Fair Work Act 2009

s.604 - Appeal of decisions

Commonwealth of Australia (as represented by Services Australia)

Appeal against decision [2025] FWC 3328 of Deputy President Slevin on 5 November 2025 in U2025/3364 - Application for unfair dismissal remedy - Where employee had ostensibly submitted notice of resignation - Whether former employee had been 'dismissed' for the purposes of s 386 of the Fair Work Act 2009 (Cth) - Whether dismissal because employee had resigned in circumstances of emotional distress - Where doctor had certified that the employee was competent to make decisions in relation to his employment - Whether employee had been forced to resign by the conduct of the employer - Whether fact that employee had not been paid for period prior to resignation was relevant where employee had no entitlement to be paid - Whether resignation the result of the 'conduct, or a course of conduct, engaged in by his or her employer' where payments the responsibility of Comcare - Permission to appeal granted - Appeal allowed.

[1] Luke Wilson (nee Miller) commenced employment for the Commonwealth of Australia as represented by Services Australia (Services Australia) in March 2023 as a Customer Service Officer at the office in Toowoomba. Commencing with Mr Wilson's transfer to the Maryborough Centre in May 2024, several issues arose in the course of his employment which he submitted contributed to a decline in his mental and physical health and impacted his ability to do his job. From 10 February 2025, Mr Wilson was assessed as having zero capacity to perform work. Ultimately, on 17 March 2025, Mr Wilson resigned from his position with Services Australia.

[2] On 18 March 2025, Mr Wilson made an application for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (the FW Act) in which he claimed he was unfairly dismissed by Services Australia on 17 March 2025. Deputy President Slevin found that Mr Wilson was dismissed by Services Australia within the meaning of s 386 of the Act, and that this dismissal was harsh, unjust or unreasonable such that it was unfair within the meaning of s 385 of the Act. Accordingly, Deputy President Slevin ordered compensation in lieu of reinstatement of $33,348.62 less applicable taxation and superannuation to be paid to Mr Wilson.

[3] On 12 November 2025, Services Australia filed a notice of appeal, seeking permission to appeal and to appeal from the decision of the Deputy President pursuant to s 604(1) of the FW Act. Services Australia also sought a stay of the compensation order which was granted in part by Vice President Gibian on 12 November 2025. For the reasons which follow, permission to appeal should be granted, the appeal allowed and the decision of the Deputy President should be quashed. Mr Wilson's application for an unfair dismissal remedy will be dismissed.

[4] The issues which arose in Mr Wilson's employment appear to have commenced in around May 2024, when he transferred to the Maryborough Smart Centre in the role of Service Officer. At this time, Mr Wilson contracted a respiratory illness due to mould in that office and upon his request, started working from home from May 2024. In October 2024, Mr Wilson transferred to the Process Direct Transition Improvement Program Team (PDTI) as a Project Officer, which was a remote role. On 25 November 2024, Mr Wilson was promoted to acting Senior Project Officer within this team.

[5] Mr Wilson submitted that he was mistreated and bullied throughout the latter half of 2024. These interpersonal issues which arose in the context of his employment remained in issue until February 2025 at which time Mr Wilson was assessed as having zero capacity for work. Based on the decision of the Deputy President, the events leading to Mr Wilson's resignation can be briefly summarised as follows:

• (a) On 27 November 2024, Sharon Turley invited Mr Wilson's supervisor, Linde Martin, into a team meeting to discuss issues she had with Mr Wilson. Mr Wilson felt that Ms Turley had been insubordinate and undermined him by doing so.

• (b) On 5 December 2024, Mr Wilson contacted Services Australia's Respect Team in relation to his concerns about Ms Turley. He was told to contact Human Resources for support with this, and the issue was considered by Services Australia to be closed in December 2024. Mr Wilson did not believe it had been resolved or that he had been provided with adequate support.

• (c) Between 28 November 2024 and 7 January 2025, Mr Wilson made 36 phone calls and sent 24 text messages to Ms Martin in relation to this issue. Ms Martin recalled being concerned about the frequency of Mr Wilson's contact with her and identified that these calls and messages generally dealt with his feelings of being bullied and mistreated by coworkers and caused her concern for his emotional state and mental wellbeing.

• (d) On 7 January 2025, Mr Wilson contacted Ms Martin for the last time. He expressed anger about his complaints not being resolved. During this conversation, Mr Wilson said words to the effect that he had considered resigning. At this time, Mr Wilson requested to move to another sub-team within PDTI or return to his previous role. Ms Martin told Mr Wilson that he had three options, to remain in the team, participate in mediation with Ms Martin or return to his previous role.

• (e) On 7 January 2025, Mr Wilson also called Stacey Graham, Service Support Manager, and requested to move back to the Maryborough office. Ms Graham told him he could return to his nominal position. Mr Wilson then returned to the Maryborough office from 13 January 2025.

• (f) On 10 February 2025, Ms Graham was informed that Mr Wilson had left work distressed.

• (g) On 11 February 2025, Mr Wilson saw his doctor and was provided with a Queensland workers' compensation medical certificate which identified that he had no capacity for any work between 11 February 2025 and 11 March 2025. The certificate stated that Mr Wilson had been diagnosed with adjustment disorder with anxiety and depressive symptoms and the cause of injury was stress from increased workload. It was unclear when Mr Wilson provided this certificate to Services Australia. The Deputy President concluded it was not provided until 17 February 2025 if at all.

• (h) On 13 February 2025, Mr Wilson requested to transfer to Hervey Bay in a meeting with his supervisor and support person. On 14 February 2025, a further meeting occurred at which Mr Wilson was told this would not be possible as there were no vacancies. Mr Wilson advised that he was happy to have a return-to-work conversation with his supervisor, that he would make his complaints in writing, return to work on 17 February 2025 and that he had been approved to work from home on an ad hoc basis for two weeks.

• (i) On 11, 14 and 17 February 2025, Mr Wilson contacted the Services Australia Respect Team and made further complaints about his employment dealing with his treatment by coworkers and the issues he had raised regarding the Maryborough Centre to Ms Hand, Respect Manager and HCO Coordinator. On 17 February 2025, he requested that his complaints be transcribed in a table and sent to him. On 19 February 2025, he was provided with a summary of the issues discussed which he then responded to in various emails, taking issue with the summary and asking not to be contacted again as he was on worker's compensation.

• (j) On 17 February 2025, Mr Wilson made a worker's compensation claim to Comcare. Between 18 February and 4 March 2025, Mr Wilson corresponded with Ms Prior, Senior Rehabilitation Case Manager in the Early Intervention Team at Services Australia, regarding his Comcare claim. During this period, Mr Wilson sent numerous emails setting out his frustrations with Services Australia and the impact on his mental health.

