Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional question - whether applicant was dismissed or resigned - applicant found not to have been dismissed - application dismissed

• [1] Cassandra House was employed with the Justice and Community Safety Directorate of the Australian Capital Territory. Her employment came to an end on 13 June 2025.

• [2] On 26 June 2025 Mrs House[1] commenced proceedings in the Commission by filing an application ("Application") under section 365 of the Fair Work Act 2009 ("Act").[2] She alleged that she had been dismissed by the Territory on the basis of physical or mental disability, in breach of section 351.
• [3] The Territory denied any contravention of the Act. More particularly for present purposes, however, it also raised a jurisdictional objection to the Application. It contended that Mrs House was not dismissed, but had resigned from her employment.
• [4] Section 365 relevantly provides that if a person "has been dismissed" and they allege that the dismissal contravened Part 3-1 of the Act, they may apply to the Commission to deal with the dispute. Given the language of the section, a person must have been dismissed for it to apply. If a respondent asserts that there has been no dismissal, it gives rise to a dispute as to whether the applicant is entitled to make the application. That dispute must be resolved before the Commission can exercise any of the powers the Act confers on it.[3]

• [5] This decision deals with the jurisdictional objection.

• [6] I find that Mrs House was not dismissed. Consequently, I have determined to uphold the Territory's objection and to dismiss the Application. These are my reasons.

• [7] The Act defines "dismissed" in section 386(1). That section contemplates two scenarios in which a person will have been dismissed. First, if their employment was terminated on the employer's initiative: section 386(1)(a). Second, where they resigned from their employment, but were forced to do so because of conduct, or a course of conduct, engaged in by their employer: section 386(1)(b).

• [8] Mrs House did not contend that her employment was terminated at the Territory's initiative. She argued that the Territory forced her to resign from her employment.

• [9] Section 386(1)(b) reflects the common law concept of constructive dismissal.[4] The test to be applied is whether the employer engaged in the conduct with the intention of bringing the employment to an end, or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign.[5] The second limb of that test makes it clear that it is not necessary to show that the employer engaged in the relevant conduct with the subjective intention of forcing the employee to resign.[6]
• [10] In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required.[7] Where questions of jurisdiction is involved it is the facts which are relevant, not the parties' subjective beliefs or the reasonableness of their conduct.[8]

• [11] Mrs House gave evidence in support of her case. She filed a statement and an outline of submissions annexing a number of documents. The Territory relied on two statements of Daniel Borrett, the Director, HR Business Partnering (JACSD Small Business Units) & Injury Prevention Management, in the Justice and Community Safety Directorate of the Territory. The Territory also relied on a number of documents comprising an "Annexure Bundle" to Mr Borrett's statement.

• [12] The following are what I consider to be the key facts of the matter.

• [13] In August 2023 Mrs House was diagnosed with a stress-related workplace injury. She submitted a workers compensation claim in September 2023. That claim was accepted by Employers Mutual Limited ("EML"), the Territory's workers compensation provider, in November 2023.

• [14] In connection with her workers compensation claim, EML required Mrs House to attend an independent medical examination ("IME") with a Dr Varghese, a psychiatrist. She did so on 18 June 2024. This was the second IME that EML had required Mrs House to undergo.

• [15] On 5 August 2024 Mrs House received a copy of a report prepared by Dr Varghese. This was while she was waiting to see her general practitioner, Dr Mara Matic, in advance of a "medical case conference" that day.

• [16] The medical case conference involved Mrs House, Dr Matic, a "Melissa G" from EML and Liana Beauman, a Senior Rehabilitation Consultant with "Rehab Management" (which I understand to be a provider of rehabilitation case management services). Following that conference, Ms Beauman sent an email to Corinda Williams, a Rehabilitation Case Manager with the Territory[9] and Ms G, which stated in part:

"...The following discussion points and outcomes were identified:

• Dr Matic and Ms House reported that had completed a brief review of the Independent Medical Examination report. Dr Matic advised the following key pieces of information from the report.

• Ms House was reported to have been experiencing major depressive disorder earlier in the year due to her reported instances of increased work load and difficulties at work.

