Fair Work Act 2009

s.365 - General protections

City Of Greater Dandenong, Jacqui Weatherill, Sanjay Manivasagasivam, Greater Dandenong Councillors

Application to deal with contraventions involving dismissal - jurisdictional objection - was the Applicant dismissed - Applicant not dismissed - application dismissed for want of jurisdiction

• [1] Mr Darren Wilson was employed by the City of Greater Dandenong from November 2002 to when he resigned on Friday 21 February 2025. Mr Wilson has applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth) alleging that CGD dismissed him in contravention of Part 3-1 of the Act. Mr Wilson has also joined several employees and councillors of CGD as respondents to the matter (collectively the Respondents). The Respondents object to Mr Wilson's application. They say he was not dismissed.

• [2] Before Mr Wilson's application can proceed, I must determine whether he was dismissed. In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court held that where there is a question over jurisdiction - as is the case here - the Commission must determine the jurisdictional issue before exercising its powers under s 368 of the Act.[2]

• [3] I conducted a hearing to hear evidence on this jurisdictional issue on Tuesday 24 June 2025. Mr Wilson represented himself and gave evidence in support of his case. Given the large number of Respondents and the volume of material in this matter, I granted permission for the Respondents to be represented by Mr J Francis of Counsel. The Respondents called Ms Belinda Ayres (CGD People and Change Lead); Mr Brett Jackson (CGD Manager of Strategic and Environmental Planning); and Ms Bronwyn Duffus (CGD Return to Work and Injury Management Consultant) to give evidence.

• [4] Having heard from the parties, I find that Mr Wilson was not dismissed.

• [5] My detailed reasons for my decision follow.

2. What were the events that led to the end of the employment relationship?

• [6] During Mr Wilson's employment, he reported to a Team Leader, who I will refer to as 'Ms A'. [3] Ms A reported to a Coordinator, who I will refer to as 'Ms B'. Much of Mr Wilson's grievances in this matter centre on Ms B. Ms B reported to Mr Jackson in his role as Manager of Strategic and Environmental Planning. Mr Jackson reports to the Executive Director of City Futures.

• [7] Mr Wilson's issues with CGD and other CGD employees regarding poor treatment date back to at least 2013. Mr Wilson submitted lengthy documentation detailing his grievances in explicit and repetitive detail. There was also significant material regarding many messages and conversations between Mr Wilson and his former work colleagues. I acknowledge the significance of the material to Mr Wilson and the impact it has had on his life. However, with respect, not all of it was relevant to the question I must determine. I do not canvas everything that Mr Wilson raised; however, I have carefully read and considered Mr Wilson's material and evidence.

• [8] Mr Wilson cited the following incidents during this time period:

• (a) In 2013, his manager at the time told him that he would not fare well working in a consultancy as he was 'too slow'. Ms B agreed with the manager.[4] Ms B repeated this comment at some point in 2014.[5]

• (b) In 2013, Mr Wilson applied for seven weeks' leave due to a family health emergency. This application was denied, and he was only granted three weeks' leave.[6]

• (c) In 2014, Mr Wilson had a meeting with Ms B and a mentor from a leadership training course. During this meeting, it came up that an area Mr Wilson could improve in was reducing the amount of time spent on personal calls. Mr Wilson reacted angrily, as he had been spending more time on personal calls due to personal issues at home.[7]

• [9] Mr Wilson did not raise issues about these comments with anyone at the time.

• [10] On Tuesday 17 May 2022, Mr Wilson and Ms B had an online meeting. Mr Wilson's account is that Ms B repeatedly asked him questions about his work without allowing him to give a detailed response and constantly interrupted him. Mr Wilson also said that this 'brought out the memories and trauma' from his past with her.[8]

• [11] In July 2022, CGD ran an anonymous staff survey to measure staff satisfaction. Mr Wilson indicated in the survey that he felt unsafe due to workplace bullying.[9] A consistent refrain throughout Mr Wilson's materials is that he is deeply aggrieved by what he perceives as a lack of follow up from CGD on the survey results.[10]

• [12] Mr Jackson's evidence is that he was not advised of any concerns from the staff satisfaction survey.[11] Managers are only provided overall outcomes scores and are not privy to comments made by staff.[12] Further, that Mr Wilson did not approach him about the staff satisfaction survey between July to September 2022. I accept Mr Jackson's evidence.

• [13] In October 2022, Mr Jackson and Mr Wilson met following a restructure of the department. Mr Jackson's evidence is this was the first time that Mr Wilson raised issues about Ms B with him.[13] Mr Jackson said that he asked Mr Wilson for more information about his issues with Ms B, but Mr Wilson declined as he was concerned that it would have a detrimental impact on Ms B if raised with her. Mr Jackson further said that Mr Wilson did not provide examples of his issues with Ms B or mention bullying, but that Mr Wilson had spoken to another co-worker, 'Mr C', who also had issues with Ms B's leadership.[14] Mr Wilson's account of this meeting is largely consistent with Mr Jackson's recollection.

