s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional question - whether applicant was dismissed - applicant found to have resigned but not forced to do so - no dismissal - application dismissed

[1] Workers Educational Association - Hunter ("WEAH") employed Jeremy Miller as a teacher from 4 March 2025 until 7 July 2025. Mr Miller's employment came to an end after he provided WEAH with his written resignation on 6 July 2025.

• [2] Mr Miller subsequently commenced proceedings in the Commission by filing an application under section 365 of the Fair Work Act 2009 ("Act").[1] In his application, he described his resignation as a "Forced Resignation".[2] He alleged that WEAH had taken adverse action against him breach of section 342, including "by the Forced Resignation".[3]

[3] WEAH denied any contravention of the Act. More particularly for present purposes, it raised a jurisdictional objection to the Application - that is, that Mr Miller was not dismissed.

• [4] Section 365 relevantly provides that if a person "has been dismissed" and they allege that the dismissal contravened Part 3-1 of the Act, they may apply to the Commission to deal with the dispute. Given the language of the section, a person must have been dismissed for it to apply. If a respondent asserts that there has been no dismissal, it gives rise to a dispute as to whether the applicant is entitled to make the application. That dispute must be resolved before the Commission can exercise any of the powers the Act confers on it.[4]

[5] This decision deals with the jurisdictional objection.

[6] I find that Mr Miller was not dismissed. These are my reasons.

[7] The Act defines "dismissed" in section 386(1). That section contemplates two scenarios. First, a person will have been dismissed where their employment was terminated on the employer's initiative: section 386(1)(a). Second, a person will have been dismissed where they resigned from their employment, but were forced to do so because of conduct, or a course of conduct, engaged in by their employer: section 386(1)(b). Mr Miller contended that his circumstances fall within the second scenario.

• [8] Section 386(1)(b) reflects the common law concept of constructive dismissal.[5] In Bupa Aged Care Australia Pty Ltd v Tavassoli[6] ("Bupa") the Full Bench observed:[7]

"[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:

(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. ...[T]he requisite employer conduct is the essential element.".

• [9] Mr Miller submitted that apart from the obvious typographical error in the second sentence in subparagraph (2) in the above passage, the sentence contained "a quite significant error".[8] He contended that the Full Bench's formulation of the test to be applied was inconsistent with earlier authorities. He drew my attention to the following passage from the decision of a Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd[9] ("O'Meara"):

"In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign." (My emphasis)

• [10] The Full Bench in Bupa reproduced this passage from O'Meara without calling its correctness into question.[10] It also referred.to a number of other Full Bench decisions which adopted or quoted that passage with approval.[11]

[11] Mr Miller drew my attention to the language adopted in Bupa, namely:

"...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." (My emphasis)

• [12] Mr Miller submitted that by referring to "such that" rather than "or that", the Full Bench had conflated the enquiries anticipated by O'Meara without providing an explanation "as to why a different test is set out".[12] He speculated that this was a typographical error. But whatever the cause of the alleged error, Mr Miller contended that there were three "tests": whether the employer engaged in the conduct with the intention of bringing the employment to an end, whether termination of the employment was the probable result of the employer's conduct, or whether the employee had no effective or real choice but to resign.[13]

[13] On the face of Bupa, there is nothing to suggest that the Full Bench intended to depart from O'Meara or the other authorities to which the Full Bench referred. I do not read Bupa as seeking to articulate "a different test". I cannot explain why the Full Bench used "such that" as opposed to "or that" in describing the test to apply.

[14] I will approach section 386(1)(b) in the manner for which Mr Miller contended. That requires three enquiries:

(1) Was Mr Miller's resignation a result of conduct in which WEAH engaged with the intention of bringing the employment to an end?

(2) Was the termination of Mr Miller's employment the probable result of WEAH's conduct?

(3) Did Mr Miller have no effective or real choice but to resign?

• [15] In considering those questions, as stated in O'Meara, an objective analysis of the WEAH's conduct is required. Where questions of jurisdiction are involved, it is the facts which are relevant, not the parties' subjective beliefs or the reasonableness of their conduct.[14]

[16] WEAH relied on two statements of Aisha Choudhari, WEAH's People and Culture Manager. Mr Miller relied on a statement that he had made. Both Ms Choudhari and Mr Miller were cross-examined.

[17] The facts that are relevant to the jurisdictional objection are limited and there was little controversy around most of them. To the extent that there were conflicts on the evidence, they were of limited consequence and I will address them only where necessary.

[18] I have found the following to be the relevant factual context.