• Ms House is now in remission from this condition and is fit to engage in a RTW.

• Ms House is recommended as fit to work 4 hours per day, 3 days per week in an alternative work role building capacity to make a full RTW.

• EML advised that based on IME reporting they would be conducting a review of Mrs House's entitlements. EML reported they would be providing Ms House with formal writing of their intended actions before EOD noting that in this writing would be information on any appeals or responses Ms House may wish to make.

• Ms House reported that she does not feel she can return to her substantive or current work duties in any capacity.

• Dr Matic reviewed Ms House's reported symptoms and functioning through which Ms House reported that she was feeling much better being away from the work environments across the past weeks. Ms House reported that based on this she has made the decision that she would like to access long service leave and annual leave at half pay, where applicable, before then retiring at the end of the year. Ms House reported she feels this is the decision she has to make for her own mental health and wellbeing.

• Dr Matic reported that inline with the IME report she would recommend Ms House it fit for work in reduced capacity in an alternative work role.

• Dr Matic certified Ms House fit to work 4 hours per day, 3 days per week from 05/082024 to 02/09/2024. Dr Matic certified Ms House unfit to work in her substantive or current role but fit to work in a different team in alternative work in the public service."

• [17] Mrs House, with the support of Dr Matic, subsequently requested that EML conduct a review of the contents and findings in Dr Varghese's report.

• [18] Over the following weeks, Mrs House engaged in email correspondence with Christina Jacobsen, a Rehabilitation Case Manager - Injury Management with the Territory.[10] In short, Ms Jacobsen sought to arrange a meeting with Mrs House to "explore the options" following Dr Matic's certification as to Mrs House's fitness to work. Mrs House expressed a desire to await EML's response to her request for a review of Dr Varghese's report before determining her next steps.

• [19] In an email to Ms Jacobsen of 21 August 2024, Mrs House stated (amongst other things):

"I would like to know the next steps, taking into account my previous review was based on the contested IME report, and my return to work, and the comments about leave that I made at that review were based on the IME report that I hadn't had a chance to fully read."

• [20] On 9 September 2024 Mrs House received a payslip and observed that she had not received workers compensation payments for that pay period. She had not received prior notice that EML would not be making such payments.

• [21] On 13 September 2024, Mrs House sent an email to Ms Jacobsen and Mr Borrett ("13 September Email"), which stated in part:

"I have been a trusted and respected employee of ACT Government for over 20 years.

I have worked hard and taken great pride in my work and my workplaces. I have built and maintained great relationships during my career and have respected and been respected by my colleagues. I have consistently worked hard and given 100% to my respected workplace over my career.

I have previously advised you that the recent IME that I undertook as part of my rehabilitation included a timeline of events that are not consistent with my medical records, misrepresented my mental health history, fabricated quotes, included untrue information, and lacked context in using some of my responses. My doctor has supported my comments, confirmed that the timelines and history are incorrect, and recommended that a second opinion is sought. The report concluded that I have recovered from a condition that I didn't actually have.

To date, I have not received an outcome to my request for a review of the IME, but have been advised by Shared Services that my pay was docked yesterday as workers' compensation leave was not topped-up by the insurer, and the only conclusion I can make is that my employer has accepted the erroneous report.

I therefore request that I take my accrued annual, long service (full time) and long service (part time) leave with the intention of resignation at the conclusion of my leave.

I request that I take my long-term leave as follows, commencing 11/9/2024:

- annual leave at full pay (commencing 11/9/2024), followed by

- long service leave (full-time) at half pay, followed by

- long service leave (part-time) at half pay, until exhausted.

I have lost trust and confidence in my employer's ability to safely return me to my pre-injury condition, and feel that many elements of the process managed by JACS, EML and CMTEDD has deteriorated my health rather than improving my ability to return to work.

I will not be engaging in any further rehabilitation process once I commence my long-term leave.

I will not be returning to the workplace at the end of my accrued leave."

