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[2026] FWC 405
General information, not legal advice.
Fair Work Commission
2026-02-11
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
Application to deal with contraventions involving dismissal - jurisdictional objection - whether applicant dismissed - applicant not dismissed - application dismissed for want of jurisdiction
[2] The following matters are not in dispute, save in minor respects as I have indicated.
[3] Mr Wheeler had been employed since 2022. He was the Kitchen Manager at the café operated by the Respondent known as Earlybirds Café.
[4] Mr Wheeler has ASD and ADHD. In November 2024, as indicated below, he was also diagnosed with an adjustment disorder.
[5] On 8 November 2024 Mr Wheeler took personal leave for five days, for anxiety. This reason was provided to the Respondent. Mr Wheeler says that shortly afterwards he was removed from the work WhatsApp group. Mr Jarvis, the business owner, said Mr Wheeler was not removed but a separate group was created without him in it. Either way the parties agree that Mr Wheeler did not have access to work WhatsApp messages.
[6] On 11 November 2024 Mr Wheeler was asked to return his work laptop and debit card.
[7] On 13 November 2024 Mr Wheeler was diagnosed with an adjustment disorder. He provided a medical certificate indicating he was not fit for work until 13 December 2024. Later on that date Mr Wheeler made a workers' compensation claim. Subsequent to that, the employer provided a response to WorkCover. Neither the claim nor the employer's response was in evidence in these proceedings, though a document that may have been the claim (or part of it) had been attached to the application.
[8] On 13 December 2024 Mr Wheeler provided a further medical certificate stating his lack of fitness for work until 12 March 2025.
[9] On 18 December 2024 the workers' compensation claim was refused. The refusal decision was in evidence before me.
[10] On 29 December 2024 Mr Jarvis wrote to Mr Wheeler indicating the Respondent held concerns about whether he could perform the inherent requirements of the job, raising various matters with him, and indicating the employer may consider summarily dismissing him. That letter requested Mr Wheeler attend a show cause meeting. I have referred to this letter as "the show cause meeting letter."
[11] After receiving the show cause meeting letter Mr Wheeler, in correspondence, asked questions about the procedure for the meeting. Mr Jarvis responded.
[12] The meeting went ahead on 13 January 2025. Present were Mr Jarvis, Mr Samuel Thompson as Mr Jarvis's support person, Mr Wheeler, and Mrs Kim Wheeler as Mr Wheeler's support person. Following the meeting the parties turned off the recording and held a without prejudice discussion. Despite the discussion being described as without prejudice, Mr Wheeler disputed this characterisation, and neither party made any objection or claim of privilege regarding the evidence the parties led about what transpired in this discussion.
[13] On 30 January 2025 the Respondent sent a letter to the Applicant. The parties referred to this as "the outcome letter," and I will adopt that language, though for the reasons that follow this was a misnomer. The outcome letter summarised the matters raised in the show cause meeting letter, and Mr Wheeler's responses, but did not provide any findings of fact, or findings as to liability for discipline, or findings as to capacity. However, the letter did refer to Mr Wheeler's current incapacity to work. I consider this reference to be uncontroversial given it was not in dispute given the medical certificate of 13 December remained on foot and had not been superseded by any medical advice to the contrary. This reference was made alongside an offer to negotiate a settlement, in the following terms:
"The Company has considered your responses, concerns and has reviewed its business operations and would like to offer you an alternative of initiating a Deed of Release, as you are unable to currently perform the inherent requirement of all duties as a Kitchen Manager."
[14] The outcome letter did not state what this was an alternative to. On 4 February 2025 Mr Wheeler wrote to Mr Jarvis asking what it was an alternative to, and when he could expect to receive a formal proposal outlining the terms of the proposed deed. He also asked if his responses had been assessed, and whether the company had a response. On 6 February Mr Jarvis responded stating that he was being advised by a third party (a reference to an external HR firm) to withhold the company's findings in relation to Mr Wheeler's responses at the show cause meeting, that the alternative to a deed was returning to work, and stating they could start to negotiate terms if Mr Wheeler agreed to move forward with a deed. Mr Wheeler responded by pressing his request for formal findings, and saying that if the outcome of the show cause process was his return to work, he would like clarification on what reasonable adjustments would be considered or proposed, and what steps were being taken to address workplace factors that he had previously raised. Mr Jarvis responded reiterating that the third party had advised him not to discuss the show cause meeting findings yet, and again asking if Mr Wheeler was willing to discuss a deed of release. He said that, if not, he would begin working on Mr Wheeler's return to work and address his concerns at that point. Mr Wheeler's response, on Saturday 8 February, was that neither option appeared to be viable or reasonable and that he would take some time that week to consider which was best. On Monday 10 February Mr Jarvis proposed an "informal welfare meeting." That evening Mr Wheeler declined saying "as stated two days ago, I am taking some time this week to consider your request that I enter into a deed of release agreement to end my employment. Given this and the information below I do not believe that this meeting is currently appropriate or necessary." The information below that paragraph related to Mr Wheeler's condition, its impact on his employment, and potential solutions.