• (k) On 20 February 2025, Mr Wilson was provided with the table of his complaints he had requested. He responded that the table was inaccurate and that he was going to make a formal complaint about Ms Hand. On 21 February 2025, Ms Kerr took over communications and informed Mr Wilson that the Team would await further instruction before contacting Mr Wilson again. Mr Wilson responded to that, and Ms Kerr on 24 February 2025 restated that the Respect Team would pause dealing with Mr Wilson's complaint until he was well enough to discuss them further. Mr Wilson sent further correspondence on 27 February 2025 restating his original complaints about the Maryborough Centre and including further complaints about the Respect Team. On 28 February 2025, Ms Kerr responded again affirming that the processes to deal with Mr Wilson's complaints would be on hold until he was fit to participate or return to work.

• (l) On 4 March 2025, Ms Prior met with Mr Wilson. During this meeting, he reiterated the issues previously raised and again asked to be redeployed to Hervey Bay, and that he could not go back to Maryborough or Toowoomba. At this meeting he expressed he was concerned that he was being dismissed. Ms Prior assured him this was not the case and that the aim was for Mr Wilson to have capacity to return to work.

• (m) Also on 4 March 2025, Mr Wilson saw his general practitioner, Dr Cozier, who provided him with a further medical certificate. This medical certificate identified that Mr Wilson was experiencing an extreme stress reaction 'through workplace practices, harassment and bullying' and anticipated he would make improvements within 2 to 3 months.

• (n) On 5 March 2025, Mr Wilson sent an email accusing Ms Prior of being unprofessional and rude and requested she be replaced as his case manager. Ms Prior was then replaced by Ms Thomas as Mr Wilson's case manager on 12 March 2025.

• (o) On 17 March 2025, Mr Wilson spoke to Ms Thomas. During this meeting, Mr Wilson reiterated his previous complaints about workplace conditions, unsatisfactory dealing with his complaints by the Respect team, mould issues, issues with other staff members and him feeling unsafe to return to Services Australia.

• (p) At 1:33pm on 17 March 2025, following that meeting, Mr Wilson sent Ms Thomas an email which relevantly stated:

Please accept this as my formal 2 weeks notice of resignation as at the 17 of March 2025 from services Australia for the following reasons.

(q) Mr Wilson's correspondence then set out a number of reasons for resigning which is described at paragraph [31] of the decision of the Deputy President.

[6] Following Mr Wilson's notice of resignation, Ms Thomas forwarded the correspondence to Mr Wilson's manager and sought advice about whether Mr Wilson's resignation could be accepted in circumstances where his worker's compensation claim was being considered. Ms Thomas then asked Ms Marks to contact Mr Wilson's doctor to confirm that Mr Wilson had capacity to make the decision to resign. Ms Marks contacted Mr Wilson's general practitioner, Dr Cozier at 2:52pm that day stating the following:

Services Australia have advised that before his resignation can be formally accepted there is medical requirement determining that Mr Miller is "sound of mind" to make this decision. Can you please confirm in writing your medical recommendations on this.

[7] On 18 March 2025, Mr Wilson contacted Services Australia to confirm they had received his notice of resignation and inquired about his termination pay. He also stated that he would pursue a claim of constructive dismissal if the issue of his termination pay could not be resolved.

[8] On 18 March 2025, after contacting Mr Wilson, Dr Cozier responded to Ms Marks' correspondence confirming that he understood the request to be for him to assess Mr Wilson's capacity to make decisions about his work choices and stated:

We received correspondence on 17th March by email from Candi Marks (IPAR Rehabilitation) enquiring about Luke's tender for resignation to his usual employer Services Australia. The question put to me is whether Luke has "sound mind" to make this decision and appealing to medical judgement.

I am to understand this amounts to asking for an assessment on Luke's capacity to make decisions about his work choices.

I was made aware of Luke's decision to change employment during recent consultation with Luke. I certify that Luke has current capacity and competency to make his own choices about work. He maintains his choice and understands the relevant information. Luke appreciates the situation and consequences of withdrawing his employment. Luke can rationalise the options he has at his disposal. This culminates in adequate capacity. He is aware of the risks and benefits and alternatives.

Luke has expressed consent to disclose this to third parties.

[9] Dr Cozier provided a further letter on 18 March 2025 which read:

Luke reports some grievance with the handling of his notice of resignation. We recently received correspondence that requested an assessment of capacity. Upon discussing this a statement was issued with Luke's consent. However it is noted that Luke cites that he feels the request has amounted to breaching professional boundaries, patient doctor condientiality [sic] and his autonomy.

[10] Mr Wilson made his application for an unfair dismissal remedy on 18 March 2025.

[11] On 19 March 2025, Mr Wilson communicated with Ms Branovski from Services Australia Human Resources Support Team, in part, to make a complaint about his doctor being contacted by Services Australia in relation to his notice of resignation. Ms Branovski informed Mr Wilson that this was done in accordance with the Fair Work Commission's guidelines regarding 'heat of the moment resignations'. Mr Wilson confirmed that he had read the cases on this and that his resignation was not of that nature. In a further email to Ms Branovski, he requested that his complaints be escalated to David Hazlehurst, Chief Executive Officer of Services Australia. No further exchanges occurred after this.

[12] The Deputy President dealt first with the issue of whether Mr Wilson's application was competently made. Services Australia had submitted that the application for an unfair dismissal remedy was not competent because it was made prior to the dismissal taking effect. This is because Mr Wilson provided two weeks' notice of his resignation in his email dated 17 March 2025 but made the application on 18 March 2025. The Deputy President exercised the discretionary power under s 586(b) of the Act allowing the Commission to correct an irregularity or defect in an application or document: by reference to Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070; (2014) 241 IR 142. The Deputy President exercised this power in circumstances where Mr Wilson clearly intended to bring the proceedings, no prejudice would be caused to Services Australia and it would be unjust to dispose of proceedings based on an irregularity where a hearing had been conducted. No appeal is brought with respect to that aspect of the Deputy President's decision.

[13] The Deputy President then turned to the question of whether Mr Wilson had been 'dismissed' within the meaning of s 386 of the Act. The Deputy President considered the decision of the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245 (Bupa) which summarises two limbs of s 386(1) of the Act for determining whether termination has occurred 'on the employer's initiative' or where an employer resigns but was forced to do so due to employer conduct. Turning to the first limb of the test, the Deputy President stated that the task is to assess the evidence to determine whether Mr Wilson was, at the time of his resignation, in a state of emotional stress or mental confusion such that he could not reasonably be understood to be conveying a real intention to resign.

[14] The Deputy President stated (at [53]) that Mr Wilson was not well at the time he resigned and that he had been diagnosed with adjustment disorder, anxiety and depressive symptoms on 11 February 2025. The Deputy President recorded (at [54]-[58]) that Mr Wilson continued to engage with Services Australia in the period leading up to his resignation when he was away from work. Having summarised those interactions, the Deputy President (at [60]) accepted that the officers of Services Australia 'did their best to deal with [Mr Wilson's] irrational behaviour'. In relation to the question of whether Mr Wilson was 'dismissed', the Deputy accepted the following (at [61]):

I find that Mr Wilson was in a state of emotional distress when he resigned. Mr Wilson's resignation came about from his emotional response to the frustration he was feeling about how his complaints of late 2024 were dealt with. That response intensified over the course of February and March 2025. In February his doctor diagnosed an adjustment disorder with anxiety and depressive symptoms. On 4 March 2025 the diagnosis was that Mr Wilson had been experiencing extreme stress. Dr Cozier assessed Mr Wilson as having no capacity for work due to his inability to focus on cognitive tasks and leadership roles. On 18 March 2025 Dr Cozier responded to a request from Services Australia as to whether Mr Wilson was of "sound mind" and responded that Mr Wilson had capacity and competency to make decisions but does not provide any medical opinion about whether his stress and anxiety had improved. The conversation that Mr Wilson had with Ms Thomas on 17 March 2025, and the resignation letter suggests it had not. The communications following the resignation also suggest that Mr Wilson was not well.

