Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - whether Applicant was dismissed.

• [1] Ms Claire Howe (Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 alleging that she was dismissed from her employment with the Australian Institute of Building (Respondent or AIB) because she exercised a workplace right in raising various issues relating to her employment.

• [2] The Respondent raised a jurisdictional objection on the ground that the Applicant voluntarily resigned and was therefore not dismissed within the meaning of s386 of the Act. A dismissal is a fundamental prerequisite that must be established before the Commission is able to deal with this dispute.

• [3] Section 386 of the Act relevantly provides that a person has been dismissed if:

(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.

• [4] The application was heard on 1 and 2 May 2025, with final submissions being filed on 30 May 2025. The Applicant was self-represented and Mr A Borg appeared with permission for the Respondent.

• [5] For the reasons outlined below, I find that the Applicant was not dismissed within the meaning of the Act.

• [6] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[1] (Bupa), a Full Bench of the Commission examined the relevant authorities as to what constitutes 'dismissed' under s.386(1) which included the following:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.

• [7] In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park[2] Deputy President Sams noted the following when considering whether the applicant in that matter was dismissed:

1. Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. 'Initiative' is relevantly defined in the New Shorter Oxford Dictionary as: "the action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act."

• b. This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd[3] (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, '... a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.'

'In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.'

• d. A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd[4] said, '... to constitute termination at the initiative of the employer the termination must be the direct or consequential result of 'some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...' [Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].

• [8] Finally, it is the case that "considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer's conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign".[5]

• [9] The Respondent describes itself as a professional member-based organisation established to represent construction industry individuals from around Australia.

• [10] The Applicant was employed as the Chief Executive Officer of the Respondent from 5 September 2024.

• [11] She resigned on 6 February 2025 by way of a letter to the National President of the Respondent, Mr G Moschoyiannis, giving notice until 20 February 2025. The resignation was in the following terms:

RE: RESIGNATION FROM THE POSITION OF AIB CHIEF EXECUTIVE OFFICER

I am writing to formally resign from my position of Chief Executive Officer of the Australian Institute of Building. As I am currently within my 6-month probationary period, I am providing two weeks' notice, making my final working day 20 February 2025, in accordance with the terms of my employment.

After careful reflection, I have come to the decision that the cultural fit within AIB is not aligned with my expectations or leadership approach. While I deeply respect the organisation's mission and dedicated professionals within it, I believe this is the right decision for both myself and AIB at this time.

I remain committed to ensuring a smooth transition and will assist in any necessary handover processes before my departure. Please let me know how you would like to proceed regarding final arrangements.

I extend my gratitude for the opportunity to serve as CEO and wish AIB continued success in its endeavours.

• [12] The Applicant provided very detailed evidence and submissions which I have carefully considered. She says her resignation was not freely given but rather was the direct result of a sustained pattern of exclusion, retaliation, and governance failure that rendered her employment untenable.

• [13] She gave evidence that during her 5 months of employment as CEO, she was subjected to:

1. Repeated undermining of her executive authority;
2. Being directed not to take Finance Committee minutes;
3. Reversal of best practice financial reforms without process or warning;
4. Interference in staffing, communications and reporting lines;
5. The public advertisement of her role before National Council had ratified her resignation;
6. Exclusion from systems and spaces prior to the expiry of her notice period; and
7. A serious workplace injury that was informally acknowledged by the President via text but never formally reported, investigated or supported.

• [14] She also said she made protected disclosures under Part 9.4AAA of the Corporations Act 2001 regarding unreconciled revenue, conflicts of interest and audit risks.

• [15] The Applicant gave evidence that on commencing her role, she inherited a dysfunctional staffing structure, systemic governance issues, and unreliable financial systems. The AIB Finance Committee was comprised entirely of National Council office bearers, three of which worked for the same company and a fourth closely affiliated with that company. She said this created significant conflicts of interest and made independent oversight impossible. She also asserted that the Finance Committee structure impaired her ability to fulfil her role.

• [16] The Applicant said that in the course of her employment, she uncovered extensive historical and continuing governance failures, including awards voting irregularities in the voting process for the 2024 Professional Excellence Awards, unaudited income and expenses for publications, misuse of AIB funds, unauthorized signatories on contracts, and direct manipulation of internal correspondence.

• [17] In terms of her workplace injury, she said that she tripped on some stairs and fell while carrying a heavy box and while rushing to get to an urgent meeting. She hit her face and sustained injuries to her back and knees. She said that the AIB leadership failed to initiate any WHS reporting or workplace support, and she was instructed to use sick leave and not encouraged to lodge a workers compensation claim. The Applicant said that her psychological stress following the incident contributed to her severe anxiety.

• [18] In terms of the complaint regarding direct interference by the Finance Committee in operational decision making, she said that after drafting a formal communication to the Membership Manager regarding a directive to relocate to the Canberra office, her email was edited by a member of the Finance Committee, Mr McLean, prior to it being sent. She complained that the editing attempted to reframe the message to suggest that she agreed with the relocation decision when in fact she objected to it. She said she made it clear that directing the employee to return to the office would have serious risks including that the employee may resign, which is what occurred.