[15] The following day, 11 February, Mr Jarvis wrote to Mr Wheeler again. This email was marked without prejudice but the Applicant included it with his evidence, and the Respondent, which was legally represented, made no objection or claim of privilege. The email said Mr Jarvis would wait to hear back from Mr Wheeler by Friday close of business. It went on to say that if Mr Wheeler returned to work the business was more than willing to address issues and concerns and look for a way to work with Mr Wheeler. He said the deed of release was an option he had wanted to present as the working relationship had broken down. But if Mr Wheeler chose to remain Mr Jarvis was more than willing to address the concerns and find solutions to rebuild their relationship and trust. There is nothing on the evidence to suggest Mr Wheeler responded.
[16] On 12 March 2025 as the period in respect of which Mr Wheeler had a medical certificate came to an end the Respondent wrote to Mr Wheeler asking him his intentions regarding return to work. Mr Wheeler responded by providing another medical certificate, also on 12 March, stating that he was not fit for work for a period ending in mid-June 2025.
[17] On 1 April 2025 Mr Wheeler sought the Commission's assistance under s 372 of the Fair Work Act. On 22 April the Respondent filed its response. Mr Wheeler then sent some requests to Mr Jarvis, which Mr Jarvis asked Mr Wheeler to direct to the company's lawyers as there were proceedings underway. Mr Wheeler then had an exchange with the company's lawyers, wanting to know what the outcome of the show cause process was and asking about a witness statement from a coworker. The company's lawyers provided a further copy of the letter of 30 January 2025, but otherwise did not convey information about the outcome of the show cause process. They also answered the enquiry regarding the witness. A conciliation conference was conducted on 13 May 2025. The parties did not resolve their dispute.
[18] On 3 June, with Mr Wheeler's latest medical certificate due to expire shortly, Mr Jarvis wrote to Mr Wheeler regarding his return to work, and requested a medical clearance. Mr Wheeler responded by asking questions of Mr Jarvis, and there was an exchange of emails. Mr Wheeler then sent through a resignation letter stating that, inter alia, it was a forced resignation. This was sent on 9 June 2025. On 10 June 2025 the company wrote to Mr Wheeler asking him to reconsider his resignation and submit a grievance instead but Mr Wheeler refused and said he considered the employment "closed".
[19] Mr Wheeler made this application pursuant to section 365 of the Fair Work Act, which applies if the employee has been dismissed. The term 'dismissed' is defined in s 12 of the Act, the dictionary, to have the meaning set out in s 386. Section 386(1) of the Fair Work Act relevantly provides:
(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.
[20] Subsections 386(2) and (3) of the Fair Work Act set out circumstances where an employee has not been dismissed, none of which are presently relevant.
[21] Mr Wheeler filed this application on 28 June 2025. The Respondent filed its response on 29 July 2025. The Respondent objects to the application on the basis that Mr Wheeler was not dismissed.
[22] I made directions orders on 1 September 2025 and 22 September 2025. In the week preceding the hearing, having heard from the parties, I decided to grant permission for the Respondent to be legally represented. I considered their being represented would promote efficiency taking into account the complexity of the matter. I considered the discretion to grant permission was enlivened, and I exercised the discretion in favour of granting permission.
[23] The matter was heard on 3 February 2026. Mr Wheeler represented himself. The Respondent was legally represented pursuant to a grant of leave made in advance of the hearing.
[24] The Respondent filed an outline of submissions in the Commission on 15 September 2025. The Applicant filed an outline of submissions in the Commission on 12 October 2025. The Respondent filed an outline of submissions in reply on 21 October 2025.
[25] The Respondent submitted that Mr Wheeler had resigned voluntarily and had not been forced to resign. Mr Wheeler submitted he had been forced to resign by the Respondent's conduct towards him.
[26] The Respondent filed a statement of Mr Brendan Jarvis signed 15 September 2025, and on 14 January 2026 filed an amended version of that witness statement with an additional annexure. After hearing from the parties I granted leave for the additional witness statement to be filed. They filed a further statement of Mr Jarvis signed 21 October 2025, as well as statements of Mr Samuel Thompson signed 21 October 2025, and Mr Joel Robson, unsigned but filed 21 October 2025. The Applicant filed a statement of himself signed 11 October 2025, and one of his wife, Kim Wheeler, signed 11 October 2025.
[27] Mr Wheeler said he had used artificial intelligence in preparing his statement. I have treated his evidence in chief statement with some caution accordingly. However, given almost all of the relevant interactions between the parties were in writing this caution has had a very limited effect on my findings in this matter.