• [22] On 17 September 2024 Mrs House sent an email to Ms G of EML, copied to Mr Borrett and others, which stated in part:

"As you are aware, i [sic] do not agree with Dr Varghese's report. At no time did I think, or say to him, that I thought I had been permanently damaged by my employer - this is yet another untrue statement made up by him to suit his purposes.

As per my email last Friday, and regardless of the decision you provide, I would now like to access my acccured [sic] leave and retire from ACT Government."

• [23] On the same day, Mr Borrett sent an email to Mrs House, which stated in part:

"I have discussed your request to utilise your leave and then retire with Katie Dunn, and I will seek Payroll's advice as to an accurate current total of available leave and when this will take you up to? [sic] Once I am provided this from Payroll, I will send to you for your consideration and Katie will then approve the leave with your resignation in writing.

I have asked Payroll today to quickly complete the audit ASAP and advise of the end date of your leave so that I can get this to you for consideration."

• [24] In an email sent in reply to Mr Borrett later that day, Mrs House stated:

"Thank you very much. I really appreciate you doing this for me."

• [25] On 18 September 2024 Mr Borrett sent an email to Mrs House, which stated:

"Payroll have provided me the current totals as your remaining leave balances:

Should you request to take the available leave at full pay, your retirement date would be 26 Feb 2025

If you request to take the leave at half pay, your retirement date would be around 15 June 2025.

If you could please respond and let me know your preferred leave option along with the written advice of your retirement, I will put this to the delegate for approval."

• [26] Later that day, Mrs House sent Mr Borrett a response, which stated:

"Thank you for sending through the information below.

I would like to request my accrued leave at half pay. I request the I take my accrued annual leave first, followed by full-time long service leave, and then part-time long service leave.

I advise that I will retire from ACT Government at close of business on Friday 13 June 2025."

• [27] On 24 September 2024 Mr Borrett sent an email to Mrs House, which stated in part:

"The delegate has approved your leave and accepts your date of retirement being 13 June 2025."

• [28] Later that day, Mrs House sent Mr Borrett an email in response, which stated in part:

"Thank you for notifying me that the delegate has approved my leave and has accepted my retirement date of 13 June 2025."

• [29] On 18 November 2024 Mrs House raised a complaint with Comcare as to the management of her workers compensation claim. Comcare sent her an email in relation to that complaint on 24 January 2025, which stated in part:

"As discussed, ACT Government acknowledged that you had not received your determinations as intended under the care of your GP, Dr Mara Matic, on 16 September 2024.

The delay was reviewed by ACT Government and it is noted that the determination was sent to your GP on the morning of your appointment, but it did not align with your request for support in reviewing the determination during your appointment with your GP.

The ACT Government also acknowledges the inadequate communication and delayed notice regarding the cessation of your incapacity payment determination. While delayed, this does not reflect a contravention of the SRC Act.

The ACT Government apologises that communication with you has not met expected service standards. The ACT Government will collaborate with EML to establish clearer protocols for communicating incapacity payment determinations, ensuring that notices are provided with adequate lead time and reinforce the importance of delivery of critical information/determinations with adequate support.

The ACT Government confirmed they are committed to working with EML to improve these practices."

• [30] On 24 January 2025 Mrs House lodged an application with the Administrative Review Tribunal in relation to the cessation of her workers compensation claim.

• [31] On 10 June 2025 Mr Borrett sent an email to Mrs House, which stated in part:

"With your retirement date this Friday I am writing to confirm if you will be returning your laptop and any other remaining ACT gov [sic] property this week."

• [32] On 12 June 2025 Mrs House sent Mr Borrett an email in response, which stated:

"As per my email to you dated 7 February 2025, my workers compensations matters are ongoing. As such, I would like to continue to use my workplace laptop to assist with these matters until they are finalised. Please confirm that my ICT access will continue during these processes."

• [33] In an email sent in response to Mrs House the next day, Mr Borrett stated:

"Your retirement has been processed and as such all access will be discontinued."

• [34] On 16 June 2025 Mrs House sent an email to Mr Borrett which stated:

"I have not authorised for you to action my retirement. I haven't yet decided whether I am retiring or not."

• [35] The following day, Mr Borrett sent an email to Mrs House in these terms:

"On 18 September 2025, you advised in writing of your retirement date of 13 June 2025.

