Fair Work Act 2009

s.365 - General protections

General protections applications involving an alleged dismissal - whether applicant was dismissed.

• [1] Ms Porteous has lodged an application pursuant to s 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections dispute involving an alleged dismissal. The Respondents to the dispute are Ms Lauren Mitchell and Mr Aaron Beasley, both directors of Affordable Makeover Pty Ltd trading as Mitchell & Beasley. Ms Porteous was employed by Affordable Makeover in the position of Assistant Property Stylist & Marketing Assistant.

• [2] Ms Porteous contends that she was dismissed in contravention of the general protections provisions in Part 3-1 of the Act. The Respondents raised a jurisdictional objection to the application. They contend that Ms Porteous was not dismissed.

• [3] The Commission must determine whether Ms Porteous was dismissed before it can exercise powers under s 368 of the Act to deal with a dispute about whether Ms Porteous was dismissed in contravention of the general protections.[1]

• [4] On 22 August 2025, I conducted a hearing, by video conference, in relation to whether Ms Porteous was dismissed. Ms Porteous gave evidence at the hearing. The Respondents adduced evidence from Ms Mitchell, Mr Beasley and Ms Paige Jones, a Scheduler employed by Affordable Makeover.

• [5] The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:

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

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

• [6] Ms Porteous denies that she resigned. She contends that she her employment was terminated on her employer's initiative.

• [7] The expression termination "on the employer's initiative" in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment[2] that is brought about by an employer and which is not agreed to by the employee.[3]

• [8] The focus of the inquiry under s 386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[4]

• [9] The question of whether an employment relationship has ceased to exist 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. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.[5]

• [10] On 19 May 2025, Ms Porteous asked for a meeting with Ms Mitchell and Mr Beasley to discuss her role, responsibilities and workload.

• [11] There is a dispute between Ms Porteous and the Respondents as to what was said at the meeting on 19 May 2025. In summary, Ms Porteous contends that:

• Ms Mitchell told her that her role was not working out;

• Ms Mitchell said that she could see that Ms Porteous was not happy;

• Both Ms Mitchell and Mr Beasley said that they did not want to hear what Ms Porteous had to say;

• When asked by Ms Porteous why she was being terminated, Ms Mitchell replied, "underperformance"; and

• Ms Porteous was informed that she could finish out the week if she wished, to which she responded that she felt extremely uncomfortable and would prefer to leave that day. Ms Porteous was then escorted from the building without the opportunity to properly say goodbye to the team or speak further.

• [12] In summary, Ms Mitchell and Mr Beasley contend that:

• Ms Porteous asked for the meeting to hear her request to change her role and job description;

• Ms Mitchell explained at the meeting that because they were a small company they could not provide Ms Porteous with ongoing employment in a different capacity;

• Ms Mitchell could see that Ms Porteous looked agitated, so she asked her if she was happy in her role. Mr Porteous said she was not;

• Ms Mitchell asked Ms Porteous if she wanted to "be here", to which Ms Porteous said she did not want to "work here". Ms Mitchell believed that by this stage of the meeting Ms Porteous's aggressive demeanour had gone and she appeared genuinely relieved that Ms Mitchell had approached the topic;

• Ms Mitchell explained that Ms Porteous could work out the week. Ms Porteous asked if she had to work out the week as she really didn't want to come back to the office. Ms Mitchell said that she wouldn't make her work out the week and would accept her immediate resignation if that is what she wanted to do. Ms Porteous confirmed that she wanted to leave immediately. Ms Mitchell explained that Ms Porteous would need to email her resignation and Ms Porteous agreed to do this when she got home;

• As Mr Beasley got up to leave the meeting, Ms Porteous asked if she could read her notes. Ms Mitchell said it was not necessary because she had already resigned. Ms Mitchell asked Ms Porteous whether she had used ChatGPT to prepare her notes. Ms Porteous confirmed that she had. Mr Beasley said he was not interested in ChatGPT's notes. Ms Porteous then followed Mr Beasley as he left the meeting, shouting "Do you not want to hear why you can't keep your staff". Mr Beasley asked Ms Porteous to leave because she had resigned and her behaviour was aggressive;

• Ms Mitchell ushered Ms Porteous back towards the main office and said she would walk her out. Ms Porteous said Ms Mitchell did not need to do so, but given the unexpected events at the end of the meeting Ms Mitchell wanted to walk Ms Porteous out of the building;

• Ms Mitchell says that the word resignation or reference to Ms Porteous having resigned was mentioned four or five times during the meeting and there was never any mention from Ms Porteous that she was not resigning;

• Shortly after the meeting, Ms Mitchell sent an email to Ms Porteous confirming her resignation and stating that Ms Porteous would be sending through her letter of resignation in writing. At 5:10pm on 19 May 2025, Ms Porteous sent an email in the following terms to Ms Mitchell:

I'm writing to follow up regarding our meeting on Monday, 19th May.

The letter I received refers to my departure as a resignation, however, during the meeting, I was not given the opportunity to present the concerns I had prepared around my workload and responsibilities. Instead, I was told that the role was no longer working out and that my employment would be ending immediately.

To clarify, I did not formally submit a written resignation and do not consider this to have been a voluntary resignation. As such, I would appreciate it if you could please provide the correct documentation acknowledging this as a termination, along with any relevant details around final pay and entitlements.

• Thereafter, numerous emails were exchanged between Ms Porteous and the Respondents about whether she had resigned or been terminated and her entitlements on termination. In those communications Ms Mitchell informed Ms Porteous that if she had not resigned, then it was expected that she would return to work and complete her work duties. Ms Mitchell refused to return to work and asserted that she had been terminated.

