s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - Applicant not dismissed, not forced resignation - application dismissed

• [1] On 29 August 2025, Mr Johar Ali (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against ZircoDATA Pty Ltd (the Respondent). In his application, Mr Ali alleges he was forced to resign because of a hostile work environment directed at him in contravention of s.351- religion and s.351 - race.

• [2] The Respondent objects to the application stating that Mr Ali voluntarily resigned from employment in writing. Further it contends that no steps were taken by the Respondent to terminate Mr Ali's employment.

• [3] Mr Ali commenced employment on 15 January 2024. On Friday 8 August 2025, he made a formal complaint of bullying and harassment[1] to HR and resigned on Monday 11 August 2025.

• [4] Whether Mr Ali was dismissed within the meaning of s.386 is in dispute. The Applicant contends that the workplace environment was so hostile that his employer's conduct forced his resignation. This contention requires the Fair Work Commission (the Commission) to accept that he resigned, and the termination of employment was because of the conduct of the Respondent pursuant to s.386(1)(b) of the Act.

• [6] At the case management hearing on 23 September 2025, the directions for filing materials were confirmed.

• [7] Mr Ali emailed brief submissions on 9 October 2025, two days after their due date and following a reminder from the Commission. Mr Ali then tendered, unprompted, further submissions in response to the Respondent's submissions on the same day - 21 October 2025.

• [8] Mr Ali contends that his resignation was not voluntary but forced because of "an untenable and hostile work environment created by systematic bullying and harassment". In particular he asserts that his concerns raised with HR were not investigated and addressed and that his director failed to respond to his emails and Teams messages. Mr Ali further contends that he resigned taking a lower paying position which is indicative of a forced resignation. Mr Ali submits his delay in tendering his submissions was due to his depression and an effort to focus on his wellbeing.

• [9] The submissions in response to the Respondent's submissions contend the following:

• The resignation 3 days after making a bullying complaint is because no protective measures were taken and his access to the workplace was restricted.
• The complaint of bullying was made after months of derogatory remarks about race and religion.

• [10] Attached to the second set of submissions, Mr Ali tendered into evidence the email containing the complaint of 8 August 2025,[2] his email resignation,[3] and correspondence post resignation.[4]

• [11] The Respondent contends that the actions of the employer did not meet the test of conduct leaving the Applicant with no real or effective choice but to resign. Instead, it submits that its conduct was fair, reasonable and consistent with its obligations of procedural fairness.

• [12] The Respondent submits that the Applicant advised HR of a complaint via email on Friday 8 August 2025. Within one hour of receiving the complaint, HR acknowledged receipt, advised that an investigation would be completed and offered support.[5]

• [13] On Monday 11 August 2025, the Applicant resigned by email stating "I am writing to formally resign from my position at ZircoDATA, effective immediately as of 11/08/2025."[6] The Respondent replied to the resignation on the same day advising that the investigation had commenced, and HR was first informed of the complaint only on Friday 8 August 2025.[7] The Respondent submits that the Applicant was further contacted by phone to check on his welfare and confirm whether he intended to proceed with his resignation.[8] The discussion on the phone was confirmed in email the following day.

• [14] Mr Ali confirmed his resignation effective immediately and the Respondent agreed to waive the notice period. The Respondent confirmed that in keeping with the Applicant's position as Systems Administrator, payment in lieu of notice would be paid.[9]

• [15] The Respondent confirms that its performance management system and review of performance reviews show a positive performance record.[10] In addition the Respondent produced its records that show that the Applicant completed its annual Code of Conduct training which reinforces its internal process for reporting workplace concerns or incidents.[11]

• [16] The Respondent produced evidence of its completion of investigation.[12] In response to the allegations by the Applicant that his Director failed to respond to emails and Teams messages, the Respondent says that there is no record of such a complaint, nor awareness of any substance to the allegation. The Respondent also disputes the Applicant's submission that HR failed to investigate or intervene following the complaint and refers in particular to Annexures A and C of its evidence. It is on the basis of its written evidence that the Respondent submits there is no evidence of repudiation of contract, the Applicant was aware of its internal complaint and investigation process and therefore the resignation was voluntary and not a dismissal as defined by s.386 of the Act.[13] The Respondent dismisses the submission that taking a job at a lesser salary supports the contention that the resignation was forced.[14]

• [17] Mr Ali lodged a general protections involving dismissal dispute with the Commission pursuant to s.365 of the Act. Section 365 applications concern dismissal disputes. Relevantly, the provision provides:

365 Application for the FWC to deal with a dismissal dispute

(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.