Based on this, the delegate approved your use of annual leave followed by Long Service leave up to this date.

There has not been any request to withdraw this date and as the business unit has undertaken appropriate recruitment action and filled the position. I can confirm, your retirement has been processed in line with your advice of 18 September 2025.

Further to this, you emailed me on 4 November 2024 confirming that you are utilising your leave with your retirement date of 13 June 2025.

In regards to the return of your laptop, on 4 November 2025, you advised that you would like to hold on to your laptop to 'request a reconsideration' for the determination on your claim, also to transfer workers comp info to your private address.

EML confirmed the completion of their reconsideration on 29 November 2024. I believe November to June is more than sufficient time for you to transfer your workers comp info to your private address.

The return of your laptop at your earliest convenience would be much appreciated."

• [36] Mrs House commenced these proceedings on 26 June 2025.

• [37] In July 2025, a settlement was reached in the Administrative Review Tribunal proceedings. Mrs House submitted that this settlement "reinstated compensation and rejected the IME's diagnosis".[11]

• [38] The Territory put its position succinctly. It submitted that the termination of Mrs House's employment was entirely at her initiative. She had stated that she was considering resigning and in later written communications "clearly and unambiguously made statements to Territory personnel that she wished to resign".[12] Further, having provided a resignation date of 13 June 2025 in September 2024, Mrs House had nine months to protest or seek to withdraw her resignation. She did not do so.

• [39] Mrs House contended that she had been subjected to a pattern of behaviour from the time she made her workers compensation claim, which was designed to force her resignation. In overview, that conduct included:

(1) covert monitoring and surveillance by co-workers and exclusion from meetings and social activities;

(2) Mr Borrett asking Ms Williams whether it would be possible to secure a "more expedient return to work" for Mrs House;

(3) abrupt changes to agreed work hours and pressure being applied to return to full-time hours;

(4) undertaking a flawed process to arrange the IME with Dr Varghese, including providing Dr Varghese with an incorrect medical history;

(5) relying on Dr Varghese's report, despite the concerns that Mrs House and Dr Matic raised concerning its findings;

(6) mismanagement of her workers compensation claim. This included two instances where workers compensation payments were withheld without notice, and cancelling Ms Beauman's involvement prior to the finalisation of Mrs House's workers compensation claim; and

(7) making any application for leave subject to a requirement that she resign.

• [40] Mrs House submitted that she did not voluntarily resign. She "strongly refuted" saying at the meeting of 5 August 2024 that she was considering exhausting her leave balances and resigning.[13] However, she also stated that immediately prior to the meeting on 5 August 2024 she first saw Dr Varghese's report. Its contents were so shocking to her she "decided on the spot in a fight or flight situation that [she] wanted to take [her] accrued leave and not return".[14] She submitted that "it should have been apparent to the rehabilitation provider that this was a cry for help rather than a serious career decision".[15]

• [41] Mrs House further submitted that the 13 September Email "made no mention of retirement or resignation".[16] She contended that her subsequent emails were sent in the context of having received an ultimatum - either resign to secure her statutory leave entitlements, or return to work with no leave entitlements.

• [42] Mrs House's evidence and submissions traversed at length what she considered to be deficiencies in the management of her workers compensation claim. She placed particular emphasis on the manner in which Dr Varghese was engaged, the inadequacy of information provided to him, and the reliance that the Territory allegedly placed on his report. It is not necessary to detail all of the contentions that Mrs House made in this regard. The following summation in her written submissions suffices for present purposes:[17]

"The Territory's failure to consider my response to the second IME report - despite its significant implications for my rehabilitation and employment - signalled to me that they were unwilling to protect my safety at work or support my recovery. Their uncritical acceptance of the report, without engaging with the concerns I raised, eroded my trust and confidence in the Territory. This marked a turning point in the deterioration of the employment relationship and initiated a chain of events that ultimately led to the termination of my employment.