[19] WEAH operates the Atwea College. The College offers high school education at several campuses, including one at Woodberry in New South Wales ("Alesco Campus").

[20] Mr Miller commenced employment as a teacher with WEAH on 4 March 2025. At the time of the events giving rise to these proceedings, he worked on a part-time basis at the Alesco Campus and reported to Katelyn Davidson, the Head of Campus. Mr Miller had a contract with WEAH which anticipated a fixed term of employment until 19 December 2025, subject to the satisfactory completion of a probation period.

[21] On 27 June 2025, Ms Choudhari was informed by Rowan Cox, the Principal of the Alesco Campus, that some staff and students had alleged that Mr Miller had engaged in inappropriate behaviour with students. Ms Choudhari had a meeting with Ms Cox and Grant Dennis, the Deputy Principal of the Alesco Campus, on 2 July 2025. They agreed that they would meet with Mr Miller and consider his response to the reports.

• [22] However, later on 2 July 2025, Ms Cox sent an email to Ms Choudhari regarding two further reports that she had received in relation to Mr Miller's conduct towards students. The following day, in a meeting between Ms Choudhari, Ms Cox and Mr Dennis, it was decided to invite Mr Miller to a meeting on Monday, 7 July 2025 "to discuss the alleged incidents as part of the Respondent's standard probationary review process" and that "after the Applicant provides his response in the meeting, the Respondent would terminate his employment within the probationary period".[15]

• [23] Later on 3 July 2025, Ms Choudhari, Ms Cox and Mr Dennis met with Simon Gelder, WEAH's Acting Chief Executive Officer, "to seek his approval to terminate the Applicant's employment in probation".[16] Mr Gelder gave that approval.

[24] On Friday, 4 July 2025, Ms Choudhari called Mr Miller. The effect of the conversation was this:

(1) Ms Choudhari informed Mr Miller that she and Mr Dennis wished to meet with him on the following Monday, 7 July 2025, to discuss Mr Miller's performance and ongoing employment at Atwea College, noting that he remained on probation. (Monday, 7 July 2025 was the first day of the school holidays.)

(2) Mr Miller asked what the meeting was about, and stated that he had not been made aware of any concerns with his performance.

(3) Ms Choudhari declined to provide Mr Miller with any details over the phone.

(4) Mr Miller asked Ms Choudhari whether he was being dismissed. Ms Choudhari did not respond, other than to say that the purpose of the meeting was to discuss his performance.

(5) Ms Choudhari told Mr Miller that he could bring a support person to the meeting.

(6) Ms Choudhari told Mr Miller that the matter was confidential and that he could not discuss it with anyone other than his support person and her.

• [25] I digress to observe that Mr Miller gave evidence that when he asked Ms Choudhari whether he was being dismissed, she responded with words to the effect: "It wouldn't be fair to dismiss someone over the phone. We need to do it face to face and that it what Monday's meeting is for." Ms Choudhari denied having said those words. Under cross-examination, Mr Miller was equivocal as to what Ms Choudhari had said. He accepted that Ms Choudhari "did not state it explicitly" that he was to be dismissed at the meeting on 7 July 2025.[17] He said that he did not remember the "exact words" that Ms Choudhari used,[18] but that he had drawn a "reasonable inference" that his was to be dismissed then.[19] On balance, I prefer Ms Choudhari's evidence in this regard.

[26] Immediately after the phone call, Mr Miller went to see Ms Davidson. He asked her whether she knew what the proposed meeting was about. Ms Davidson told him that she did not, and that nor was she aware of Mr Miller being the subject of any conduct or performance concerns. She offered to help Mr Miller ascertain the purpose of the meeting.

• [27] On 6 July 2025, Mr Miller sent an email to Ms Davidson, Mr Dennis and Ms Choudhari which stated in part:[20]

"Please find attached my formal letter of resignation from Alesco Senior College. While I recognise the timing is unconventional, I believe this is the most appropriate decision for all parties at this point."

• [28] Mr Miller's letter of resignation stated in part:[21]

"Please accept this letter as formal notice of my resignation from Alesco College, effective immediately, with my two-week notice period to commence during the current school holidays.

While recent developments suggest a divergence in direction, I remain committed to acting with professionalism. I've appreciated the opportunity to contribute across campuses, and I leave open the possibility of future collaboration, should circumstances allow."