• [19] The Applicant gave evidence that she discovered a serious case of financial misconduct involving another employee. She gave that employee the opportunity to resign which the employee accepted. The Applicant said that the Finance Committee then directed her to forensically investigate that employee's leave balance, which the Applicant considered 'retaliatory'. She said this incident contributed to the untenable nature of her role and her decision to resign.

• [20] In relation to the assertion of financial irregularities, the Applicant said that she discovered that the Respondent's income from its magazine, called Construct, was not included in the Respondent's accounts. She said she had received confirmation from AIB's publishing partner that revenue had been collected, and it was incumbent on her to question and investigate this lack of 'financial transparency'.

• [21] In terms of the events of 6 February 2025, the Applicant gave evidence that she had attended a video conference meeting of the Finance Committee. She said that during that meeting, the Finance Committee reversed its earlier agreement (made in December 2024) to adopt a new and accurate budget reporting structure starting from the 2025/26 financial year. Instead, she said, they insisted on reverting to outdated and flawed reporting methods that she had advised were incapable of producing reliable financial information.

• [22] The Applicant gave evidence that when she objected to the changed financial reporting arrangements, Mr Krommydas (Senior Vice President) abruptly left the meeting and then called Mr Moschoyiannis on another phone number, at which time Mr Moschoyiannis gave the impression that Mr Krommydas was 'venting' about the Applicant. She also gave evidence that in her view, the reforms she was implementing, including accurate financial reporting, exposed the scale of mismanagement and this provoked resistance from those who had benefited from a lack of financial oversight.

• [23] The Applicant also gave evidence that she:

1. was directed not to take minutes at Finance Committee meetings, despite her responsibilities as CEO and Secretary to the AIB National Council; and

1. was not ever granted functional access to AIB's managed funds (ie be made a signatory to the account) during her employment, despite formal Finance Committee approval for her to become a signatory.

• [24] The Applicant's evidence was that this conduct was what led to her resignation.

• [25] Ms S Burgess, a current employee of AIB, also gave evidence in support of the Applicant's case. The Applicant submitted that her evidence was "clear and independent corroboration of the culture, conduct and consequences" she had described.

• [26] I note that much of the Applicant's complaints related to events and conduct that occurred after she had given her resignation. Obviously, anything that occurred after the giving of her resignation cannot be a reason for her resignation and is therefore not relevant in determining whether she was dismissed.

• [27] The Respondent raised a preliminary matter, that being that this application was lodged on 15 February 2025, five days before her notice period ended. I am satisfied that I can waive this irregularity under s.586(b) of the Act and I do so because I accept the Applicant had been directed to cease performing work from 14 February 2025.

• [28] The Respondent denies the Applicant was dismissed and asserts the evidence shows that:
  1. her resignation was initiated by her following a Finance Committee meeting on 6 February, and that the resignation came as a surprise to the Respondent;
  2. her resignation letter uses the phrase "after careful consideration";
  3. her resignation was not withdrawn despite ample opportunity to do so;
  4. her resignation was confirmed on a number of occasions including 10 and 14 February; and
  5. her resignation was accompanied by communications and conduct that signalled an intention by her to end the employment relationship.

• [29] The Respondent submitted that the Applicant's allegations as to the Respondent's conduct consisted primarily of isolated grievances, including disagreements over the presentation of financial reports, and operational communications in which the National Council had an interest.

• [30] In terms of the work related injury, while the Respondent did not dispute that the incident occurred, it noted that the Applicant did not invoke any formal WHS process, did not submit an injury report, or did not seek to engage the organisations systems for injury management despite having full authority to do so as CEO.

• [31] In terms of the Applicant's allegation that she was excluded as a financial signatory to bank accounts, the Respondent said this was a result of delays by the bank and not because of any deliberate exclusion of the Applicant. This was confirmed by the evidence of Mr Moschoyiannis, who said that the Applicant at all times retained operational responsibility for managing cashflow, and her lack of direct signatory authority did not preclude her from effecting necessary financial actions. The Respondent noted that it was incontrovertible that a third party was responsible for processing the signatory application which had been made by AIB.

• [32] The allegation around unaccounted-for income associated with the Respondent's Construct magazine was denied by the Respondent, who confirmed that the magazine did not generate income for the Respondent during the relevant period. Accordingly, there was no financial irregularity as alleged by the Applicant. The Respondent also noted that the Applicant did not raise any issue concerning the income status of the magazine while she was an employee and this was only raised post-resignation.

• [33] As to the email of 12 December 2024 that the Applicant said was wrongfully edited, the Respondent explained that the email was prepared as a draft by the Applicant and sent to the Finance Committee for approval. As a result, Mr McLean proposed some amendments which were supported by the rest of the Finance Committee. The amendments did not alter the substance of the draft email, which the Applicant then sent. The Respondent denied that this undermined her capacity as CEO, in part because the governance structure of the Respondent includes collective responsibility and input from National Council members.