I submit that the Territory actively shaped the outcome of the IME by

• bypassing its own procurement principles to appoint a specialist with whom it

• providing an inaccurate medical history that falsely suggested a history of

• withholding critical documents - including a treatment plan prepared by my

psychologist and internal conference notes from a meeting with my GP at the

These actions compromised the integrity of the assessment and constructed a narrative that misrepresented my condition and capacity for rehabilitation."

• [43] The difficulty for Mrs House is that the conduct about which she complains was taken by EML, not the Territory. It was EML that engaged Dr Varghese to conduct the second IME. It appears to have been EML's decision as to what information to provide to him. It was with EML that Mrs House liaised in relation to the second IME. The evidence on which Mrs House relied to assert the "Territory's failure to consider my response to the second IME report" was an email she had received from Ms G at EML.

• [44] The alleged failure by the Territory to give her notice that she would not be receiving workers compensation payments falls into a similar category. That appears to have been the result of EML's conduct, not that of the Territory.

• [45] The 13 September Email also appears to have been prompted by the actions of EML, not the Territory. Mrs House stated:[18]

"On 13 September 2024, after I was advised that my pay was stopped without notice on 9 September 2024 and I was advised that EML had finalised the decision on my claim on 10 September 2024, it became apparent to me that _EML had accepted the erroneous and untruthful IME repor_t and had dismissed my doctor's letter where she identified significant concerns with the report and recommended a second opinion and also my response to the IME. I emailed Ms Jacobsen and Mr Borrett and CC'd EML stating that 'I have lost trust and confidence in my employer's ability to safely return me to my pre-injury condition, and I feel that many elements of the process managed by JACS, EML and CMTEDD has deteriorated my health rather than improving my ability to return to work...'. I made a request to access my long-term leave until exhausted, and I stated that I will not be returning to the workplace at the end of my accrued leave, meaning my current workplace in accordance with advice from my GP. This was not a request to request to [sic] resign or retire. ..."

• [46] Mr Borrett stated that "EML is an incorporated independent third-party insurance provider - it is not part of the Territory".[19] However, Mrs House effectively conflated EML and the Territory. She sought to impute EML's conduct to the Territory. There is no basis on which to do so. In particular, I am not satisfied on the evidence that the Territory directed EML in the management of the workers compensation claim so as to be responsible for any failings in that regard that might be identified.

• [47] In saying that, I am mindful of the result of Mrs House's complaint to Comcare. But it is important to have regard to the relatively limited scope of the matters to which Comcare's email to Mrs House of 24 January 2025 referred.

• [48] The conduct that can properly be attributed to the Territory is limited. I will address Mrs House's primary contentions in turn.

• [49] First, the evidence falls short of establishing that Mrs House was subject to covert monitoring and surveillance by her co-workers. Mr Borrett denied engaging in that conduct and stated that he was not aware of any other Territory officer doing so. The high point of Mrs House's case is that Mr Borrett sent an email to Ms Williams regarding discussions that had been taking place in the office about Mrs House's weekend activities. Mr Borrett suggested these might be matters to raise as background for an impending IME (presumably the first one) or in the next medical review. Ms William in turn sent an email to another person requesting that statements recording those discussions be obtained. There is nothing remarkable about those events. They are, in any event, confined to November and December 2023.

• [50] Second, the information regarding workplace exclusion was limited to Mrs House's submission that "[d]uring this period, [she] was "excluded from meetings and sidelined without explanation. Even informal activities - such as a coffee break - would see the team leave without me."[20] Taken at its highest, any such conduct appears to have been limited to late 2023.

• [51] Third, I accept that Mr Borrett asked Ms Williams what could be done to secure a more "expedient return to work" for Mrs House, but I do not accept her submission that it "exemplifies a reckless disregard for [her] health".[21] Mr Borrett's question needs to be put in context. He was responding to an email from Ms Williams of 19 February 2024, which stated in part:

"Doctor Mohsin requested that Liana draw up a long-term return to work plan increasing Ms House's hours by two per fortnight which she advised Ms House she should use as goals to achieve in terms of return to work."

• [52] Mr Borrett's email in response, which was sent the same day, stated:

"What conversations is the rehab provider having to try and align the Rehab plan strategy with the independent advice that Ms House should be at full hours within 3 months?

