Fair Work Commission|2025-05-01

Emily Graham v Atc Work Smart Inc. [2025] FWC 1209 (1 May 2025)

s 365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection that there was no dismissal - Applicant dismissed

[1] On 25 February 2025, Ms Emily Graham (the Applicant) lodged a general protections application under s 365 of the Fair Work Act 2009 (Cth) (the Act) against Atc Work Smart Inc. (the Respondent) alleging that on 6 February 2025 she was dismissed from the Respondent in contravention of the general protections provisions of the Act.

[2] The Respondent raised a jurisdictional objection to the application on the basis that the Applicant had not been dismissed within the meaning of s 386 of the Act but had resigned from her employment of her own volition.

[3] The Respondent's objection therefore has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[1] Section 365 relevantly provides:

365 Application for the FWC to deal with a dismissal dispute

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

[4] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[2] Therefore, the discrete issue for determination is whether the Applicant was 'dismissed' from her employment within the meaning of s 386(1)(a) and/or (b) of the Act. It would appear uncontroversial that the word 'dismissed' as referred to in s 365 of the Act, takes its meaning from ss 12 and 386 of the Act.[3]

[5] In light of the factual dispute over whether the Applicant was or was not dismissed, the matter proceeded to hearing on 22 February 2025. Having considered the evidence of the parties and their submissions, I have found that the Applicant was dismissed. It follows that the matter will now be listed for conference.

[6] The broader context and events leading to the Applicant making her application were as follows.

[7] The Applicant commenced employment with the Respondent on 16 May 2022 in the position of Business Development and Training Officer (albeit at times the Applicant was referred to as an Industry Consultant or Field Officer).[4] The position involved the recruitment of apprentices and trainees, liaising with host employers, and managing training administration.[5] This required the Applicant to travel to various host employers, assist with training documentation and act as a point of contact for issues that might arise with apprentices or trainees.[6]

[8] The Applicant stated that on 3 July 2023 she notified the Respondent that she was expecting a baby, and on 30 October 2023, she requested a period of paid and unpaid parental leave.[7]

[9] The Applicant embarked on leave from 16 December 2023, having experienced pregnancy-related health issues.[8] It appears for part of January 2024 the Applicant took annual leave, with the remainder of Applicant's accrued annual leave having been paid out by the Respondent on 11 January 2024, notwithstanding that the Applicant said that this had not been requested.[9]

[10] The Applicant gave birth on 1 February 2024, at which time she was in receipt of the Government Paid Parental Leave.[10] The Applicant received Government Paid Parental Leave for the period of February until June 2024. After that time, the Applicant was on unpaid parental leave.[11]

[11] Regarding the Applicant's return to work after her parental leave, on 30 August 2024, the Applicant sent a text message to Jane Lawson, the Business Manager of the Respondent (Lawson). The purpose of the text message was to arrange a meeting to discuss the Applicant's return to work. The Applicant and Lawson subsequently met in person at the Respondent's offices on 12 September 2024.[12] At the meeting Applicant said she informed Lawson that she wanted to return after the conclusion of her parental leave in an administrative position, working three days a week between 9:00AM and 2:00PM from home.[13] According to the Applicant, Lawson expressed, 'I think we can do that' - and advised the Applicant what she would require for the potential role - namely the Applicant working Tuesday to Thursday.[14]

[12] The Applicant said that on 8 November 2024, Lawson sent her a text message asking her to a morning tea at the office on 13 November 2024, and whether the Applicant was still keen on the administrative position starting in January 2025.[15] The Applicant said she asked whether the Chief Executive Officer, Peter Adams (Adams), was supportive, to which Lawson is said to have replied that she needed to put forward a business case.[16]

[13] The Applicant said that after attending the morning tea on 13 November 2024, she spoke to Lawson. An abridged version of the Applicant's evidence of that discussion with Lawson is set out below:

a) Lawson advised that the administrative position would be worked on Wednesday, Thursday and Friday - albeit at the last meeting Lawson had said the dates would be Tuesday through to Thursday;

b) Lawson advised the Applicant that it was a requirement that she resign from her position and confirmed that directive came from Adams - the Applicant said she did not resign from her employment;

c) Lawson outlined expected duties, including providing support to the Geraldton branch, assisting with marketing communications, and assisting with Lawson's workload and so on;

d) Lawson said that the hours were 20-25 hours per week (with additional hours if needed);

e) Lawson discussed a return-to-work date and put forward the start of February 2025, to which the Applicant said she informed Lawson this would be okay and noted that she could start earlier as her husband would be on rostered days off;

f) the Applicant asked Lawson if she would need to travel to Albany and Lawson confirmed this would be likely; and

g) Lawson advised the Applicant she would be taking four weeks annual leave but would be in contact prior to 9 December 2024, to confirm the Applicant's arrangements for her return to work.[17]

[14] The Applicant said she contacted the Fair Work Ombudsman (FWO) on 13 November 2024 to obtain advice about the request that she must resign to take up the new role.[18] Following that phone call to the FWO, the Applicant called Lawson to inform her of FWO's advice that she could not simply be required to resign, and that denying the Applicant's flexible working arrangement was within the Respondent's rights, but that the Applicant would need to be offered to return to her nominal role or a like for like role, if the request was declined.

[15] On 31 December 2024, the Applicant emailed Lawson to confirm her return-to-work arrangements - believing that she could recommence around 28 January 2025 (or the first week of February 2025).[19] The Applicant said she received an out of office response from Lawson.

