s 365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - settlement negotiations - s 386(1)(b)

• [1] On 24 June 2025, Mr Joshua Beal (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant commenced employment with The Nolan Bros Pty Ltd (the Respondent) on or around 8 April 2024, as a Warehouse Operations Manager, and asserts that on 17 June 2025, he was forced to resign from his employment.

• [2] The Respondent has objected to the general protections application on the ground that the Applicant was not dismissed within the meaning of s 386 of the Act but voluntarily resigned.

• [3] The Respondent's objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[1] Section 365 relevantly 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.

• [4] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[2] Therefore, the discrete issue for determination is whether the Applicant was 'dismissed' from his employment within the meaning of s 386(1)(a) or/and (b) of the Act.

• [5] Given the factual dispute over whether the Applicant was or was not dismissed, the matter proceeded to hearing on 13 August 2025. Having considered the evidence of the parties and their submissions, I have found that the Applicant was not dismissed and therefore the Commission is absent of jurisdiction to deal with the Applicant's application under s 365 of the Act.

• [7] In respect of the broader context leading to the cessation of the Applicant's employment, evidence was received from the Applicant and on behalf of the Respondent, from Mr Lewis Nolan, a Director of the Respondent. An abridged version of the parties' evidence is set out below.

• [8] The Applicant gave evidence that his role significantly evolved beyond the scope of the original job description (presumedly for his role). He said that he gradually assumed responsibilities far beyond those of a Warehouse Operations Manager. Those responsibilities were said to include oversight of human resources, system automations for digital marketing, customer experience, and full operational leadership. Whilst the Applicant's employment contract provided for a 38-hour week with scope for reasonable overtime, the Applicant said that early on in the employment relationship he was working overtime and regularly on weekends. The Applicant said that due to this, in June or July 2024, he provided a prolonged notice period of six months in order for the Respondent to find a suitable replacement.

• [9] The Applicant stated that he had repeated verbal conversations (presumedly with a representative of the Respondent) where he was told that 'General Managers and CEOs frequently work 50-80-hour weeks' and that he needed to 'manage [his] time better'. The Applicant said that these conversations reflected an ongoing dismissal of his health concerns. However, the Applicant did not resign at this time.

• [10] In the six to nine months preceding his resignation in June 2025, the Applicant said he experienced chronic stress and regular migraines. He said that his doctor formally certified that these issues were directly linked to his working hours, stress levels and lack of proper support at work. The Applicant noted that he had, conservatively, worked an estimated 550 hours of unpaid overtime. As to the amount of overtime, the Applicant acknowledged that there were differences in the figures he had provided in evidence and submissions but clarified that the hours were a conservative approximation of the amount of overtime.

• [11] In his witness statement, the Applicant said that on 27 May 2025, he submitted a formal request for personal leave - being the first time he had requested extended leave during his 14-month tenure with the Respondent (apart from medically certified sick leave).

• [12] The Applicant's evidence included medical certificates and a letter of 27 June 2025, all from Central City Medical Centre.

• [13] The medical certificates certified that the Applicant had been unfit for work during the following periods:

(a) 18 June 2024 to 21 June 2024 (medical certificate dated 18 June 2024);

(b) 11 March 2025 to 14 March 2025 (medical certificate dated 12 March 2025);

(c) 5 June 2025 to 13 June 2025 (medical certificate dated 5 June 2025); and

(d) 13 June 2025 to 27 June 2025 (medical certificate dated 13 June 2025).

• [14] The letter of 27 June 2025, set out the following:

Initially dating back to February of this year he has been struggling with new onset migraine headaches. On discussion I have attributed to his heavy workload and stress from his work. I first consulted him regarding his migraine headaches on the 11/03/2025. Since then they have been coming and going. His workload and treatment in his workplace has also had a substantial negative impact on his mental health, which we have been trying to manage over the last month or so. This letter is in support of Josh and is to reinforce the negative effect his work has had on his health over the last few months.