• [14] Mr Jackson's evidence is that he then spoke with Mr C. Mr C told Mr Jackson he felt like he was lacking autonomy and clear direction from Ms B but did not provide any further detail.[15] Mr Jackson spoke with the rest of the team, and no one else raised concerns about Ms B.[16]

• [15] Following these conversations Mr Jackson decided to develop a leadership program for the team and told Mr Wilson about this. Due to presenter availability, this did not come together until March 2023. Mr Wilson told the presenter that there had been some concerns raised about leadership styles.[17]

• [16] Mr Wilson went on leave from Monday 19 December 2022 until February 2023.

• [17] From February to August 2023, Mr Wilson largely worked from home. Mr Wilson said this was due to his anxiety about work and dealing with family matters.[18]

• [18] On Tuesday 7 February 2023, Mr Wilson attended an online meeting with his team. Mr Wilson joined the meeting before the start time, then took a call from his wife, which the rest of the meeting participants could hear. Ms B commented that Mr Wilson was unprofessional for taking the call at that time. [19]

• [19] On Thursday 9 February 2023, Mr Wilson sent Mr Jackson a Microsoft Teams message about the Tuesday 7 February meeting. Mr Wilson explained that he took the call as the meeting was yet to start and he had distressing personal events occurring at home.[20]

I'm raising this - after her bullying behaviour towards [Mr C] made him leave, and which we both discussed with you. I thought [Ms B's] behaviour might start to change. I've deliberately had very little contact with her since - I just wanted to avoid her at the moment for my own self preservation - but when I have spoken to her - she seemed positive - so I thought things had changed - she may have got the message. Now I'm not so sure!

But her comments on Tuesday - at the time took me straight back to the time when we had sold our house and [his wife's] dad had been diagnosed with cancer, and only had a few months to live. I had asked for extended leave - but it was rejected by [Ms B] - I was only permitted to take three weeks - not the not the 6 weeks I had requested. And then - due to having to deal with [his wife's] dad, selling the house (& difficulties with the conveyancing/settlement), I was then criticised by [Ms B] in front of my Leadership Mentor for taking too many calls at work!! Absolutely no empathy towards the feelings of others - which was on display again on Tuesday. I have explained this particular issue to you as part of my broader discussions with you last year about [Ms B's] poor management style - which includes bullying behaviour - and is the reason [Mr C] left, a factor that Emma was more than frustrated with when she left last year as well but she felt she was managing (but as Emma said - it still had effects on her self confidence) and a contributing factor in why Ed left as well.

I'm going to call out her behaviour from now on - as I don't need her poor interpersonal & leadership/management skills to affect my health and wellbeing anymore. I will also do it because I'm also very concerned for the new staff that will be working directly under her.

• [21] Mr Jackson's evidence is that this was the first time Mr Wilson told him that Ms B had bullied him. I accept this evidence. Mr Jackson rang Mr Wilson on Thursday 9 February 2023 after reading the message, and the two agreed to speak about the matter later as Mr Wilson was busy.

• [22] On Monday 13 February 2023, Mr Jackson and Mr Wilson spoke further about Mr Wilson's message. Mr Jackson's account is that Mr Wilson was emotional, and he had difficulty understanding Mr Wilson's specific concerns.

• [23] During this phone call, Mr Wilson spoke of his issues about how Ms B had handled a meeting in 2022 and the Tuesday 7 February 2023 meeting. Mr Wilson further relayed to Mr Jackson that other staff had concerns about Ms B, including people who had left due to Ms B according to Mr Wilson. Mr Wilson also cited issues such as Ms B not responding to emails.

• [24] Mr Jackson's account is that he told Mr Wilson that prior to Thursday 9 February 2023, Mr Wilson had only raised high-level concerns regarding Ms B's leadership style; had not suggested bullying was involved; had not provided examples of problematic behaviour; had directly requested that Mr Jackson not speak to Ms B about the concerns; and had been happy with the leadership program. Mr Wilson said he wanted to meet with the Executive Director to discuss the matter and was taking the rest of the week off. Mr Jackson agreed with Mr Wilson.[21]

• [25] On Tuesday 14 February 2023, Mr Wilson sought advice from a union delegate. The union delegate informed Mr Wilson that the anonymous survey was not the appropriate way to raise issues of bullying and that any bullying complaints should be raised under the CGD formal complaints procedure.[22] Mr Wilson's response was effectively that he did not gave faith in CGD's formal processes, and they were therefore not fit for purpose.[23]

• [26] On Monday 20 February 2023, Mr Wilson met with the Executive Director and Mr Jackson. According to Mr Wilson, the meeting did not go well. Mr Wilson's account is that the Executive Director barely spoke to him and that Mr Jackson constantly looked at his watch after arriving late to the meeting. Mr Wilson read from a prepared written statement detailing Ms B's actions and how they made him feel. Before he finished, the Executive Director closed his book and said, 'ok, I've heard enough, this just sounds like miscommunication to me'. Mr Wilson said that he became frustrated and emotional and spoke to the broader issues across the council regarding his coordinator's management style.[24] The meeting ended with the Executive Director and Mr Jackson agreeing to discuss the matter further with CGD human resources to work out a plan of action.[25]

• [27] Mr Jackson's account of the meeting is that Mr Wilson spoke about a particular project and Ms B's comment at the Tuesday 7 February 2023 meeting. Mr Wilson said that other staff had issues with Ms B and gave examples from approximately 2016 regarding a former manager. The Executive Director said he would speak to someone in Organisational Development (CGD's human resources) and would discuss the matter with Mr Jackson to come up with a plan moving forward. The Executive Director told Mr Wilson that he would still have to work with Ms B in the meantime, which made Mr Wilson upset. Mr Wilson said he would resign.[26]

• [28] I prefer Mr Jackson's account of the meeting. For reasons I detail later in this decision, I found that Mr Wilson was not a reliable narrator due to how his emotions coloured his evidence.

