s.365 - General protections

Application to deal with contraventions involving dismissal_- jurisdictional objection raised of 'not dismissed' - objection dismissed_

[1] On 25 September 2025, Ms Joanna Yi filed an application under s.365 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal against EPEC Group Pty Limited (EPEC).

[2] EPEC filed a Form F8A in which it raised a jurisdictional objection to the application, being that Ms Yi was not dismissed from her employment.

[3] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine this point before exercising its Conference powers under s.368 of the Act. Therefore, the issue for determination is whether Ms Yi was 'dismissed' from her employment within the meaning of s.386 of the Act.

[4] Section 386(1) of the Act states as follows:

(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

[5] Section 386(2) of the Act sets out the circumstances where an employee has not been dismissed, none of which are relevant to the present matter.

[6] The parties had the opportunity to file material on whether Ms Yi was dismissed pursuant to s.368 of the Act. I conducted a Determinative Conference on 4 December 2025. I granted permission for the Applicant and the Respondent to be represented under s596(2)(a) of the Act. Ms Yi and Ms Adrienne Williams (Friend of Ms Yi) gave evidence for the Applicant. Ms Rose Galloway gave evidence for EPEC.

[7] Ms Yi commenced employment with EPEC on 6 November 2024 as a casual Senior Accountant. Ms Yi says that from April 2025, she performed the role of Group Finance Manager (GFM), and that this was announced to staff at a meeting in April 2025. Ms Yi says that she had discussions with her manager, Mr Silvester and HR representative, Mr Mudge that her contract for the GFM role needed to be formalised. In August 2025, it came to Ms Yi's attention that a new Head of Finance had been appointed. Ms Yi says she sought clarification on her role and contract, and that the parties had discussions about her performing another role.

[8] EPEC says Ms Yi's casual employment status, remuneration and duties remained unchanged for the entirety of her employment and that she was never appointed to the GFM role.

[9] On 27 August 2025 Ms Yi says she and Mr Silverster discussed the GFM role. She says Mr Silverster advised her that the role of GFM was available to her, but that it would require her to relocate from Melbourne to Brisbane. Ms Yi says that in their previous discussions about the role, she said she was willing to commute to Brisbane on occasion, which Mr Silvester did not have any issues with. Ms Yi says that when she advised Mr Silvester that she was unable to relocate to Brisbane he said, 'if you're not going to move to Brisbane then you will need to resign.' Ms Yi says she had no choice but to resign as she was unable to relocate to Brisbane.

[10] EPEC says that Ms Yi was a casual Senior Accountant and was never appointed to the role of GFM. It says that Ms Yi was never told to resign and that her substantive role of Senior Accountant was still available to her. It says Ms Yi voluntarily resigned because she was frustrated with not getting the new role and that there was a misunderstanding about the role.

[11] It was Ms Galloway's evidence that she undertook a review of available documents, including internal emails, timesheets, calendar entries, and relevant policy documents and found no communication indicating that EPEC had formed the intention to appoint Ms Yi to a permanent leadership role or back pay her. It was Ms Galloway's evidence that there were no emails confirming any change in contract terms, higher duties or approval for a change in position.

[12] EPEC submitted the following correspondence dated 1.25PM on 27 August 2025, from Ms Yi to Mr Silvester:

Hi Nev, just following up on the permanent contract we discussed last week. It may feel like a bit of a surprise, but I've actually been waiting quietly since the verbal announcement in our team meeting back in April, and I do need clarity this week, in writing from you and the People & Culture teams or from Moz. I'm not prepared to wait until next week or later.

Being left without clarification since early April has caused a lot of uncertainty and stress. My current casual contract has a 7-day notice period, which would make 5 September my last day - I am prepared for that if this is not resolved this week. That said, my plan for the next 3-5 years is to stay steady here and continue being accountable for the financial control area, which is indispensable to our fast growing business. Could you kindly confirm whether we can lock this is in writing by the end of this week? Please let me know a time that would best suit for a catch-up with you, or with Michael if needed, this week. Thank you

[13] EPEC also submitted Ms Yi's resignation email dated 5.49PM on 27 August 2025, from Ms Yi to Mr Silvester:

Thank you for your kind communication and support. I accept the role is in Brisbane rather than Melbourne, although I had offered to travel regularly and was willing to provide steady support in the Group Financial Controller role over the next 3-5 years of growth and transition.

I am therefore giving 7- days' notice under my current contract, with my last working day being Friday, 5 September 2025.

