Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether applicant was dismissed - applicant not dismissed - application dismissed.

• [1] Ms Danika Ilanperuma was employed as a casual employee with The Trustee For Aligned Leisure Trust from 1 July 2024 until she resigned on 5 May 2025. On 25 May 2025, she lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) for the Commission to deal with a general protections dispute involving dismissal, contenzding that her resignation was not voluntary and that she was forced to do so. The respondent disputes that is so, as such, it is necessary to determine whether the applicant was dismissed within the meaning of the Act.

• [2] For the reasons which follow, I find that the applicant chose to resign from her employment and was not forced to do so. As the applicant was not dismissed within the meaning of s.386 of the Act, she is not able to make the general protections involving dismissal application.

• [3] There are two circumstances where a person who resigns from their employment can still be found to have been dismissed by their employer. The first is that a resignation given in the 'heat of the moment' may not be effective to terminate the employment.[1] The second is where "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] Previous cases have considered what is meant by a 'forced resignation'. For example, it has been found that an employer who said to an employee "resign or we'll call in the police"[3] was not a real choice and was, really, a termination of employment by the employer. A critical element is whether, considered objectively, the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination was the probable result, such that the employee had no effective or real choice but to resign. It is the employer's conduct, viewed objectively, that is critical.[4] The onus to prove that a resignation was not voluntary is with the applicant.

• [4] The alleged conduct of the respondent that Ms Illanperuma points to is:

• Retaliation for raising safety concerns and preferential treatment to certain employees, in the form of reducing her shifts, removing Sunday shifts, unjustified roster changes and gossip and rumours about her;

• Procedural unfairness, by holding a 'mediation meeting' on 23 April 2025 without offering the applicant the opportunity to bring a support person and making unsupported hearsay allegations at the meeting; and

• After her resignation, a senior manager was included in a proposed meeting, which was perceived by the applicant as an intimidation tactic and not a genuine attempt at resolution.

• [5] The applicant asserts that her resignation was a direct result of these matters, along with a denial of support and ignored requests for fairness, overlooking the Centrelink requirement she had to meet to work at least 15 hours per week in order to access certain benefits, the lack of meaningful action from management and human resources, and the loss of a safe and supportive community that the applicant had been a part of for many years.

• [6] I am not persuaded that the applicant's concerns are based on any action taken by the respondent with the intention of bringing her employment to an end or that termination was the probable result of the conduct. The respondent has provided credible explanations for each of the concerns raised, and has engaged professionally, politely and consistently with the applicant during the employment.

• [7] It is not disputed that the applicant's shifts were reduced. She was employed on a casual basis across 7 leisure facilities including the Endeavour Hills Leisure Centre (EHLC), which was the applicant's primary place of work. However, she also worked shifts at other facilities operated by the respondent. The respondent took over the contract for the EHLC in July 2024. In the first few months of operating the facility, there were a greater number of available shifts, however the number of available shifts reduced in 2025 as more staff transferred to the EHLC. The applicant was one of 10 employees who worked at the EHLC since the respondent took it over in July 2024. Eight of these, including the applicant, had their shifts reduced in 2025. The applicant had the third greatest number of shifts in the first six months, and after the shift reductions across the board in 2025, continued to have the third greatest number of shifts. The employee that the applicant alleged had been receiving preferential treatment had his shifts reduced to a greater extent than the applicant. The allegation of preferential treatment was also investigated, and disciplinary steps were taken in relation to the employee involved.

• [8] A further specific concern raised by the applicant was two instances of shifts being removed without her consent in March 2025. I accept the respondent's explanation for this that one shift was cancelled because it would have triggered overtime entitlements which the respondent wanted to avoid, and the second because it clashed with a shift starting immediately at a facility 20 kilometres away and was therefore impossible for the applicant to work. As to the removal of Sunday shifts, I am satisfied that this occurred because of a misunderstanding by a supervisor of a text message sent by the applicant which referred to ceasing Sunday shifts (in the context of broader changes to the shifts the applicant would be working). This, like the other concerns raised by the applicant, was not retaliatory action. Her concerns, legitimately raised, were discussed, considered and dealt with. To the extent that the applicant was dissatisfied with how they were dealt with, the option to escalate her concerns was not taken up.