An increase of 2 hours per fortnight takes a further 8 months and does not seem reasonable given the report. Is the rehab provider able to challenge the clinical reasoning for such a slow increase and query if the current workplace or an alternate workplace would be more conducive to a more expedient return to work?"

• [53] Again, there is nothing remarkable about Mr Borrett's response. It shows a desire to reconcile apparently contradictory advice. I do not read in the email a disregard for Mrs House's health.

• [54] Fourth, Mrs House relied on two incidents on 26 February 2024 which she said flowed from Mr Borrett's request for expediency and which exacerbated her stress. The first was a last-minute change to her hours of work, which had previously been agreed with her doctor and rehabilitation consultant. The second was being told by the rehabilitation consultant that if she had not returned to full-time hours by 30 May 2024, she may not be unable to return to her nominal role. As a result of these incidents, Mrs House submitted a work health and safety incident report. I accept that these incidents occurred as described.

• [55] Fifth, Mrs House placed reliance on the fact that in an email of 14 August 2024, Ms Williams informed her that Ms Beauman would be "ceasing involvement in [her] return to work effective immediately". This was said to "reflect a deliberate and coordinated strategy by senior Territory staff to force my resignation".[22] I do not accept that. In her email, Ms Williams invited Mrs House to call her if she would like to discuss the change. Further and more particularly, Ms Williams provided Mrs House with the name and contact details of her "new rehabilitation case manager".

• [56] Sixth, I do not accept that Mr Borrett made any application for leave subject to Mrs House resigning. That was only ever suggested in the context of Mrs House exhausting her leave entitlements in advance of retiring. I accept the following evidence of Mr Borrett:[23]

"I never conditioned Ms House's access to leave entitlements on her resigning. Ms House's extended annual and long-service leave request was always proposed to the Territory in the context of her resigning. I never had an opportunity to consider the request in a context where she was not resigning. At no time did Ms House ask me to consider the request in a context where she was not resigning.

Approval of annual leave and long-service leave is subject to operational requirements in accordance with the enterprise agreement. Significant operational requirements were engaged by the length of Ms House's leave request. If Ms House intended to resign at the end of that leave, those requirements could be addressed through a long-term appointment or transfer of another officer to that role on the expectation that she would not be returning. Authorising such a long-term appointment or transfer would not be possible without a clear written intention of Ms House to resign."

• [57] The Territory's position is that on 5 August 2024, Mrs House said words to the effect that she would like to access long service leave and annual leave at half pay before then retiring. That set in train the process by which Mrs House applied for and was granted permission to implement that arrangement, which was conditional on her resigning.

• [58] Mrs House had a bet each way as to the meeting of 5 August 2024. On the one hand, she refuted making the suggestion that she retire after exhausting her leave accruals, and submitted that I should disregard as hearsay Ms Beauman's email of 5 August 2024. On the other, she submitted that the suggestion should have been understood as a cry for help, which is premised on the fact that it was made. I also note Mrs House's statement in her email to Ms Jacobsen of 21 August 2024 that "the comments about leave that I made at that review were based on the IME report that I hadn't had a chance to fully read". Again, that statement is predicated on the comments having been made.

• [59] I accept Ms Beauman's email of 5 August 2024 as an accurate record of the conversation which occurred in the case management conference that day.

• [60] Mrs House suggested that the Territory acted with undue haste in exploring the possibility of her retiring after exhausting her leave accruals, which she said demonstrated that it was more focussed on securing her departure than facilitating her rehabilitation and return to work. I do not accept that. Mrs House raised the possibility of retiring from the Territory on certain terms. There was nothing exceptional or untoward about the Territory exploring it.

• [61] It is significant that there is no express statement in Mrs House's correspondence with the Territory up to and including her resignation that the Territory had forced her to resign. There is only the criticism in the 13 September Email that the Territory (but in reality, EML) had accepted the "erroneous report" of Dr Varghese. But on its terms, that email falls short of a statement that she had been forced to resign. At most, it reflected disappointment with the Territory's conduct.