[14] I did not find Ms Galloway's evidence particularly relevant or persuasive, as her evidence was confined to the emails and time sheets she says she reviewed. Ms Galloway said that she was not aware of whether Ms Yi was undertaking higher duties, nor was she aware of what discussions had taken place between Ms Yi and Mr Silvester regarding the GFM role. It was her evidence that she had not spoken to Mr Silverster or Mr Mudge about Ms Yi.

[15] Ms Yi provided email exchanges with both Mr Silverster and Mr Mudge in which it is evident that Ms Yi was seeking to have her GFM contract finalised. An email between Mr Mudge and Ms Yi dated 15 May 2025 states the following:

Ms Yi_: while my current role is not yet formally signed off with paperwork, I've been asked to practice manage this team - including Suzie - during this interim period._

Ms Yi_: once my new contract is confirmed, I'll travel up to Brisbane to connect with the team and continue building strong alignment._

Mr Mudge: Hi Joanna. Thanks for sending the below through. I will touch base with Suzie today and see what is happening.[2]

[16] In an email from Ms Yi to Mr Silvester dated 27 May 2025, Ms Yi states the following:

...Since stepping into the Group Finance manager role, I've stayed focused on supporting and stabilising key areas...

[17] In a chat between Mr Silvester and Ms Yi on 5 June 2025, Mr Silvester writes:

I'll also call you to talk about your overseas trip, your role and the team. In this regard, sorry, I haven't gotten back to sooner around role etc but I've just been buried with lots of other non-finance things. Thanks.[3]

[18] While I do not consider it necessary to make a finding about the position Ms Yi held with EPEC, I note that at no time in any of the correspondence submitted does Mr Silvester or Mr Mudge comment, suggest, counter or contradict Ms Yi's assertion that she is performing the GFM role or that the contract will be forthcoming.

Did Yi resign or was she terminated at the initiative of EPEC?

• [19] The Full Bench of the Commission considered the two limbs of s.386(1) of the Act in Bupa Aged Care Australia Pty Ltd v Tavassoli.[4] After considering in detail the case law associated with the expression 'terminated on the employer's initiative', including notions of constructive dismissal and forced resignation, the Full Bench said:

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 probabl(e)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.

• [20] In Hastie v Impress Australia Pty Ltd,[5] Senior Deputy President Richards said:

The employer's conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.

[21] Ms Yi resigned very shortly after her conversation with Mr Silverster on 27 August 2025. Ms Yi did not submit that her resignation was made in the 'heat of the moment', however I am required to consider s.368(1)(a) of the Act.

[22] If it is as EPEC says - that Ms Yi's position as a casual Senior Accountant was unchanged and still existed - then EPEC was on notice that Ms Yi was resigning only because she had believed that her position as GFM was required to relocate to Brisbane. There is no evidence that EPEC took any action to correct Ms Yi's perception or clarify with her that the Senior Accountant position was unchanged in Melbourne. Curiously, it was Ms Galloway's evidence that although she read the resignation letter, she did not consider discussing it with Ms Yi. In her resignation email, Ms Yi gave EPEC the opportunity to try and finalise her role. However, EPEC did not seek to discuss this with her. It is clear from Ms Yi's email dated 27 August 2025 that she was referring to her role as GFM. If EPEC considered that her role was a Senior Accountant, and that that role was still hers, then the opportunity to correct that understanding was not taken by EPEC.

[23] I consider EPEC's acceptance of Ms Yi's resignation without further clarifying what it considered to be her actual position, and the need for her to relocate to Brisbane, to be a termination at the initiative of EPEC.

[24] However, if I am wrong on s.368(1)(a) of the Act, I consider Ms Yi was dismissed under s.368(1)(b) of the Act. I accept the uncontested evidence of Ms Yi that in the conversation between herself and Mr Silvester on 27 August 2025, she was told she could either take the role in Brisbane or resign. On the evidence, it appears that Ms Yi was performing the role of GFM from April 2025. There is no evidence of any discussion with her about returning to the Senior Accountant role if she did not want to relocate to Brisbane. EPEC suggested that there was a misunderstanding but provided no evidence in support of this contention.

[25] Having considered the evidence of the parties and their submissions, when objectively viewed, I find that Ms Yi was dismissed under s.386 of the Act.

• [26] The jurisdictional objection of the Respondent is dismissed, and an Order[6] to this effect is issued with this Decision.[7] The matter will proceed to be programmed for conference.

[1] Witness Statement of Ms Rosemary Galloway at RG-2.

[2] Witness Statement of Ms Joanna Yi at Attachment M.

[3] Witness Statement of Ms Joanna Yi at Attachment O.

[4] [2017] FWCFB 3941 at [47].

[5] [2008] AIRC 102 at [48].

[6] PR797411.

[7] [2026] FWC 749.

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