[16] The Applicant gave evidence that she contacted Lawson by email on 8 January 2025, to advise that she was able to work Fridays with the exception of one Friday a month,[20] and sent a follow up text message on 20 January 2025.[21] Whilst the Applicant received a text message from Lawson on 22 January 2025, that Lawson would call the Applicant that afternoon, the Applicant did not hear from Lawson, and so sent another text message to Lawson on 23 January 2025.[22]

[17] Lawson is said to have called the Applicant on 24 January 2025, noting to the Applicant that she was awaiting final approval from Adams for the part-time arrangement to be confirmed.[23] The Applicant said that Lawson advised her that she would not be returning to work on 27 January 2025, but maybe the following week.[24]

[18] The Applicant again emailed Lawson on 31 January 2025 to advise that her return to work was noted for the next week. The Applicant said that Lawson responded by email later in the day that there were 'some role changes' underway and thanked the Applicant for her patience.[25]

[19] On 4 February 2025, the Applicant emailed Lawson and referred to advice she had received from the FWO earlier in the day, that she should be paid from 4 February 2025 onwards whilst waiting for confirmation of her role going forward.[26]

[20] On 4 February 2025, Lawson called the Applicant and asked that the Applicant walk her through the email. An abridged version of the Applicant's evidence follows:

a) the Applicant could not be forced to remain on unpaid leave;

b) the Applicant requested a reference from Lawson because it looked likely that she would not have a position to return to;

c) the Respondent was under no obligation to approve the Applicant's flexible request, but did need to revert to her nominal role or if that was not available, provide a redundancy payment;

d) if the Applicant had been advised in November 2024 that her request was not possible, she would have returned as an Industry Consultant in a part-time capacity;

e) the Applicant noted the expense associated with day care but said if required to return in a full-time capacity, she would make it work;

f) Lawson advised her she needed to discuss further with Adams; and

g) the Applicant said she would need to be paid as she was able to return to work.[27]

[21] On 6 February 2025, the Applicant emailed Lawson requesting a telephone update and at 9:58AM, Lawson responded by text message, noting she had sent the Applicant an email.[28]

[22] The Applicant called Lawson, having not fully read the email that Lawson had sent.[29] In that call, Lawson is said to have informed the Applicant that the Respondent could not provide her with flexibility, and in response to the Applicant stating she would go full-time, Lawson responded that there was not room in the office. The Applicant stated that during the discussion, Lawson said she assumed that the Applicant was not returning, and the Applicant reiterated that at no point had she resigned - notwithstanding the directive to do so.[30] The Applicant said she asked Lawson whether her employment had been terminated, and Lawson replied, 'no, absolutely not'.[31]

[23] The email that Lawson sent to the Applicant dated 6 February 2025 (time stamped 9:58AM) was in the following terms:

In response to your email dated 4/02/25 I provide the following:

During my meeting with you at our Perth office on 12 September 2024, you advised me that you had no intention of returning to your previous role as a Full-Time Industry Consultant upon the conclusion of your maternity leave. You confirmed this conversation of 12/09/24 when we spoke on the phone on Monday 4/02/25. During our discussion on 12/09/24 and 04/02/24, you inquired about the possibility of returning to work following your maternity leave in a part-time administration role or a part-time Industry Consultant role (three days per week) if such a position was created at our Perth office.

Unfortunately, no positions have been created or are currently available at this time. It would appear based on information you have included in your email, that there may have been an obligation on us to confirm with you prior to 4/02/25 that we have no part time positions that we can consider you for and therefore confirm that your employment with us has ended. As a gesture of goodwill, we will make a without prejudice payment of wages for the period 4th to

6th of February (22.8 hours) at the hourly rate of your full-time Industry Consultant role prior to you taking leave. This payment will be processed today.

Please let us know if you require any further clarification.

[24] The Applicant subsequently contacted Adams on 6 February 2025, after having received a payslip for three days wages - a note on the payslip stated: 'To satisfy and settle 3 days wages that are in question'.[32] The Applicant gave evidence that Adams informed her by email that she had verbally resigned and that there was no requirement for the Respondent to do anything, and that she had been unemployed since September 2024:[33]

Jane has provided me with details of all verbal and written communications with you

regarding your maternity leave and future potential employment opportunities with ATC

Work Smart. I have summarised events bellow to provide clarity.

At the meeting had with Jane on 12 September 2024 you advised her that following

the end of your maternity leave period, you would not be returning to your full-time

IC position. By providing us this notification of your intention, you assumed control over your employment contract with ATC Work Smart which resulted in its cessation

Since that time, in good faith, Jane attempted to present opportunities that may become available where you could potentially be engaged with ATC Work Smart in a capacity that could match your skillsets, take advantage of your knowledge of ATC, and fit within ATC's operational and budget capacity.
As articulated by Jane, the decision to introduce a new position within the organisation can only be made by the CEO. No such decision has been made at this time.
We have honoured the commitment made by Jane in her email sent to you today and have made payment to you to satisfy and settle the 3 days in question.

You are welcome to communicate directly with me if you need any further clarification.

[25] The Applicant said that on 7 February 2025, Adams sent her a text message suggesting a Teams meeting, which she declined and responded that she wanted all communications to be in writing due to stress and not feeling comfortable.[35]

[26] The Applicant said she received an email from Adams on 7 February 2025, seeking details of what an amicable settlement would be in response to the Applicant's email dated 6 February 2025 (an email in which the Applicant had confirmed details of the phone discussion on 6 February 2025).

[27] The Applicant stated that on 10 February 2025 at 2:38PM, she advised Adams by email that she had received legal advice on her matter. The Applicant said that following that communication, the Respondent subsequently offered the Applicant a part-time administration position, but this was after she had been told she was no longer employed.[36] In reply to Adams, the Applicant noted that she reiterated that her employment had already been terminated on 6 February 2025, which was evident from the payment she had received for three days wages at that time.[37]

[28] At hearing, the Applicant gave evidence that she had applied for alternative positions with other employers which culminated in her being offered an interview with the Chamber of Commerce and Industry, Western Australia (CCIWA) on 6 February 2025.[38] The Applicant admitted that she had asked Lawson to be a reference on 4 February 2025. The Applicant secured employment with CCIWA and commenced in that position at the end of February 2025.