• [29] The Executive Director later told Mr Jackson that he had spoken to 'Mr D', the then Manager of People and Change in Organisational Development, and Mr D would speak directly with Mr Wilson. On Wednesday 1 March 2023, Mr Jackson sent Mr Wilson a Teams message to arrange a meeting with him and Mr D.[27] One of Mr Wilson's grievances is that he was made to wait for Mr Jackson telling him of this meeting, despite it only being seven working days after his meeting with Mr Jackson and the Executive Director.[28]

• [30] On Monday 20 March 2023, Mr Wilson sent Mr Jackson a lengthy Teams message which included the following:[29]

'Morning Brett - I just wanted to let you know that while I'm clearly frustrated at the moment - you have shown a lot of empathy towards me and the situation - so I wanted to say thank you.

This has been going on for me for 9 months now - and my key frustration is with the current system - and its lack of ability to respond to bullying issues. I raised it via the McArthur's survey - as its anonymous - and is focussed on asking out level of satisfaction - including feelings of safety in the workplace. To have submitted that 2 pager outlining my concerns (with no identifying details) - I thought would have helped inform [Executive Director] and you of the background issues (without specific knowledge of who) while I informed you of limited details separately. With you having both pieces of information - you would have a fuller picture - rather than the cryptic information I was giving you so it didn't have to be formally raised by you. As I've said from the start - things need to change - but I'm also concerned about [Ms B's] wellbeing as well.

1. The McArthurs survey is not 'the appropriate way to report bullying' - which I find incredulous as it specifically asks if I feel safe - and then provides space for comments.
2. That the procedure for a comment raised in the McArthurs survey is to provide to the executive only - and this procedure wasn't followed - as both [Executive Director] and [Mr D] said they haven't seen the 2 pager - not just even more incredulous - but particularly galling. I will be seeking information on how this failure occurred.

• [31] On Tuesday 21 March 2023 and Monday 17 April 2023, Mr Wilson spoke with Mr D. Mr Wilson relayed his grievances with Ms B and CGD's handling of his issues. Following these meetings, Mr Wilson agreed to participate in a mediation process with Ms B, though Mr Wilson says he felt he had no choice but to do so.[30]

• [32] Mr Wilson met with the Executive Director on Wednesday 29 March 2023. Mr Wilson said it was a calmer meeting, and they further discussed Mr Wilson's concerns.[31] In April 2023, Mr Wilson changed his mind about participating in a mediation process, as he was aggrieved that CGD was not formally investigating his concerns.[32]

• [33] In May 2023, Mr Wilson met with a law firm for advice on his situation. Mr Wilson had reached the decision to resign from CGD.[33] However, Mr Wilson changed his mind after speaking with friends. Mr Wilson decided to engage in the mediation process.[34] The mediation was conducted by a third-party facilitator on Thursday 3 August 2023. Mr Wilson's evidence is that it was '...cathartic for me as I was able to bring up the past issues and have my voice heard. I was satisfied as much as I could be with that initial meeting'.[35] There was a second mediation meeting on Monday 21 August 2023.

• [34] The facilitator sent an email to Mr D after the mediation process. It states that Mr Wilson found the process cathartic and that he felt he was now able to move forward from the concerns raised. Further, that Ms B was receptive to the feedback and demonstrated real self-awareness. Both Mr Wilson and Ms B agreed to not document any outcomes and that they both wanted to move forward positively.[36]

• [35] Mr Wilson's evidence is that on the morning of Monday 21 August 2023, he met a new CGD employee who also reported to Ms B. Mr Wilson asked this new employee how he was finding CGD and the employee replied that it was great, but he found Ms B to be 'a closed book'. By Mr Wilson's own evidence, this comment sent Mr Wilson on an emotional spiral.[37]

• [36] On Wednesday 8 November 2023, Mr Jackson made the decision that he wanted Ms A as the Team Leader to manage a finance project. Mr Jackson's evidence is that it was a time sensitive project with 'political overlays', and so it warranted Ms A taking the lead, with Mr Wilson providing support as a staff member.

• [37] When Mr Jackson informed Mr Wilson of this decision, Mr Wilson took it poorly. Mr Jackson said Mr Wilson accused him of not trusting him, and Mr Wilson did not accept Mr Jackson's reasons for his decision.[38] Mr Wilson's evidence is that Mr Jackson said he wanted Ms A to manage the project on the basis there needed to be delicate communications with another CGD team. Mr Wilson took this as a slight against his abilities and was offended at what he saw as a double standard compared to how CGD dealt with his issues with Ms B.[39] The two accounts of the conversation are not incompatible.

• [38] Mr Wilson left work that day and was certified unfit for work because of his mental health condition.[40]

• [39] On Friday 17 November 2023, Mr Wilson sent Ms A a lengthy message on teams that explained he was applying for sick leave and that he was deeply aggrieved about Mr Jackson's decision to have her manage the project. Mr Wilson also detailed his view that Mr Jackson had protected Ms B despite his complaints about her and asked Ms A to show the message to Mr Jackson.[41]

'Writing this my chest begins to tighten, it's hurting now and my heart is racing and I'm struggling again.