[28] Mr Wheeler submitted that in Mr Jarvis's witness statement and the Respondent's submissions, Mr Jarvis's reference to a person at the business as "my supervisor", when Mr Jarvis was the owner and had no supervisor, undermined the Respondent's credibility. I considered it clear enough that when a business owner was talking about his supervisor or, during testimony, his shift manager, he meant the supervisor or shift manager in his employ, not the person who supervised or managed him. I was generally of the view that Mr Jarvis was sometimes imprecise in his written language but that is unsurprising given he said he had written the show cause meeting letter himself based on a template from a HR firm, and that others were later writing his emails for him. Mr Wheeler was also imprecise in his written materials when he described the Respondent as having "directed" him to initiate or execute a deed of release. This may in part have been attributable to Mr Wheeler's apparent use of artificial intelligence: as indicated above he admitted to its use in relation to his statement, and from the content, formatting, syntax and language I apprehend he may have used artificial intelligence in his outline of submissions, as well as his earlier correspondence with the Respondent, as well. Notwithstanding these matters I found each of Mr Jarvis and Mr Wheeler to be forthright witnesses, and in any event as stated above most of the interaction had been in writing so the areas of factual dispute were narrow.
[29] Mr Wheeler, in submissions, argued that the employer's conduct in January effectively brought the employment to an end but that he had not acted on this until June. I do not accept this submission. If the employer's conduct in and before early February 2025 was repudiatory, Mr Wheeler affirmed the employment rather than accepting any repudiation by, at least, providing a further medical certificate in March. I find Mr Wheeler was still employed until the employment was ended according to the resignation letter. That being the case the employment came to an end on 9 June 2025. Having regard to that date Mr Wheeler's application was made in time.
"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."
[31] Mr Wheeler's resignation letter of 9 June 2025 stated the basis on which he said he was being forced to resign. Relevantly the letter stated:
"I resign from my position at Earlybirds Cafe, effective immediately. This resignation is not voluntary; I have been forced to resign due to dishonest and unfair conduct, that has made my continued employment impossible.
The company's conduct includes a series of adverse actions, culminating in recent email correspondence which shows demonstrable falsehoods that directly contradict previous statements, existing documentary evidence, and written witness accounts. These include, but are not limited to:
- Subjecting me to a procedurally unfair disciplinary process and offering me a deed of release as the only option in the outcome letter
- Breaching my right to confidentiality regarding my health and private matters which I shared in good faith
- Misrepresenting the availability of my job in the show cause notice in December, informing me Ethan had filled the position and it would be unfair to take it off him, restricting my ability to return
- Misrepresenting facts about workplace processes and third-party involvement, particularly misleading me about Sam's role in the Workcover process and accessing my information
- Damaging rumours spread about my character on multiple occasions amongst colleagues, without my knowledge. The business has failed to show remorse or even acknowledge since, with no remedy or outcome of inappropriate misconduct of such acts since
This ongoing pattern of inconsistency, deception and unfair treatment has confirmed the workplace is not safe to return, forcing my resignation."
[32] In his written outline Mr Wheeler submitted that the following constituted the employer's conduct that forced him to resign:
(a) Breaching Mr Wheeler's privacy by providing Mr Thompson with access to information in connection with the WorkCover claim.
(b) Mr Jarvis's characterisation of events at the other café as sexual misconduct on Mr Wheeler's part, and his conduct in "spread[ing] this distorted version to staff" during Mr Wheeler's medical leave.
(c) Including the following in the show cause letter:
"Due to WorkCover claim and the events of the past 12 months, your relationship with Brendan has become untenable."
(d) In the show cause meeting, Mr Jarvis's claim that he had witness statements from a particular person, which his lawyer later said he did not have.
(e) In the discussion immediately following the show cause meeting:
(i) Mr Jarvis's statement that he did not believe he could have Mr Wheeler continue to work in the café;
(ii) Mr Jarvis's offer of a deed of release while Mr Wheeler was financially vulnerable;
(iii) Mr Jarvis's claim that a deed would allow Mr Wheeler to access benefits right away, which Mr Wheeler considered to be false;
(iv) Mr Jarvis's question as to why Mr Wheeler would even want to continue working.
(i) The statement that Mr Wheeler was unable to perform the inherent requirements of all duties;
(ii) A direction that Mr Wheeler initiate a Deed of Release;
(iii) The absence of any mention of a return to work.
(g) The failure to mention return to work until six days after the outcome letter.
(i) Providing a position description with a different title of Head Chef rather than Kitchen Manager, and with a new supervision arrangement;
(ii) Providing an explanation for Mr Samuel Thompson's involvement in responding to Mr Wheeler's WorkCover claim [in December 2024] which contradicted the explanation that had been given in the show cause meeting (and which was subsequently contradicted again in materials filed in these proceedings).
(i) The Respondent's failure to provide reasonable accommodations for Mr Wheeler's disability.
[33] At the hearing Mr Wheeler also took issue with other matters as referred to below.
[34] As can be appreciated many of the incidents raised in the resignation letter, and in the Applicant's submissions, as constituting the conduct that forced him to resign had occurred long before. Most had occurred in the period between mid-November 2024, when Mr Wheeler first took leave, to February 2025, when discussions about whether to negotiate an agreed exit or work towards a return to work broke down.