• [18] Section 365 requires that the person that alleges the dismissal is a contravention of the Act must be "dismissed". The Act further defines dismissed. The relevant provision is s.386:

(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.

• [19] Section 365 requires that should an application be made, it must be by a person that is dismissed, and the person alleges the dismissal is in contravention of the Act.

• [20] To make a general protections dismissal application the person must have been dismissed as defined by s.386 of the Act. Before exercising its powers under s.368[15] of the Act, the Commission must be satisfied that the person was dismissed in fact.[16].

• [21] The relevant provision in this matter is the application of subsection 386 (1) (b) of the Act. Both subsections of s.386 (1) relate to the employment coming to an end because of the employer's initiative.

• [22] Mr Ali contends that he was forced to resign due to prolonged racial and religious discrimination, a hostile work environment and a failure by the Respondent to provide a safe and fair workplace.[17] Mr Ali defines the prolonged period as months,[18] and his resignation email refers to his last 6 months of employment. The resignation refers to statements made by senior members of his team which were contained within his formal complaint of 8 August 2025. The email containing the resignation[19] emphasises the involuntary nature of the resignation suggesting a lack of confidence in the investigation process and a practicable outcome. Mr Ali states in his email: "I recognise the inherent challenges in addressing misconduct by senior leadership."

• [23] Mr Ali does not contest the Respondent's evidence of its Code of Conduct training which shows completion of training by the Applicant on 1 February and 2 December 2024 and again on 1 July 2025. The Respondent tendered into evidence extracts of the training module which includes a summary of the three units encompassing detail on the Code, applying the Code and reporting breaches. I observe the training module further covers investigations and consequences for breaches of the Code.[20]

• [24] No explanation was given as to why a formal complaint was not escalated to HR after the first incident which was identified by Mr Ali as a breach of the Code of Conduct and the Company's Diversity and Inclusion Policy. Instead, the Respondent's evidence of the Investigation Outcome Report[21] documents the four incidents comprising the initial complaint, (with a second allegation received on 21 August 2025 referencing an incident in February 2025) a relevant timeline and finding outcomes which identifies that the incidents had occurred in February, March, May and June (two incidents in June) of 2025 involving two senior members of the Systems and Digital team. Mr Ali made no submissions on the Investigation Outcome Report.

• [25] It appears that Mr Ali was possibly either impatient with or lacked confidence in HRs investigation process after he lodged his formal complaint on Friday 8 August 2025 to resign the following Monday. However, whatever the reason for the prompt resignation[22] following the complaint, it is insufficient to support the contention of a forced resignation. The Respondent's evidence concerning both the systems in place[23] and the process[24] challenge the submissions of a forced resignation. Having the benefit of reviewing the Investigation Outcome Report which details the allegations,[25] I accept that the comments as alleged were inappropriate, offensive and a cause for concern which clearly entitled the Applicant to formally make a complaint. It is unfortunate that Mr Ali did not see the investigation process through.

• [26] A dismissal at the employer's initiative is where the employer's actions directly and consequently result in the termination of the employment relationship, and had the employer not taken such action, the employee would have remained in employment.[26] I do not on the facts conclude on balance that the employer's actions resulted in a termination of employment. There is no evidence of the conduct complained of was condoned, instead the actions of the Respondent show immediate and prompt action on being informed of the alleged conduct to investigate taking into account principles of procedural fairness.

• [27] The Applicant submits that the termination of employment was a constructive dismissal. The principle from the authorities is that the employer's conduct is key to effect the resignation of the employee, and to such an extent that the employee had no choice but to resign.[27]

• [28] The question of whether the employee had no real choice but to resign is not a matter where the employee did not agree with the circumstances, rather the action of the employer must be such that the employee did not have a real choice but to resign; had the action of the employer not occurred, the employee would not have resigned. It is important to consider the facts objectively, where an employee does not like the circumstances, is uncomfortable, finds it difficult or distressing, such characterisations alone would not satisfy the principles in Mohazab.[28] On the evidence I cannot reasonably conclude that Mr Ali had no choice to resign and further the conduct of the employer did not contribute to a situation where there was no choice.