• [29] Several hours later on 6 July 2025, Mr Miller sent an email to Aliesha Zuvela, a People and Culture Business Partner at Altea College, which was copied to Ms Choudhari and Mr Dennis. The email attached a letter directed to Ms Choudhari, which stated in part:[22]

"I am writing to formally request clarification regarding the meeting scheduled for Monday.

As you are aware, I have already submitted my resignation. At no point prior to your call on Friday was I made aware of any formal concerns regarding my performance. My understanding, based on feedback received during my time at Alesco - particularly at Charlestown and subsequently at Woodberry - is that my work has been appreciated and my contributions valued.

However, our recent phone call strongly suggested that my employment was being terminated. I have since been removed from internal systems, including MS Teams, and to my knowledge, replaced. Given this context, I feel it is appropriate and necessary to ask what specific matter of concern has led to this meeting - particularly as it appears both sudden and scheduled during the school holidays.

I would appreciate your confirmation as to whether this matter is disciplinary in nature and what it pertains to and whether you are still requiring it to go ahead."

[30] This letter needs to be viewed in the context that in his covering email to Ms Zuvela, Mr Miller stated that he would not be attending the meeting.

• [31] On 7 July 2025, Ms Choudhari sent an email to Mr Miller, which stated in part:[23]

"I would like to start by confirming that you have not been removed from any Atwea College systems, nor have any steps been taken to replace you. The meeting scheduled for today was intended to discuss your ongoing employment and performance in the role, as discussed on Friday.

I also formally acknowledge receipt of your resignation and confirm that your last day of employment with Alesco Secondary College (Alesco) is 7th July 2025 and that we will pay in lieu of the one week notice period outlined in your employment contract. Aliesha will be in contact with you to discuss offboarding requirements."

[32] The email went on to detail the purpose for which the meeting proposed for 7 July 2025 had been called. It is not necessary to reproduce those parts of the email.

[33] Mr Miller commenced these proceedings on 28 July 2025.

• [34] Mr Miller's position was that by 5 July 2025 he "understood" and was of the "belief" that his employment with WEAH was at an end and that his choices "were to resign or be advised of the termination during the 7 July meeting".[24] He gave evidence that he had formed this view as a result of the following:

(1) his conversation with Ms Choudhari on 4 July 2025. Leaving aside whether Ms Choudhari told him that he was to be dismissed on 7 July 2025 (which I am not satisfied occurred), he was directed to attend a meeting at short notice; the direction had come suddenly and unexpectedly; the meeting was to take place on the first day of the school holidays; Ms Choudhari refused to provide him with information as to what had prompted the need for the meeting, when his feedback and appraisals before that conversation had been positive; and he was told to keep the meeting confidential and not talk to anyone but his support person about it;

• (2) having "discovered" on 5 July 2025 that his access to an MS Teams mathematics course had been removed;[25]

• (3) having received, also on 5 July 2025, "an email notification that a new Mathematics Teacher was employed" who appeared to have replaced him;[26] and

• (4) Ms Davidson having told him that she did not know why the meeting had been called. This showed that his supervisor had been "circumnavigated",[27] causing him to question the fairness of the process and WEAH's intentions.

• [35] Under cross-examination, however, Mr Miller accepted that his access to the mathematics course had not been removed until 8 July 2025 (the day after his employment came to an end) and that WEAH had not hired a new mathematics teacher. How Mr Miller had come to be wrong in these respects was not explained.[28] On the evidence, these matters cannot have informed his decision to resign.

[36] Mr Miller placed reliance on the fact that WEAH had determined on 3 July 2025 that he was to be dismissed. Despite some faint submissions from WEAH to the contrary, the evidence overwhelmingly shows that this was the case.

• [37] In her written and oral evidence, Ms Choudhari stated that whatever Mr Miller said at the meeting on 7 July 2025, WEAH was going to dismiss him. The meeting was purely to close off on perceived procedural requirements, without having any bearing on the outcome. The following exchange from Ms Choudhari's cross-examination was telling:[29]

"...So if the process was always going to be that the applicant was going to be terminated on the Monday, what was the purpose of the meeting?---To formally have the discussion that we have with all our employees within their probationary period.

But there was nothing that the applicant could say or do that would stop you terminating him, was there?---Well, yes, that was the intention of the meeting, yes.

Yes. So just, for example - and I won't labour this point - if the applicant turned up at the meeting, and proved to you that these allegations had no truth to them, you still would have terminated him, wouldn't you?---Based on our employment contracts being within six month probations, and subject to that, yes, within the probationary period."