• [9] The applicant initially raised her concerns about safety and preferential treatment with her two supervisors. She subsequently escalated them to the People & Compliance Coordinator in Human Resources. There was considerable communication in meetings and emails between the applicant, two supervisors and the HR employee.

• [10] An informal discussion (described by the applicant as a 'mediation meeting' was held on 23 April 2025 between the applicant, her two supervisors and the People & Compliance Coordinator to discuss her concerns and to also raise concerns about the applicant's conduct. The outcome of the discussion was generally positive, and the two supervisors agreed to review the applicant's roster for the following month, however, the applicant resigned before that occurred. The applicant's complaint that she was not offered a support person is misconceived as it was not a disciplinary meeting.

• [11] As evidenced by her resignation, the applicant was dissatisfied with the way her concerns were addressed. However, assessed objectively, other options were available to her. The respondent's grievance policy provides for grievances to be dealt with at escalating levels throughout the organisation. The policy includes options for an employee who is not satisfied with how their grievance has been dealt with to escalate it to the Leisure Manager, the People & Culture Manager, and up to the CEO. However, the applicant did not avail herself of these options. Her explanation for not doing so was that she felt that after a 'mediation meeting' held on 23 April 2025, a further concerning incident occurred on 30 April 2025. This involved the applicant being locked out of an IT system. However, I accept the respondent's evidence that access to the system was blocked temporarily for security reasons because there had been several suspicious access attempts, and that her supervisor was arranging access to be restored. After this incident, the applicant felt her mental health would have deteriorated further and that she could not keep working whilst waiting for further meetings with more senior management. She also did not feel that it was feasible to take time off until her issues were resolved, because that would mean she would have no income.

• [12] Whilst subjectively the applicant may have believed she had no choice but to resign, viewed objectively, other options, such as utilising the grievance procedure to escalate her concerns, were available alternatives. Her explanation that she could neither continue working nor take time off while her concerns were being addressed is, objectively considered, not reasonable. While taking time off whilst escalating her concerns would have resulted in loss of income, resigning had the same result. I am also not persuaded that she could not continue working beyond 5 May 2025 because of the impact on her mental health. The applicant provided a letter from her treating psychologist in support of her case. The letter relays that the applicant discussed her concerns about her work during two consultations in July 2024. The next consultation was in February 2025, where the applicant reported that the work situation had worsened, and in April 2025 she reported that she had decided to end her employment as it was no longer tenable. The letter reports that the job distress was resulting in symptoms of depression and anxiety and causing issues to the applicant's mood, sleep, motivation and overall functioning and worldview. Whilst I accept that the applicant was distressed and anxious by her perception of what had been occurring at work, the psychologist's letter essentially reflects what the applicant reported to her during consultations. It does not rise high enough to constitute medical evidence that the applicant had no choice but to resign because of the impact on her mental health.

• [13] I also accept the evidence of Mr Lamborn, the People & Culture Manager, that the respondent had no intention to bring about the end of the applicant's employment. His evidence is consistent with the email communication between the parties that was consistently polite and demonstrated concern for the applicant and the issues she raised. Further, the respondent did not immediately accept or process her resignation and was concerned it may have been made in the heat of the moment. Instead, the respondent invited the applicant to discuss her resignation and any concerns she had. The communications expressly stated that the respondent wanted to "talk through and see if there's anything we might be able to address that might help you consider remaining employed before your final decision is confirmed." These communications are entirely inconsistent with the respondent wanting to bring the applicant's employment to an end. The applicant initially responded positively to the outreach, and there were proposals from both parties to arrange to meet. However, the applicant ceased responding to the respondent's email, telephone and voicemail attempts to arrange.

• [14] The evidence does not support a finding that Ms Ilanperuma was forced to resign from her employment because of the respondent's conduct. Other reasonable choices were available to her. She could have remained in her employment and utilised the grievance policy. At no point has the respondent taken any action intended to bring the employment relationship to an end or action that would have that probable result. Indeed, the respondent took considerable steps to encourage the applicant to continue in her employment.

• [15] Ms Ilanperuma was not dismissed within the meaning of s.386 of the Act and therefore is not able to make the general protections application.

1. I order that the application, C2025/4875, made by Danika Ilanperuma be dismissed.

[2] s.386(1)

[3] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; [1995] 62 IR 200.

[4] Bupa v Tavassoli [2017] FWCFB 3941 at [47].

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