• [34] In response to the complaint that the Respondent directed the Applicant to investigate the leave balance of the former employee who had been found to have engaged in misconduct, the Respondent said that it was to ensure good governance that she was asked to look into the question of that employee's possible misuse of leave and to take any necessary steps to recover any overpayments.

• [35] In response to the Applicant's issues around the judging of the AIB Professional Excellence Awards, the Respondent explained the process around how the judging took place and denied the Applicant's allegation as to improper processes or conflicts of interest.

• [36] As to the allegation of the Applicant that a contract has been signed by a person without authority to do so, the Respondent confirmed that the person who signed the contract (for the hire of a venue for an event) had been given authority to do so by the National President of the AIB.

• [37] In relation to the complaint by the Applicant that she was directed not to take minutes of the Finance Committee meetings, the Respondent denied this and said the Finance Committee had only resolved not to use "AI recording" for its meetings. Such a resolution, it submitted, could not constitute conduct that would force the Applicant to resign.

• [38] In relation to the allegations around financial reporting and presentation, the Respondent denied that it reversed or undermined her reporting reforms and in doing so overrode her operational authority without justification. It explained that the Finance Committee is a subcommittee of the National Council and was established to assist with oversight of financial reporting, budget planning and fiscal compliance. The Applicant, as the CEO, was accountable to the National Council and its subcommittees including the Finance Committee. Her obligation was to work collaboratively within that governance structure, not to implement unilateral reforms without consultation or approval. The Respondent also noted that it was not within the Applicant's authority to refuse to carry out reasonable and lawful directions or requests arising from the deliberations of the Finance Committee.

• [39] The evidence of the Respondent was that the Finance Committee did not 'reverse' any reforms. Rather, it requested additional documentation to be provided to support and supplement the draft budget papers prepared by the Applicant. At the meeting on 6 February 2025, concerns were raised about the lack of disaggregated data to demonstrate how revenue and expenditure aligned with ongoing organisational operations and extraordinary 'value add' activities. This had been a standard practice of the Finance Committee and was a reasonable governance request.

• [40] The Respondent emphasised that at no point did it reject the budget or prohibit the Applicant from advancing her reporting improvements. It merely sought transparency and clarity consistent with past practices to enable the members of the Finance Committee to properly understand the budget and the state of the organisation's finances.

• [41] Finally, the Respondent denied all allegations of financial impropriety and pointed to the fact that its accounts were properly audited. The only issue, which Mr McLean said had already been identified, was that there was some 'miscoding' of some expenses which required correcting.

• [42] The Respondent's case was supported by the evidence of Mr G Moschoyiannis (National President of the AIB), Mr S Reid, Mr D Burnell, Mr G McLean and Mr D Krommydas who are all Finance Committee members. They all hold this position in a voluntary capacity. Each of the Respondents witnesses expressed surprise and shock at the allegations made by the Applicant.

• [43] The Respondent also submitted that the Applicant's allegations regarding post-resignation conduct are irrelevant to the decision to be made by the Commission, that being whether the Applicant was dismissed.

• [44] The only matter the Commission is required to determine is whether the Applicant was dismissed within the meaning of s.386. The onus is on the Applicant to prove that she had no real or effective choice in the circumstances but to resign because of the Respondent's conduct.

• [45] For the reasons given below, I am satisfied on the evidence that the Applicant was not dismissed.

• [46] I am not satisfied that any of the Applicant's complaints, individually or collectively, meet the threshold of leaving the Applicant with no real or effective choice but to resign. To this end, I accept the evidence of the Respondent's witnesses in relation to each of the key events relied on by the Applicant, including those concerning financial reporting, the editing of the 12 December email, the alleged unaccounted-for income of the Construct magazine, her alleged exclusion from cashflow management due to not being a financial signatory, and her work related injury. Each of these matters was adequately explained in the evidence of the Respondent's witnesses and in its submissions.

• [47] I am not satisfied that there is evidence of 'sustained interference' by the Finance Committee of the Applicant's responsibilities, such that she had no choice but to resign. Further, I am not satisfied that the evidence discloses that the Applicant was 'systematically excluded' or undermined in front of staff such that her resignation was not freely given.

• [48] As noted earlier, a significant number of the Applicant's complaints relate to events that occurred after she submitted her resignation, and as such cannot be relevant to her decision to resign. However, what the post-resignation conduct does show is that the Applicant had a number of avenues available to her to make complaints, which she exercised after her resignation. Many of these avenues were available to her without needing to resign and therefore support a finding that the Applicant had options available to her other than resignation.

• [49] Finally, the evidence of Ms Burgess does not demonstrate conduct of the Respondent that would support a finding that the Applicant was dismissed.

• [50] The Applicant has not discharged her onus to demonstrate that she had no real, effective or meaningful option but to resign in these circumstances. As a result, I am not satisfied that she was dismissed within the meaning of the Act and this application is dismissed.

[1] [2017] FWCFB 3941.

[2] [2012] FWA 2473.

[5] Sathananthan v BT Financial Group Pty Ltd [2019] FWC 5583.

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