[38] In re-examination, Ms Choudhari gave evidence that had Mr Miller been able to show on 7 July 2025 that there was no substance to the allegations against him, she "would have sought clarity from the CEO". This evidence flew in the face of Ms Choudhari's written testimony and her evidence under cross-examination, and I do not accept it.

• [39] Mr Miller submitted that as his dismissal was, for all intents and purposes, a foregone conclusion, the events on which he relied "were part of conduct undertaken with the intention of bringing his employment to an end".[30]

• [40] In response, WEAH submitted that it does not follow that just because an employer commences a process, the probable result of which is the dismissal of an employee, any resignation has been forced. I accept that submission.[31] In the particular circumstances of this case, I make two observations.

[41] First, Mr Miller's position was informed by hindsight; that is, what he now knows were WEAH's intentions. But the question is what he knew at the time he tendered his resignation. A person cannot be forced to resign by conduct of which they are unaware. Mr Miller did not know on 6 July 2025 that he was to be dismissed. This is something he believed as a result of inferences he drew.

[42] Second, while WEAH clearly intended to bring the employment to an end on 7 July 2025, the evidence does not support the conclusion that it intended to bring about a termination before that date. To the contrary, Ms Choudhari wished to ensure that the meeting occur so as to address perceived "formal" requirements for the dismissal. Her conversation with Mr Miller was to arrange a step in the process to bring about the dismissal. It was not intended through the conversation on 4 July 2025, or in any action taken up to that point, to bring the employment to an end at that time. Further, nothing in that conversation evinced an intention to secure Mr Miller's resignation.

Was the resignation the probable result of WEAH's actions?

[43] The question of whether the termination of the employment was the probable result of WEAH's conduct has to be addressed, once again, through an objective analysis of the relevant conduct. That is, the conduct of which Mr Miller was aware at the time he tendered his resignation.

[44] I accept that Mr Miller would have had cause for concern after his conversation with Ms Choudhari. This might reasonably have been exacerbated by Ms Davidson being unaware of both the fact that the meeting had been arranged and its purpose. Mr Miller drew inferences and formed the subjective belief that he was to be dismissed at the proposed meeting. While this was prescient, it is not sufficient. The question is whether, viewed objectively, the termination of the employment was the probable result of WEAH's conduct prior to Mr Miller's resignation. I do not consider that it was.

Did Mr Miller have no effective or real choice but to resign?

"[T]he Applicant was not forced to resign by Ms Choudhari's conduct during the phone call - he had other choices open to him, including attending the meeting, listening to his employer's concerns, seeking independent advice in relation to those concerns, and responding to those concerns or making other representations to the Respondent. The Applicant made a positive choice not to avail himself of those opportunities when he elected to resign." (Emphasis in original)

[46] On the basis of what Mr Miller knew as at 6 July 2025, I accept that those options were available to him. He also had the option of seeing whether Ms Davidson was able to ascertain the purpose of the meeting, as she had said she would attempt. He also demonstrated that another option was to attempt to clarify the purpose of the meeting and the concerns to be discussed, as he did in his second letter to Ms Choudhari on 6 July 2025. Such a letter might have been sent before he resigned and without stating that he would not attend the meeting.

[47] It is noteworthy that in that letter to Ms Choudhari, Mr Miller did not say that she had told him that he was to be dismissed or that he had been left with no choice but to resign. He said only that their conversation on 4 July 2025 "strongly suggested" that his employment was to be terminated.

• [48] Further in this regard, although Mr Miller spoke to Ms Davidson immediately after his conversation with Ms Choudhari, he led no evidence that he told her that he believed that resignation was his only choice. He stated under cross-examination that he "made it clear" to Ms Davidson that his employment was going to be terminated,[33] but there is no such evidence in his statement. I have given his oral evidence in this regard little weight.

[49] Also, in his letter of resignation Mr Miller did not state that he had been forced to take that action. He referred to "recent developments" as having suggested a "divergence in direction". He also sought to "leave open the possibility of future collaboration". This is not the language of someone who had been forced to resign.

