating replacement managers.

• [78] I accept Mr Davey's evidence that he only made arrangements to leave the site in response to a request from Mr Dicks that he and Mrs Davey leave as soon as possible. There is no basis for me to conclude that Mr Davey initiated his and Mrs Davey's departure from the site as this is inconsistent with the evidence of Mr Davey, Mr Dicks and Ms Jolly that Mr and Mrs Davey intended to stay.

• [79] I accept that Ms Jolly was surprised that Mr and Mrs Davey left Bowen when she returned to the site on 8 October 2024 and assumed that Mr and Mrs Davey resigned as she was unaware that Mr Dicks had told Mr Davey to leave. However, I do not accept Mr Dicks' evidence that Mr and Mrs Davey left the site the following day without his knowledge. Mr Dicks was the General Manager of Southern Cross Parks and had worked with Mr and Mrs Davey for four years. He regarded them as trusted employees. I would therefore expect that a reasonable person in Mr Dicks' position would contact Mr and Mrs Davey if he was surprised by their departure. That Mr Dicks did not contact Mr and Mrs Davey or return Mr Davey's call on 9 October 2024, indicates that he was aware that Mr and Mrs Davey would leave on or about 5 October 2024, because he had advised Mr Davey to do so.

• [80] At the time that Mr Dicks advised Mr Davey to leave the site, Mr and Mrs Davey were not aware that their employment had ended. Mr Davey's belief that there was an ongoing employment relationship is supported by Mr Davey attempting to call Mr Dicks on 9 October 2024, calling Ms Jolly on 11 October 2024 and sending Mrs Davey's medical certificates to Mr Dicks on 14 October 2024. Further, there was no attempt by Southern Cross Parks to pay Mr and Mrs Davey's statutory entitlements, which usually occurs when employment has ceased. It was only when Mr Dicks claimed that Mr and Mrs Davey had abandoned their employment on 16 October 2024 that it became clear to Mr and Mrs Davey that their employment had ended.

• [81] In his email to Mr Davey of 16 October 2024, Mr Dicks was critical of Mr Davey's failure to request a meeting with Mr Dicks while he was present at the park 'to discuss [Mr Davey's] decision not to manage the park.' There is no evidence to support a finding that Mr Davey made such a decision. Further, Mr Dicks had left Queens Beach Park before Mrs Davey's second 'breakdown'. This is prior to the time that Mr Dicks claims that Mr Davey told Ms Jolly that he needed to take Mrs Davey away from Queens Beach Park.

• [82] Having regard to all of the evidence, I find that Mr Dicks' actions on 4 October 2024 in telling Mr Davey that he and Mrs Davey needed to leave Queens Beach Park as soon as possible was the principal contributing factor which resulted, directly or consequentially, in the termination of Mrs Davey's employment. As such, I find that Mrs Davey was dismissed by Southern Cross Parks on 4 October 2024.

• [83] Taking into account the parties' submissions and the evidence before me, I find that Mrs Davey did not abandon her employment and that Mrs Davey's employment was terminated on the initiative of Southern Cross Parks on 4 October 2024.

• [84] There is no evidence that establishes, and the parties have not submitted, that the exemptions in s.386(2)(a)-(c) apply. Accordingly, I find that Mrs Davey has been dismissed within the meaning of s.365 of the FW Act.

• [85] The jurisdictional objection raised by Southern Cross Parks is dismissed and I order accordingly.

• [86] The matter will shortly be listed for Conference so that the Commission can deal with the matter as required by s.368 of the FW Act.

Ms E. Thomson, legal representative from Foye Legal, for the Applicant

Ms A. Jolly, Operations Manager, for the Respondent

[2] [2025] FWC 1535

[3] Statement of Steven Davey dated 20 January 2025, [7]

[12] Statement of Carmel Teresa Davey dated 20 January 2025, [33]

[13] Statement of Steven Davey dated 20 January 2025, [31]

[15] Statement of Carmel Teresa Davey dated 20 January 2025, [35]

[16] Statement of Steven Davey dated 20 January 2025, [34]

[17] Statement of Carmel Teresa Davey dated 20 January 2025, [37]

[18] Statement of Steven Davey dated 20 January 2025, [35]-[37]

[19] Statement of Carmel Teresa Davey dated 20 January 2025, [42]

[23] Statement of Steven Davey dated 20 January 2025, [43]-[44]

[24] Statement of Carmel Teresa Davey dated 20 January 2025, [48]

[25] Statement of Steven Davey dated 20 January 2025, [45]-[47]

[26] Statement of Carmel Teresa Davey dated 20 January 2025, [51]

[30] Statement of Steven Davey dated 20 January 2025, [51]

[31] Statement of Carmel Teresa Davey dated 20 January 2025, [57]

[32] Statement of Steven Davey dated 20 January 2025, [52]-[53]

[37] Statement of Carmel Teresa Davey dated 20 January 2025, [61]

[40] Statement of Steven Davey dated 20 January 2025, [66]

[45] [2020] FCAFC 152.

[47] [2023] FWCFB 101.

[49] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; 62 IR 200

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