• [15] The Respondent submits that on 4 June 2025, the Applicant was notified of an investigation into serious breaches of the Applicant's non-compete and confidentiality obligations (Investigation). The Applicant was notified of the Respondent's Investigation by way of a show cause notice dated 4 June 2025. The show cause notice set out the following regarding the allegation made against the Applicant:

It is alleged that you have breached your obligations of confidentiality and non-compete under

clauses 7(b) and 10(d) your Employment Agreement and clause 1, 10, 15 and 16 of the NC

On 19 May 2025, I requested you film a short video in the warehouse showing one of our team members packing sunglasses into our branded packaging (Video). You sent this Video to me on 20 May 2025, and I have not shared the Video with anyone.

On 23 May 2025, our packaging supplier in China (Supplier) informed me that it had received an inquiry on Alibaba from a person who shared the Video with them. The person making the inquiry stated that they knew the Supplier was the manufacturer of the Company's products and requested the Supplier replicate the product in the Video but with different branding (Inquiry).

After receiving this information, I asked you whether you had shared the Video with anyone.

You told me that you had shared the Video with Shannon Florey. However, when I asked Shannon about the Video, he stated you never shared the Video with him.

On 26 May 2025, our Supplier confirmed the Inquiry came from a "Joshua Benjamin" who blocked the Supplier after it stated that it could not help with the Inquiry. I note that your first name is Joshua, and your second name is Benjamin, and the name 'Joshua Benjamin' is a combination of your first and middle names. Further, emails from your personal email address josh.b.beal@gmail.com are received with 'Joshua Benjamin' as the email handle name. Based on the above, it is alleged that you have used confidential information of the Company in an attempt create a product similar to the Company's and engage in business in competition with the Company. The above conduct, if substantiated, may constitute a wilful and material breach of your confidentiality and non-compete obligations.[3]

• [16] Preceding the show cause notice, on 23 May 2025, Mr Nolan had become aware that a person had contacted one of the Respondent's suppliers and asked them to replicate one of the Respondent's products but with different branding.[4] Mr Nolan stated that the supplier informed him that confidential information of the Respondent had been provided to the supplier for them to reference.[5]

• [17] Mr Nolan clarified that the confidential information was a video that had been produced by the Applicant, at Mr Nolan's request.[6]

• [18] Mr Nolan stated that on 26 May 2025, the supplier confirmed that the enquiry came from an account named 'Joshua Benjamin'.[7] Mr Nolan stated that from his previous communications with the Applicant, he knew that the Applicant's personal email address is received with 'Joshua Benjamin' as the email handle name,[8] and that the Applicant's middle name is 'Benjamin'.[9]

• [19] Due to the information received, Mr Nolan initiated the Investigation, noting that he placed the Applicant on a temporary 'stand down' from work with pay while the Investigation was being conducted.[10] Mr Nolan further noted that given the serious nature of the allegations set out in the show cause notice, and the need to implement measures to prevent any further misuse or disclosure of Respondent's confidential information while the Investigation was being conducted, he temporarily removed the Applicant's access to his work email and other company systems.[11]

• [20] The show cause notice outlined that a meeting was to take place on 12 June 2025, to allow the Applicant an opportunity to provide his response to the allegation.[12] However, Mr Nolan gave evidence that the meeting scheduled for 12 June 2025 did not take place.