As such - my work will be limited to what I feel capable of. Please tell Brett not to contact me again next week - just the thought of speaking to him brings on the anxiety.

I still keep reliving him saying to me that he has tried to protect me. I still keep waking up at night reliving that conversation. He spent 3 months not saying anything to [Ms B] to protect her - yet no protection for me or [Mr C] after we both reported it - as he didn't say anything to stop her behaviour. He spent another 5 months not saying anything again. And when I raised Leanne's concerns - he told me it had nothing to do with my issues with [Ms B] - again - [Ms B] being protected - no protection for me or others who work under her and are clearly upset by her inappropriate workplace management skills. Unless he can acknowledge his efforts to 'try and protect me' were not adequate - I don't see how anything I can say to him will change his mind. It is futile for me to speak to him. I have numerous conversations with him - and no action was taken - until medication occurred - a year after [Mr C] first raised his concerns.

• [41] After Ms A showed Mr Wilson's message to Mr Jackson, Mr Jackson emailed Organisational Development with his concerns about Mr Wilson's health and wellbeing. Mr Jackson sought advice and assistance on what CGD could do to check in with Mr Wilson.[42]

• [42] On Monday 4 December 2025, Mr Wilson met with Ms A and Mr Jackson. Mr Jackson's account is that Mr Wilson asked him to speak first. Mr Jackson re-explained his decision regarding Ms A leading the finance project. Mr Wilson agreed that it was an operational decision and that Mr Jackson could make that decision.[43]

• [43] Mr Jackson's evidence is that Mr Wilson then brought up that there were many historic issues with Mr B, and Mr Wilson wanted Mr Jackson to say he did not protect Mr Wilson. Mr Jackson disagreed with this and told Mr Wilson that he had constantly supported him and followed advice from Organisational Development.

• [44] Mr Jackson's evidence is that Mr Wilson started to yell and swear at him. Mr Jackson recalled Mr Wilson saying things such as, 'are you fucking kidding me' and 'how would you feel if your wife or son was bullied'. Mr Wilson and Mr Jackson also disagreed over the steps that Mr Jackson had taken and how long some of the steps had taken.[44]

• [45] When Mr Jackson asked Mr Wilson where he would like to go from the meeting, Mr Wilson stormed off and said CGD would be hit with a WorkCover Claim.[45] I accept Mr Jackson's account of this meeting.

2.4 2023 - 2024: Mr Wilson's workers' compensation claim

• [46] On Monday 4 December 2023, Mr Wilson called Ms Duffus. Ms Duffus' notes of the phone call detail that Mr Wilson advised he was feeling stressed and depressed due to years of bullying from Ms B; and described how it had affected him. Mr Wilson asked how to make a WorkCover Claim, which Ms Duffus explained to him. Mr Wilson submitted a WorkCover claim later that day.[46]

• [47] Over December 2023 and January 2024, Ms Duffus and Mr Wilson communicated via email regarding Mr Wilson's incapacity for work and his claim. Ms Duffus reminded him on Tuesday 5 December 2023 and Wednesday 10 January 2024 not to perform any work, including checking and forwarding emails.[47]

• [48] On Thursday 11 January 2024, Ms Duffus spoke with Mr Wilson. Her notes of the phone call are that Mr Wilson had not ruled out returning to CGD, and Ms Duffus advised him that he would need to have capacity to explore this as currently both his GP and the independent medical examiner had indicated he did not have capacity for work at CGD or any other employer.[48]

• [49] In March 2024, Ms Duffus corresponded with the Return-to-Work Specialist at DXC - CGD's insurer - who informed Ms Duffus that Mr Wilson had indicated he wished to find new employment.[49]

• [50] In December 2024, Ms Duffus corresponded further with DXC to seek an update on Mr Wilson's Independent Medical Examination report. Ms Duffus received an email from DXC, which included the following extract from the IME:[50]

[Mr Wilson] is not fit for his pre-injury duties with this employer, and I doubt that he could ever return to his preinjury job or management arrangements with this employer, even with further treatment and passage of time.

He does have a current work capacity, for full time work with a new employer. Based on the IME, [the Doctor] is of the opinion [Mr Wilson] has capacity for work at an alternative workplace. As a result, DXC have engaged New Employment Services to assist with finding [Mr Wilson] new employment.'

• [51] On Monday 5 February 2024, Mr Wilson wrote to Ms Duffus to make a formal complaint against CGD and several employees.[51] This complaint was 13 pages long and covered much of the material canvassed in this Decision.[52]

• [52] CGD briefed FCW lawyers, who in turn engaged Ms John to conduct the investigation into Mr Wilson's complaint. Ms John is a self-employed investigator and lawyer. She has conducted prior investigations for CGD.

