Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal-jurisdictional objection that Applicant not dismissed-jurisdictional objection upheld-application dismissed

• [1] This decision concerns an application made by Ms Danica Monks (the Applicant) to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (the Act). The Applicant contends that Anglicare Tasmania Inc (the Respondent) contravened various provisions of Part 3-1 of the Act by dismissing her from her employment. The Respondent denies the allegations and also disputes that the Applicant was dismissed asserting she resigned from her employment and pressed a jurisdictional objection on that basis.

• [2] The Fair Work Commission (Commission) generally does not have a determinative function in relation to applications brought under s.365 of the Act unless the parties agree to the Commission arbitrating the matter. Rather, the Commission's role is to convene a conference and to issue a certificate to the Applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the Respondent denies that the Applicant was dismissed within the meaning of s.386 of the Act and objects to the application on this basis, the Commission is required first to determine whether the Applicant was in fact dismissed or not.[1]

• [3] The parties filed materials in accordance with the directions. A hearing by Microsoft Teams was held on Wednesday, 7 May 2025. The Applicant and Respondent were both self-represented. The Applicant gave evidence on her own behalf. The Applicant filed a witness statement from her 'domestic partner' Mr Smith and a witness statement from Mr Callahan, a former employee of the Respondent. Neither Mr Smith nor Mr Callahan attended the hearing to attest to their statements. I determined to allow the statement to be admitted but have afforded them little weight given the non-attendance of those witnesses and the associated inability of the respondent to cross examine them.

The events leading to the end of the employment relationship

• [4] The Applicant was employed by the Respondent from around July 2024 as a Connection Coach in the Housing Connect Division. According to the position description, the role connects people to housing and housing assistance including community supports and resources. Among other competencies the position requires an "understanding of Tasmania's current housing market and the difficulties facing people on a low-income trying to secure housing including family violence, mental health and alcohol and other drug issues."[2] Presumably this understanding is required as it is people in these circumstances that the Respondent is assisting with housing issues. Despite this, the Applicant asserted that she did not know she would be regularly dealing with victims of domestic violence[3].

• [5] The Applicant suffers from Post Traumatic Stress Disorder (PTSD) associated with previous traumatic experiences and is receiving treatment for this. The Applicant was aware of her PTSD prior to commencing employment however she did not disclose the condition prior to her commencement of employment.

• [6] In order to attend her regular fortnightly appointments with her psychologist the Applicant sought to utilise domestic violence leave available under the Anglicare Tasmania Inc. Enterprise Bargaining Agreement 2021[4]. The Applicant stated in the request that she, "...was more than happy to organise this through personal leave. Having now read through the EBA [she] wanted to request if it could possibly fall under the 'Family Violence Leave' (52.) and [her] leave be covered?"[5]

• [7] The Respondent took a long period of time to either approve or reject the leave. This was associated to some extent with a delay in the provision of evidence the employer required to support the application for leave. The employer also bore some responsibility for the delay in approving the leave. However, little turns on that fact because on the 11th of February 2025, prior to the Applicant's resignation, the Applicant was advised by her direct line manager that her leave had "finally" been approved.[6]

• [8] On the 14th of February, the Applicant received an allegations letter from the Respondent. The allegations were: (1) that the Applicant had made a statement about a fellow employee which may constitute harassment; and (2) that the Applicant had been absent from work on 11 days and had failed to log leave in the system. The letter clearly indicates that no findings or decisions had been made about the allegations at that point in time.

• [9] The Applicant was invited to respond to the allegations in writing and invited to a meeting on Tuesday, the 18th of February. The Applicant prepared a written response to the allegations, denying the conduct allegation and providing an explanation for the absences from work.

• [10] The Applicant attended the meeting on the 18th of February. At the commencement of the meeting the Applicant provided her written response to the allegations. She also simultaneously provided a letter of resignation in the following terms:

"I am writing to formally resign from my position as Connection Coach at Anglicare, effective immediately. I have made this decision due to the continuous and unjustified false allegations made against me, along with the repeated lack of support and proper follow-up when I sought assistance on other matters.

It has become evident that the environment at Anglicare has fostered an atmosphere of bullying and harassment, which I believe has been deliberately used to pressure me into resigning. The ongoing stress caused by these circumstances has severely impacted my mental health, and as a result, I can no longer continue in this toxic environment.

I am now left with no choice but to prioritise my well-being and seek further assistance to deal with the emotional and psychological toll this situation has taken on me.

Upon receiving a response to my allegations letter reply, I will assess my options moving forward. I am already seeking guidance from Fair Work and will consider all necessary steps to protect my rights.

I regret that it has come to this, but I trust you will understand that I must step away from this position to safeguard my health and peace of mind.

Thank you for the opportunities I have had while working here. I hope the situation can be resolved fairly for all parties involved."[7]

• [11] The Respondent, not surprisingly, did not respond to the Applicant's responses to the allegations as the Applicant had simultaneously resigned with immediate effect, ending the employment relationship at that point.

• [12] There was some evidence led as to the working environment that the Applicant was involved in. There was evidence provided in the statement of Mr Smith of exposure to "unsafe or highly distressing situations"[8]. Mr Callahan referenced in his statement a lack of essential safety infrastructure, understaffing and unsafe conditions. Mr Callahan also referred to critical safety incidences where there was no communication or debriefing. Further, claims were made that the organisation fostered a culture of fear, poor communication and management practices that relied on intimidation. As stated earlier, the witness statements of Mr Smith and Mr Callahan were admitted. However, their failure to appear to attest to their statements has led me to give them little weight. In any event, Mr Rayner provided comprehensive rebuttal evidence at the hearing to the various claims.[9] That evidence was given under oath, and I prefer the evidence of Mr Rayner.