[29] Adams gave evidence of having had a discussion with Lawson in September 2024, where Lawson informed him that the Applicant did not want to return back to her Industry Consultant role, but that she wanted to return on a part time basis in an administrative type of role.[39] Adams said that Lawson advised him at this time that she believed that the Respondent could create a role and that it would be beneficial to the organisation. Adams said he informed Lawson that he would be happy to look at it and for Lawson to prepare a business plan outlining the new position.[40]

[30] Adams said that Lawson forwarded to him the Applicant's email dated 4 February 2025, in which the Applicant said she had liaised with 'Fair Work' and wanted to be paid for the last few days, as she had not been provided with a role and had not come back to work.[41] Adams said he was taken aback by the email as he understood the Applicant had not confirmed her return-to-work date and wanted a part-time administrative position that the Respondent was looking at for her.[42]

[31] Adams emailed the Applicant on 6 February 2025 (as detailed at paragraph [24] of these reasons) and then called the Applicant on that same date.[43] Adams gave the following evidence in respect of that telephone call with the Applicant:

Up until that point I wasn't aware there were any deadlines and obviously it prompted me to react more quickly to my considerations of the role, so I decided to call Emily on that same date. Following my email I had a phone call with Emily. I asked Emily, how do we move forward, what is the real issue? I reassured her she had not been dismissed and that I was looking at the role she had requested. Emily seemed stuck on the view she had been dismissed, she said 'no you have terminated me, you know you can't do that, you have to pay me'. I said to Emily, no we don't have to pay you as we haven't terminated you, but she didn't seem interested in this. It seemed to be that Emily had already made up her mind.

a) I did not at anytime state that she had been dismissed or ask her to resign, in fact I reassured her that we were expecting her to return to the workplace;

b) I did not at anytime state that Emily stating 'I won't come back full-time' was considered a 'verbal resignation';

c) I did not at anytime state that 'no part time position was being created' - I would not have stated this as I was actively creating a role for her;

d) I didn't offer at anytime to give Emily a separation certificate;

e) Emily asked me about payment of her annual leave balance and I advised no payment had been made because her employment hadn't ceased; and

f) I clarified that we paid the three days payment as a gesture of goodwill as she claimed she needed it due to her financial situation, but that we didn't think we needed to pay it as she hadn't actually confirmed her return-to-work date.[44]

[32] Adams said that on 6 February 2025, the Applicant emailed him, stating that he had summarily dismissed her, and that she was entitled to a redundancy payment:

As discussed over the phone I have not at any time submitted a formal resignation. This is evident by discussions up until this week surrounding a potential part time arrangement upon my return.

There have been multiple discussions surrounding my return to work at the conclusion of my parental leave. However, ATC Work Smart has failed provide a business response within the 21 day time frame set out by Fair Work, where the organisation is required to provide reasonable business grounds as to why my flexible arrangement for carer responsibilities has been declined, and that I would be required to return to my full-time position.

Follow correspondence today, it is evident that ATC Work Smart has summarily dismissed me for requesting flexible work arrangements, and as such you have failed to pay me in lieu of my notice period. Additionally, as you have failed to retain my nominated position open for my return, I am now requesting that in addition to my notice period be paid, I am also entitled to receive a redundancy payment.

I am happy to settle this amicably regarding the payment of my notice in lieu and

Please respond in writing with your intentions of how you will settle the termination of my employment. However, should I not receive these entitlements paid to me I will take further action with the Fair Work Commission...[45]

[33] On 11 February 2025, Adams emailed the Applicant stating, amongst other things, that the part-time position was now available:

I would like to point out that it was yourself that instigated a termination of your full-time

employment contract in your communications with Jane on 12/09/24. This was when you

advised us that you did not wish to return to your previous full-time position, and at which

time we had believed you effectively ended your employment contract with us.

1. From that point we began attempting to work with you in good faith to consider

possibilities within our Organisation that could meet your request for part time work

and our operational needs. The timing of a position becoming available was a hurdle

2. Your email to Jane dated 31.12.25 confirmed your previously communicated desire

not to continue in your original full-time role and to take on a part time position with

us, however unfortunately at that time, no part time opportunities were available.

3. Jane's email to you on 31/01/25 was informing you that there were pending changes

within our organisation and asked for your patience. This obviously indicated that

the process of assessing a part time position that could suit you and a possible start

4. The payment of 3 days wages was, as stated in Jane's email to you 6/02, a gesture of

goodwill, and without prejudice and was based on possible confusion around a start

date for the potential new part time position that was being considered and

discussed with you. I also note the lack of any maternity leave extension has created

5. Furthermore, and in line with my requests to you for more information, our

assumption was that the Fair Work Commission (FWS) advice you had sought, would

be made available to us and we both could unpack the issues and the options for

6. By way of the additional requirements in regard to Parental Leave, and pursuant to

the NES, I am of the understanding that we have not received any written Extension

request from yourself, this option clearly sets out should an Employee seek to

extend leave dates they must be put in writing to the Employer - 4 weeks prior to the

leave return date, (in your case return date was 10/01/25)

7. The NES is very specific for all parties in the National Employment Standards (NES)

8. Again, I must strongly refute the inferences in your email, that we would deliberately

act either disrespectfully and or unlawfully. At no time has ATC Work Smart

assumed your decisions; in fact, I again refer to your correspondence emailed to us on the 31/12/24 seeking a 20 to 25-hour position in administration which was brought to the table for discussion by yourself.

We can entirely see how this matter has become so convoluted, and we believe that our

genuine intent can now be properly considered and that we are able to restore some

professional and mutual respect going forward. We have carefully considered, and been

successful in, being able to accommodate your preferred part-time hours to suit your

circumstances and return to work, and we are confident that we can rebuild a mutual trust.

Tomorrow I will forward to you the detailed job description for the position I have offered to

[34] Regarding discussions held between Lawson and the Applicant in September 2024, Lawson said:

Emily attended the office on 12 September 2024 for a morning tea. After that, I asked if she wanted to come and have a have a chat with me and so we went into a private meeting room to have a conversation around her return to work plans. Emily divulged to me before she went on parental leave, in late 2023, that she would come back in a different role because of the demands of her current job. I know she has another child who is around five or six years old, and so that would be really tough for her to come back in a full time role because the demands of the actual role are massive. She also had explained to me, during that discussion, that her husband didn't want her to come back in her full time job as the role was quite demanding.