[35] In that period the Respondent engaged in a course of conduct which included conduct that was unreasonable, unnecessary, or in some cases inimical to the continuation of the employment relationship. In addition, the Respondent engaged in some conduct with which Mr Wheeler takes issue, but which I consider to have been reasonable or at least acceptable in the circumstances.
[36] In the first of those categories, the Respondent's conduct included:
[37] Mr Wheeler also takes issue with some parts of the initial show cause meeting letter going to arrangements that had been made in his absence and the consequences for other employees if he returned. The Respondent had to take into account its responsibilities to all of its employees, not just Mr Wheeler. But if the Respondent had not been clear with staff as to the temporary nature of Mr Wheeler's absence, and the temporary nature of any backfill arrangements in the meantime, that was a problem for the Respondent, not for Mr Wheeler.
[38] Some of the Respondent's conduct in this period, with which Mr Wheeler takes issue, was, at least, explicable having regard to the circumstances at the time:
[39] In addition to the foregoing Mr Wheeler raised other issues about the events in this period, to which I now turn.
[40] Mr Wheeler indicated Mr Jarvis had told employees about his anxiety, in his initial period of leave commencing 8 November 2024. The evidence indicates that the conversation between Mr Wheeler and Mr Jarvis, in which the former advised he needed to take leave for anxiety, occurred in the public area in the café in earshot of other workers. Mr Wheeler says Mr Jarvis subsequently discussed this with other employees. It was common ground that Mr Jarvis discussed the issue of Mr Wheeler's anxiety with another member of the management team at the same time as they discussed the issue raised by the accountant, on around 11 November 2024. In the show cause meeting in mid-January 2025 Mr Jarvis also referred to the café's employees asking him about the discussion with Mr Wheeler after it had occurred, but it is not clear what he said in response, if anything.
[41] As indicated above Mr Wheeler took issue with Mr Jarvis's characterisation of events at another café as sexual misconduct on Mr Wheeler's part, and his conduct in "spread[ing] this distorted version to staff" during Mr Wheeler's medical leave. At hearing Mr Wheeler also took issue with Mr Jarvis talking to staff about rumours that Mr Wheeler had stolen money from his previous employer.
[42] The background to each of these matters can be shortly stated.
(a) Mr Wheeler had been a customer at a different café on his own time. He had been accused of making sexual gestures directed towards particular female employees. He denied this and in these proceedings indicated that he had been stimming, which was associated with his disability, and that this had been misconstrued. Mr Wheeler's wife, Mrs Wheeler, also said Mr Wheeler engaged in stimming. Mr Wheeler said he had decided not to go back to the café. The other café's owner, who gave evidence, said that he had met with Mr Wheeler about it, and that Mr Wheeler had said he would not return to the café, and that he (the other café owner) had said that Mr Wheeler was not welcome back. He said he had spoken to Mr Jarvis about the incident months after the discussion with Mr Wheeler. Mr Wheeler said that he told Mr Jarvis about this incident at a routine meeting in around May 2024. He said he told Mr Jarvis this was a misunderstanding linked to his autism spectrum disorder and a stimming movement he did involving a metal brace behind his teeth. Mr Jarvis said Mr Wheeler had been upset when he told him about it, had denied the conduct, and had then taken the day off. He said Mr Wheeler had not mentioned his disability or stimming when he told Mr Jarvis about the incident. He said he had never noticed Mr Wheeler engaged in stimming in two years of employment.
(b) The Respondent's accountant had advised in 2024 that there was money missing. Mr Jarvis installed a safe and was in the process of installing security cameras. Under cross-examination Mr Jarvis said Mr Wheeler had looked like a "deer in the headlights" when he realised security cameras were being installed. It was shortly after this that Mr Jarvis and Mr Wheeler had met in the Respondent's café on 8 November and Mr Wheeler had told Mr Jarvis he had anxiety and was taking five days off. Mr Jarvis was suspicious of Mr Wheeler.
[43] I make no findings that Mr Wheeler performed sexual gestures at another café or was involved in money going missing from the Respondent. It is necessary to deal with these matters only because Mr Wheeler raised them as part of the basis on which he said he was forced to resign.
[44] In investigating what Mr Wheeler had said in his WorkCover claim for the purpose of providing a response, Mr Jarvis talked to, at the least, a supervisor about both of those issues. Mr Jarvis's initial witness statement includes the following:
"20. As part of my investigation, I felt I had a duty to talk about Mr Wheeler's alleged behaviour at [the other café], to my supervisor because it was such a serious allegation.
21. I asked my supervisor if she knew anything about Mr Wheeler and if she had seen anything weird or odd and she said she had not. My supervisor then asked me if I thought Mr Wheeler was the one who stole the money from the safe, and I responded I really don't know and that I was still investigating who it was and asking employees if they had seen anything (as we recently had an incident where someone stole money from the café safe).
[45] Under cross-examination Mr Jarvis agreed he had told the shift manager that Mr Wheeler was taking some leave due to anxiety, that Mr Jarvis did not believe Mr Wheeler's reasons for having anxiety, that he believed Mr Wheeler's anxiety was due to the café installing a safe and had insinuated that Mr Wheeler had stolen money, and that he had heard rumours that Mr Wheeler had stolen money from a previous employer.