• [53] Ms John's evidence is that she was first instructed to undertake a desktop review of CGD's systems and processes; determine the bullying and harassment training offering from CGD; and to ascertain who Mr Wilson had made complaints against and the nature of his complaints.[53]

• [54] Ms John met with Mr Wilson on Monday 4 March 2024. This was so Ms John could better understand his complaint about processes and procedures in the context of her desktop review. This meeting went for three hours. During this meeting, Mr Wilson shared with Ms John his view that Mr D - as a manager in Organisational Development - was the cause of issues in CGD's processes.[54] Ms John's evidence is that she realised at this point that Mr D would be a respondent in the investigation, and that the desktop audit was intertwined in Mr Wilson's complaint.[55]

• [55] After this meeting, Ms John liaised with CGD and informed Mr D that as he would be a respondent in the investigation, he would no longer be involved in the organisation of the investigation and that another person in Organisational Development would be her point of contact.[56]

• [56] On Friday 15 March 2024, Ms John emailed Mr Wilson a draft statement based on his complaint for him to review and amend as required. Ms John asked Mr Wilson to clarify aspects of the statement.[57] Mr Wilson emailed back a document titled, 'draft of the allegations'.

• [57] On Friday 22 March 2024, Ms John called Mr Wilson to discuss his draft document. Ms John's evidence is she explained to Mr Wilson that his draft document was not usable for the investigation due to its length (10 pages) and the imprecise nature of the allegations/complaints raised, where Mr Wilson was effectively airing broad grievances rather than identifying individuals and specific failings.[58]

• [58] Ms John's account is that during this phone call, Mr Wilson sought to include issues that were outside the remit of the investigation, such as the resignation of a CGD Director in 2017 that Mr Wilson attributed to Mr D, and the death of a community member that was linked to a Council arborist in 2000. Ms John explained to Mr Wilson that the investigation was limited to his complaint and his experience, and how CGD processes and procedures limited his ability to make a complaint or address his issues.[59]

• [59] Ms John and Mr Wilson were in frequent and fulsome contact over March to July 2024.[60] Ms John's evidence is that Mr Wilson would not accept that the CGD OHS policy and CGD Director resigning in 2017 were outside the scope of the investigation, and that his insistence was delaying the investigation. To progress the investigation, Ms John sought to have the two matters included within the investigation.[61]

• [60] Ms John's evidence is that she spent considerable time with Mr Wilson working on his allegations. This is because Mr Wilson wanted to add information about how he felt, which were not facts or allegations that a respondent could answer. Ms John and Mr Wilson also discussed what could or could not constitute bullying.[62]

• [61] The allegations were finalised in May 2024. Ms John interviewed several witnesses, including witnesses nominated by Mr Wilson. Ms John then sought responses from Ms B, Mr Jackson and Mr D.

• [62] Ms John's evidence is that the witness evidence did not support Mr Wilson's allegations of bullying behaviour against him after February 2023.

• [63] Ms John also reviewed the training that Mr Wilson had undertaken during his employment and CGD policies over time. Ms John reached the view that Mr Wilson could have made complaints in accordance with relevant CGD policies on bullying and appropriate workplace behaviour at multiple points during his employment.[63] Ms John's evidence is that throughout the investigation, she was not able to identify why Mr Wilson felt that CGD policies hampered his ability to make a complaint, or why he was aggrieved by the CGD policies and procedures.

• [64] On 17 July 2024, Ms John informed Mr Wilson of her findings that of the 36 allegations against Ms B, Mr D and Mr Jackson, only one was substantiated, which concerned Ms B's comment about Mr Wilson taking a personal call at the start of the meeting on Tuesday 7 February 2023. Ms John found that it was unreasonable for Ms B to have made that comment in a public forum.[64]

• [65] At the end of the investigation, Ms John relayed to Ms McLagan from FCW Lawyers that through the interview process several staff had expressed concerns about the way Mr Wilson behaved in the workplace, and that his return would adversely affect some of the staff.

• [66] I accept Ms John's account of the investigation process. Her evidence was cogent and not materially challenged during cross-examination.

2.6 2024: Fitness for Duty Assessment and the end of the employment relationship

• [67] On Wednesday 13 November 2024, the new Executive Director wrote to Mr Wilson directing him to attend an IME with Dr Schutz - a psychiatrist - on Tuesday 19 November 2024. This was on the basis that Mr Wilson '[had] been unable to perform [his] pre-injury duties despite lengthy rehabilitation since 8 November 2023'.

• [68] Mr Wilson confirmed he would attend the IME but also took strong exception to the Executive Director's words about the use of personal records and how they may have been used to make negative assumptions about his ability to return to work.[65]

• [69] On Thursday 14 November 2024, Ms Duffus drafted a letter on the Executive Director's account to ask Dr Schutz to assess Mr Wilson's fitness for work.

• [70] The letter provided the following information:[66]
  • Mr Wilson's position description.
  • Mr Wilson had made a 'complaint' in October 2022 about Ms B's communication style, and that Mr Wilson had explicitly said he did not with for the matter to be raised with Ms B or for any formal action to be taken.
  • In February 2023, Mr Wilson became upset after Ms B made a comment about him taking a personal phone call during a team meeting. This response was 'highly and unusually emotive to what was an otherwise innocuous, but fair comment'.
  • There was a facilitated mediation process between Mr Wilson and Ms B that had a successful outcome.
  • Mr Wilson did not raise any further issues about Ms B after this.
  • In November 2023, Mr Wilson reacted poorly to Mr Jackson's decision regarding the finance project. CGD considered this reaction to be 'unexpected and an over-reaction, bordering on being irrational'.
  • Mr Wilson ceased attending work on Wednesday 8 November 2023 and has been diagnosed with PTSD due to work related stress and anxiety.
  • Mr Wilson made a bullying complaint against several staff, which were investigated by an external investigator. Of the 36 allegations made, only one was substantiated.
  • Details regarding stressors in Mr Wilson's personal life.