• [13] I prefer the evidence given by Ms Mitchell and Mr Beasley over the evidence given by Ms Porteous as to what was said at the meeting on 19 May 2025. First, Ms Mitchell made handwritten notes during the meeting and typed those notes into a document entitled 'Formal Meeting Guidance and Minutes' on the afternoon of 19 May 2025 and the following day.[6] Those contemporaneous notes support Ms Mitchell's version of events. Secondly, the email sent by Ms Mitchell to Ms Porteous shortly after the meeting on 19 May 2025 is consistent with Ms Porteous having resigned in that meeting. Thirdly, Ms Porteous's initial response to that email was to say that she did not "formally submit a written resignation", rather than denying she had resigned or said anything that could be interpreted as a resignation. Fourthly, Ms Mitchell and Mr Beasley were dealing with an important and busy time in their business at the time of their meeting with Ms Porteous on 19 May 2025; they needed her to continue working in the business in the lead up to Housing Industry Association tradeshow on 24 May 2025. It would not have made good business sense to terminate Ms Porteous's employment at that time. This does not mean that termination at the employer's initiative was not possible on 19 May 2025, but it is one contextual matter that makes Ms Porteous's version of events less likely. Fifthly, the evidence given by Ms Mitchell and Mr Beasley about what was said at the meeting on 19 May 2025 was consistent.

• [14] I have not given any weight to what Ms Jones says she overheard from the meeting between Ms Porteous, Ms Mitchell and Mr Beasley on 19 May 2025 or to a conversation which Ms Mitchell says she had with Mr Jordan McCallum, who was Ms Porteous's case manager at Employment Plus, on 26 May 2025. Ms Jones only overheard part of what was said at the meeting on 19 May 2025 and the parts she overheard are not particularly persuasive on the question of whether Ms Porteous resigned or was terminated in that meeting. As to what Mr McCallum allegedly said to Ms Mitchell about his conversation with Ms Porteous, it is hearsay. Mr McCallum was not called to give evidence. He could not be tested in relation to the alleged conversation with Ms Porteous. It would be unfairly prejudicial to give such hearsay evidence any weight in the circumstances of this case.

• [15] A reasonable person in the position of the parties would have understood, based on what was said in the meeting on 19 May 2025, that Ms Porteous's employment with Affordable Makeover came to an end on 19 May 2025. So much is clear from the fact that Ms Porteous said she did not want to "work here", Ms Porteous said she wanted to leave immediately (rather than work out the week) and would email her resignation when she got home, Ms Mitchell escorted Ms Porteous off the work premises, and the word resignation or reference to Ms Porteous having resigned was mentioned four or five times during the meeting and there was never any mention from Ms Porteous that she was not resigning. The fact that Ms Porteous refused to provide a written resignation after the meeting on 19 May 2025 is not determinative. A written resignation is not required to terminate an employment contract or an employment relationship.

• [16] The next question is whether the termination was at the initiative of the employer or at Ms Porteous's initiative. Based on my acceptance of the evidence given by Ms Mitchell and Mr Beasley about what was said during the meeting on 19 May 2025, as summarised above, I am comfortably satisfied that there was no action on the part of Affordable Makeover that was the principal contributing factor which resulted, directly or consequentially, in the termination of Ms Porteous's employment. It was Ms Porteous who asked to have the meeting on 19 May 2025. It was Ms Porteous who said she did not want to "work here" and wanted to leave immediately. It was Ms Porteous who agreed to email her written resignation after she got home. A reasonable person in the position of the parties would have understood that the termination of Ms Porteous's employment was at her initiative.

• [17] In the alternative, even if there could be said to be some doubt about whether, in light of her emotional stress at the time, Ms Porteous could reasonably be understood to have conveyed a real intention to resign in the meeting on 19 May 2025, Affordable Makeover sought to confirm with Ms Porteous after a reasonable time that she genuinely intended to resign.[7] Affordable Makeover offered Ms Porteous the opportunity to return to work and undertake her normal duties if she truly did not wish to resign. Ms Porteous rejected this opportunity and instead asserted that she would not be returning to work in circumstances where she had been informed that her role was "no longer working" and was told she could leave immediately after not being given a chance to speak.[8] I do not accept that Ms Porteous was told in the meeting on 19 May 2025 that her role was "no longer working". I prefer the evidence given by Ms Mitchell and Mr Beasley that Ms Porteous said she no longer wanted to "work here". Ms Porteous was the person who chose to leave work rather than work out her notice period. In addition, it is understandable that Mr Beasley said that he was not interested in ChatGPT's notes, particularly in circumstances where Ms Porteous had already conveyed her resignation.

• [18] For completeness and even though Ms Porteous categorically denied having resigned, I am satisfied on the evidence before the Commission that there was not any conduct, or a course of conduct, engaged in by the employer that forced Ms Porteous to resign.

• [19] For the reasons given, Ms Porteous was not dismissed within the meaning of s 386(1) of the Act. It follows that the Respondents' jurisdictional objection is upheld and Ms Porteous's general protections application must be dismissed.

Ms K Jackson, solicitor, on behalf of the Respondents.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67]

[2] NSW Trains v James [2022] FWCFB 55 at [45]

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

[4] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200

[5] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [45], applying Koutalis v Pollett [2015] FCA 1165; 235 FCR 370 at [43]

[7] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(1)]

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