• [21] According to Mr Nolan the following circumstances unfolded:

• (a) on 4 June 2025, he received an email from the Applicant requesting to take personal leave for the duration of the Investigation. As the Applicant had insufficient personal leave accrued and to avoid the Applicant being placed on leave without pay, Mr Nolan 'stood down' the Applicant with pay from 5 June 2025 until 13 June 2025 (inclusive);[13]
• (b) on 5 June 2025, Mr Nolan received a request from the Applicant to postpone the meeting on 12 June 205 to 16 June 2025;[14]
• (c) on 14 June 2025, the Applicant provided to Mr Nolan a medical certificate, certifying the Applicant unfit for work between 13 June 2025 and 27 June 2025;[15]
• (d) on 16 June 2025, Mr Nolan received a further request from the Applicant to postpone the meeting on 16 June 2025 to 30 June 2025;[16] and
• (e) on 17 June 2025, the Applicant resigned, effectively immediately.[17]

• [22] The Applicant included in his evidence an email that he sent to Mr Nolan's attention on 10 June 2025. That email set out the Applicant's assertions regarding the sustained and unreasonable workload which, said the Applicant, consisted of 650 hours of additional time beyond his contracted 38-hour week - noting that the workload was excessive and unsustainable and may give rise to claims for unpaid wages and breach of duty of care under the Act and related workplace safety legislation. With respect to the Investigation, the Applicant categorically denied any misconduct and rejected the circumstantial evidence presented as inclusive and lacking factual foundation, noting that he had evidence to the contrary. Finally, the Applicant put forward a proposal to submit his resignation under certain conditions. Those conditions included, amongst others, no finding made in respect of the alleged misconduct, an ex-gratia payment, payment of statutory entitlements, positive or neutral reference, and a non-disparagement agreement.

• [23] An email dated 12 June 2025, from Mr Nolan to the Applicant, set out the Respondent's rejection of the Applicant's assertion about overtime, noted that the Respondent was undertaking the Investigation, but also acknowledged the Applicant's proposal to resign. The email further detailed that the Respondent would accept the Applicant's resignation albeit an ex gratia payment was not included in the counter offer and the Respondent required the Applicant to be bound by any applicable post-employment obligations and to indemnify the Respondent for any loss or damage it may suffer as a result of the Applicant breaching the post-employment obligations.

• [24] The Applicant, not satisfied with Mr Nolan's email dated 12 June 2025, put forward a further offer to depart the Respondent business on mutually acceptable terms, which included the provision of an ex-gratia payment (email dated 12 June 2025), to which Mr Nolan responded by email on that same day stating:

The Company does not accept your resignation proposal terms and denies you have worked 650 hours of overtime and that you are entitled to additional remuneration for the alleged time.

We will be proceeding with the investigation of your alleged misconduct.

We look forward to receiving your response to the Company's letter of 4 June 2025.

As a reminder, the response deadline is 9:00am on tomorrow morning. If you do not respond to the allegations, we will make a decision regarding the allegation based on the information available to us.

• [25] Later, on 12 June 2025, the Applicant again emailed Mr Nolan seeking a mutual separation on 'fair and reasonable terms'. On 13 June 2025, Mr Nolan responded by email noting that whilst the Applicant denied the allegations, he had not provided evidence to the contrary and that the meeting would take place on the Monday - presumedly 16 June 2025.

• [26] By email dated 13 June 2025, the Applicant noted that he was experiencing medically certified emotional distress and remained unfit to attend any disciplinary meetings including the one scheduled for 16 June 2025. The Applicant noted that he was in the process of obtaining an updated medical certificate confirming his continued unfitness for work and would forward it for the Respondent's records.

• [27] By email dated 14 June 2025, Mr Nolan requested the medical certificate and noted that the Applicant's 'stand down' period had concluded the day prior, and it followed that he was required to return to duties on 16 June 2025. Mr Nolan continued in that same email that given the Applicant had exhausted all personal leave, he would be placed on leave without pay.

• [28] The Applicant subsequently provided a medical certificate on 14 June 2025, and on 16 June 2025, Mr Nolan sent an email to the Applicant in which he acknowledged the medical certificate and confirmed that the disciplinary meeting would be rescheduled to 30 June 2025 - noting that the Respondent did not accept the Applicant's without prejudice proposal.

• [29] On 16 June 2025, the Applicant emailed Mr Nolan seeking clarification as to whether he was still employed and how his absence would be treated during the ongoing Investigation.

