Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

General protections dismissal dispute - employee resigned - no forced resignation - jurisdictional objection upheld - application dismissed

• [1] Christopher McIvor commenced employment with Helensvale Golf Course Pty Ltd (Helensvale Golf) as course superintendent on 18 September 2023. Brett Lawton is the owner and operator of the Helensvale Golf Course. Mr McIvor was involved in a car accident on Saturday, 26 July 2025 and suffered whiplash and other injuries. Mr McIvor notified Mr Lawton of his injuries and was absent from work from Monday, 28 July 2025. On 15 August 2025, Mr McIvor resigned via email. Mr McIvor's resignation letter referred to job insecurity and a breach of trust arising from his position being advertised. Mr McIvor's email also referred to being bullied and harassed during his employment and to unsafe and negligent work practices. Mr Lawton responded via email on 16 August 2025 and indicated he was truly disappointed to hear about Mr McIvor's resignation. Mr McIvor filed an application with the Commission on 2 September 2025 which alleges he was dismissed in breach of the general protections in the Fair Work Act 2009 (FW Act). Mr McIvor argues he was forced to resign due to conduct engaged in by Helensvale Golf. This decision concerns whether Mr McIvor was forced to resign and hence "dismissed" within the meaning of s.386(1)(b) of the FW Act.

• [2] The authorities establish that a resignation will be considered forced where:

(i) There was some action on behalf of the employer which was intended to bring the employment relationship to an end; or

• (ii) Resignation was the probable result of the employer's conduct.[1]

• [3] A Full Bench of the Australian Industrial Relations Commission in ABB Engineering Construction Pty Limited[2] stated the following regarding the "narrow line" between a forced resignation and a discretionary choice by an employee to resign:

"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."

• [4] Mr McIvor filed a substantial amount of text messages that he and Mr Lawton exchanged during Mr McIvor's employment from September 2023 until August 2025. The text messages record the events which occurred directly before Mr McIvor submitted his resignation on 15 August 2025. The key events appear to be:

• (i) Mr McIvor and Mr Lawton exchanged regular and friendly text messages about work matters at the golf course throughout July 2025 until Mr McIvor's car accident on 26 July 2025. Mr McIvor frequently refers to Mr Lawton as "mate" and responds that performing work requested by Mr Lawton will be "to (sic) easy."[3]

• (ii) Mr McIvor sent Mr Lawton a text message at 9:35am on Sunday, 27 July 2025. Mr McIvor informed Mr Lawton about his car accident and indicated he was injured and would be speaking to a specialist. Mr McIvor referred to ideally putting off scheduled bunker work until he was fit to return to work. Mr McIvor stated: "If we can communicate via text that would be appreciated. I'm still in a lot of pain and will need to take more medication shortly..."[4].

(iii) There is no dispute that Mr Lawton subsequently called Mr McIvor on 27 July 2025, despite Mr McIvor's request to be contacted via text message.

• (iv) Mr Lawton sent several text messages to Mr McIvor from around midday to 6pm on 27 July 2025. Mr Lawton indicated he was sorry to hear about Mr McIvor's accident. Mr Lawton confirmed the bunker work would be cancelled. Mr Lawton stated he missed the part of the message about communicating via text message and apologised for calling Mr McIvor. Mr McIvor responded: "That's ok mate. Thank you just cause I'm struggling to take deep breathes and didn't wanna make u wait while I dribble my words out..."[5].

• (v) Mr Lawton and Mr McIvor exchanged messages on 29 July 2025 regarding whether a digger booking should be cancelled due to Mr McIvor's injuries. The messages are polite and respectful.[6]

• (vi) Mr Lawton sent a message to Mr McIvor at 11:35am on 11 August 2025 which stated: "Chris how are you? What's the likely plans."[7]

• (vii) Mr McIvor replied to Mr Lawton's text message at 11:44am on 11 August 2025. Mr McIvor stated he is still suffering from whiplash, is seeing a physiotherapist, and is taking things day by day. Mr McIvor stated he will update Mr Lawton once he has spoken to the physiotherapist and his general practitioner. Mr McIvor stated he was in a bad accident and that he has a medical certificate confirming he is unfit until 15 August 2025. Mr McIvor stated he will keep Mr Lawton updated if anything changes before 15 August 2025 and ends the message with: "Thanks for understanding, mate."[8]

(viii) Mr Lawton sent a message to Mr McIvor at 11:59am on 11 August 2025 which stated:

"Respectfully. I am concerned going forward. Will you be back, could this possiably (sic) go on for a long period, should I be looking at short term or long term superintendent options".