[15] The Deputy President found that Mr Wilson's resignation fell within the scope of the first limb of the test in Bupa, detailing the circumstances leading up to and immediately following his resignation which indicate that Mr Wilson was unwell and as such, could not be understood reasonably to be intending to resign.

[16] The Deputy President noted that Services Australia clearly held concerns about Mr Wilson's intention to resign in that it had requested confirmation from Mr Wilson's doctor of his capacity to make decisions in relation to his employment. The Deputy President found that upon receiving confirmation from Dr Cozier of Mr Wilson's capacity, Services Australia, "did not allow a reasonable period of time to pass to seek confirmation." The Deputy President concluded that this was not reasonable of Services Australia for the following reasons (at [63]):

First, all indications were that Mr Wilson was still not well when he resigned. The conversation with Ms Thomas continued to recount the many matters that were the cause of emotional stress and they were conveyed in an agitated way. The resignation letter itself was similarly unfocussed and discursive. The request to Dr Cozier was of a general nature and failed to bring to his attention the manner in which Ms Wilson resigned. I am of the view that that information was necessary for Dr Cozier to give the opinion sought. Second in the responses after the resignation Mr Wilson was equivocal, seeking confirmation as to whether his resignation was accepted, complaining about the contact made with Dr Cozier, asking that his circumstances be brought to the attention of the CEO of Services Australia.

[17] The Deputy President concluded in relation to this point (at [65]):

I find that Services Australia treated the ostensible resignation as terminating the employment rather than taking steps to clarify or confirm with Mr Wilson after a reasonable time that he genuinely intended to resign. For these reasons I find that the termination of Mr Wilson's employment was a dismissal at the initiative of the employer. It is a dismissal that falls within the first limb of the definition of dismissal in s386(1)(a).

[18] The Deputy President also considered that Mr Wilson's resignation constituted a dismissal falling within the second limb set out in Bupa, namely, that Services Australia's conduct between 11 February 2025 and 17 March 2025 was such that Mr Wilson was forced to resign from his employment. The Deputy President referred to the ongoing and repeated agitation of Mr Wilson's complaints which had given rise to his emotional stress, and the fact that Mr Wilson had not been paid since 11 February 2025, as the relevant conduct of Services Australia which necessitated Mr Wilson's resignation.

[19] Turning first to the continued engagement with Mr Wilson during the period in which he was unwell, the Deputy President found (at [67]):

I accept that Ms Prior and Ms Thomas were faced with a difficult situation. Mr Wilson insisted on engaging when he should not have. His emails and long rambling conversations were doing him no good. By engaging with him the Services Australia staff were unwittingly exacerbating his condition. And I note during these communications, on a number of occasions, Mr Wilson talked about constructive dismissal feeling he was being dismissed, and having to resign. The ongoing contact and the repeated re-agitation of the complaints that had given rise to Mr Wilson's emotional stress put him in a state of mind the probable result of which was him giving up in the way he did and resigning.

[20] In considering the fact that Mr Wilson had not been paid since 11 February 2025, in circumstances where he had exhausted his leave options and had made a workers compensation claim, the Deputy President considered that the fact that Mr Wilson had not been paid from 11 February 2025 until his resignation was also a relevant factor. It was identified that state based-workers compensation schemes provide for payment pending consideration of a worker's compensation claim and acknowledged the submissions made by Services Australia that the Comcare system is different, in that it is governed by the Public Governance, Performance and Accountability Act 2013 (Cth) (the PGPA Act) and has a positive duty to promote the proper use and management of public resources. Services Australia submitted that making payment to Mr Wilson in circumstances where an entitlement had not been established would be antithetical to the PGPA Act.

[21] The Deputy President stated (at [70]):

It was put that making payments to Mr Wilson where he had not established an entitlement to payment, whether by Comcare or otherwise by Services Australia, would be antithetical to the principle of accountability for the use of public funds as required by the PGPA Act and its Rules. It was also put that doing so would not promote the ethical use of funds. I disagree. I don't see why Comcare cannot adopt the practice used by similar state agencies to ensure injured workers receive some payment while awaiting assessment of their claims. To do so would in my view amount to the efficient, effective, economical and ethical use of money.

[22] In considering these circumstances, the Deputy President concluded that Mr Wilson's emotional and financial circumstances were such that he had no option but to resign, and that this was the probable result of Services Australia's conduct between 11 February 2025 and 17 March 2025.

[23] Considering then the question of whether the dismissal was harsh, unjust or unreasonable, the Deputy President weighed the relevant factors under s 387(a)-(h). The Deputy President did not accept Services Australia's submission that Mr Wilson's conduct towards four colleagues amounted to a breach of the Services Australia Code of Conduct such that it was a valid reason for dismissal. The Deputy President identified that the factors in (b) to (g) were not relevant in this matter. Finally, in considering any other relevant factors under (h), the Deputy President considered that the way Services Australia dealt with Mr Wilson, in circumstances where he was demonstrably unwell was of significance. The Deputy President concluded (at [80]):

The fact that Mr Wilson was not given space to recover leads me to conclude that his dismissal was harsh. It was harsh in circumstances where he had demonstrated when he was well a capacity to contribute positively to the agency. His work was considered to be good by his superiors. He had been promoted since commencing in 2023 and was acting up in a project at the time he fell ill. Mr Wilson said that when things were going well he loved his job and felt he was in a position to embark on a fulfilling career.

[24] The Deputy President then considered the question of remedy. The Deputy President recorded (at [83]) that Mr Wilson sought compensation rather than reinstatement. Having considered the factors identified in s 392(2) of the FW Act, the Deputy President determined (at [89]-[90]) that Mr Wilson should be paid compensation of $33,348.62 after having applied the compensation cap in s 392(5).