• [30] On 17 June 2025, Mr Nolan emailed the Applicant, confirming that the Applicant was still employed, that the Investigation ended on 13 June 2025 after the deadline for the Applicant to respond to the allegations expired, and that the Respondent had made findings from the Investigation and was ready to make a determination on the allegations and any disciplinary action, but before doing so it wished to meet with the Applicant to discuss the findings and the Applicant's response to the allegations.

• [31] On 17 June 2025, the Applicant emailed Mr Nolan a final proposal for mutual separation with formal resignation. The email warrants recording in full:

I write to formally tender my resignation from The Nolan Bros Pty Ltd, effective immediately. This decision follows extensive reflection and arises from what I now consider to be an untenable working environment.

The initiation of an investigation during the first period in which I requested personal leave, the immediate removal of my access to key systems, and the accusatory tone adopted throughout the process have caused significant emotional and physical distress. As confirmed by medical certification, I remain unfit for work due to stress-related health conditions, including migraines which have been directly linked to sustained excessive workloads.

To be clear, I categorically deny any misconduct and reject the circumstantial and unsubstantiated nature of the evidence presented. I have supporting material that refutes the claims presented, including confirmation that the video in question was shared with an employee of the Company, as originally stated. The evidence relied upon does not demonstrate authorship, intent, or breach, and fails to establish any direct or verifiable link to me.

I am also deeply concerned by the nature of the alleged supplier communication, which appears to link me via only a partial name. The name "Joshua Benjamin" is not my legal or professional identity, and there is no metadata (such as IP logs or account information) tying this contact to me. Given the absence of concrete technical links, and following my own internal review, I believe there is a genuine possibility that my identity may have been impersonated, either from within or outside the organisation. I am not making a formal allegation at this time, but I strongly encourage the Company to consider this possibility before drawing conclusions that could result in reputational or legal harm. I am also in the process of collating letters of support and character references from both internal team members and external suppliers, which speak to my professionalism and conduct throughout my tenure. These referees have not been privy to the current investigation or its details and are offering their insights based solely on their direct working experience with me.

On legal advice, I have been informed that I have strong grounds for multiple claims under the Fair Work Act, including:

Underpayment of wages (relating to the ~650 hours of unpaid overtime)

Adverse action (relating to the timing and conduct of the investigation)

That said, I remain open to resolving this matter cooperatively and without escalation. In that spirit, I submit the following final mutual separation proposal, made without prejudice and without admission of any wrongdoing, to part ways on mutually respectful terms:

• Acceptance of my immediate resignation with no misconduct finding recorded or communicated internally or externally
• Full payment of all statutory entitlements, including:
  • Accrued leave
  • Payment in lieu of notice
• An ex gratia payment equivalent to 12 weeks' base salary, in recognition of:
  • Approximately 650 hours of unpaid overtime
  • Medically certified health impacts
  • My continued loyalty and performance
• A mutual non-disparagement agreement
• An agreed upon neutral reference, confirming my role, tenure, and contributions
• Written confirmation that no further internal or external action will be pursued
• Confirmation that I remain bound by all existing post-employment obligations in my contract (e.g. confidentiality, IP protections)

This proposal represents a fair, respectful, and efficient resolution that avoids further strain for either party. Should it not be accepted in full, I reserve the right to pursue all legal avenues through the Fair Work Commission and relevant regulatory bodies.

Please confirm receipt of this resignation and outline the final payment arrangements at your earliest convenience. I look forward to your response by 5:00pm, Friday, 21 June 2025. (bold my emphasis)

• [32] By email dated 17 June 2025, Mr Nolan acknowledged receipt of the Applicant's resignation, noting that the Applicant had resigned effective immediately without providing four weeks' notice, and that the Respondent accepted the immediate resignation.