Mr Lawton sent another message shortly after stating: "If it's easier to chat then (sic) text please call."[9]

• (ix) Mr McIvor sent a message to Mr Lawton at 12:09pm on 11 August 2025. Mr McIvor stated he understands Mr Lawton needs clarity, but he cannot provide a long-term answer until upcoming appointments. Mr McIvor stated he has a medical certificate covering him until 15 August 2025 and that he will not be able to discuss staffing until after that date. Mr McIvor stated he is focusing on his recovery.[10]

(x) Mr Lawton responded to Mr McIvor's message at 12:44pm on 11 August 2025 and stated:

"Respectfully. I need back up options if you remain unwell. I will run an ad so I have a data-base if you don't return or options of someone to fill the position short or long term. Please keep me updated."[11]

(xi) Mr McIvor replied to Mr Lawton's message at 4:48pm on 11 August 2025 and stated:

"I'll continue to update you as per the workplace agreements. I'm currently on medical leave, and until that period is complete, I won't be in a position to make staffing decisions."[12]

• (xii) Mr Lawton and Mr McIvor exchanged uncontroversial text messages about work matters on 12 August 2025.[13]

• (xiii) Mr McIvor viewed an online advertisement for the superintendent position at Helensvale Golf Course on around 12 August 2025.[14]

• (xiv) Mr McIvor sent a message to Mr Lawton at 2:33pm on 14 August 2025 providing an update about his injuries. Mr McIvor stated he has been certified unfit until 19 August 2025 and his physiotherapist believes he will need substantial time off work.[15]

Mr McIvor sent a copy of a medical certificate dated 11 August 2025 from Patrick Hillier (Physiotherapist). Mr Hillier indicates Mr McIvor is continuing to suffer from his injuries and that this is impacting his mental health. Mr Hillier recommended to Dr Rupnarain that Mr McIvor be referred for psychological support.[16]

Mr McIvor also sent a copy of a medical certificate from Dr Rupnarain. Dr Rupnarain certified that Mr McIvor is suffering from a medical condition and would be unfit for work from 12 to 19 August 2025.[17]

(xv) Mr McIvor sent an email to Mr Lawton at 3:43pm on 15 August 2025 which had a resignation letter attached. Mr McIvor's resignation letter stated he was resigning with two weeks of notice effective 29 August 2025. Mr McIvor stated the following in relation to why he was resigning:

"This decision follows ongoing job insecurity and a serious breach of trust arising from my role being advertised while I was on medical leave. Over the past two years, I have been subjected to repeated bullying, harassment, and unsafe or neglectful workplace practices, all of which I have documented in detail. I have also been harassed while on approved leave, despite repeated written requests to keep all communications strictly via text or email, with no verbal harassment."[18]

(xvi) Mr Lawton responded to Mr McIvor's resignation email on 16 August 2025 and stated:

"I'm truely (sic) disappointed to hear you're leaving Helensvale Golf Course. I wish you a smooth and speedy recovery, and please know you're always welcome to use my name and number as a reference anytime in the future. I'd be more than happy to support you in any opportunities that come your way. I acknowledge and, with regret, accept your resignation."[19]

• [5] In addition to filing numerous text messages,[20] Mr McIvor provided evidence in two witness statements about various alleged instances of inappropriate behaviour by Mr Lawton. These included but were not limited to:

• Mr Lawton micromanaged the work of Mr McIvor and his team.
• Mr Lawton provided false information about the course's irrigation system.
• Mr McIvor was directed to do unsafe work on a sump water tank.
• Mr McIvor was directed to dig manually around live electrical wires.
• Mr McIvor was directed to clean algae-covered lakes with no protective gear.
• Workers on modified duties due to workers' compensation claims were directed by Mr Lawton to perform work they could not safely perform.
• Mr Lawton displayed a lack of understanding and compassion when Mr McIvor's close friend died in mid-2024.
• Mr McIvor was mocked by Mr Lawton if he raised safety or well-being issues.
• Mr Lawton threatened Mr McIvor by referring to what had happened to the previous superintendent who had been dismissed by Mr Lawton around the time Mr McIvor was hired.
• Mr Lawton directed an elderly staff member to perform unsafe work.
• Mr Lawton attempted to manipulate and gaslight Mr McIvor.
• Mr Lawton directed that containers be removed illegally.