Emily stated that she wanted to ask for another position within the company, but wasn't sure if Peter would go for it. She knew I didn't have the final say about creating roles and that the approval comes from Peter Adams, the CEO. In summary, Emily wanted a part time administrative role working entirely from home, Tuesday to Thursday. I told her I would speak to Peter about creating a role for her.[47]

[35] Lawson gave evidence that on 13 November 2024, the Applicant attended the Respondent's offices for a morning tea and that the two of them had a brief discussion about the role she had requested:

a) I asked whether Emily would be open to working Fridays in a part-time administrative role that Emily had said she wanted;

b) Emily reiterated that she was only available Tuesday to Thursday, as previously discussed. I noted that this could present a challenge, as Fridays are a key coverage day, particularly since Tracey, the GTO Administrator - whom the role would support - does not work on Fridays;

c) Emily stated that she might be able to work some Fridays but had existing appointments on those days. I asked her to confirm availability once she had more clarity;

d) Emily also mentioned that if she were to take on the role, she would need to travel to Albany for training with Tracey. She indicated that she would be available to do so in the second week of February, when her husband would be home;

e) I acknowledged this and advised that training with Tracey would be arranged if the role was approved, but the business case still needed to be finalised; and

f) Emily informed me that she will also be applying for other job roles being advertised elsewhere and asked if I would agree to be a referee which I agreed to.[48]

[36] Lawson denies having advised the Applicant that she would need to resign from the Respondent, but did advise her that she would need to confirm that she did not want to return to her original position, as the company would need to obviously look to fill that position or allocate the duties somewhere.[49] Lawson said she made it very clear to the Applicant that she was working on creating the role that she had asked for and that was discussed - including the specific duties and what the role would entail.[50]

[37] Lawson explained that she was on leave between 18 December 2024 and 20 January 2025, which the Applicant was aware.[51]

[38] Lawson said that she sent the Applicant a text message on 22 January 2025 and then called the Applicant on 24 January 2025, noting that Adams had not yet made a decision regarding the part time role.[52] Further email correspondence passed between the two, until the following week, on 4 February 2025, when the Applicant contacted Lawson and said she had contacted 'Fair Work' who told her she was entitled to be paid.[53]

[39] Lawson said that she called the Applicant on 4 February 2025, and the following discussion unfolded:

When I rang Emily to touch base with her she was quite upset, she broke down crying on the phone and stated that she was struggling financially and she needed to return to work and that none of the jobs she had applied for had gotten back to her. I tried to reassure her, but until that point I had no idea that she had these struggles. Emily said she would come back in her original role, but I told her that role wasn't available anymore because she had already indicated that she wouldn't come back in that position. I advised her that we were working out the details of the administrative role for her instead, as we had been discussing for the last few weeks. I didn't give Emily a confirmed date but advised it would be very soon. Emily stated that she believed that she should still be paid for her ordinary hours until a decision was made about her ongoing employment. I reminded Emily that no formal return date had been requested or agreed upon given that her original maternity leave end date was 10 January 2025 and that she believed that both parties had been flexible about the date to this point.[54]

[40] Lawson stated that on 6 February 2025, she sent the Applicant an email, in which she stated that the Applicant's employment had ended.[55] Lawson explained that what she meant by this email was that the Applicant's original role had ended because the Respondent was getting back to the Applicant about the administrative role she had requested.[56] Lawson denied terminating the Applicant's employment with the Respondent.[57]

[41] Lawson gave evidence that she spoke to the Applicant again and advised her that she was pushing to get the role set up for her and that it was close to being finalised. Lawson said that in this call the Applicant asked whether her employment had been terminated, to which Lawson responded, 'absolutely not'.[58]

3 Objections to evidence and production of documents

[42] The Applicant raised several objections to the evidence presented in the witness statements of Lawson and Adams. Those objections were premised on some of Adams' evidence constituting opinion or hearsay, and some of Lawson's evidence constituting opinion.

[43] At hearing, I informed the parties that assumptions or opinion are invariably given little weight, but this objection was not in and of itself a reason to refuse the admission of such evidence, particularly when the Commission is not bound by the rules of evidence (although noting they are not to be ignored either). Parties were content with the approach that in respect of opinion evidence, the Commission would proceed with caution noting the weight to be attributed to it.

[44] In respect of the hearsay evidence in the witness statement of Adams, I was not persuaded to uphold the objection having regard to the Respondent's concession as to the use to which the evidence was to be put. The parties were, in closing, able to address the weight to be attributed to this evidence.

[45] During the course of proceedings, the parties had sought documentation from each other pursuant to s 590(2)(c) of the Act. For the most part documents were produced by consent, with the exception of those documents that were produced by order issued on 16 April 2025. Parties were informed of the reasons why such order issued on that same date, and those reasons, having already been provided to the parties, are adopted for the purpose of this decision.

[46] Central to the consideration in this case is the operation of s 386(1) of the Act.

[47] Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section, as set out in paragraph [5] of this decision, is relevant for present purposes given the Commission's acceptance that the definition of the word 'dismissed' in s 386(1) is equally relevant to the meaning of the term as used in s 365 of the Act. There are exceptions under s 386(2) regarding when a person has been dismissed; however, those exceptions are not relevant to this case.

[48] The definition of dismissal in s 386(1) of the Act has two elements. The first traverses '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'. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa).[59] In Lipa Pharmaceuticals Ltd v Jarouche[60] the Full Bench endorsed the principles established in Bupa, in respect of s 386(1)(b). In Bupa it was said:

[47] 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 probably [sic] 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.[61]

[49] A later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan considered the operation of s 386(1)(a) and (b) and in doing so expressed the following:

[10] It seems clear...that the concept of constructive dismissal is to be accommodated by s 386(1)(b) and that concept is not subsumed in s 386(1)(a).