[46] Mr Jarvis had not, on his account, spoken to any employees about the incident at the other café until after Mr Wheeler's WorkCover claim had been made. It is not clear why he would not have spoken to the other café owner and his own staff sooner, after Mr Wheeler had made the disclosure. Notwithstanding the delay in acting it is plausible that Mr Jarvis discussed this incident with the female supervisor out of concern for the Respondent's duties to its employees. As to the concern about theft, it is obvious why a business owner might talk to a manager he trusts about his concerns about missing money, including his concerns about another employee being involved. I was not taken to any evidence that was before me of Mr Jarvis discussing these two matters with any other employees.
[47] Mr Wheeler also took issue with the Respondent's offer to negotiate a resolution involving separation during this period. From the evidence before me including the parties' witness statements, the WorkCover refusal decision, and the discussion at the mid-January 2025 show cause meeting, it is obvious that the relationship had been poor for a significant period of time. By the time Mr Jarvis commenced attempting to negotiate with Mr Wheeler, Mr Wheeler had been away from work for two months and was certified as medically incapacitated for another two months. It was not unreasonable for the business to explore whether an agreed settlement was possible. I do not accept Mr Wheeler's subsequent characterisation of this attempt as constituting a direction to enter into a deed of release. That is not borne out on the evidence, including the explicit written communications. Nor do I accept Mr Wheeler's complaints about the representations made during negotiations or his financial vulnerability at the time.
[48] Though some of the Respondent's conduct during this period of November 2024 to February 2025 was explicable, as stated above some of the conduct during the period was inimical to the employment relationship. The show cause process, particularly, was both procedurally and substantively unfair.
[49] If it was open to Mr Wheeler to take the employer's course of conduct during this period as repudiating his employment contract, acceptance of that repudiation would have meant that his employment had been terminated at the employer's initiative for the purposes of section 386(1)(a) of the Fair Work Act. However, if there was repudiation, Mr Wheeler did not accept it. Instead, he affirmed the contract when he provided a fresh medical certificate on 12 March 2025, running to mid-June 2025.
[50] On the other hand, if this course of conduct had been sufficient, without more, to leave Mr Wheeler with no real or effective choice but to resign he would have done so at that time. But he did have other choices including the choice he actually exercised, to continue his absence while medically incapacitated, and, once his medical incapacity certificate expired, to either renew it or return to work.
[51] In April 2025 Mr Wheeler commenced proceedings pursuant to section 372 of the Fair Work Act. During the course of those proceedings the Respondent's lawyer told Mr Wheeler that the Respondent was trying to get a written witness statement from a particular person who had not responded. Mr Wheeler considered this to be inconsistent with what Mr Jarvis had said to him about the witness during the show cause meeting in January. Having regard to what Mr Jarvis had said during the show cause meeting in January, including that he could get the statement in writing if Mr Wheeler wanted him to, I do not consider there was any inconsistency. This incident does not assist Mr Wheeler's argument that he was forced to resign.
[52] Throughout the periods referred to above Mr Wheeler had clearly had effective or real options other than resignation, which he exercised. Those options had included supplying medical incapacity certificates on 13 November 2024, 13 December 2024, and 12 March 2025, and seeking the assistance of this Commission in his application made under section 372 of the Fair Work Act. The question then arises as to whether, by 9 June 2025, the employer had engaged in conduct that left him with no effective or real choice but to resign. Though the earlier conduct of itself had demonstrably not left him in that position, regard can be had to it in the sense that it forms part of the context for both parties' conduct in June 2025.
[53] As to the events of June 2025, Mr Wheeler submitted that:
(a) the Respondent had been dishonest with him in its email communications, in relation to the position description it provided, the characterisation of Mr Thompson's involvement in and around the time of the WorkCover claim and the show cause process, and whether Mr Jarvis had spoken to employees about the incident at the other café and/or the rumours about his stealing money;
(b) the Respondent had provided a different title and a new reporting relationship for him in the position description;
(c) the Respondent had failed to make reasonable adjustments for his disability;
(d) the Respondent had still refused to provide findings or outcomes in relation to the previous show cause process; and
(e) the foregoing, considered in light of the Respondent's earlier conduct, left him with no effective or real option but to resign.
[54] In June, the Respondent provided Mr Wheeler with a position description for his return to work. It was common ground there had been no position description prior to his absence commencing in November the year before. Mr Wheeler took issue with the position title in the position description being "Head Chef" rather than "Kitchen Manager," which had been his title according to his contract. Mr Wheeler also took issue with a new reporting relationship in the position description. Otherwise, Mr Wheeler took no issue with the position description.
[56] As to the proposed change in reporting arrangement, I do not consider it unreasonable for such a change to have been contemplated. Having regard to the WorkCover refusal decision I infer that the relationship had been poor throughout most of 2024, and that part of the basis for the claim had been "Communication and support from management." The most recent medical incapacity certificate, which was in evidence, stated a diagnosis of "Adjustment reaction to workplace stress, non-effective communication and management stye." It is not surprising that Mr Jarvis wanted to have Mr Wheeler report to someone other than him given the events preceding and since the WorkCover claim. In my view a change in reporting arrangements would have been more likely to facilitate than impede a return to work. But it was a departure from the previous arrangement.