• • Mr McIvor was misled about his accrued leave entitlements.[21]

• [6] Mr McIvor also provided audio recordings of conversations between Mr McIvor and Mr Lawton that seemingly were recorded by Mr McIvor without Mr Lawton's consent. I was unable to listen to the audio recordings due to technical issues with the files that were provided by Mr McIvor. However, Mr McIvor indicated during the hearing that he was content for me to rely on transcripts that he had produced of the relevant conversations using artificial intelligence. The transcripts indicate that:

• #1: Mr McIvor had a five-minute conversation about greenkeeping issues on the golf course.
• #2: Mr McIvor and Mr Lawton had a conversation about the use of fertiliser.
• #3: Mr McIvor and Mr Lawton had a 12-minute discussion on 17 July 2025 about various issues including Mr McIvor's working conditions and operational issues at the golf course. There are examples of disagreements during the conversation.
• #4: Mr McIvor and Mr Lawton had a conversation about various work issues after Mr McIvor had informed Mr Lawton in a text message about his car accident.
• #5: Mr McIvor had a 10-minute phone call with a staff member from the Fair Work Commission on 27 October 2024 where Mr McIvor complained about Mr Lawton's behaviour. The staff member mentioned the option of an application for anti-bullying orders.
• #6: Mr McIvor had a 3-minute discussion about greenkeeping issues.
• #7: Mr McIvor and Mr Lawton had a 9-minute discussion about workplace issues on 23 July 2024.

• [7] Mr McIvor was cross-examined on his evidence during the hearing. Mr McIvor generally admitted that he had not raised his concerns about Mr Lawton's behaviour with Mr Lawton while he was employed by Helensvale Golf. However, Mr McIvor explained that he did not feel comfortable to raise his concerns and was worried about how Mr Lawton would respond.

• [8] Mr Lawton provided evidence in response to the various issues that Mr McIvor has raised. Mr Lawton denies behaving inappropriately towards Mr McIvor. Mr McIvor did not seek to cross-examine Mr Lawton during the hearing, but it was clear from his submissions that he contests Mr Lawton's evidence.

• [9] Mr McIvor cross-examined two employees, Tyler Ottley and Jorden Lesa, during the hearing. Mr Lawton was present when the employees gave their evidence. I consider this reduces the weight that can be afforded to their evidence. As current employees, I consider Mr Ottley and Mr Lesa would have been reluctant to be overly critical of Mr Lawton in his presence. However, the fact that Mr Ottley and Mr Lesa remain employed at the club strongly suggests the working environment is not as difficult as what Mr McIvor alleges.

• [10] Mr McIvor also filed a document with the Commission on 21 November 2025 that indicated he wished to subpoena the following people and organisations to provide evidence at the hearing:

• Mr Graham Hibbird (former superintendent).
• Mr Ottley.
• Mr Lesa.
• Ms Danielle Lawton (Payroll and Administration employee).
• WorkCover Queensland.
• DrumMUSTER Queensland.
• Workplace Health and Safety Queensland.
• Fair Work Ombudsman.

• [11] Mr McIvor did not file applications for orders for the people and organisations identified above to attend the hearing or to produce documents in the regular or approved form. In any event, Mr Ottley, Mr Lesa, and Ms Lawton attended the hearing and provided evidence. This included Ms Lawton providing credible evidence about what occurred with Mr McIvor's leave accruals in the lead up to his dismissal. I do not consider the evidence of Mr Hibbird would be relevant to the issues I need to determine. Mr McIvor suggested there was something untoward about how Mr Lawton dismissed Mr Hibbird and that he was hired as a new superintendent before Mr Hibbird was dismissed. I do not consider those events in 2023 to be relevant to whether Mr McIvor was forced to resign in August 2025. I would not have agreed to issue production orders to the organisations identified by Mr McIvor even if applications had been filed in the appropriate form. Mr McIvor provided evidence about his interactions with the various organisations, and his evidence was not contested to any significant degree by Helensvale Golf. I do not consider I need additional evidence about these matters.

• [12] I consider the following other evidence filed by Helensvale Golf to be of significance to the issues I need to determine:

• • Ms Lawton assisted Mr McIvor in relation to queries about his leave balance on 4 August 2025 and then provided a document on company letterhead confirming Mr McIvor was on leave to assist Mr McIvor with his insurance claim.[22]

• • Mr McIvor did not contest the evidence of the new superintendent, Darren Lee, that Mr Lawton expressly told him that Mr McIvor was injured and may be returning to the role after Mr Lawton had advertised for the superintendent position. Mr Lee stated he was only offered the position after Mr McIvor had resigned.[23]

• [13] This is an unusual case. The evidence suggests that Mr McIvor had been disgruntled about his treatment by Mr Lawton for a lengthy period. However, Mr McIvor did not generally raise his concerns directly with Mr Lawton. Mr McIvor appears to have complained to other employees, to the Fair Work Ombudsman, and to Workplace Health and Safety Queensland. Mr McIvor also decided to record conversations with Mr Lawton without Mr Lawton's knowledge, seemingly to gather evidence about Mr Lawton's conduct. Mr McIvor was then involved in a car accident on 26 July 2025 and became unfit for work. Mr Lawton sought an update about when Mr McIvor would be able to return to work on 11 August 2025. When it appeared Mr McIvor may be off work for a lengthy period, Mr Lawton informed Mr McIvor that he would issue an advertisement for the superintendent role to develop a "database" in case Mr McIvor didn't return, or to temporarily cover the role. The uncontested evidence from Mr Lee is that Mr Lawton referred to Mr McIvor's injury when Mr Lee responded to the job advertisement and that Mr Lawton made it clear to Mr Lee that Mr McIvor may be returning to the role. Mr McIvor then resigned on 15 August 2025.