[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression "termination at the initiative of the employer" was:

". . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression 'termination of employment.'"[62]

[50] Essentially, the Applicant contended that the Commission has jurisdiction to entertain her application on the basis that she was dismissed, or, alternatively, the Respondent's conduct constituted a clear repudiation of the employment relationship, which she accepted.

[51] Turning to the first argument, the Applicant pressed that she was dismissed on 6 February 2025, the day on which she received an email from Lawson of that same date. The Applicant submitted that the email dated 6 February 2025 was drafted by Lawson with the assistance and input from Adams - both Lawson and Adams are experienced professionals with Lawson being an experienced Business Manager and Adams having had over 20 years of experience as a CEO. The email was said to have been provided at a time when Lawson understood that the Applicant was seeking to return to work on an urgent basis. It set out that the Applicant's employment had ended and that there were no positions available for her return to, whether on a full-time or part-time basis. The Applicant added that the fact that she was not provided with any payment after that date, supports her dismissal having occurred on 6 February 2025.

[52] The Applicant's alternative argument is premised on the Respondent's alleged repudiatory conduct and acceptance of the same by the Applicant. The Applicant focused on four key points in respect of this argument.

[53] The first is that if the Applicant's employment contract had not been terminated, she would have had the benefit of s 84 of the Act. The Applicant pressed that she had been trying to exercise her entitlement to return to work intermittently through the end of her maternity leave, and Lawson, in giving her evidence, had acknowledged the Applicant had been trying to return to work, and it was the Respondent that was stopping the Applicant's return. The Applicant submitted that she was entitled to return to her substantive pre-parental leave position, even if this role had essentially ceased to exist. The Applicant further submitted that if her pre-parental leave position had ceased to exist, she was entitled to a substantive position on equivalent status and remuneration unless something else was agreed between the parties.

[54] The Applicant contended that she should have been made redundant as there was evidence that as of 6 February 2025, there were no positions available - as demonstrated by the evidence that as of 6 February 2025, she was informed by Lawson and Adams that there was no position for her to return to.

[55] With respect to the second key point, the Applicant submitted that whilst the Respondent pressed that its email dated 6 February 2025 was unclear and misunderstood - with Lawson conceding it could have been worded better, it had been drafted by Lawson with input from Adams, and no follow-up email was sent to Lawson to clarify the contents of the email.

[56] The Applicant further drew attention to having received an email from Adams on 6 February 2025, in which he stated that her full-time employment contract had ceased as early as September 2024, and having received a further email from Adams in which the same assertion was made. The Applicant advanced that what this meant was that Adams considered that her employment as a full-time employee had ceased in September of 2024, and therefore, there was no employment relationship ongoing as of the date of the 6 February 2024.

[57] The failure of the Respondent to provide compensation to the Applicant post 6 February 2025, was the third key point relied upon by the Applicant. The Applicant contended that the failure to provide any compensation after 6 February 2025, was ultimately inconsistent with an ongoing employment relationship or consideration for a return-to-work arrangement.

[58] The final key point raised by the Applicant was that Adams was the sole employee of the Respondent who was able and authorised to provide a part time position to the Applicant. The Respondent did not state when a part time position would be delivered to the Applicant, only that there was not one on 6 February 2025. Instead, Adams, as noted, emailed the Applicant on 6 February and 11 February 2025, setting out that the Applicant's employment had ceased in September 2024. The Applicant submitted that the part-time position, which was ultimately offered, was only provided to her after she informed Adams that she had sought some legal advice and that she was considering making a general protections application involving dismissal.

[59] In summary, the Applicant contended that if the email dated 6 February 2025 is not taken on its face to be notification of her dismissal, then the Respondent, through: (a) its failure to honour the return to work guarantee; (b) its adoption of inconsistent and unclear communications; (c) its failure to clarify those communications; (d) its cessation of the Applicant's remuneration as at 6 February 2025; and (e) its failure to provide the Applicant with any indication of when she would be able to return to work and if any position would be provided, repudiated the Applicant's employment.

[60] The Respondent's case was essentially that confusion had arisen between the parties. The Respondent conceded that it was the first time it had dealt with an application for parental leave and a subsequent return to work. Complicating matters further said the Respondent, it was not the case that the Applicant sought to return to her substantive position, but had, in fact, indicated her desire for what she termed as a 'unicorn' part time role to accommodate her family needs.

[61] The Respondent submitted that it was open to looking at and devising a role for the Applicant, but that it took some time, and the Applicant had assumed a return-to-work date, which increased the stress and pressure. The Respondent submitted that the stress and pressure infected the Applicant's view and also her approach with both the FWO (whom she consulted for guidance) and with the Respondent - when conferring about the role she would come back to within the company.

[62] The Respondent further submitted that Lawson gave evidence that there was no formal return-to-work date, which had been requested or agreed upon, and given that the original parental leave end date was 10 January 2025, Lawson believed that the parties had been flexible about the return-to-work date at that point.

[63] Turning to the email dated 6 February 2025, the Respondent stated that the email needed to be read in its full context - notwithstanding that it confirmed that the Applicant's employment with the Respondent had ended.

[64] The Respondent highlighted that the email dated 6 February 2025 was sent after the Applicant had said she had spoken with the FWO on numerous occasions. The Respondent noted that the Applicant's email dated 4 February 2025 had set out that the Applicant had discussed her planned return date, being 4 February 2025, and the FWO had provided guidance that the Applicant was to be paid from 4 February 2025 - based on what the Applicant had informed it.

[65] In a call that followed between the Applicant and Lawson on 4 February 2025, Lawson's evidence was that she was surprised by the emotional urgency conveyed by the Applicant in that call. The Respondent pressed that on that day there was no agreed return-to-work date and no previously expressed urgency.

[66] The Respondent highlighted that the Applicant's own evidence was that there was no fixed return-to-work date. Yet, in discussions with the FWO through November to February, the Applicant had communicated a return-to-work date to the Ombudsman of early January 2025 or that the Applicant was due back in the week of 3 February 2025. In this sense, said the Respondent, the Commission should treat the Applicant's evidence with caution - to the extent that the Applicant said there was any agreed return to work date or window.