[57] There was no indication of any reduction in remuneration or diminution of the role's duties. Nonetheless, a change in title and reporting arrangement may be significant, particularly if they tend to signify a reduction in status. But if Mr Wheeler did not agree to the changes there seems to be no reason why he did not have the option of telling the Respondent so and pressing it to maintain his existing title and reporting arrangement, in the event he was able to be medically cleared to return to work.
[58] Mr Wheeler considered the following part of an email from Mr Jarvis of 6 June 2025 to be dishonest:
"You were advised during the meeting held on the 13th January that Sam Thompson was bound by confidentiality. He had been engaged by the business on advice of the Workers Compensation insurers to act in a consulting capacity, ensuring a fair and reasonable process."
[59] Mr Wheeler argued that the above was dishonest because it differed from how Mr Thompson had previously been described, as a support person.
[60] Mr Wheeler also considered Mr Jarvis's characterisation of Mr Thompson's assistance in preparing the WorkCover response to be dishonest. Mr Jarvis considered that he, Mr Jarvis, had drafted the response, and that Mr Thompson had proofread it and removed the parts where Mr Jarvis had been too emotional. Mr Jarvis did not consider this to be drafting. Mr Wheeler (and for that matter Mr Thompson) did consider this to be drafting.
[61] I do not consider "consulting" and "supporting" to be interchangeable. On the other hand, I do not consider editing to be drafting. But reasonable minds could differ in respect of both, in all the circumstances of this case.
[62] Mr Wheeler says the Respondent failed to provide reasonable accommodations for Mr Wheeler's disability. The evidence does not reveal any occasion on which Mr Wheeler clearly articulated what accommodations he needed. He instead asked the Respondent what accommodations it proposed to provide.
[63] Mr Wheeler provided a medical report of a consultant psychiatrist of 13 November 2024. That report did not propose any specific accommodations for the Respondent to make. That was not surprising as that was the same date on which Mr Wheeler was certified as being incapacitated for work for the following month. Instead the report proposed a management plan involving medication, therapy, and things that Mr Wheeler could do.
[64] In the show cause meeting Mr Wheeler and Mr Jarvis had the following exchange:
Given my history of mental health challenges, have you considered any reasonable adjustments or accommodations to support my continued employment?
Obviously being the employer, not only am I obligated to, you know, and have a duty of care to all my staff to consider things, so, um, that has been my stance since becoming a business owner, so I don't plan on changing any of that. um yeah, I and I yeah.
Do you have any like if you like any but any not so much broadly but specifically, like this is this is like you've put into question my ability to work due to my mental health and, yeah, I'm curious whether you've considered whether you will have any reasonable adjustments or accommodations to support employment, based on my personal situation
If the outcome of this is that there is a return to work for you, then that's something that will be considered for sure, obviously."
[65] On 6 February, in the email exchange with Mr Jarvis, Mr Wheeler included:
"Reasonable Adjustments - Given my history of mental health challenges, what reasonable adjustments or accommodations have been considered or will be proposed to support my return to work?"
[66] As indicated above this exchange concluded with the Respondent waiting on Mr Wheeler to indicate whether he intended to negotiate an exit or to return to work. Mr Jarvis had indicated Mr Wheeler's concerns would be addressed if he decided the latter. But Mr Wheeler did not provide any indication and provided a fresh medical certificate on 12 March.
[67] The medical incapacity certificate form included a section in which the medical practitioner was asked what workplace modifications were required to facilitate a return to work. The response on each of the certificates Mr Wheeler provided (on 13 November 2024, 13 December 2024 and 12 March 2025) was "not applicable."
[68] The closest Mr Wheeler appears to have come to articulating his proposed adjustments was in the emails exchanged in early June. On 3 June 2025 Mr Jarvis had written, inter alia:
"Additionally, prior to your return, it is required that you provide a Clearance Certificate from your treating Doctor to confirm if you are fully fit to return to your role. If you are not cleared fully fit to return to your pre-leave levels, then the Company must have a clear understanding of what limitations you have, and for what period of time. The Company will be able to consider these and see what can be accommodated."
[69] Later that same day in an email Mr Wheeler wrote, inter alia:
"What reasonable adjustments will be made to accommodate my disability as previously requested? i.e. regular & scheduled meetings, clear position responsibilities."
[70] On June 5 Mr Jarvis had written, inter alia:
"We request that should there be any medical conditions that require adjustments in the workplace, that the relevant documentation is provided for clarification prior to your return to work. Once we have received this information, we can assess the requirements and see how these can be accommodated in the workplace, ensuring your health and wellbeing."
[71] The next email was Mr Wheeler's resignation email, on 9 June.