• [71] The letter asked Dr Shutz to assess Mr Wilson and to provide an opinion on whether Mr Wilson was fit to undertake the inherent requirements of his role as a full-time employee now or in the foreseeable future. Further, whether there were any reasonable adjustments that could be made to enable Mr Wilson to carry out the inherent requirements of his role.

• [72] On Saturday 16 November 2024, Mr Wilson sent the following email to the Executive Director:[67]

'This direction from Council has been extremely triggering.

I first raised these allegations against [Ms B] via a staff satisfaction survey, and I was not alone in providing a low score for feeling unsafe at work. My colleague and I both reported these allegations to Brett. [Ms B] was not informed of my allegations until I finally agreed to mediation - as [Ms B] had not been informed of my complaint until just before the mediation took place. [Ms B] asked why it had taken so long to be informed.

I spent around 5 months working from home - as I did not feel safe to return to work.

And then finally I was removed from a project because I might affect someone's health and wellbeing, six months out from the project even commencing.

Yet when I made my formal complaint - despite significant witness, messages and contemporaneous notes, my allegations were not able to be substantiated.

So I have been the victim, and my complaint was not handled appropriately. I would have to return to a work environment where my concerns have been dismissed as a result of the investigation - which I have very strong concerns about. My coordinator and manager are still in their roles. They have not apologised for their actions. And yet I have been directed to have my fitness for duty assessed - as you claim that despite extensive rehabilitation- I have not returned to work.

This continued dismissal of my concerns and lack of appropriate responses by council has been extremely triggering - again affecting my health and wellbeing.

As such - I formally am requesting a copy of the investigation report. I have the legal right to request it.

A worker who's rights have been trampled on - and against all the council's REACH principles we are supposed to follow - but which do not apply to Council itself.

• [73] On Monday 18 November 2024, Mr D replied to Mr Wilson. This email provided in summary:[68]
  • As Mr Wilson had been unable to perform his pre-injury duties since November 2023 and his treating doctor had been assisting him to return to work, this constituted a lengthy period of rehabilitation.
  • Mr Wilson's complaint had been investigated by an external professional and the allegations had not been substantiated. Further, Mr Wilson did not have a legal right to view the report.
  • A copy of the letter provided to Dr Schutz regarding the request to assess Mr Wilson.
  • The information provided to Dr Shutz regarding Mr Wilson's personal issues was disclosed by Mr Wilson during his employment.

• [74] On Tuesday 19 November 2024, Mr Wilson attended the medical examination with Dr Shutz.

• [75] On Wednesday 20 November 2024, Mr Wilson wrote to the Executive Director. This email conveyed Mr Wilson's strong grievances with the IME process. Relevantly, the email stated:[69]

1. I did highlight to Dr Schutz that I strongly felt your referral letter clearly misrepresented what has occurred for me to be in this current state as a result of my workplace that Council provided, and aggravated by the repeated failure to respond appropriately through my various forms of complaint. I did prepare a detailed analysis of where I felt the referral letter provided by you clearly misrepresented what occurred. I offered this to Dr Schutz, but he said he wouldn't take it.

1. I also informed Dr Shutz that as a result of this continued failure of Council to provide procedural fairness and deny my natural rights has again triggered and escalated the impact of this whole episode on my mental health. I alerted Dr Schutz that the way in which you have handled this matter had resulted in me only having 1.5 hrs sleep the night before (as recorded by my Apple Watch), and while in the waiting room and upon entering his room, I was receiving alerts from my watch alerting me to high resting heart rates. The manner in which you have dealt with this issue, as outlined above for example, clearly placed me in an agitated position for this assessment.

As I feel that these factors as outlined above will have a material and foreseeable [e]ffect on the outcomes of this assessment, can you please inform me how you will address my concerns with regards to the misrepresentation of the facts and denial of procedural fairness to me that has affected my ability to receive natural justice as part of this assessment process.'

• [76] On Friday 7 February 2025, the Executive Director sent the following letter to Mr Wilson:[70]

Thank you for attending the Independent Medical Examination arranged with psychiatrist Dr Schutz on 19 November 2024. Please find enclosed a copy of the report provided by Dr Schutz. The report is password protected and will require your date of birth to access the report.

As you are aware, Council have sought the independent medical examination to determine whether or not you are medically fit to perform the inherent requirements of your pre-injury duties as an Environmental Planner (role).

Within the medical report, it is Dr Schutz's medical opinion that

'Mr Wilson is very unlikely to achieve any capacity to return to any employment with Council on a part time or full time basis for the foreseeable future and that there are no reasonable adjustments which would enable Mr Wilson to undertake the inherent requirements of his roles and hours'.

In relation to next steps, Council is providing you an opportunity to provide any additional information about Council's proposed intention to terminate your employment on the basis of your inability to perform the inherent requirements of your role, including any reasons why your employment should not be terminated.

Council has not yet made any final decision regarding your employment and will carefully consider any response you wish to make before a final decision is made.