[67] As to the specific content of the 6 February 2025 email, the Respondent contended that essentially, Lawson prefaced the email with a restatement of what the Applicant appeared to have been telling the Respondent in her email dated 4 February 2025 and therefore the email should be understood in that context. The Respondent further submitted that the email was not a reflection of what the Respondent thought the matter at hand was with respect to the alleged dismissal, and especially not what it desired. The Respondent noted that the Commission had heard evidence that both Lawson and Adams thought highly of the Applicant as a colleague and a worker, including after she sought legal advice, and that they did not wish to dismiss her. The Respondent noted that even after the Applicant had sought legal advice, it still finalised and offered the part time role that the Applicant had requested.

[68] The Respondent observed that during the subsequent call between the Applicant and Lawson on 6 February 2025 - following the contentious email, even the Applicant acknowledged that in that phone call she was never told that she was dismissed. The Respondent drew attention to the Applicant having asked Lawson whether she had been dismissed and that Lawson responded, 'no, absolutely not'. The Respondent submitted that the Applicant's email dated 6 February at 10:39 AM following Lawson's email that morning, continued to discuss the Applicant's parental leave and the Applicant stated, 'please let me know how you go this morning'. According to the Respondent, there was an implicit, if not express, understanding that the Applicant's employment had not been terminated, as discussed on the telephone at this point, immediately following the alleged repudiation being the email dated 6 February 2025. The Respondent remarked that the Applicant had not accepted the alleged repudiation and continued to confer with the Respondent about a new suitable role for her return from parental leave.

[69] Regarding Adams' email to the Applicant dated 6 February 2025, the Respondent asserted that the email, when viewed objectively, did not evince an intention to terminate the applicant's employment. According to the Respondent, it was simply a recapping of Adams' interpretation of previous discussions of which he was not present or involved, namely the discussions between Lawson and the Applicant. The Respondent identified that Adams' email explained that the decision to introduce a new position within the organisation could only be made by Adams and that no such decision had been made at that point. The Respondent further noted that the email did not say that the Applicant's employment had been terminated, and it did not say that a new role would not be presented to the Applicant.

[70] Referring to the Applicant's evidence, the Respondent noted the Applicant had stated that it was only after she had disputed her dismissal and outlined her intention to make a claim against the Respondent, that the Respondent advised that a part time position had been created at a lesser rate of pay. However, the Respondent viewed the Applicant's conduct in this period as seeking to enjoy an opportunistic moment.

[71] Expanding upon its assertion concerning the Applicant's opportunistic moment, the Respondent submitted that having had a successful interview with CCIWA, the Applicant continued to bargain for a redundancy with the Respondent. According to the Respondent, the true reason why the Applicant did not take up the new part time role offered to her on 10 February 2025, was because on that same date she had an interview with CCIWA. The Respondent submitted that the Applicant's interview with CCIWA went well, and it progressed to the stage of checking references. The Respondent reasons that this was why the Applicant, at 5:33 PM on 10 February 2025, emailed Adams saying financial settlement is the only way forward on this matter. It was the Respondent's view that at that point of time, the Applicant truly could have continued the consultation.

[72] Whilst the Respondent conceded that there were delays in the part time role being devised, Lawson had been away for five weeks across the Christmas and January period, and the proposal for the new position reached Adams' desk in late January. The Respondent noted that it ultimately presented the Applicant with a part time role on 10 February 2025, within a week of her phone call of 4 February 2025 - and namely within four business days after the emails and calls of the 6 February 2025 - precisely the time that the Applicant was expected to return to work.

[73] The Respondent observed that the Applicant never informed the Respondent that she had attended a successful interview with CCIWA - pending references.

[74] There are two observations that require attention at this point. First, it is not clear on the evidence that the Applicant's pre-parental leave position no longer existed - to the extent that it had been made redundant. Second, it does not strike me that the Applicant had made a request for a flexible working arrangement as contemplated by s 65 of the Act.

[75] To explain further, it appears that Lawson, having held discussions with the Applicant on 12 September 2024 and having been advised by the Applicant in that discussion that the Applicant wanted to return to work in a different role (administrative) and in a part time capacity, informed the Applicant that the Applicant would need to confirm that she did not want to return to her original position. I note that the Applicant asserts that Lawson said she would need to resign from the Industry Consultant role. Lawson said she explained to the Applicant that the company would need to fill that position or allocate the duties somewhere (one assumes make the position redundant). At a later point in her evidence, Lawson states that on 4 February 2025, she informed the Applicant that her Industry Consultant role was not available anymore because the Applicant had already indicated that she would not be coming back in that position. It therefore remains unclear whether the Industry Consultant role was made redundant (that is the duties of the role allocated to others or no longer required) or filled by someone else.

[76] Section 65 of the Act sets out that a request for a flexible working arrangement must be in writing and set out details of the change sought and of the reasons for the change. As to the change sought, the section contemplates a change to 'arrangements' - the 'Note' to the section providing examples of changes to working arrangements, such as hours of work, patterns of work or work location. Whilst unnecessary to determine whether the change that the Applicant sought constituted a change to a 'working arrangement', the request for a different position with engagement on a part time basis appears to have occurred on a predominately verbal basis. Further, the conduct of the Applicant and the Respondent did not demonstrate that they treated the request as one made under s 65 of the Act. The Respondent did not provide a response as contemplated by s 65A of the Act within the 21-day timeframe and the Applicant did not appear to agitate when a response was not received 21-days after the discussion on 12 September 2024 (at least not until the following year).

[77] Turning to the factual findings in the case, it appears uncontroversial that the Applicant embarked on leave from 16 December 2023, and it would appear that for a least part of January 2025, the Applicant was on annual leave (and/or had some paid out). Nevertheless, by the first week of February 2024 at the latest, the Applicant was on parental leave. Lawson gave evidence that the Applicant's 'original' return-to-work date was 10 January 2025.