[72] Mr Wheeler's repeated requests for the Respondent to propose adjustments or accommodations were misconceived. The employer cannot just speculate about what the employee needs and take a guess at what adjustments to propose. If Mr Wheeler needed particular adjustments he could have asked for them. That would have allowed the Respondent to consider his requests in a meaningful way.
Continued failure to provide outcomes of show cause process
[73] Mr Wheeler's email to Mr Jarvis of 3 June 2025, in response to the latter's email regarding his potential return to work, said, inter alia:
"4. **Show Cause Process**: Please confirm in writing the resolution of the show cause process, specifically that my responses have been accepted, the allegations raised have been dismissed, and that these matters will not affect my employment status or standing within the company going forward."
[74] Mr Jarvis's email on 5 June stated, inter alia, as follows:
"We can confirm that in your absence the business has partnered with third party external advisors to review our employment relations processes, to ensure that the business is compliant, and operating in accordance with best practice. In future any concerns raised will be reviewed and resolved in consultation with our external support team and investigated in line with the Company's grievance policy. Should any concerns be substantiated, relevant action will be taken to achieve a suitable resolution.
[75] In that same email, in response to Mr Wheeler's inquiry about the show cause process, the following appeared:
"The Show Cause process sought to address concerns that you had raised during your Workers Compensation claim process. The outcome of the claim was that these had been reasonable management instruction, and we are therefore facilitating your return to work. Your commitment to focusing on maintaining professionalism and managing your mental health through open communication and structured processes has been accepted and the business looks forward to clarifying these processes with you."
[76] The first sentence of this paragraph is odd at best. The show cause process certainly touched on matters that had arisen in the WorkCover claim, but it essentially raised grievances that Mr Jarvis had about Mr Wheeler.
[77] It is surprising that the Respondent did not just provide confirmation in the terms sought by Mr Wheeler in his email of 3 June at this point.
[78] As I understood Mr Wheeler's submissions he was arguing that in the June 2025 email exchange Mr Jarvis had been dishonest about whether he had spoken to employees about the incident at the other café and/or the issue relating to money being missing, with insinuations of Mr Wheeler's involvement and discussion of rumours about his stealing at a former workplace. In his email of 3 June Mr Wheeler had said, inter alia:
"3. **Workplace Discussions About My Character**: I understand there have been discussions in the workplace regarding allegations about my conduct at previous employers as well as insinuations about potential theft at Earlybirds cafe. Before I can return to work safely, I need to understand:
- Who made these allegations to the team & who was involved in these discussions?
- What specific allegations or statements were made?
- What steps will be taken to ensure such discussions do not continue?
- How will you ensure my reputation and standing in the workplace is protected?"
[79] Mr Jarvis's reply of 5 June did not squarely respond but stated:
"The Company can confirm that any apparent misconduct to date has been addressed in line with Company processes - the outcome of which will remain confidential. Should you have any concerns regarding this in future, they are to be raised through a grievance lodgment form. Earlybirds are committed to ensuring are grievances are investigated, and untoward behaviors are addressed appropriately."
[80] In response, on 5 June, Mr Wheeler explicitly put to Mr Jarvis that it was he, Mr Jarvis, who had been talking about Mr Wheeler's conduct at previous employers as well as potential theft at the Respondent's café:
"For me to obtain appropriate medical clearance and assess whether I can safely return to work, I need clarification about a number of things. Specifically, I had raised concerns about:
- The breach of confidentiality regarding my personal medical information, including discussions of my anxiety with staff and disclosure of my full medical and family information to Sam Thompson
- Workplace discussions regarding allegations about my conduct at previous employers
- Insinuations about potential theft at Earlybirds cafe
I have been informed by a witness that it was you who made these statements about my character and conduct. If this is not accurate, I need to know who was responsible and how this misconduct was addressed. If it is accurate, I need to understand what steps have been taken to ensure this behavior will not continue."
[81] On 6 June an email from Mr Jarvis stated:
"The business is not aware of any detailed discussions regarding conduct at your previous employers (other than those had with you), insinuations, or specific allegations regarding theft. While the business was reviewing a number of internal processes to identify any inconsistencies, there was no action taken regarding any individual employee.
We would like to take this opportunity to advise that the business is committed to ensuring that your return to work is a positive and supported experience and that any matters that have been raised in the past are not revisited. We would like to reassure you that it is a Company expectation that in future all employees at all levels of the business are professional, and we apologise if you do not feel that that has been the case in the past."
[82] I have referred to Mr Jarvis's concessions under cross-examination, above. On that evidence, there were no "detailed discussions" regarding past conduct, insinuations, or specific allegations. But Mr Jarvis had certainly mentioned his suspicions and the rumours that Mr Wheeler had stolen money from a previous employer. This carefully worded paragraph in Mr Jarvis' email of 6 June is at best evasive and apt to mislead. The subsequent paragraph suggested a hope that the parties could draw a line under the past, and provided an apology of sorts.
[83] As to the incident at the other café in 2024, from the foregoing there does not appear to be any basis to say Mr Jarvis had been dishonest about that.