• [33] Mr Nolan stated that as the Applicant resigned, effectively immediately, no finding of misconduct was ever made against the Applicant.[18]

• [34] Regarding the Applicant's assertions concerning excessive overtime, Mr Nolan responded as follows. Mr Nolan said that after receiving the show cause notice, the Applicant alleged he had worked 550 hours of overtime during his employment with the Respondent and that this had been unpaid. Mr Nolan was of the view that the Applicant's assertion lacked merit for several reasons. First, other than one-off events like Black Friday sales and very infrequent Saturdays when the warehouse team was behind during busy periods, neither Mr Nolan, nor any other officer of the Respondent, made specific request that the Applicant work additional hours.[19] Second, on 17 February 2025, the Respondent implemented a new time recording software called 'Deputy' and that the hours put into Deputy by the Applicant were not accurate and that the Applicant had populated some of these hours himself from his own recollection.[20]

• [35] The Applicant asserts that the resignation he provided to the Respondent in writing on 17 June 2025 was involuntary, having been forced to resign by the conduct of the Respondent. The conduct the Applicant relies upon was the Respondent's purported increase in the scope of his role, denial of leave, procedural failings, health impacts and system lockout. The Applicant claims that his work environment was made objectively untenable through a combination of systemic overwork, denial of leave, inadequate procedural support, and reputational risk arising from a flawed and unsupported Investigation.

• [36] The Applicant submits that despite his formal resignation, the circumstances under which he resigned amount to a constructive dismissal because the Respondent's conduct rendered continued employment untenable and directly contributed to his medically supported decision to resign. It is on that basis that the Applicant argues that his resignation was not voluntary - but was the only option left in response to a fundamentally broken employment relationship.

• [37] The Applicant pressed that he had made repeated efforts to resolve the matter without escalation, including proposing a mutual separation on 'fair and reasonable terms' - which was partially accepted but ultimately rejected by the Respondent.

• [38] Under s 386(1)(b) of the Act, a person is dismissed if they resign but can demonstrate that the resignation was not voluntary and that they were forced to resign because of conduct, or a course of conduct, engaged in by the employer. The Applicant elected to rely upon this subsection of the Act.

• [39] The Respondent asserts that the Applicant voluntarily resigned in writing on 17 June 2025 and the Respondent accepted that resignation on that same date.

• [40] Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section is relevant for present purposes given both the Federal Circuit Court's[21] and Federal Court's[22] acceptance that the definition of the word 'dismissed' in s 386(1) is equally relevant to the meaning of the term as used in s 365 of the Act. The word 'dismissed' as defined in ss 12 and 386 of the Act reads:

(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.

• [41] There are exceptions under s 386(2) regarding when a person has been dismissed; however, those exceptions are not relevant to this case.

• [42] The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration.

• [43] The first element traverses 'termination on the employer's initiative' and the second, 'resignation in circumstances where the person was forced to do so because of conduct, or a course of conduct'. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli ('Bupa'),[23] and in _Lipa Pharmaceuticals Ltd v Jarouche_where the Full Bench endorsed the principles established in Bupa in respect of s 386(1)(b) of the Act. [24] In Bupa it was said:

"[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:

(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 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."[25]

• [44] While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan considered the operation of s 386(1):

"[10] It seems clear...that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).

[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression "termination at the initiative of the employer" was:

". . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ''termination of employment.''" (references omitted)[26]

• [45] The general principles to be applied where there is a question as to whether an applicant has been forced to resign can be succinctly stated to include:

a) the question as to whether the resignation was forced within the meaning of the Act is a jurisdictional fact that must be established by the Applicant;

b) a termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it 'forced' the resignation;

c) the employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;

d) conduct includes an omission;

e) considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer's conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and

• f) in determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer's conduct is required.[27]

• [46] Therefore, the critical question is not merely whether the act of the employer, which must be a principal contributing factor, resulted directly or consequentially in the termination of employment, but whether on an objective analysis of the employer's conduct the employee's effective or real choice was so negated that resignation was inevitably the only recourse.