[25] The notice of appeal filed by Services Australia listed, in effect, eight grounds of appeal which are as follows:

1. First Ground: In finding that the failure by the Respondent to pay the Applicant from 11 February 2025 was a factor which "forced" the Applicant to resign (see paragraphs [68]-[70]), the Decision at first instance failed to meaningfully engage with the application of s 15 of the Public Governance, Performance and Accountability Act 2013 (Cth) and r. 18 of the Public Governance, Performance and Accountability Rule 2014 (Cth) as it applies to Services Australia.
2. Second Ground: In finding that the failure by Comcare to pay the Applicant from 11 February 2025 was a factor which "forced" the Applicant to resign (see paragraphs [68]-[70]), the Decision at first instance imputed responsibility for the application of Comcare's policy to the Respondent (Services Australia) without taking into account that the Respondent has no influence over the payment of workers' compensation payments made by Comcare.
3. Third Ground: In finding that the failure by Comcare to pay the Applicant from 11 February 2025 was a factor which "forced" the Applicant to resign (see paragraphs [68]-[70]), the Decision at first instance misapplied the test in s 386(1)(b) of the Fair Work Act 2009 (Cth) (Act) because the conduct is not "conduct, or a course of conduct, engaged in by his or her employer" within the meaning of the Act.
4. Fourth Ground: In finding that Services Australia employees engaged in conduct that "forced" the Applicant to resign when they engaged with him, at his insistence, the Deputy President misapplied the test in s 386(1)(b) of the Act (see paragraphs [66]-[67]).

1. In finding that Mr Wilson could not be understood to have conveyed a "real or rational intention to resign" the Decision:
   • (a) Fifth Ground: was founded upon a significant error of mixed fact and law in that the Deputy President took into account an irrelevant consideration, being that the Respondent contacted the Applicant while he was certified as unfit for work between 11 February 2025 and 11 March 2025 in circumstances where there was no knowledge held by Services Australia employees regarding Mr Wilson's medical certification and medical condition at the time of impugned interactions between the Applicant and Services Australia employees, specifically in the period between 11 February 2025 and 18 February 2025 (paragraphs [54]-[55]).
   • (b) Sixth Ground: was founded upon a significant error of mixed fact and law in that the Deputy President took into account an irrelevant consideration, being that the Applicant was further certified as unfit for work on 4 March 2025 in circumstances where there was no evidence that his medical certificate was provided to Services Australia employees at any time, and specifically at the time of impugned interactions between the Applicant and Services Australia employees on 4 March 2025 (paragraphs [53], [57], [61]).
   • (c) Seventh Ground: was founded upon a significant error of fact in that the Deputy President refused to accept the unchallenged evidence of Mr Wilson's treating medical practitioner, Dr Crozier, regarding Mr Wilson having capacity to resign from his employment (paragraphs [61]-[62]).
   • (d) Eighth Ground: was founded upon a significant error of fact that the Deputy President had misapplied the unchallenged evidence of Dr Crozier that Mr Wilson had "capacity and competency to make his own choices about work" (paragraphs [37], [61]-[63]).

[26] The grounds of appeal are directed only at the decision of the Deputy President that Mr Wilson had been 'dismissed' for the purposes of s 386 of the FW Act. If the appeal in relation to the question of whether Mr Wilson was 'dismissed' is unsuccessful, Services Australia does not appeal with respect to the findings of the Deputy President that his dismissal was harsh, unjust or unreasonable or in relation to the determination of compensation.

[27] Section 604(1) of the FW Act provides that a person aggrieved by a decision of the Commission may only appeal with the permission of the Commission. Generally, the Commission is required, by s 604(2), to grant permission to appeal if satisfied that is in the public interest to do so. Otherwise, the Full Bench has a broad discretion as to whether permission to appeal should be granted: Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30] (Spender, Kiefel, Dowsett JJ); Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; (2013) 238 IR 258 at [9]- [12]. However, it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.

[28] The discretion of the Commission to grant permission is more confined in the case of an application for permission to appeal from a decision made in unfair dismissal proceedings under Part 3-2 of the Act. In that respect, s 400 of the Act provides:

• (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

• (2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[29] Section 400(1) manifests an intention that the threshold for a grant of permission to appeal is higher in respect of appeals in unfair dismissal proceedings than that applying to appeals generally: Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [34] (Buchanan J); Workpac Pty Ltd v Bambach [2012] FWAFC 3206; [2012] FWAFB 3206; (2012) 220 IR 313 at [14]; Barwon Health - Geelong Hospital v Colson [2013] FWCFB 4515; (2013) 233 IR 364 at [6]. Permission to appeal can only be granted if the Full Bench is satisfied it is in the public interest to do so, and no residual discretion exists if that threshold is not met. Section 400(2) limits review on appeal based on an alleged mistake of fact in that an alleged error of fact must involve a significant error of fact.

[30] We are satisfied that it is in the public interest to grant permission to appeal. The appeal raises issues of general importance in relation to a frequently used jurisdiction of the Commission. Services Australia's appeal is in relation to both limbs of the definition of when an employee has been 'dismissed' for the purposes of s 386(1). The issues raised touch upon the circumstances in which it is not reasonable for an employer to act upon a resignation received in circumstances in which the employee is in a state of emotional distress for the purposes of s 386(1)(a) and what might constitute conduct 'by his or her employer' when assessing whether an employer was forced to resign for the purposes of s 386(1)(b). We have also concluded that the approach adopted by the Deputy President was affected by error and we consider that it is in the public interest for permission to appeal to be granted to correct the error.

[31] As we have recorded, the Deputy President concluded that Mr Wilson had been dismissed for the purposes of s 386(1)(a) and (b). The Deputy President concluded that Mr Wilson's employment had been terminated on the employer's initiative for the purposes of s 386(1)(a) because Services Australia treated his ostensible resignation as terminating the employment without taking steps to clarify or confirm with Mr Wilson after a reasonable time that he genuinely intended to resign. The Deputy President also concluded, in the alternative, that Mr Wilson had been forced to resign by the conduct, or a course of conduct, engaged in by Services Australia for the purposes of s 386(1)(b).

[32] Those two conclusions provide independent bases upon which the Deputy President concluded that Mr Wilson had been dismissed. To succeed on appeal, it is necessary for Services Australia to establish error with respect to both of those findings. Grounds 1 to 4 in the notice of appeal are directed at the conclusion of the Deputy President that Mr Wilson was forced to resign by conduct of Services Australia. Grounds 5 to 8 are directed to the conclusion that Mr Wilson could not have been understood to have conveyed a 'real or rational intention to resign' and, as such, the conduct of treating Mr Wilson's ostensible resignation as terminating his employment involved a termination on the initiative of the employer. It is convenient to deal with the grounds in the order presented by Services Australia in its submissions.

[33] Section 12 of the FW Act contains definitions and indicates that the term 'dismissed' has the meaning given to it in s 386. Section 386 is contained in Part 3-2 and provides that:

(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.

[34] The concept of when a person has been 'dismissed' is central to the operation of Part 3-2. Section 394(1) provides the avenue through which an application can be made for an unfair dismissal remedy and permits a person who has been 'dismissed' to apply for an order granting a remedy. Under s 390(1)(b), the Commission can only order a person's reinstatement, or the payment of compensation, if it is satisfied (among other things) that the person has been 'unfairly dismissed'. By reason of s 385(a), a person has been unfairly dismissed only if the Commission is satisfied (again, among other things) that the person has been 'dismissed'.

Grounds 1 to 4 - Whether Mr Wilson was forced to resign?