• [62] Rather than showing that Mrs House was being forced down a path she did not want to take, the correspondence between the parties from 13 to 24 September 2024 demonstrate that she was willing to proceed with retirement and grateful for Mr Borrett in facilitating the necessary arrangements for her.

• [63] In this context, I am not persuaded by Mrs House's attempt to recharacterise the terms and effect of the 13 September Email. Contrary to her submissions, that email cannot properly be read as reflecting only her medical advice that she would be unable to return to the same work area once she had recovered. In making statements such as "with the intention of resigning at the conclusion of my leave", "I will not be engaging in any further rehabilitation process once I commence my long-term leave" and "I will not be returning to the workplace at the end of my accrued leave", Mrs House was making her position clear. I reject Mrs House's evidence that the 13 September Email was "not a request to resign or retire".

• [64] But in any event, whatever the effect of the 13 September Email, on 18 September 2024 Mrs House advised the Territory that she would retire at close of business on 13 June 2025. On 24 September 2024 she acknowledged that her retirement date of 13 June 2025 had been accepted. In light of those documents, the statements in Mrs House's email to Mr Borrett of 16 June 2025 that she had not authorised him to "action" her retirement, and that she had not decided whether she retiring or not, do not bear scrutiny.

• [65] There is also no evidence before me that between 18 September 2024 and 13 June 2025 Mrs House sought to withdraw her resignation and return to employment with the Territory.

• [66] Mrs House resigned from her employment with the Territory. I am not persuaded that she was forced to do so because of conduct, or a course of conduct, engaged in by the Territory. Much of the conduct on which she relied was carried out by EML, not the Territory. To the extent that Mrs House identified conduct engaged in by the Territory, I am not persuaded that objectively it was of such a nature that resignation was the probable result or that Mrs House had no effective or real choice but to resign.

• [67] It follows that I find that Mrs House was not dismissed within the meaning of section 386(1). Consequently, she was not entitled to make the application under section 365. The only appropriate order is that the proceedings be dismissed.

[1] "Mrs Cassandra House" is given as the name of the applicant in the Application

[2] In this decision, unless otherwise stated references to legislative provisions are to provisions of the Act

[3] Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [67]. See also Lipa Pharmaceuticals Ltd v Mariam Jarouche (2023) 324 IR 375; [2023] FWCFB 101 at [4].

[4] Explanatory Memorandum for the Fair Work Bill at par 1530; City of Sydney RSL & Community Club Limited v Roxana Balgowan [2018] FWCFB 5 at [9] and [13]

[5] Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245; [2017] FWCFB 3941 at [47]

[6] Kylie Bruce v Fingal Glen Pty Ltd [2013] FWCFB 5279 at [23]

[7] O'Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]

[8] Searle v Moly Mines Ltd (2008) 174 IR 21; [2008] AIRCFB 1088 at [38]

[9] Work Safety Group, Office of Industrial Relations & Workforce Strategy, Chief Minister, Treasury and Economic Development Directorate

[10] Work Safety Group, Office of Industrial Relations & Workforce Strategy, Chief Minister, Treasury and Economic Development Directorate

[11] Applicant's Outline of Submissions, par 3.2e

[12] Respondent's Outline of Submissions on Jurisdictional Objection, par 10

[13] Applicant's Outline of Submissions, par 2.7 (first dot point)

[14] Applicant's Statement of Evidence, 26 August 2025, par 39

[15] Applicant's Outline of Submissions, par 2.7 (third dot point)

[16] Applicant's Outline of Submissions, par 2.8 (second dot point)

[17] Applicant's Outline of Submissions, par 2.6 (tenth to twelfth dot points)

[18] Applicant's Statement of Evidence, 26 August 2025, par 62

[19] Statement of Daniel Borrett, 1 September 2025, par 3

[20] Applicant's Outline of Submissions, par 2.3 (fourth dot point)

[21] Applicant's Outline of Submissions, par 2.4 (sixth dot point)

[22] Applicant's Outline of Submissions, par 2.7 (tenth dot point)

[23] Statement of Daniel Borrett, 1 September 2025, pars 10 and 11

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