[78] It is further uncontroversial that the Applicant had an entitlement under s 84 of the Act. That is, the Applicant was, on the ending of a period of unpaid parental leave, entitled to return to either her pre-parental leave position or if that position no longer existed - an available position for which the Applicant was qualified and suited nearest in status and pay to the pre-parental leave position.

[79] Notwithstanding the protestations of the Respondent and acknowledging that the Applicant was unable to identify a precise return to work date in cross examination, I accept the Applicant's evidence that she understood she would return to work from parental leave in the week commencing 3 February 2025. I consider it was reasonable and open on the evidence for the Applicant to have arrived at that viewpoint. Further, I find that the Applicant's return to work from parental leave was to occur in the week commencing 3 February 2025.

[80] Lawson gave evidence at paragraph [19] of her witness statement that from her understanding that until that point (around early February 2025), the Applicant and her had not agreed to a return-to-work date, and the Applicant had indicated that she was flexible. Lawson added that the Applicant had, only a week earlier, said she was trying to get to work as soon as possible. I am of the view that Lawson's evidence in this respect does withstand scrutiny.

[81] By text message of 8 November 2024, the Applicant informed Lawson that she would be looking for a start (date) of February (2025) so that she did not have to sort care for her child until the end of the holidays.[63] Lawson did not disabuse the Applicant that such return date would prove unfeasible. While correct that no formal return to work date was in place, the Applicant clearly indicated she sought a return-to-work date in February 2025.

[82] Then, in an email to Lawson dated 31 December 2024 the Applicant informed Lawson that 'Aaron will be home on 22nd January, so I would be able to return on Tuesday 28 Jan or the following week in Feb'.[64] Lawson was therefore aware or should have been aware, of the period in which the Applicant intended to return to work. Further, this timeframe accorded approximately with the Applicant having embarked on parental leave the year prior (noting that the Applicant had ceased work in late 2023 and had taken annual leave during the January 2024 period). As noted, Lawson gave evidence that the Applicant's original parental leave end date was 10 January 2025. To the extent that there was flexibility around a return-to-work date, that flexibility was limited to the last week of January 2025 or first week of February 2025. While Lawson emailed the Applicant on 31 January 2025 informing the Applicant that there were role changes within the Respondent organisation and thanking the Applicant for her patience, this did not alter the fact that the Applicant was due to return to work in the week of 3 February 2025.

[83] It is relevant to note that any assertion that the Applicant resigned from her employment in September 2024, insofar that one is made, is rejected. There was no unequivocal resignation forthcoming from the Applicant at this time. As to any contention that the Applicant's employment with the Respondent ended in September 2024, I find that not to be the case. Whilst the Applicant sought a different position on a part-time basis, she did not, whether by conduct or by words, terminate the employment relationship at that time. I make further comment about this at paragraphs [98] and [99].

[84] The Applicant emailed Lawson on 4 February 2025, advising Lawson that 'Fair Work' had provided guidance she was to be paid from 4 February 2025. It is evident, in my view, that the Applicant had premised her discussion with Lawson upon an assumed return-to-work date of 4 February 2025. However, as found, I consider that there was no precise to return-to-work date, rather it was the case that the Applicant was due to return-to-work in the week commencing 3 February 2025.

[85] Whilst appreciative of the Respondent's submission that Lawson's email to the Applicant on 6 February 2025 (time stamped 9:58AM), prefaced what the Applicant appeared to have communicated to Lawson in her email dated 4 February 2025 and therefore Lawson's email should be understood in that particular context, it remains that Lawson informed the Applicant in that email that no positions had been created, no positions were currently available at that time, and the Applicant's employment with the Respondent had ended (as of 6 February 2025).

[86] Confusing matters somewhat, on that same day and after Lawson had sent the email dated 6 February 2025, Lawson informed the Applicant in a telephone call that she had not been dismissed. This communication appears at odds with the content of Lawson's email of that same date. However, it would appear that in the context of that telephone discussion between Lawson and the Applicant, the Applicant believed that to be the case - having emailed Lawson on 6 February 2025 at 10:39 AM stating, 'please let me know how you go this morning' (referring to Lawson's proposed discussion with Adams about a part-time position). According to the Respondent, and as noted, there was an implicit, if not express, understanding that the Applicant's employment had not been terminated, as discussed on the telephone at this point. I accept that to be the case.

[87] However, I do not agree with the Respondent's submission that Adams' email to the Applicant later in the day on 6 February 2025 (time stamped 5:27PM) did not evince an intention to terminate the Applicant's employment, when considered in context. Whilst the email recapped Adams' interpretation of previous discussions, discussions in which he was not present or involved, namely the discussions between Lawson and the Applicant, Adams made it unequivocally clear that the decision to introduce a new position sat with him and no decision had been made at that time. That is, at a time when the Applicant was due to return to work from parental leave. I find that as of 6 February 2025, at a time when the Applicant was due to return to work following a period of parental leave, the Respondent did not have a position to place her into and had not indicated that one was approved and available.

[88] A discussion took place between the Applicant and Adams on 6 February 2025, with both the Applicant and Adams providing disparate accounts of what was said. Insofar as there is disparity in such evidence, it is the Applicant's evidence that I prefer.

[89] I note that in the Applicant's cross examination she appeared to respond to questions candidly notwithstanding that in some respects the answers she provided may not have favoured her case - for example, conceding that in a call to the FWO in November 2024 that she would take a redundancy, and that after that call conceding she was looking for a redundancy from the Respondent as opposed to a part time role.

[90] Further, I consider that Adams' emails of 6 February 2025 and 11 February 2025 were contrived. Adams made an assertion in his email to the Applicant dated 6 February 2025 that the Applicant had, as of 12 September 2024, 'assumed control over your employment contract with ATC Work Smart which resulted in its cessation at that time.' Adams repeated that assertion in his email to the Applicant dated 11 February 2025. The assertion is interesting because it makes specific reference to the employment contract rather than the employment relationship - distinguishing between the two.