[35] Grounds 1 to 4 concern the Deputy President's finding that Mr Wilson was forced to resign for the purposes of s 386(1)(b) because the conduct of Services Australia between 11 February 2025 and 17 March 2025 resulted in him having no effective or real choice but to resign. The grounds fall into two categories. Grounds 1 to 3 relate to the finding of the Deputy President that the failure of Services Australia to pay Mr Wilson in the period from 11 February 2025 until his resignation was a factor that forced him to resign. Ground 4 separately contends that the Deputy President misapplied s 386(1)(b) in finding that the conduct of Services Australia forced Mr Wilson to resign from his employment.

[36] Dealing first with grounds 1 to 3, in our view, the grounds raise (in substance) a single contention being that the Deputy President erred by considering that the failure to pay Mr Wilson in the period leading up to his resignation was a factor that contributed to the conclusion that he had been forced to resign. To the extent that ground 1 contends that the Deputy President failed to meaningfully engage with the application of s 15 of the Public Governance, Performance and Accountability Act 2013 (Cth) (the PGPA Act) and rule 18 of the Public Governance, Performance and Accountability Rule 2014 (Cth) (the PGPA Rule), we do not accept the submission. The Deputy President referred to and addressed the operation of those provisions in paragraphs [69] and [70] of his decision. The assertion that the Deputy President did not engage with the submission of Services Australia in that respect cannot be accepted. The true complaint is that the Deputy President was wrong to not regard the content of those instruments as demonstrating that Mr Wilson had not been forced to resign because of its conduct.

[37] The central contention advanced by Services Australia is found in grounds 2 and 3. It is that the Deputy President misapplied s 386(1)(b) because the circumstance that Mr Wilson was not paid in the period after 11 February 2025 was not 'conduct, or a course of conduct, engaged in by his or her employer' within the meaning of the FW Act. Services Australia complains that the Deputy President attributed responsibility for the application of Comcare's policy with respect to the payment of workers' compensation entitlements to Services Australia and erred in attributing the failure to pay Mr Wilson to Services Australia, in circumstances in which Mr Wilson had no entitlement to payment and Services Australia was constrained from making additional payments to him.

[38] The grounds require consideration of s 386(1)(b). The subsection provides that a person may be 'dismissed' for the purposes of the FW Act even though they have, in fact, resigned. That may occur if the person was 'forced to do so because of the conduct, or a course of conduct, engaged in by his or her employer'. The situation contemplated by s 386(1)(b) is to be distinguished from one of the type we will consider below in dealing with grounds 5 to 8 in which a person ostensibly communicates notice of resignation to the employer but that, in the circumstances, the employee could not reasonably be understood to be conveying a real intention to resign. In Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli [2017] FWCFB 3941; (2017) 217 IR 245 (Bupa Aged Care), the Full Bench conducted an extensive survey of relevant authorities dealing with the expression 'termination on the employer's initiative' and considered the effect of the inclusion of s 386(1)(b) in the Act. The Full Bench distinguished the two limbs of s 386(1) (at [47]) as follows:

Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s 386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(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.

[39] As the Full Bench observed (at [33]), the inclusion of s 386(1)(b) in the FW Act may have been unnecessary given that existing authorities acknowledged that a forced resignation could constituted a 'termination at the initiative of the employer': see, particularly, Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200 at 206 (Lee, Moore and Marshall JJ) (Mohazab); Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154 at 160 -161 (Moore J); O'Meara v Stanley Works Pty Ltd (AIRC (FB), Print PR973462, 11 August 2006) at [23] (O'Meara). In relation to s 386(1)(b), the explanatory memorandum to the Fair Work Bill 2008 (Cth) explained:

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

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

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

• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.

[40] Section 386(1)(b) requires two conditions to be met. The first condition is that the person must have been 'forced' to resign in the sense that they had 'no effective or real choice but to resign'. This element is directed at the degree of volition available to the employee as to whether to resign or continue the employment. The formulation adopted in Bupa Aged Care, relying on earlier authority, does not require the employee have no other choice but to resign. As Dowsett J said in Pawel v Australian Industrial Relations Commission [1999] FCA 1660; (1999) 94 FCR 231 at [59]:

As to "compulsion", it is difficult to contemplate circumstances in which it can be said that an employee has been compelled to resign, but not dismissed, unless one accepts the somewhat bizarre reference in the course of argument to an employer holding a gun to the employee's head.

[41] Section 386(1)(b) is obviously not limited to such a situation. The inquiry, rather, involves consideration of whether the employer's conduct was either intended to bring 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.

[42] The threshold that must be met in order for the conclusion to be reached that an employee has been 'forced' to resign has been stated in different terms in the authorities. Services Australia referred to the following statement of Richards SDP in Hastie v Impress Australia Pty Ltd [2008] AIRC 102; (2008) 171 IR 311 at [60] in relation to the equivalent provision then made in s 642(4) of the Workplace Relations Act 1996 (Cth):

It would appear to me, then, that on an ordinary or natural reading of the term "forced", an employee may be forced (or compelled) to resign for reason of the employer expressly demands the resignation (perhaps, though not necessarily, in conjunction with a threat of termination), or makes the conditions of work so oppressive or repugnant to the employee (and the employment relationship), and/or else, so bears down on the volition of the employee, that the resignation was a reasonably probable response to the circumstances the employee faced at the time.

[43] Services Australia submits that the test involves consideration of whether the employee's response to the employer's conduct was reasonable in the circumstances. It submits that, by necessary corollary, the employer's conduct which precipitated the employee's resignation must have been unreasonable. The submission, in our view, should be approached with caution as it tends to distract from the text of the subsection. Whether the actions or inaction of the employer was unreasonable, and whether the response of the employee was reasonable, is relevant to the assessment to be made. However, neither finding is a substitute for applying the terms of the section or is a necessary precondition to a finding that the employee has been dismissed for the purposes of s 386(1)(b). The test is simply whether the employee was forced to resign by reason of having had no effective or real choice but to resign.

[44] The second condition is that the circumstance that has resulted in the employee being forced to resign must be constituted by conduct, or a course of conduct, engaged in by the employer. It is not sufficient that the employee was in a circumstance that they had no effective or real choice but to resign. The circumstance must have arisen because of conduct, or a course of conduct, engaged in by the employer. The word 'because' in s 386(1)(b) expresses a requirement of causation. It invites an inquiry as to why, or as a result of what circumstances, the employee was forced to resign. There are many circumstances which might arise which might lead an employee to believe that they have no reasonable options other than to leave their employment which are not the result of the employer's conduct.

[45] The type of circumstance that might result in a finding that an employee had been forced to resign by their employer's conduct is not limited to defined, or predetermined, categories. The subsection will apply in many circumstances commonly understood to involve a 'constructive dismissal'. That might include a circumstance in which the employer has told the employee to resign, or else they will be dismissed or suffer some other detriment as was the case in Mohazab. Cases involving a situation in which an employee has been told to 'resign or be sacked' have a long history: see, for example, Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers' Guild Re Dismissal [1979] AR (NSW) 392 at 393 (Macken J). However, conduct of an employer which results in an employee being forced to resign might also include a situation in which the employer breaches or renounces an express or implied term of the employee's contract resulting in a situation in which it is intolerable or unreasonable for the employee to continue in the employment.