• [50] I am mindful that Ms Choudhari accepted under cross-examination that after her conversation with Mr Miller he had a choice - either go to the meeting to be dismissed, or resign in the meantime. But this was not an ultimatum put to Mr Miller in the conversation. The "choice" to which Ms Choudhari referred was informed by hindsight. That is, Mr Miller was to be dismissed at the meeting, and only his resignation would have affected (and did affect) that outcome. As WEAH submitted, it was "a choice that is apparent after the fact".[34]

• [51] WEAH did not suggest that Mr Miller resign. His decision to do so appears to have been one taken to protect his own interests.[35] In this regard, he stated:

• (1) "I thought it was the safer option, where I could keep my professional reputation intact, so that I wouldn't be given allegations or misconduct, or whatever it was, without it being fairly put to me beforehand";[36]

• (2) "I made the decision to resign to protect myself";[37] and

• (3) he wanted to "exit on [his] own terms".[38]

[52] Viewed objectively, WEAH did not engage in conduct that left Mr Miller with no effective choice but to resign. On the evidence, his decision to resign may have been motivated by WEAH's conduct, but it was not one that was forced on him.

[53] Mr Miller resigned from his employment with WEAH. I am not persuaded that he was forced to do so because of conduct, or a course of conduct, engaged in by WEAH. For the reasons set out above, I find that: WEAH did not intend to bring Mr Miller's employment to an end at the time he resigned nor did it intend to bring about that resignation; the termination of Mr Miller's employment was not the probable result of the conduct of WEAH on which he relied; and, it was not a situation where Mr Miller had no effective or real choice but to resign.

[54] It follows that I find that Mr Miller was not dismissed within the meaning of section 386(1). Consequently, he was not entitled to make the application under section 365.

[1] In this decision, unless otherwise stated, references to legislative provisions are to provisions of the Act

[2] Form F8 - General protections application involving dismissal, 28 July 2025, Annexure A par 12

[3] Form F8 - General protections application involving dismissal, 28 July 2025, Annexure A par 19

[4] Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [67]. See also Lipa Pharmaceuticals Ltd v Mariam Jarouche (2023) 324 IR 375; [2023] FWCFB 101 at [4].

[5] Explanatory Memorandum for the Fair Work Bill at par 1530; City of Sydney RSL & Community Club Limited v Roxana Balgowan [2018] FWCFB 5 at [9] and [13]

[6] (2017) 271 IR 245; [2017] FWCFB 3941

[7] (2017) 271 IR 245; [2017] FWCFB 3941 at [47(2)]

[9] PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]

[10] (2017) 271 IR 245; [2017] FWCFB 3941 at [32]

[11] (2017) 271 IR 245; [2017] FWCFB 3941 at [34] - Kylie Bruce v Fingal Glen Pty Ltd [2013] FWCFB 5279 at [18]- [19]; Sharlene Ryan v ISS Integrated Facility Services Pty Ltd T/A ISS Facility Services [2014] FWCFB 8451 at [15]; Sharon Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust t/a Pope Nitschke First National [2016] FWCFB 375 at [39]- [40]

[14] Searle v Moly Mines Ltd (2008) 174 IR 21; [2008] AIRCFB 1088 at [38]

[15] Statement of Aisha Choudhari, 19 September 2025, par 16

[16] Statement of Aisha Choudhari, 19 September 2025, par 17

[20] Statement of Aisha Choudhari, 19 September 2025, Annexure AC-7

[21] Statement of Aisha Choudhari, 19 September 2025, Annexure AC-7; Statement of Jeremy Miller, 3 October 2025, Attachment JM-5

[22] Statement of Aisha Choudhari, 19 September 2025, Annexure AC-8

[23] Statement of Aisha Choudhari, 19 September 2025, Annexure AC-9

[24] Submissions of the Applicant on Jurisdictional Objection, par 15

[25] Statement of Jeremy Miller, 3 October 2025, par 15

[26] Statement of Jeremy Miller, 3 October 2025, par 16

[28] The "email notification" to which Mr Miller referred was not in evidence. I note that in its evidence in reply, WEAH refuted Mr Miller's evidence on these matters. However, he made no changes to his statement and indeed deposed at the hearing that his statement contained no errors or omissions and that there were no changes that he wished to make.

[31] See the discussion in Alex Piakis v KDR Victoria Pty Ltd T/A Yarra Trams [2021] FWC 6048 at [28]- [29], noting also [23]-[24]. I observe that on the basis of this authority it would have made no difference to my decision had I found that Ms Choudhari told Mr Miller on 4 July 2025 that his employment was to be terminated the following Monday.

[32] Respondent's Outline of Submissions on Jurisdictional Objection, par 17(f)

[35] See the discussion in Alex Piakis v KDR Victoria Pty Ltd T/A Yarra Trams [2021] FWC 6048 at [28]- [29], noting also [23]-[24]. I observe that on the basis of this authority it would have made no difference to my decision had I found that Ms Choudhari told Mr Miller on 4 July 2025 that his employment was to be terminated the following Monday.

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