[84] For the reasons above I do not find that the Respondent's conduct in November 2024 to February 2025 left Mr Wheeler with no effective or real option but to resign either at the time or in June 2025. I do not find that there was any inconsistency in relation to the information provided by or on behalf of the Respondent in respect of whether it had a written witness statement from a particular witness. I do not consider the Respondent's language in relation to the position description or Mr Thompson's role to have been dishonest. I do not find that Mr Jarvis had been dishonest about whether he had spoken to employees about the incident at the other café. I do not find there was any refusal to provide reasonable adjustments or accommodations. I do not find that the Respondent failed to make clear that the outcome of the show cause process was that Mr Wheeler would return to work once fit to do so. Accordingly, I do not consider these matters constitute conduct or part of a course of conduct leaving Mr Wheeler with no effective or real choice but to resign.
(a) the position description the Respondent provided in June 2025 in contemplation of Mr Wheeler's possible return to work after several months away represented a change to his title and reporting arrangements;
(b) the Respondent failed to provide findings in relation to the earlier show cause process;
(c) the Respondent failed to make explicit that no disciplinary action would be taken in relation to the show cause process on Mr Wheeler's return to work if and when he was medically cleared; and
(d) Mr Jarvis's claim that the business was not aware of any "detailed discussions" regarding previous conduct, insinuations or allegations was evasive and apt to convey the misleading impression that Mr Jarvis had not spoken to any employee about rumours that Mr Wheeler had stolen at his previous job or about his suspicions as to Mr Wheeler's possible involvement in money going missing at the Respondent's café, when he had spoken to the shift manager about these matters.
[86] Taken alone, or in light of the conduct that had occurred months before from November to February, did this conduct leave Mr Wheeler with no effective or real choice but to resign?
[87] The issue of what Mr Wheeler's title and reporting arrangements would be on his return was largely moot if he lacked capacity to return to work. The same can be said of the issue of whether the employer might take any disciplinary action against him on his return. There is no evidence that at the time of Mr Wheeler's resignation he was yet medically cleared to return to work; nor is there any medical evidence of continued incapacity beyond 10 June 2025. As had been the case in March 2025, Mr Wheeler had the option of providing updated information about his fitness for work, either in the form of another incapacity certificate or a clearance. If he believed the Respondent's conduct was preventing him from regaining fitness for work, he could have provided a medical certificate or doctor's letter to the Respondent stating what they needed to do or stop doing in order to facilitate his recovery and return. It was uncontested that Mr Wheeler was not incapacitated to work in any other business, and that he had in fact been doing so.
[88] There is no evidence Mr Wheeler asked Mr Jarvis to amend the position description to revert to the previous title and reporting arrangement, or sought to negotiate any change at all to the position description.
[89] Mr Wheeler had also not exhausted his other options in relation to the matters I have listed above, such as bringing a grievance, considering whether any external processes were available, or reopening negotiations so the parties could resolve their differences by mutual agreement.
[90] Mr Wheeler's strongest argument for having no real or effective choice but to resign arises from Mr Jarvis' evasive and misleading email of 6 February 2025.
[91] If the employment contract, explicitly or by implication, required that the parties not do anything calculated or likely to destroy or damage the relationship of trust and confidence between them, then the Respondent's conduct in evading the question about whether the owner had talked about the rumours that Mr Wheeler was a thief, and hiding behind a lack of awareness of any "direct discussions," would arguably contravene the term and be repudiatory, giving rise to dismissal (on acceptance of the repudiation) within the meaning of the term as defined in s 386(1)(a). But there was no such express or implied term and in any event no such case was made.
[92] The test under s 386(1)(b) as articulated by the Full Bench and set out above is that the conduct have the probable result of termination of employment, such that the employee has no effective or real choice but to resign. This is a different test. In all the circumstances I consider the email of 6 June, read as a whole and in the context of earlier communication from the employer, was not sufficient to have the probable result of the employment ending. The trust was damaged but Mr Wheeler had effective and real alternatives to resignation including those described above.
[93] In the circumstances I do not find that Mr Wheeler was forced to resign. Accordingly, I uphold the Respondent's objection.
[94] I order that Mr Wheeler's application made under section 365 of the Fair Work Act be dismissed.
Ms H. Schoenherr of Irwell Law Pty Ltd for the Respondent.
[1] as required following Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.
[2] Bupa Aged Care Australia Pty Ltd T/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941; 271 IR 245, [47].
[3] At least in relation to Mr Wheeler's subsequent email of 5 June, this appears to have been an error. The Respondent had sought and obtained leave to file an amended statement of Mr Jarvis annexing an email from Mr Wheeler in reply to Mr Jarvis's email of 5 June. However, the additional annexure filed with the amended statement was marked annexure BJ18A and was the same as previous annexure BJ19. The parties were provided with the hearing book, including the amended statement and additional annexure as filed, in advance, but this issue was not raised.
Printed by authority of the Commonwealth Government Printer
Jordan Wheeler
School Grounds Caf� Pty Ltd [2026] FWC 405