[46] The use of the language of 'constructive dismissal' is not necessarily helpful in relation to the application of s 386(1)(b) because it tends to focus attention on whether there has been a breach of contract by the employer: Bupa Aged Care at [49]. It may be relevant to the question of whether an employee has been forced to resign to consider whether the employer breached its legal obligations. An employer acting in accordance with its contractual or statutory rights might be unlikely to be found to have forced an employee to resign. However, it is neither a necessary or sufficient condition to satisfy s 386(1)(b) that the conduct of the employer involved a breach or repudiation of the contract of employment. For example, Anderson DP said in Jarouche v Lipa Pharmaceuticals [2023] FWC 493 at [106] (upheld on appeal in Lipa Pharmaceuticals v Jarouche [2023] FWCFB 101):

Conduct or a course of conduct forcing a resignation is not required to be repudiatory or unlawful. It could, depending on the circumstances, simply be conduct such that, in an objective sense, it forced the employee's resignation.

[47] The fact that the employee must have been forced to resign because of the conduct of the employer does not, in our opinion, mean that other circumstances are to be ignored. Plainly, whether the conduct, or a course of conduct engaged in by the employer, resulted in a situation in which the employee has no real or effective choice but to resign must be considered in light of the whole of the circumstances of the case. Nonetheless, the employee must have been forced to resign because of conduct engaged in by the employer.

[48] With respect to grounds 2 and 3, we accept the submission of Services Australia that the Deputy President erred in treating conduct of Comcare as conduct of the employer for the purposes of assessing whether Mr Wilson had been forced to resign for the purposes of s 386(1)(b). At paragraph [68], the Deputy President indicated that he regarded the fact that Mr Wilson had not been paid from 11 February 2025 to be a relevant factor. At paragraph [70], the Deputy President acknowledged that Mr Wilson had not established any entitlement to be paid, but considered that 'I don't see why Comcare cannot adopt the practice used by similar State agencies to ensure injured workers receive some payment while awaiting assessment of their claim'. With respect, the Deputy President plainly had regard to the actions of Comcare in finding that Mr Wilson had been forced to resign.

[49] There is no dispute that Mr Wilson had exhausted his leave entitlements and been granted the maximum amount of special leave available under clause G31.1 of the Services Australia Enterprise Agreement 2024-2027. He had made a workers compensation claim but did not receive any payments pending determination of the claim. That was a matter for Comcare. Comcare is a separate corporate entity established distinct from the Commonwealth by s 74(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Under s 14(1) of the SRC Act, it is Comcare that is liable to pay compensation in accordance with that Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. However, the SRC Act does not establish a right or obligation to make payments ahead of the assessment of the alleged injury.

[50] The Deputy President considered that Comcare could have adopted a different policy akin to the arrangements in place under some State-based workers compensation systems. We can understand why, as a matter of fairness, that might be a matter worthy of consideration by Comcare. We can also understand why being without pay is likely to have created hardship for Mr Wilson. However, from the perspective of Services Australia, Mr Wilson was unfit to attend work after 11 February 2025. He had exhausted his leave entitlements. His workers compensation claim was being dealt with by Comcare. Even if it was possible for Comcare to have adopted a different approach, we cannot detect any conduct on the part of Services Australia, or the Commonwealth itself as an employer, in relation to the payments to Mr Wilson which contributed to the situation which the Deputy President found forced him to resign.

[51] Services Australia also refers to s 15 of the PGPA Act and rule 18 of the PGPA Rule. We do not accept that the provisions referred to prohibited Services Australia or Comcare from making additional payments. Section 15 of the PGPA Act imposes a duty to promote the proper use and management of public resources:

The accountable authority of a Commonwealth entity must govern the entity in a way that:

(a) promotes the proper use and management of public resources for which the authority is responsible ...

[52] Rule 18 of the PGPA Rule indicates that this requires that monies must only be applied in a proper manner, that commitments of money must promote 'the efficient, effective, economical and ethical use of the money'. We do not consider that the provisions relied upon by Services Australia are sufficient to create a prohibition on payments in addition to the strict legal entitlements of an employee. However, that contention is not critical to the disposition of this appeal.

[53] For these reasons, grounds 2 and 3 must be accepted. To the extent that the Deputy President determined that Mr Wilson had been forced to resign by reason of him not having been paid after 11 February 2025, with respect, the Deputy President erred. That situation was not the result of the conduct, or a course of conduct, engaged in by Mr Wilson's employer. That is sufficient to mean that the finding of the Deputy President that Mr Wilson was forced to resign for the purposes of s 386(1)(b) must be set aside.

[54] It is, nonetheless, appropriate to comment on ground 4. Services Australia contends that the Deputy President misapplied s 386(1)(b) by concentrating on the state of mind of Mr Wilson. Services Australia submits that the task of the Commission is to consider whether resignation was the only effective or real choice left available to the employee based on an objective review of the conduct of the employer and not based on the perception of the employee. Services Australia submits that the Deputy President failed to consider this objectively. Services Australia referred to the following passage from ABB Engineering Construction Pty Ltd v Doumit (AIRC (FB), Print N6999, Munro J, Duncan DP and Merriman C, 9 December 1996) at p11-12 (referred to in O'Meara at [22]-[23] and Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279 at [17]):

Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.

[55] We accept that it is insufficient, for the purposes of s 386(1)(b), that the employee subjectively believed they had no choice but to resign. The subsection requires that the conduct of the employer was such that the employee actually had no choice but to resign. However, whether the employer's conduct produced such a situation must be determined by reference to the circumstances of the particular case and the attributes of the employee involved, at least to the extent they were known to the employer. The question is whether the conduct of the employer was such as to mean the particular employee had no effective or real choice but to resign. For example, if an employee is unfit for work as a result of a psychological injury, requiring the employee to respond to disciplinary allegations might give rise to a situation in which that employee had no effective or real choice but to resign where it would not for an employee not suffering a psychological condition.

[56] In paragraph [67] of his decision, the Deputy President found that the ongoing contact with representatives of Services Australia 'that had given rise to Mr Wilson's emotional stress put him in a state of mind the probable result of which was him giving up in the way he did and resigning'. Although the Deputy President referred to the effect of the conduct of representatives of Services Australia on Mr Wilson's 'state of mind', we do not think the decision indicates that he considered it to be sufficient that Mr Wilson felt he had no choice but to resign. The passage indicates that the Deputy President considered the probable consequence of the conduct of Services Australia on Mr Wilson in the circumstances. We can detect no error in approach of the nature contended for by Services Australia.

[57] In oral submissions, counsel for Services Australia suggested (in a manner that overlapped with ground 5) that the finding that Mr Wilson had been forced to resign by the conduct of Services Australia is inconsistent with the Deputy President's acceptance that the Services Australia officers who dealt with Mr Wilson during this time 'did their best to deal with an employee who was to say the least difficult' and that 'I cannot, and do not, fault them for the approach they took to their dealings with Mr Wilson'. The submission is founded on the proposition that an employee cannot have been forced to resign by the conduct of Services Australia because that conduct was reasonable. We do not accept that is a correct statement of principle. The reasonableness of the employer's conduct may be relevant but is not determinative. In this case, the Deputy President considered that matter.