[91] The assertion in those emails is, at best, misconceived. Whilst the Applicant had made it known to Lawson that she did not want to return to the Industry Consultant role as at September 2024, the Applicant had not made it known that she would 'not be returning to' her full time Industry Consultant position. The Applicant had not terminated the employment contract or relationship at that time and, to be clear, she had not resigned from her position as an Industry Consultant.

[92] In his email dated 6 February 2025 to the Applicant, Adams further noted:

Since that time, in good faith, Jane attempted to present opportunities that may become available where you could potentially be engaged with ATC Work Smart in a capacity that could match your skillsets, take advantage of your knowledge of ATC, and fit within ATC's operational and budget capacity.

[93] Adams refers to opportunities that 'may become available' and that the Applicant could 'potentially be engaged with ATC Work Smart...', reinforcing the finding that as of 6 February 2025, there was no indication of an available position on her return from parental leave, and no certainty in respect of a position being offered. Again, to note, Adams expresses in the email that he had not made a decision at that time regarding a new position.

[94] The Respondent says that the Applicant has not satisfied either limb of s 386(1) of the Act. I do not agree with that proposition.

[95] In Mohazab v Dick Smith Electronic Pty Ltd (No 2) (Mohazab), the Court explained that what was important regarding the phrase 'termination at the initiative of the employer', was that the employment relationship was not voluntarily left by the employee.[65] The examination to be undertaken is one that is conducted on an objective basis. The focus is on the critical action or actions of the employer.[66] That is not to say that the conduct of the employee is irrelevant - it too will be examined. However, the decision taken is examined in its broader context.[67]

[96] Briefly stated, I consider that the critical actions that gave rise to the Applicant's termination of employment in the sense referred to in _Mohaza_b, were the actions of the Respondent. By the time the Applicant was due to return to work after having taken a period of parental leave, there was no position for her in the Respondent organisation. This was notwithstanding having had multiple discussions and correspondence with Lawson about returning to work, and the work that the Applicant was seeking. While Lawson's email dated 6 February 2025 did not terminate the Applicant's employment, the subsequent action taken by Adams, as described above, against the backdrop of communications between the Respondent and the Applicant in the period between September 2024 through to that first week in February 2025, have led me to this conclusion.

[97] Having regard to the evidence, the weight of that evidence supports a finding that the Respondent's actions resulted consequentially in the termination of the Applicant's employment.

[98] Insofar as it is relevant, the Applicant's action of seeking alternative employment or (and having been transparent about that with Lawson) expressing a preference for redundancy over a part time position, were explained by the Applicant and, in my view, do not derogate from the finding that the Applicant was dismissed.

[99] To explain further, the Applicant said she had been informed by Lawson that she would need to resign from the Industry Consultant position on 13 November 2024. I am of the view, that on balance, Lawson did communicate this to the Applicant (notwithstanding Lawson's evidence to the contrary). I note that the Applicant was consistent with her evidence - outlining to the FWO that she had been asked to resign and that the call log at Annexure 'EG6' aligns with the Applicant having placed a call to Lawson, as asserted. The Applicant conceded that following that communication she formed a negative impression of the Respondent as a business. However, that the Applicant formed a negative impression is not to stay that she was disingenuous in wanting to return to a position with the Respondent - the Applicant's evidence, as recounted by Lawson, was that the Applicant had advised her she was struggling financially, and she had not secured work elsewhere. In circumstances where there was uncertainty about her return to work with the Respondent, it is understandable that the Applicant was pursuing other employment opportunities whilst at the same time attempting to secure a return to work with the Respondent. When Adams communicated to the Applicant on 6 February 2025 that the decision to introduce a new position within the organisation could only be made by him and no such decision had been made at this time, it was open to the Applicant to consider that she had been dismissed at this time.

[100] The Respondent's jurisdictional objection that the Applicant was not dismissed and therefore the Commission is absent jurisdiction to deal with the application, is dismissed.

[101] It is worth outlining s 370 of the Act, which, in setting out the pre-requisites for the making of a general protections court application, provides an overview of the next steps for the conduct of the Applicant's application:

A person who is entitled to apply under s 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b) the general protections court application includes an application for an interim injunction.

[102] The precursor to the issuing of the required certificate under s 368(3)(a) is that the Commission must deal with the dispute by conducting a conference[68] and reach a level of satisfaction 'that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful'.[69] Hence for present purposes and as a result of my determination, this matter will now be listed for conference in order to explore the possibility of resolution. A notice of listing will be issued shortly.

[103] Finally, while I have determined the Applicant was dismissed by the Respondent and is therefore entitled to apply under s 365 of the Act for the Commission to deal with his dismissal dispute, it should be noted that the Full Court of the Federal Court in Milford[70] made observations of the following nature regarding s 370 of the Act and the making of a general protection court application:

a) the Act establishes multiple alternate pathways for an applicant and prospective litigants;

b) s 370 of the Act is to be interpreted against the background that while the Commission may determine the question of a person's entitlement to make an application to it, this may not be conclusive; and

this is because a court may ultimately decline to recognise an 'application' or resulting certificate granted by the Commission as valid, if called upon by a Respondent to determine a subsequent objection to the competency of a general protections court application under s 370 of the Act.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37 (Milford).

[3] Ibid 594 [15], 609-10 [86]; Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171; (2018) 273 IR 439, 444 [25]-[26]; Morris v Allied Express Transport Pty Ltd [2016] FCCA 1589, [117].

[4] Witness Statement of Emily Graham, [EG1] (Graham Statement).

[39] Witness Statement of Peter Adams, [5].

[47] Witness Statement of Jane Lawson, [7]-[8].

[62] (2018) 273 IR 126, 129-30 [10]-[11] (references omitted).

Emily Graham v Atc Work Smart Inc. [2025] FWC 1209

At a glance

Court

Decision date

Source

Judgment (203 paragraphs)

Emily Graham v Atc Work Smart Inc. [2025] FWC 1209 (1 May 2025)

Parties

Legislation Cited (1)

Cases Cited (5)