s.394 - Unfair dismissal

Unfair dismissal application - employee resigned - no forced resignation - jurisdictional objection upheld - application dismissed.

[1] Cull & Harding Pty Ltd (Cull & Harding) manufactures and sells shoes under the brand ROC Boots Australia. Jaidyn Bowden was employed by Cull & Harding as a Social Media Coordinator from 9 November 2023 until she resigned with immediate effect on 15 September 2025. Ms Bowden's resignation letter identified the reasons for her resignation as coercion and undue pressure to alter her working days, a hostile working environment, and hostile management practices. Ms Bowden filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 19 September 2025. Ms Bowden alleges she was "dismissed" within the meaning of s.386(1)(b) of the FW Act because she was forced to resign due to conduct, or a course of conduct, engaged in by Cull & Harding. This decision concerns whether Ms Bowden was forced to resign and hence "dismissed" within the meaning of s.386(1)(b) of the FW Act.

[2] Ms Bowden relied on her own evidence about the relevant events, evidence from her close friend and former colleague, Akayrii Hogarth, and evidence from her partner, Liam Collins. Cull & Harding relied on evidence from Sally Cull (Director), Grace Laycock (Marketing Manager), and Shane McNeill (General Manager).

[3] The authorities establish that a resignation will be considered forced where:

(i) There was some action on behalf of the employer which was intended to bring the employment relationship to an end; or

• (ii) Resignation was the probable result of the employer's conduct.[1]

• [4] The focus of the required assessment is the conduct of the employer, and not whether the employee subjectively believed they were forced to resign.[2]

• [5] A Full Bench of the Australian Industrial Relations Commission in ABB Engineering Construction Pty Limited[3] stated the following regarding the "narrow line" between a forced resignation and a discretionary choice by an employee to resign:

"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination."

[6] The conduct by Cull & Harding that Ms Bowden identified as forcing her resignation was the following:

(i) An unreasonable workload and a lack of support during an overseas engagement in the United States of America in April 2024.

(ii) Being placed in an unsafe situation during a photoshoot at Girraween National Park on 12 and 13 August 2025. Ms Bowden was left alone in the National Park for several hours on 13 August 2025 while other team members hiked to the photoshoot location.

(iii) Ms Bowden met with Ms Cull on 15 August 2025 to discuss her safety concerns about the photoshoot in Girraween National Park. Ms Bowden confided with Ms Cull that she was not entirely happy in her social media role. Ms Bowden says Ms Cull agreed not to share her safety concerns with Ms Laycock.

(iv) Ms Bowden says she was confronted by Ms Laycock on 21 August 2025 about raising safety concerns despite Ms Cull indicating Ms Laycock would not be informed. Ms Bowden says Ms Laycock was cold and hostile towards her.

(v) Ms Bowden met with Ms Cull and Ms Laycock later in the day on 21 August 2025 to discuss Ms Bowden's career progression. Ms Bowden says she indicated she would like to move into a styling and creative direction. Ms Cull and Ms Laycock indicated Cull & Harding could not offer that type of work. Ms Cull and Ms Laycock suggested that Ms Bowden could reduce her full-time hours of work and pursue freelance styling work. Ms Bowden says she indicated she was not in a financial position to reduce her hours of work. Ms Bowden says the meeting ended on a slightly positive note.

(vi) Ms Bowden met with Ms Cull, Ms Laycock, and Mr McNeill on 3 September 2025. Ms Bowden says the meeting was hostile and that she was pressured to agree to reduce her working hours. Ms Bowden says Mr McNeill was forceful during the meeting and insisted that Ms Bowden provides a timeline to reduce her hours. Ms Bowden says that Mr McNeill stated words to the effect that she is not committed to the company and any other company would let her go tomorrow. Ms Bowden says the meeting ended with agreement that there would be a further meeting the following Tuesday so she could have some time to consider her position. Ms Bowden says it was difficult for her to secure agreement to the further meeting and she was feeling pressured to decide in a shorter timeframe.

(vii) Ms Bowden attended a meeting with Ms Cull, Ms Laycock, and Mr McNeill on 9 September 2025. Ms Bowden says she indicated she could not provide a specific timeframe for any reduction in her hours of work. Ms Bowden agreed during the hearing that the ultimate outcome of the meeting was that she would continue working full-time hours and would provide 12 weeks of notice if she wished to reduce her working hours in the future.

(viii) Ms Bowden says Ms Laycock behaved in a hostile manner to her during a warehouse sale weekend on 12 and 13 September 2025. Ms Bowden also says Mr McNeill made inappropriate comments about her age in the context of her struggling to commit to her role. Ms Bowden says Ms Cull failed to act in relation to the treatment Ms Bowden endured during the weekend.

[7] Ms Bowden did not attend work on 15 September 2025. Ms Bowden resigned later in the day on 15 September 2025.

