Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - whether Applicant was dismissed.

• [1] This decision concerns an application made by Ms Jacqueline Luff (Applicant) pursuant to s.365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving her alleged dismissal by North Shore Occupational Therapy Pty Ltd (Respondent).

• [2] The Respondent has raised a jurisdictional objection that the Applicant was not dismissed for the purposes of s.365 and within the meaning of s.386 of the Act. A dismissal is a fundamental prerequisite that must be established before the Commission is able to deal with this dispute.

• [3] Section 386 of the Act relevantly provides that a person has been dismissed if:

(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.

• [4] A hearing was conducted on 5 August 2025 to determine the jurisdictional objection. The Applicant was self-represented and gave evidence on her own behalf. Mr T Plummer of Irwell Law appeared, with permission, for the Respondent and led evidence from Ms Janie Echt and Ms Cheryl Bladen who are both Directors of the Respondent.

• [5] For the reasons outlined below, I find that the Applicant was not dismissed within the meaning of the Act.

• [6] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[1] (Bupa), a Full Bench of the Commission examined the relevant authorities as to what constitutes 'dismissed' under s.386(1) which included the following:

(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 probable 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.

• [7] In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park[2] Deputy President Sams noted the following when considering whether the applicant in that matter was dismissed:

1. Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. 'Initiative' is relevantly defined in the New Shorter Oxford Dictionary as: "the action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act."

• b. This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd[3] (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, '... 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.'

'In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.'

• d. A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd[4] said, '... to constitute termination at the initiative of the employer the termination must be the direct or consequential result of 'some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...' [Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].

• [8] Finally, it is the case that "considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer's conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign".[5]

• [9] The Applicant commenced employment with the Respondent on 7 March 2023 as an Occupational Therapist (OT) on a permanent part-time basis. She worked between 3 to 4.5 days each week during her tenure. As a relatively inexperienced OT, the Applicant participated in weekly clinical supervision meetings with either Ms Bladen or Ms Echt.

• [10] There is no dispute that the Applicant's role was physically demanding.

• [11] Between January and early February 2025, the Applicant and Respondent had had discussions concerning a proposed change to the Applicant's role to help her manage the recovery of the chronic stress fractures she had in her feet which were not work related.

• [12] To that end, the Respondent offered to reduce her part time hours of work as an OT and add a casual role as an Allied Health Assistant (AHA), i.e. in addition to her part-time Senior OT role.

• [13] I accept the Respondent's explanation as to the nature of the AHA role, that being that it was intended to provide what could be described as 'light duties' for the Applicant that had the added benefit of upskilling her to be able to become accredited as a Behaviour Support Practitioner (BSP). This accreditation required an application to the NDIS Commission for approval. I also accept that the Respondent provided this role to help the Applicant "future-proof" her career as this type of work was not as physically demanding.

• [14] On 7 February 2025, the Applicant agreed to this proposal. The AHA role was described in the communication from Ms Bladen to the Applicant as an 'interim' role.

• [15] Subsequent to those discussions, the Applicant was formally promoted to the role of Senior OT on 10 February 2025. The promotion was at her request, and on the understanding that she needed to take on a higher case load.

• [16] From that point, the parties considered that the Applicant was working under two concurrent employment contracts being:

1. 2.75 days per week as a permanent part-time Senior OT; and
2. 1.25 days per week as a casual AHA.

• [17] The Respondent gave evidence, which I accept, that on 25 March 2025 the Applicant had submitted her application to the NDIS Commission for approval to work as a BSP. If the application was approved by the NDIS, she would be able to begin working in that capacity. To this end, the "project" to assist the Applicant develop these skills had concluded.

• [18] On 26 March 2026, the Applicant says she attended a meeting with Ms Echt to discuss concerns she had raised about the Respondent failing to meet its obligations under the Fair Work Act. The meeting ended in disagreement with the Applicant walking out of the meeting.

• [19] Ms Echt's evidence was that during this meeting, the Applicant stated that apart from 2 hours per week of training, she was using all her casual hours to manage her OT load. In other words, she was not doing the BSP work. The Applicant did not dispute that this was the case. The Respondents said this was a key piece of information to evaluate the financial viability of the casual role.

• [20] On 28 March 2026, while the Applicant was on pre-approved leave, she received an email from the Respondent terminating her casual AHA contract. The email was in the following terms:

As you might recall, when we initially discussed your role, we mentioned that the BSP work would be on a casual basis and reviewed on a month-to-month basis to assess its viability. After completing our review for this month, we have made the decision to reduce the capacity of BSP work due to financial considerations and the current business needs.