[58] Grounds 1 and 4 must be rejected. However, because grounds 2 and 3 are accepted, the finding of the Deputy President that Mr Wilson was forced to resign because of the conduct, or a course of conduct, engaged in by his employer, for the purposes of s 386(1)(b) involved error. However, since the Deputy President also found that Mr Wilson's employment had been terminated on the employer's initiative for the purposes of s 386(1)(a), it is necessary to consider that finding to determine if the appeal should be allowed. We now turn to that question.

Grounds 5 to 8 - Termination on the employer's initiative

[59] Grounds 5 to 8 contend that the Deputy President made significant errors of fact in finding that Mr Wilson 'could not reasonably be understood to be conveying a real or rational intention to resign' on 17 March 2025.

[60] The finding of the Deputy President in this respect refers to the first circumstance identified in Bupa Aged Care at [47]. In short, although the employee has ostensibly resigned, the resignation may not be legally effective where 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. If the employer treats the ostensible resignation as terminating the employment without at least clarifying whether the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

[61] It is, in our opinion, useful to regard this circumstance as an example of the application of the principle that it is a necessary incident of the employment relationship that the other party must be notified in clear and unambiguous terms if a right to bring the contract to an end is being exercised: Geys v Societe Generale, London Branch [2012] UKSC 63; [2013] 1 AC 523 at [57]- [61] (Baroness Hale); Sawyer v Wards Accounting Group Pty Ltd [2025] FWCFB 167; (2025) 342 IR 279 at [61]. Consistently with that principle, an employee will not be found to have resigned unless the employee has clearly communicated an intention to do so to the employer: see, for example, Moore v LE Stewart Investments Pty Ltd t/as Southern Highlands Taxi Service [2010] NSWIRComm 50 at [81] (Backman J) and Ridge v Yates [2025] FWCFB 42 at [38].

[62] The question of whether an employee has resigned does not depend on the subjective intention or understanding of the employee, but an objective assessment of the intentions of the parties. For example, in Koutalis v Pollett [2015] FCA 1165; (2015) 235 IR 370, Rares J explained (at [43]):

The question whether a resignation did or did not occur does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis' business' premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. ...

[63] After referring to the Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, his Honour continued (at [44]):

In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee's employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Ltd v Savage [1989] IRLR 115 at 116, namely:

In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight. (Emphasis added.)

[64] The question then is whether a reasonable person in the position of the employer would have understood that the employee truly intended to resign. As Rares J observed, one situation in which that question may arise is where an employee ostensibly resigns in the 'heat of the moment' or in circumstances of apparent emotional or psychological distress. Where that occurs, a reasonable person in the position of the employer might not regard the apparent resignation as reflecting the true intentions of the employee, at least without confirming with the employee that they actually wish to terminate the employment. Examples of cases in which that issue has been considered include Gunnedah Shire Council v Grout (1995) 62 IR 150 and Minato v Palmer Corp Ltd (1995) 63 IR 357.

[65] The conclusion that an employee has not, in fact, resigned notwithstanding communicating an intention to do so rests on the objective theory of contract. That is, it turns upon a conclusion that a reasonable person in the position of the employer would not have understood the employee to have intended to permanently end their employment. The consequence is that the grounds upon which it is contended the resignation was ineffective must have been known or apparent to the employer at or around the time the ostensible resignation was communicated. We accept that this may include events which occurred around and immediately following the purported resignation: Minato v Palmer Corp Ltd (1995) 63 IR 357 at 362 (Murphy JR); Gourlay v Sydney International Container Terminals Pty Ltd t/as Hutchison Ports Sydney [2025] FWCFB 202 at [63].

[66] A number of cases have suggested that an employee is entitled to withdraw notice of resignation if given in the heat of the moment or a state of emotional distress: Martin v Yeoman Aggregates Limited [1983] ICR 314; Birrell v Australian National Airlines Commission [1984] FCA 378; (1984) 5 FCR 447 at 459 (Gray J); Ngo v Link Printing Pty Limited (1999) 94 IR 375 at 378; Achal v Electrolux Pty Limited (1993) 50 IR 236 at 238-239. In our view, those cases are best understood as accepting that, if an employee resigns in a state of distress and seeks to withdraw the resignation within a reasonable period thereafter, a reasonable person in the position of the employer would not understand the employee to have ever truly intended to resign. Whether an employee attempts to resile from an apparent resignation, and whether they do so within a reasonable period, may be relevant to whether an employee can reasonably be understood to have resigned. If a period of time passes after an ostensible resignation and the employee does not seek to withdraw the resignation, or acts consistently with the employment having come to an end, a reasonable person in the position of the employer might conclude that the employee actually intended to resign. The correct conclusion will depend on an assessment of the whole of the circumstances of the particular case.

[67] In grounds 5 and 6, Services Australia contends that the finding that Mr Wilson did not have a real or rational intention to resign was based on a significant error of fact because the contact between representatives of Services Australia and Mr Wilson between 11 February 2025 and 11 March 2025 occurred in circumstances in which relevant officers of Services Australia were not aware of the medical certificates relating to Mr Wilson dated 11 February 2025 and 4 March 2025. Services Australia referred in some detail to the evidence given before the Deputy President to substantiate that submission. It is unnecessary for us to address the detailed references to the evidence in order to deal with the submission.

[68] Services Australia accepts that the organisation was aware of, and provided with, the medical certificates relating to Mr Wilson dated 11 February 2025 and 4 March 2025 prior to his resignation on 17 March 2025. We do not consider that the question of whether individual officers of Services Australia were aware of the content of the medical certificates at earlier points in time is relevant to whether Mr Wilson could reasonably have been understood by Services Australia to have genuinely intended to resign on 17 March 2025. That question depends on the circumstances which were apparent to Services Australia at or around the time Mr Wilson submitted his resignation. Furthermore, it is apparent from the inquiry made of Dr Cozier in the afternoon of 17 March 2025 that Services Australia was aware that there were grounds to doubt that Mr Wilson was able to make rational decisions in relation to his employment. Grounds 5 and 6 must be accepted.

[69] Turning to grounds 7 and 8, those grounds contend that the finding that Mr Wilson did not have a real or rational intention to resign was founded on a significant error of fact because the Deputy President refused to accept the unchallenged evidence of Dr Cozier that Mr Wilson had capacity to resign from his employment and that the Deputy President misapplied the evidence of Dr Cozier that Mr Wilson had 'capacity and competency to make his own choices about work'. To address those grounds, it is necessary to briefly set out the evidence concerning the interactions between representatives of Services Australia and Mr Wilson's doctor, Dr Cozier.