• [13] The Applicant complained of a lack of follow up to issues she had raised. However, the Applicant conceded that the two incidents she reported were in fact followed up.[10]

• [14] The Applicant had secondary employment which she declared at the interview. During her employment the Respondent asked her to complete a standard 'disclosure of conflict of interest' form. The Applicant feels this was part of a course of conduct aimed at managing her out of the business.

• [15] Section 386 of the Act sets out the meaning of dismissed.

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

• [16] A useful summary of the relevant law was set out by Deputy President Hampton in Tao Yang v SAL HR Services Pty Ltd[11]. Essentially the general principles to be applied in circumstances such as these are well established in case law. An employer is generally able to treat a clear and unambiguous resignation as a resignation. However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise. That is, in some circumstances it may be unreasonable to assume a resignation and accept it immediately. Further, the employer may have a duty to confirm the intention to resign if, they during that time, they are put on notice that the resignation was not intended[12].

• [17] As stated, the general principles to be applied are well settled. Stated succinctly, they include:

• The question as to whether there was a dismissal within the meaning of the Act is a jurisdictional fact that must be established by the Applicant;
• A termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it "forced" the resignation;
• The employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
• Conduct includes an omission;
• Resignations that are clear and unambiguous may be treated on face value unless special circumstances are present which warrant the employer confirming the intention of the employee;
• Considerable caution should be exercised in treating a resignation as other than voluntary (forced) 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; and
• In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the parties' conduct is required.

• [18] I agree with those principles and will apply them here so far as they are relevant.

• [19] The Applicant submits that her resignation was compelled by the employer's conduct including:

• The failure to provide a psychologically safe working environment,
• Persistent bullying and harassment,
• Failure to approve leave entitlements as outline under the applicable Enterprise Agreement, and

• • a sustained course of conduct that made her continued employment untenable.[13]

• [20] Dealing first with the claim that there was a failure to provide a psychologically safe work environment, the evidence does not support that claim. I prefer the sworn evidence of Mr Rayner over the claims made in the witness statements of Mr Callahan and Mr Smith. Mr Rayner's evidence included that:

• The Respondent was not made aware of any significant safety concerns;
• He disagreed other staff had left because of unsafe conditions;
• There was an incident management system where incidents can be reported and responded to; and

• • Issues had been raised about issues such more open planned office space and lighting and related matters but not safety incidents.[14]

• [21] Further, Mr Rayner noted that the Applicant had reported two incidents of client abuse and that these incidents were in fact followed up by management. The Applicant accepted that these incidents were followed up by management.[15]

• [22] The Applicant did not disclose her PTSD to the employer prior to commencing employment answering "no" to the question does she have any former or current psychological conditions. Had she done so, the evidence of Mr Rayner was to the effect that the employer could have considered additional support or reasonable adjustments. Having not been made aware of the Applicant's psychological condition, the expectation on the employer to make any reasonable adjustments to support the Applicant at work is untenable.

• [23] The evidence does not support a finding that the Respondent had failed to provide a psychologically safe working environment. Further, the claims of the Applicant that she was unaware that her role would involve dealing with victims of domestic violence is not credible given the reference in the position description.

• [24] Dealing with the claims of persistent bullying and harassment, there is no evidence that this occurred. The Applicant made no complaints about bullying and harassment while she was employed. The employer did raise allegations of misconduct with the Applicant and gave her an opportunity to respond. The evidence of Mr Rayner is that these allegations were raised promptly with the Applicant once the employer became aware of them. The Applicant was given an opportunity to respond to the allegations. The employer had an obligation to raise the allegations of improper conduct with the Applicant and the Applicant should have, as was the case here, been given an opportunity to respond to the claims. I am not satisfied that the Respondent has engaged in bullying and/or harassment of the Applicant.

• [25] Asking an employee to complete a conflict of interest declaration is a routine matter and is not evidence of conduct from the employer to make the Applicants' employment untenable.

• [26] As to the leave entitlements issue, there was some delay with the approval of that leave. However, the leave was ultimately approved, and the Applicant was aware that it was approved before she resigned.[16] As the leave was approved and the Applicant was aware of that fact, it does not support a finding that the Applicant had no choice but to resign.

• [27] What has occurred is that allegations as to the conduct of the Applicant have been made and the Applicant was given a chance to respond to those allegations. The Applicant did respond but at the same time resigned from her employment. The employer at no stage indicated that it had reached a decision that they were going to terminate her employment. Rather than having no real choice but resign, the Applicant could have waited for the employer to respond to the responses she had provided to the allegations. If the employer was satisfied with the Applicant's responses, the employment relationship may well have continued. However, the Applicant resigned on her own initiative. There is no evidence that the employer has taken action with an intent to bring the employment relationship to an end or that has that probable result.

• [28] For the reasons stated above I am not satisfied that there was a termination at the initiative of the employer, nor am I satisfied that the Applicant was forced to resign because of conduct, or a course of conduct engaged in by the employer. Therefore, I'm not satisfied the Applicant was dismissed within the meaning of s.386 of the Act.

• [29] The jurisdictional objection is upheld, and the application is dismissed.

• [30] An order[17] to this effect is issued in conjunction with the publication of this decision.

[1] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd [2020] FWCFB 5365).

[2] Digital Hearing Book (DHB), page 20.

[11] [2023] FWC 1325, [50].

[12] Ngo v Link Printing Pty Ltd (1999) 94 IR 375 at [12].

[17] PR787292.

Printed by authority of the Commonwealth Government Printer