• [29] Other relevant authorities regarding constructive dismissal concern situations where an employer can treat the resignation as an unambiguous resignation. Where a resignation occurs in the heat of the moment or under extreme pressures or circumstances, it is advisable that employers take steps to confirm that the resignation was intended.[29]

• [30] Even if Mr Ali resigned under pressured circumstances, the conduct of the Respondent was considered and balanced by asking Mr Ali to confirm his intentions and offered the option to withdraw the resignation. The email correspondence of 8 August was supportive and acknowledged raising a complaint can be difficult and reiterated the intention to deal with the complaint with sensitivity, respect and in line with the Company's procedures. The email of 11 August following receipt of the resignation reinforces that the Company takes the allegations seriously regardless of the position held and recommits to its process while seeking confirmation of the Applicant's position and the option to withdraw the resignation. Instead of reconsidering his resignation, Mr Ali confirmed his intention to resign. On these circumstances, I cannot accept that the resignation was forced, instead I do find the resignation was voluntary.

• [31] Mr Ali refers to his subsequent decision to accept employment elsewhere at a lower salary as evidence of an involuntary resignation. I cannot accept Mr Ali's decision to accept employment at a lower salary post resignation weighs in his favour. It is admirable that he was fortunate to reengage in employment relatively quickly post his resignation, albeit at a lower salary. Accepting employment offers are made at the time taking into account any number of considerations, it is not reasonable on this basis to conclude the acceptance of employment at a lower salary is evidence of a forced resignation.

• [32] Mr Ali also refers to a restriction to his access to the workplace. In relation to this point he submits his email of 17 August 2025 to HR where he contends that access was restricted as his manager took him to a coffee shop and received the laptop, office pass and car parking pass while in reception.[30] However, at this point Mr Ali was no longer an employee and was already paid notice in lieu. This denial of access as described, in my view is not relevant to the contention that the conduct contributed to a forced resignation, nor relevant to my finding that the resignation was not forced. Similarly, the other emails attached referencing difficulty in connecting to Teams in late August, including HR's failure to complete the investigation by an estimated date of 22 August are not directly related to my finding in this matter.[31]

• [33] Having considered the submissions and evidence I am not satisfied that Mr Ali had no option but to resign. Mr Ali was not without any choice, he could have seen out the investigation process rather than hastily resign the following working day. He had choices, there was no evidence of extreme pressure, nor is there evidence that the "resignation" was unambiguous.

• [34] Having considered the evidence I am satisfied that Mr Ali was not dismissed within the meaning of s.386 (1)(a) or (b) of the Act. Therefore, the resignation does not meet the definition of s.368 and the application does not enliven s.365 of the Act. The application is dismissed.

[2] Annexure A to the Applicant's submissions of 21 October 2025.

[3] Annexure B to the Applicant's submissions of 21 October 2025.

[4] Annexure C to the Applicant's submissions of 21 October 2025.

[5] Email correspondence of 8 August 2025 - Annexure A to Respondent's outline of submissions.

[6] Email correspondence of 11 August 2025 - Annexure B to Respondent's outline of submissions and at [5.1.2].

[7] Email correspondence of 11 August 2025 - Annexure C to Respondent's outline of submissions and at [5.1.4].

[8] Email correspondence of 12 August 2025 - Annexure C to submissions recorded the telephone discussion and agreed next steps.

[9] Respondent's outline of submissions at [5.1.5].

[10] Respondent's outline of submissions at [5.1.6] - [5.1.7].

[11] Annexure F to the Respondent's outline of submissions and at [5.1.8].

[12] Annexure G - Investigation Outcome Report to the Respondent's outline of submissions and at [5.1.9].

[13] Respondent's outline of submissions at [6,7,8 and 9].

[14] Respondent's outline of submissions at [10].

[15] Dealing with a dismissal dispute other than by arbitration.

[16] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591, 54.

[17] Applicant's submissions of 21 October at [1].

[18] Applicant's submissions of 21 October at [2].

[19] Annexure C of the Respondent's outline of submissions.

[20] Annexure F to the Respondent's outline of submissions.

[21]Annexure G to the Respondent's outline of submissions.

[22] Which was not disclosed in the hearing, other than the suggestion in the resignation email.

[23] Code of Conduct, Diversity and Inclusion Policy, training modules and regular implementation of the training, Further the materials are relevantly balanced, and the training confers a positive duty to report breaches.

[24] Acknowledgement of complaint, offer of support and reiteration of process, together with finalisation of the investigation despite the resignation.

[25] Together with Annexure A of the Applicant's submissions of 21 October 2025.

[26] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200, 205.

[27] See Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200; 39 AILR 3-234 at 205 (IR) per Lee, Moore and Marshall JJ and O'Meara v Stanley Works Pty Ltd [2006] AIRC 49; (2006) 58 AILR 100-528 AIRC 496 at [19] - [23].

[29] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999).

[30] Annexure C to the Applicant's submissions of 21 October 2025.

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