[8] Ms Bowden has provided evidence about her ongoing mental health issues and about the impact of the events described above on her mental health.

[9] Ms Cull, Ms Laycock, and Mr McNeill provided evidence about the various incidents and meetings identified by Ms Bowden and deny that Ms Bowden was treated inappropriately.

• [10] If the required legal assessment was whether I consider Ms Bowden genuinely felt that she was being forced to resign by Cull & Harding, I would find that Ms Bowden was forced to resign. It is clear Ms Bowden suffered from an increasing amount of distress from the incidents and meetings identified above and that her health was significantly impacted. However, the authorities make clear that it is the conduct of Cull & Harding that must be assessed and not the subjective impact of the conduct on Ms Bowden.[4] Ms Bowden is required to establish that Cull & Harding intended to force her to resign or that resignation was a probable result of Cull & Harding's conduct based on an objective assessment.

[11] I am not satisfied that Cull & Harding engaged in conduct that was intended to force Ms Bowden to resign. Ms Cull, Ms Laycock, and Mr McNeill gave uncontested evidence that Ms Bowden held an important position that could not easily be replaced and that it was not in the interests of the business for Ms Bowden to leave. The evidence establishes Cull & Harding offered that Ms Bowden could reduce her working hours to pursue freelance styling work as an alternative to try and keep Ms Bowden employed. Cull & Harding did not stand to benefit from Ms Bowden reducing her working hours, the option was only raised by Cull & Harding to try and address Ms Bowden's concerns. I do not consider that Ms Bowden's complaints about the conduct of Ms Laycock, Mr McNeill, and Ms Cull are sufficient to demonstrate an intention from Cull & Harding to make Ms Bowden's working environment so difficult that she would be forced to resign.

[12] I am also not satisfied that Ms Bowden's resignation was the probable result of Cull & Harding's conduct based on an objective assessment. Although it is possible that Ms Bowden's work in the United States, Girraween National Park, and at the warehouse sale could have been managed or supervised in a better way by Cull & Harding, that is not sufficient to justify a finding that Ms Bowden's resignation was the probable result of the conduct. It is also clear that Ms Bowden continued working for Cull & Harding for a lengthy period after the trip to the United States of America and for several weeks after the photoshoot in Girraween National Park. That is not consistent with Ms Bowden's treatment being at a level that made resignation the probable result of the conduct. I do not consider the behaviour Ms Bowden complains about in relation to the warehouse sale weekend to be anywhere near a level that could justify a finding that Ms Bowden's resignation was the probable result of Cull & Harding's conduct. It appears Ms Bowden's satisfaction with her role had deteriorated to a level by that weekend that she was extremely sensitive towards any interactions with Cull & Harding management.

[13] I do not consider Ms Bowden's resignation was the probable result of Cull & Harding's offer for Ms Bowden to reduce her full-time working hours and the three meetings that were held to discuss this option. It was not unreasonable for Cull & Harding to try and seek clarity from Ms Bowden about her intentions and to request a notice period that would allow it to make alternative arrangements for the social media work. The ultimate outcome of the meetings was that Ms Bowden was free to continue working her full-time hours, which was the preferred position of Cull & Harding, and that Ms Bowden could decide to reduce her working hours in the future with 12 weeks of notice. An objective assessment of this conduct leads to the conclusion that Cull & Harding was trying to assist Ms Bowden to remain employed with the business. I do not consider Ms Bowden's resignation was the probable result of Cull & Harding trying to assist Ms Bowden with a career change but requesting a reasonable amount of notice to protect the interests of the business.

[14] I also consider Ms Bowden had several other options to resigning from her employment with Cull & Harding on 15 September 2025. If Ms Bowden thought she was repeatedly being treated unreasonably about the option of working reduced hours by Mr McNeill or anybody else, she could have sought anti-bullying orders from the Commission. It also seems clear that if at any relevant point Ms Bowden told Cull & Harding that she was fully committed to her role for the foreseeable future that any discussions about reduced hours would have immediately ceased. Ms Bowden could also have pursued freelance or other work to supplement her income from Cull & Harding which may have placed her in a financial position to be able to accept Cull & Harding's offer of reduced working hours. I consider the existence of these other options reiterates that Ms Bowden's resignation was not the probable result of Cull & Harding's conduct based on an objective assessment.

[15] Given my findings above, I am not satisfied that Ms Bowden was forced to resign due to conduct, or a course of conduct, engaged in by Cull & Harding.

[16] I find that Ms Bowden was not "dismissed" within the meaning of s.386 of the FW Act. I uphold Cull & Harding's jurisdictional objection.

Ms S Cull and Mr S McNeill representing Cull & Harding.

[1] Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279.

[2] Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli [2017] FWCFB 3941 at [47].

[4] Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245; [2017] FWCFB 3941 at [47].

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