• [47] The Applicant pressed that his resignation followed a period of significant emotional and physical distress, which included medically certified migraines and stress-related illness. According to the Applicant, these health impacts contributed materially to his resignation and reinforce his argument that his resignation was not voluntary. The Applicant highlighted that

his doctor formally certified that these health issues were directly linked to the Applicant's working hours, stress levels and lack of proper support at work. In support of this contention, the Applicant relies on medical evidence from Central City Medical Centre which included:

(a) certificate from Dr Trinh dated 18 June 2024;

(b) medical certificate from Dr Denz dated 12 March 2025;

(c) medical certificate from Dr Denz dated 5 June 2025;

(d) medical certificate from Dr Denz dated 13 June 2025; and

(e) letter from Dr Denz dated 27 June 2025.

• [48] The Respondent submits that the medical certificate dated 18 June 2024 related to an absence from work arising from the Applicant testing positive for COVID-19 and was not related to a stress-related illness. Reference was made to Annexure LPN8, a copy of a text message from 'Joshua' dated 17 June 2024, which set out:

Morning mate, I popped a positive for Covid this morning... I'll head to the doctor today and get a checkup and PCR test to be sure.

• [49] The Applicant appears to take no issue that his absence from the workplace in or around 18 June 2024 was for a COVID-19 illness or related illness.

• [50] In respect to the medical certificates dated 5 June 2025 and 13 June 2025 they were issued after the show cause notice was provided to the Applicant and while the Applicant was instructed not to attend work. I am of the view these medical certificates are of no probative value in respect of the Applicant's contention of having experienced illness over the period of the six to nine months preceding his resignation when he was said to experience chronic stress and regular migraines. The medical certificates of 5 June and 13 June simply show that that Applicant was unfit for short periods as detailed in those certificates, periods which arose, as noted, after the show cause notification.

• [51] In respect of the letter of Dr Denz dated 27 June 2025, it is evident from the letter that the general practitioner was advised that the purpose of the letter was to reinforce the negative effect of the Applicant's work on his health over the last few months. Dr Denz, in his letter of support, speaks of having first consulted the Applicant regarding the Applicant's migraine headaches on 11 March 2025. However, apart from a medical certificate of 12 March 2025, there is no other direct evidence from Dr Denz that supports the Applicant having experienced a period of chronic stress and regular migraines for six to nine months. The medical certificate of 12 March 2025 certified the Applicant as unfit for work for the period of 11 March 2025 to 14 March 2025 only.

• [52] In giving his evidence the Applicant relied upon a spreadsheet he had prepared. The Applicant said the spreadsheet set out the hours he had worked for the Respondent. The Respondent had various criticisms of the spreadsheet, which will be addressed. However, for present purposes, it is necessary to make the observation that on that spreadsheet the Applicant had included the notation 'Migraines' for various dates. That notation was included for the period of 11 March 2025 to 12 March 2025. However, as I have already noted, the medical certificate relied upon by the Applicant that certified him unfit, sets out that the Applicant was certified unfit for the period of 11 March 2025 to 14 March 2025. It is therefore unclear whether the Applicant was unwell with migraines for two days or four days during this period.

• [53] The spreadsheet includes further notations of 'Migraines' on 3 February 2025, and for the period 11 February 2025 to 14 February 2025. There are no medical certificates provided for these periods, and while the Applicant was certified unfit for work from 5 June 2025 until his resignation on 17 June 2025, the spreadsheet makes no mention of 'Migraines' for this period.

• [54] In respect of the Applicant being unfit in the period of mid-March 2025 due to having experienced migraines, Mr Nolan gave evidence in cross examination that he believed the Applicant's personal leave at this time was due to migraines but that the Applicant did not, at that time, know where they were coming from.