[70] The Deputy President recorded (at [34]) that, after receiving the letter of resignation a discussion took place between officers of Services Australia and Ms Marks was asked to contact Mr Wilson's doctor. Ms Marks wrote to Dr Cozier at 2.52 pm on 17 March 2025. The letter noted that Mr Wilson had resigned and included the following:

Service Australia have advised that before this resignation can be formally accepted there is a medical requirement determining that Mr Miller is 'sound of mind' to make this decision. Can you please confirm in writing your medical recommendations on this.

[71] The Deputy President recorded (at [36]) that Mr Wilson was contacted during the course of the morning by his doctor who told him that Services Australia had asked him to confirm that Mr Wilson was in a sound state of mind to resign. Mr Wilson took exception to his doctor being contacted and spoke to Ms Thomas over the phone about his concerns. Ms Thomas gave evidence that during the phone call Mr Wilson was clearly upset and emotional. Dr Cozier responded to Ms Marks' request on 18 March 2025. The response read:

We received correspondence on 17th March by email from Candi Marks (IPAR Rehabilitation) enquiring about Luke's tender for resignation to his usual employer Services Australia. The question put to me is whether Luke has "sound mind" to make this decision and appealing to medical judgement.

I am to understand this amounts to asking for an assessment on Luke's capacity to make decisions about his work choices.

I was made aware of Luke's decision to change employment during recent consultation with Luke. I certify that Luke has current capacity and competency to make his own choices about work. He maintains his choice and understands the relevant information. Luke appreciates the situation and consequences of withdrawing his employment. Luke can rationalise the options he has at his disposal. This culminates in adequate capacity. He is aware of the risks and benefits and alternatives.

Luke has expressed consent to disclose this to third parties.

[72] Dr Cozier provided a further letter later on 18 March 2025. It read:

Luke reports some grievance with the handling of his notice of resignation. We recently received correspondence that requested an assessment of capacity. Upon discussing this a statement was issued with Luke's consent. However it is noted that Luke cites that he feels the request has amounted to breaching professional boundaries, patient doctor confidentiality and his autonomy.

[73] In this context, it is necessary to consider grounds 7 and 8. With respect to ground 7, the Deputy President (at [61]) noted the opinion of Dr Cozier that Mr Wilson was of 'sound mind' and had capacity and competency to make his own choices about work and observed that Dr Cozier's letter did not provide a medical opinion about whether Mr Wilson's stress and anxiety had improved. The Deputy President (at [62]) asserted that Dr Cozier would have needed to have other information to give the opinion sought by Services Australia. With respect, that does appear to involve rejecting, or at least refusing to fully accept, the opinion of Dr Cozier. It is not clear on what basis the Deputy President did so. Dr Cozier's letter notes that he had discussed Mr Wilson's decision to change employment with him during a recent consultation and stated the basis of his opinion. Dr Cozier did not give evidence. There was no basis to find that Dr Cozier did not have sufficient information to give the opinion he did. Ground 7 should be accepted.

[74] More critically, as contended in ground 8, the Deputy President's treatment of the report of Dr Cozier involved a misapplication of s 386(1)(a). The Deputy President approached the letter from Dr Cozier by assessing whether it demonstrated that Mr Wilson had recovered from his psychological condition. The relevance of the letter of Dr Cozier to the assessment required by s 386(1)(a) was whether it would have contributed to a reasonable person in the position of Services Australia concluding that Mr Wilson genuinely wished to resign. The issue was not the true medical position. The issue was not whether Mr Wilson was distressed or anxious, but whether the opinion of Dr Cozier would have satisfied a reasonable person that Mr Wilson had the ability to make rational decisions in relation to his employment.

[75] It is true that the Deputy President (at [62]) referred to other events which occurred on or around the time Mr Wilson submitted his resignation that he determined contributed to a conclusion that it was unreasonable for Services Australia not to allow a reasonable period of time to pass to seek confirmation of his resignation. However, in our view, the most critical feature of the objective circumstances that would have satisfied a reasonable person that Mr Wilson genuinely and rationally made a decision to resign, was the opinion given by his own doctor, Dr Cozier. We also note that Mr Wilson did not at that time, or ever, seek to withdraw his resignation or contend that he did not genuinely intend to resign. His case was, to the contrary, that he was forced to resign. In all the circumstances, the letter of resignation could reasonably be understood to be conveying a real intention to resign. Ground 8 should be accepted.

[76] The consequence of the acceptance of grounds 7 and 8 is that the Deputy President's finding that Mr Wilson's resignation could not reasonably have been understood to be conveying a real or rational intention to resign is affected by error.

[77] For these reasons, permission to appeal should be granted and the appeal allowed with respect to grounds 2, 3, 7 and 8. The decision of the Deputy President must be quashed. Whilst not separately challenged, the decision of the Deputy President with respect to unfairness and remedy are contingent upon the conclusion that Mr Wilson was dismissed and must also be quashed given we have found error in the decision with respect to whether Mr Wilson was dismissed. It is necessary, in those circumstances, for the question of whether Mr Wilson was dismissed to be redetermined. Services Australian contends, and we accept, that the Full Bench is in a position to redetermine that question on appeal.

[78] It will be apparent from the reasons we have given already that we do not consider that Mr Wilson was dismissed for the purposes of s 386(1) of the Act. In our view, Mr Wilson's employment was not terminated at the initiative of the employer for the purposes of s 386(1)(a). Although we accept that Mr Wilson was not well when he resigned, we do not consider the circumstances were such that Mr Wilson could not reasonably be understood to be conveying a real intention to resign. The most significant considerations which support that conclusion are that Services Australia obtained an opinion from Mr Wilson's doctor that he was competent to resign, Mr Wilson himself insisted that he was of sound mine and genuinely wanted to resign and that Mr Wilson did not seek to withdraw or resile from his resignation.

[79] On the factual findings made by the Deputy President, we are also satisfied that Mr Wilson was not forced to resign by conduct, or a course of conduct, engaged in by his employer for the purposes of s 386(1)(b). We do not consider that the relatively small number of well-intentioned interactions between officers of Services Australia and Mr Wilson in the period from 11 February to 17 March 2025, were such as to cause him to have no effective or real choice but to resign, particularly in circumstances in which Mr Wilson was instigating contact. We accept that the fact Mr Wilson was not receiving pay and there was uncertainty about his future employment are likely to have contributed to his decision to resign. However, we are unable to attribute those circumstances to the conduct of the employer. Mr Wilson had exhausted his leave entitlements and been granted the maximum discretionary special leave. Any entitlement to workers compensation payments was being dealt with by Comcare.

[80] In circumstances in which we are not satisfied Mr Wilson has been dismissed, he cannot have been unfairly dismissed for the purposes of s 385 of the FW Act and no remedy can be awarded in accordance with s 390. Mr Wilson's application must be dismissed.

[81] The Full Bench makes the following orders:

• (a) Permission to appeal is granted;

• (b) The appeal is allowed;

• (c) The decision [2025] FWC 3328 made on 5 November 2025 in Matter Number U2025/3364 is quashed; and

• (d) Mr Wilson's application in Matter Number U2025/3364 is dismissed.

P Willoughby, of counsel, instructed by Norton Rose Fulbright for Services Australia.

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