• [14] I am not satisfied on the evidence that Helensvale Golf took any action which was intended to bring the employment relationship to an end. The evidence suggests Helensvale Golf wanted Mr McIvor to return to work after he recovered from the injuries he suffered in the car accident. Mr Lawton actively sought updates about when Mr McIvor would return to work and Ms Lawton assisted Mr McIvor with paperwork he needed for an insurance claim. While Mr Lawton did place an advertisement for the superintendent role, that action was completely understandable in the circumstances and Mr Lawton specifically told Mr McIvor why he was placing the advertisement. Mr Lawton obviously needs a superintendent to manage the golf course and given the uncertainty about when Mr McIvor could return to work, it was reasonable for Mr Lawton to start considering a temporary or permanent replacement. I do not consider the act of placing the advertisement demonstrates Helensvale Golf intended for the employment relationship to end.

• [15] I also do not consider Mr McIvor's array of other complaints about Mr Lawton's conduct demonstrates Helensvale Golf intended to end the employment relationship. There is no indication in the various text messages exchanged between Mr Lawton and Mr McIvor that Mr Lawton intended to end the employment relationship. The fact that Mr McIvor seemingly became increasingly frustrated about Mr Lawton's behaviour does not demonstrate that Helensvale Golf intended to bring the relationship to an end.

• [16] I am also not satisfied that resignation was the probable result of Helensvale Golf's conduct. It is important to understand that the legal test is based on an objective assessment of Helensvale Golf's conduct, as opposed to the subjective impact of Helensvale Golf's conduct on Mr McIvor. I accept Mr McIvor felt like he had to resign in the circumstances. But that is not the legal test. The test is whether, when viewed objectively, resignation was the probable result of Helensvale Golf's conduct.

• [17] While Mr McIvor has provided evidence about an array of alleged issues with Mr Lawton's conduct, I do not consider any of Mr Lawton's conduct is at a level that could lead to a conclusion that resignation was the probable result of the conduct. Mr Lawton obviously has a lot at stake in relation to the golf course and takes an active interest in the state of the course and what work is being performed. Mr Lawton's conduct in communicating with Mr McIvor and other employees about work issues at the golf course cannot be objectively assessed as making the resignation of Mr McIvor a probable result. I also do not consider resignation was the probable result of Mr Lawton placing an advertisement for a superintendent when this conduct is assessed objectively in all the circumstances. Mr Lawton did not take this action secretly or deceptively. Mr Lawton explained to Mr McIvor why he was placing the advertisement and never indicated that there was no longer a role for Mr McIvor to return to.

• [18] It is also relevant that Mr McIvor had numerous other options available to him instead of resigning from his employment. Mr McIvor could have raised his safety issues with the regulator, as he had done previously in early 2025. Mr McIvor could have sought anti-bullying orders against Mr Lawton, as he discussed with a Commission staff member back in October 2024. Mr McIvor could have put Mr Lawton on notice that he considered he was being micromanaged and that he would likely resign if things did not change. Mr McIvor elected not to take any of these steps and decided instead to resign from his employment.

• [19] The evidence suggests Mr McIvor had been unhappy in the superintendent role for a lengthy period, and that this was predominantly caused by his perceived treatment by Mr Lawton. The car accident seems to have brought the issues to a head. However, I consider Mr McIvor made a voluntary decision to resign from his employment on 15 August 2025 and to pursue legal action against Helensvale Golf. Mr Lawton advertising for the superintendent position appears to have been the final straw for Mr McIvor and the trigger for him to resign and commence legal action. Mr McIvor's recordings suggest he had been planning and preparing for the relationship to end and to commence legal proceedings for some time. There may be merit to some of Mr McIvor's complaints about Mr Lawton's conduct. However, I do not consider the circumstances of this case come close to meeting the legal test for a forced resignation.

• [20] I find that Mr McIvor was not "dismissed" within the meaning of s.386 of the FW Act. I uphold Helensvale Golf's jurisdictional objection.

• [21] Mr McIvor's application is dismissed.

[1] Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279.

[14] Mr McIvor's statement - DHB page 15. A screenshot of the advertisement is at DHB page 279.

[20] Mr McIvor also filed messages exchanged on a group chat with other employees where Mr Lawton was subject to some criticism by Mr McIvor and others.

[21] These various issues are outlined in Mr McIvor's initial statement - DHB page 13 to 21, and his reply statement - DHB page 22 to 37.

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