• [55] It became evident during the hearing that for a period during either March and/or April 2025, the Applicant worked from home approximately one day a week. The parties disagreed about the impetus for the working arrangement. The Applicant alleged that the working from home arrangement was to address stress related issues, whilst Mr Nolan gave evidence it was to enable the Applicant to take time to obtain blood tests and see a naturopath to get to the bottom of what was causing the Applicant's migraines.

• [56] Irrespective of the origin of the migraines, I find that the Applicant was unfit for work for the period 11 March 2025 to 12 March 2025 due to having experienced migraines in or around that time. It is unclear to me whether the Applicant was unfit on 13 March 2025 or 14 March 2025, for the reasons provided. Further, I find, that the Applicant worked from home for one day a week (for a limited period) to address the issue of the migraines in or around March to April 2025.

• [57] Returning to the letter of Dr Denz of 27 June 2025, the letter was not produced during the six-to-nine-month period where the Applicant purports his health suffered. It is apparent that Dr Denz's observations in the letter, were dependent on one assessment of the Applicant on 12 March 2025 and not on observations of the Applicant during the six-to-nine-month period pre-dating the show cause notice, or even the period of 11 February 2025 to 14 February 2025. To this extent, Dr Denz's observations were very much dependent on the Applicant's self-reporting and were limited to what appears to be the one consultation pre-dating the show cause notice. In such circumstances I consider the letter of 27 June 2025 to be of limited probative weight. The weight to be attributed to the letter is clearly impacted by it having not been a contemporaneous medical assessment of the Applicant and, further, it having been solicited by the Applicant evidently for the purpose of garnering Dr Denz's opinion about the negative effect of the Applicant's work on the Applicant's health.

• [58] I am therefore unpersuaded that the evidence adduced supports a finding that medically certified migraines and stress-related illness, as purported by the Applicant, rendered the Applicant's resignation involuntary. I will have more to say on this point, but briefly stated, the medical evidence does not demonstrate a clear link between the Respondent's purported conduct and the Applicant's resignation.

• [59] Before addressing further the Applicant's assertion that his resignation was a direct result of the harm to his health caused by the Respondent's conduct, it is first necessary to address the Applicant's contentions in respect of working hours which are, as purported by the Applicant, intimately linked to his assertions of medically certified migraines.

• [60] According to the Respondent, it was not until the Applicant was provided with the show cause notice on 10 June 2025, that the claim of additional hours and underpayment was made. The Respondent submits that this claim had not been raised by the Applicant with the Respondent prior to the Respondent issuing the show cause notice and commencing the Investigation.

• [61] As noted, the amount of overtime worked by the Applicant was, as conceded by the Applicant, an approximation of the overtime hours the Applicant considered he had worked. It is uncontroversial that the Respondent commenced using 'Deputy' software to record and submit employee timesheets from 17 February 2025. In respect of the amount of overtime prior to this date, the Applicant gave evidence as to how he arrived at the overtime figures purported in a spreadsheet that was tendered into evidence. The Applicant explained that because he was not recording his hours at this stage (when worked) he had utilised the start and finish times of employees working in the warehouse to correlate his start and finish times. In respect of this evidence, the Respondent noted that of the 557 hours of alleged overtime, 427 hours were recorded before Deputy was implemented. From February 2025 up until the Applicant's date of resignation, the Applicant stated he started to record his own hours, hour by hour, inclusive of start and finish times on the system itself.

• [62] In respect of the hours on the Applicant's spreadsheet, the Respondent noted that time had been recorded on the spreadsheet where the Applicant had been absent from his place of work (for example, personal leave days).

• [63] Whilst appreciative that the Applicant had gone to great lengths to attempt to accurately document his hours of work for the period of his employment with the Respondent, I am not satisfied that the methodology adopted by the Applicant renders the spreadsheet as a reliable and accurate source of truth in respect of the Applicant's hours of work during his employment.