We would like to meet with you, if you do not wish to meet in person, a meeting can be arranged via MS Teams. If you could please confirm your preference to either meet in person or via MS Teams by 4pm Wednesday 12 February.

In attendance at this meeting will be Belinda Ayres, People and Change Lead and myself. Please be advised that you are entitled to bring a support person to the meeting.

Alternatively, if you prefer to respond in writing, or respond in writing as well as attending the meeting, then you are required to provide your response no later than the date and time of the scheduled meeting. Should you decide to respond in writing please email your response to me at [redacted].

If you do not provide a written response or attend a meeting, Counsil [sic] will have no choice but to proceed to make a final determination without the benefit of your input.

• [77] On Monday 17 February 2025, Mr Wilson sent a lengthy resignation to the Executive Director and Ms Ayres. Titled, 'Subject: Resignation Under Protest Due to Workplace Treatment, Procedural Concerns and WorkCover Status', Mr Wilson's resignation email provided that:[71]

(a) The resignation was provided 'under protest', as his position, 'has been rendered untenable due to procedural unfairness, adverse action, and systemic governance failures that have significantly impacted my health and well-being'.

(b) The IME was not procedurally fair, and the information provided to Dr Schutz was not accurate. This meant that the misrepresentations in the letter influenced the IME.

(c) His resignation was a direct consequence of CGD's failure to act on workplace bullying complaints.

(d) His resignation was also due in part to CGD's longstanding failure to provide a safe workplace and 'workplace culture governance' issues.

(e) CGD's actions had left him with 'no reasonable alternative but to resign', which he regarded as a constructive dismissal.

• [78] On Friday 21 February 2025, Ms Ayres replied to Mr Wilson accepting his resignation effectively immediately.

• [79] 'Dismissed' is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides:

(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.'

• [80] The definition of dismissal in s 386(1) of the Act has two parts. The first deals with 'termination on the employer's initiative' and the second, 'resignation in circumstances where the person was forced to do so because of conduct or a course of conduct'. These two limbs and how they might apply to a resignation was examined by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli,[72] which noted the following:

• There may be a dismissal within the first limb of s 386(1) where a resignation was made in the 'heat of the moment or when the employee was in such a state of emotional stress or mental confusion that they could not reasonably be conveying a real intention to resign.

• • The test for a 'forced' resignation under the second limb of s 386(1) is whether the employer engaged in the alleged conduct with the intention of ending the employment or whether termination of employment was the probable result of the employer's conduct because the employee had no effective or real choice but to resign. [73]

• [81] Mr Wilson relies on the second limb of s 386(1). He says that he had no choice but to resign for the following reasons:[74]

(a) From July 2022 to February 2025, there were, 'cumulative, compounding and cascading impacts that left me no choice but to resign'.

(b) CGD failed to appropriately manage its OHS and workplace bullying systems.

(c) CGD did not respond appropriately to his response about feeling unsafe in the anonymous staff survey.

(d) CGD failed to follow up on his repeated bullying complaints.

(e) CGD did not ensure compliance with its own policies, regulations and work practices.

(f) He was coerced into participating in the mediation process due to CGD's failure to act on his complaints.

(g) Once he was certified unfit to work, he was ostracised by his colleagues.

(h) The investigation undertaken by Ms John was flawed.

(i) The fitness for duty process was used to facilitate his termination.

(j) CGD failed to consider his mental health.

(k) He had exhausted all possible remedies (both internal and external) without an outcome.

• [82] The Respondents submit that since 2022, Mr Wilson's complaints have been dealt with. This includes arranging training for Ms B; instigating an independent investigation into Mr Wilson's complaints; and managing Mr Wilson's 15-month absence from work. The Respondents say they have not engaged in conduct with the intention of bring the employment relationship to an end or conduct which meant Mr Wilson had no real choice but to resign.

• [83] I find that Mr Wilson was not dismissed. I accept that Mr Wilson has been truly affected by his experience working at CGD and do not doubt the genuineness of his mental health struggles. I also have great sympathy for his personal circumstances, which I have not canvassed in this decision out of respect for his and his family's privacy.

• [84] However, it is clear from Mr Wilson's own evidence that he has strong and disproportionate reactions to perceived slights and stressors. This does not mean that Mr Wilson is lying about how events affected him. However, he was not a reliable narrator. Mr Wilson's evidence of what occurred is affected by how things made him feel, to the point that his account was often disconnected from reality or reason.

• [85] In reaching the view that the Respondents did not dismiss Mr Wilson, I rely on the following findings:

• [86] CGD responded appropriately to the anonymous staff survey: Mr Wilson's difficulty with reasonably assessing events can be clearly seen in Mr Wilson's consistent grievance about how CGD did not follow up his feedback in the anonymous staff survey. Despite Mr Wilson's insistence that CGD didn't do anything, Mr Wilson's own evidence is that his manager told the whole team in a meeting that there were low scores in the survey and said if there were any concerns to raise them. Mr Wilson's evidence is that he didn't respond at that time as it was a public forum,[75] but there was nothing stopping him from accepting the invitation to raise his concerns privately. It is unclear why Mr Wilson does not consider this action from CGD to be a response to the survey and similarly unclear how Mr Wilson envisaged CGD reasonably responding any further given the survey was anonymous.