This decision has been made to ensure the long-term viability of the programme while balancing the financial elements and workload across the team. Unfortunately, at this stage, we are unable to sustain the same level of BSP shifts.

To confirm, as of next week, there will no longer be BSP hours available for you. However, your current OT role and arrangements will remain unchanged, and we will continue to support you in that capacity.

We greatly appreciate your contributions to the BSP work during this trial period and the effort you have put into this role. Please know that this decision was made with careful consideration of the current business needs and is not a reflection of your performance. Should there be any changes or opportunities in the future, we will reach out to you.

If you have any questions or concerns, please feel free to contact us.

• [21] On 30 March 2025, the Applicant tendered her resignation from the Senior OT role, giving 4 weeks notice in accordance with her contract.

• [22] On 31 March 2025, the Applicant submitted a SafeWork application, citing psychological distress and fear of returning to work. On the same day, she provided a medical certificate stating that she should not attend the office or have further meetings with the Respondent for the remainder of her notice period. She was advised by her doctor to work from home performing community visits and non-face-to-face OT work.

• [23] In response, the Respondent provided her with its Grievance Report Form which she was invited to complete, and a letter in response to her letter of resignation. In the Respondent's letter, it noted that it was committed to resolving the concerns she had raised and asked her to reconsider her resignation. The letter also invited her to a meeting to further discuss the situation.

• [24] After the Applicant refused to meet with the Respondent and re-affirmed her decision to resign, the Respondent formally accepted the Applicant's resignation on 2 April 2025.

• [25] The Applicant agrees she resigned from her part time Senior OT role and does not dispute this resignation was given freely, but says she was dismissed from her casual AHA role and that is the basis for this application.

• [26] She alleges that the termination of her casual contract was a result of a complaint she made on 26 March regarding the Respondent not meeting its obligations under the Fair Work Act.

• [27] She says the termination of her casual contract caused her a high level of anxiety because of her financial situation as she was left with only 2.75 days of work going forward. She said she was unable to pick up extra shifts with her other employer because they needed two weeks' notice to add her to their roster. Additionally, her OT clients with the Respondent were spread over 4 days of the week which made it difficult to take on additional shifts with her other employer.

• [28] The Applicant said her casual contract was undertaken on a regular and systematic basis and there was a clear expectation of ongoing work.

• [29] Both Ms Echt and Ms Bladen presented as honest and caring individuals, who were both genuinely perplexed that the Applicant made this application.

• [30] The Respondent emphasised that at no time did it advise the Applicant that she had been dismissed. Rather, the casual role was ending but she retained her permanent part time role.

• [31] The Respondent gave evidence that it expected to have a discussion with the Applicant about returning to her previous part time hours once she had a medical clearance to be able to do so. However, this did not occur given the Applicant's resignation.

• [32] The evidence shows that the Respondent provided significant support to the Applicant to accommodate her non-work related injury. This included the creation of the casual role for her. I accept that this role was for a limited time and limited purpose, that being to provide her with light duties while she was recovering and to help her obtain new skills. It was not intended to be an ongoing role.

• [33] The Applicant only performed the casual role for less than two months. I accept that the Applicant was informed that the casual role would be reviewed monthly to ensure it remained viable for the Respondent. This is not regular and systematic, nor could there be any expectation of this role being ongoing.

• [34] The Applicant does not dispute that she gave her resignation (of her permanent part time role) freely. She does not suggest she was forced to resign.

• [35] As mentioned earlier, the only matter the Commission is required to determine is whether the Applicant was dismissed within the meaning of s.386. Having considered the evidence and submissions, I find that the Applicant was not dismissed within the meaning set out in s386(1) of the Act

• [36] While the casual work did come to an end at the initiative of the Respondent, the termination of the casual contact did not bring the employment relationship to an end. As the case law cited earlier explains, it is the termination of the employment relationship that is the relevant consideration. This is because there was an ongoing employment relationship which was the Applicant's substantive role as a permanent part-time Senior OT. It was the Applicant who bought the employment relationship to an end when she resigned from this position.

• [37] As a result, the jurisdictional objection made by the Respondent is upheld and the application is dismissed.

T Plummer of Irwell Law for North Shore Occupational Therapy Pty Ltd.

[1] [2017] FWCFB 3941.

[2] [2012] FWA 2473.

[5] Sathananthan v BT Financial Group Pty Ltd [2019] FWC 5583.

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