• [87] Mr Wilson's apparent argument that CGD should have somehow acted on the survey by raising issues with Ms B ignores that doing so would have no foundation of procedural fairness. It would have been entirely unreasonable for CGD to investigate Ms B based on an anonymous staff survey. By Mr Wilson's own evidence, he was also told by his union delegate that the staff survey was not an appropriate vehicle to raise bullying complaints, and yet he maintains that CGD did not respond appropriately to his survey response.

• [88] Mr Jackson responded appropriately to Mr Wilson's concerns: Throughout the evidence of Mr Wilson's communications and even through the hearing for this matter, Mr Wilson alternatively agreed that Mr Jackson had shown empathy and support towards him, but also strongly criticised Mr Jackson for not doing more. I find this to be an unfounded criticism.

• [89] I accept Mr Jackson's evidence in its entirety. Mr Jackson's evidence was cogent and often corroborated by Mr Wilson's own evidence. I accept that the first time Mr Jackson learned that Mr Wilson had issues with Ms B was during their meeting in October 2022, and that Mr Wilson was vague. Further, I accept that Mr Jackson checked in with Mr C based on what Mr Wilson had told him. Mr Jackson's action of developing a leadership program for the team to address leadership styles was appropriate given no formal complaint had been made at that stage.

• [90] When Mr Wilson sent Mr Jackson a Teams message on Thursday 9 February 2023 alleging that Ms B had bullied him and how it had affected him, Mr Jackson rang him to understand the issue. Mr Jackson agreed with Mr Wilson taking time off and meeting with the Executive Director to progress the matter.

• [91] I also found that Mr Jackson's decision to have Ms A lead the finance project was an operational one that was not engaged in with any ulterior motive towards Mr Wilson.

• [92] Mr Wilson was not coerced into the mediation process: Mr Wilson's evidence is that he changed his mind several times about participating in the mediation process, reaching the decision to engage after speaking with friends. By Mr Wilson's own account, the mediation process was 'cathartic', and he felt he could move on. This progress was undone by a mild comment from a co-worker that he found Ms B to be a 'closed book'. I accept that Mr Wilson's reaction to this comment was genuine, but it does not mean it was reasonable or that he was forced to participate in the mediation process.

• [93] The investigation conducted by Ms John was not flawed: I accept Ms John's evidence regarding the efforts she invested to ensure Mr Wilson's complaints were appropriately and fairly investigated. Mr Wilson's contemporaneous correspondence to Ms John supports this. I also accept that Ms John took the appropriate measures to ensure the investigation was procedurally fair, such as taking steps to remove Mr D as a point of contact once she realised that he was a respondent to Mr Wilson's complaint. Whilst I acknowledge that Mr Wilson is aggrieved that his complaints were not substantiated, it does not mean that that the investigation was flawed.

• [94] The IME process was appropriate in the circumstances: Mr Wilson had not attended work for over 12 months at the time of the IME. It was normal for CGD to want to understand whether Mr Wilson could ever return to his pre-injury duties.

• [95] In considering the letter of Thursday 14 November 2024 drafted by Ms Duffus, I find that it is largely a fair representation of Mr Wilson's situation. I agree with Mr Wilson that the comment Ms B made on Tuesday 7 February 2023 regarding him taking a personal phone call could have been conveyed to Dr Schutz without characterising it as an innocuous or fair comment. However overall, I do not find that it prejudiced Dr Schutz's findings about Mr Wilson's fitness for work.

• [96] Notably, though Mr Wilson had strong views about the information CGD provided to Dr G, he did not argue that he was fit to return to work, though he had the opportunity to do so. Mr Wilson's focus was on why he was unfit, rather than disagreeing that he was unable to return to work.

• [97] Mr Wilson had not exhausted all outcomes: Contrary to Mr Wilson's submission, he did have other avenues he could have pursued. Mr Wilson could have responded to the show cause letter. He could have also filed an application to the Commission under the stop-bullying provisions of the Act. Resignation was not the only option available to Mr Wilson.

• [98] Based on the above, I am not satisfied that the Respondents engaged in a course of conduct with the intention of ending Mr Wilson's employment, and I am similarly not satisfied that Mr Wilson had no effective or real choice to resign. Mr Wilson was not dismissed. His application is therefore outside of the general protections' jurisdiction.

• [99] I order that Mr Wilson's application under s 365 of the Act is dismissed.

[1] [2020] FCAFC 152.

[3] Pseudonyms have generally been used in this decision where the individual did not give evidence, and negative commentary has been made about them or attributed to them.

[4] Digital Court Book (DCB) 23 [39].

[11] Witness Statement of Brett Jackson, see DCB (n 4) 230 [4].

[21] Witness Statement of Brett Jackson, see DCB (n 4) 232 [15].

[26] Witness Statement of Brett Jackson, see DCB (n 4) 234 [18]-[20].

[29] Witness Statement of Brett Jackson, see DCB (N 4) 236 [28].

[38] Witness Statement of Brett Jackson, see DCB (n 4) 237 [33].

[41] Witness Statement of Brett Jackson, see DCB (n 4) 237 [35].

[46] Witness Statement of Bronwyn Duffus, see DCB (n 4) 252 [3].

[53] Witness Statement of Sheila John, see DCB (n 4) 334 [4].

[72] [2017] FWCFB 3941.

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