• [64] The Respondent tendered into evidence Annexure LPN5 which detailed timesheets for the Applicant from 17 February 2025. Those timesheets showed that from 17 February 2025 to the date of the Applicant's resignation that three Saturdays had been worked. As to the hours of work of the Applicant they varied from 3.5 to 7 hours - up to 12 hours on a weekday. Whilst some days of work saw the Applicant record and be paid for up to 12 hours, other days showed considerably less. It does not strike me that the evidence of the Applicant's hours of work supports a claim that the Applicant had no choice but to resign, and I am persuaded on balance, that more likely than not, the issue of overtime was not raised until after the Applicant had received the show cause notice.

• [65] The Applicant referred to having tendered a resignation early on in his employment due to regular weekend work and the overtime needed to facilitate the operational needs of the wider company. However, it appears, as noted, that the Applicant did not act upon the resignation and whilst stating that he decided to remain due to a purported guarantee of promotion in line with his LinkedIn title of General Manager of Operations, that promotion was not forthcoming. Notwithstanding, the Applicant did not resign prior to the show cause notice.

• [66] That the Applicant gradually assumed responsibilities far beyond those of a Warehouse Operations Manager was a source of contention between the parties. The Applicant relied, in part, upon an advertisement for a position advertised by the Respondent, after the Applicant's resignation - a position of 'Head of Operations'. The advertisement by the Respondent for a position after the Applicant's resignation, does not inform as to the duties and responsibilities held by the Applicant whilst employed. Whether the Applicant adopted an unofficial title of 'General Manager of Operations' in professional networks is irrelevant. The position of General Manager had not been awarded to the Applicant by the Respondent and aside from the Applicant's assertions in respect of the scope of his role, there is little in the way of probative evidence to support the Applicant's contention.

• [67] The Applicant stated in his witness statement that on 27 May 2025, he submitted a formal request for personal leave - being the first time he had requested extended leave during his 14-month tenure with the Respondent (apart from medically certified sick leave). It is the Applicant's view that there was a clear and troubling link between his request for personal leave and a sudden initiation of a misconduct Investigation.

• [68] Insofar as the Investigation is concerned, I have preferred the evidence of Mr Nolan over that of the Applicant for the following reasons. It is evident that the Respondent provided to the Applicant a letter of 4 June 2025, in which it was alleged that the Applicant had engaged in particularised conduct in respect of one of the Respondent's clients. Detail of the Applicant's purported conduct was provided to the Applicant, as, it would seem, were attachments titled 'Supplier WhatsApp Messages', attached to the email sent to the Applicant by Mr Nolan on 5 June 2025.

• [69] Based on the evidence, I am unpersuaded that the allegations had been fabricated by the Respondent, if that is what the Applicant infers, and whilst the Applicant agitates that there was procedural unfairness in respect of the Investigation, the evidence does not support the Applicant's argument.

• [70] It is evident that the Respondent accommodated the Applicant's initial request to postpone the disciplinary meeting until 16 June 2025, and the Applicant's subsequent request on 14 June 2025, to postpone the disciplinary meeting until 30 June 2025, was, in addition, accommodated. As observed, the Applicant was provided with particulars of the conduct he was alleged to have engaged in, and it was not the case that the Respondent had pre-determined the outcome of the disciplinary process. The evidence shows that Mr Nolan emailed the Applicant on 17 June 2025 and communicated to the Applicant that findings from the Investigation had been made. However, whilst the Respondent was ready to make a determination on the allegations and any disciplinary action, Mr Nolan informed that Applicant in the email dated 17 June 2025, that before determining the disciplinary action he wished to meet with the Applicant to discuss the findings and the Applicant's response to the allegations.

• [71] The Applicant submits that his resignation was made under duress, in an environment that had become physically and emotionally unsustainable and was therefore not voluntary.

• [72] The Applicant was not so incapacitated whether by his purported ill health or the purported duress he was experiencing, to attempt to negotiate a mutually acceptable exit from the Respondent business. Having been provided with the show cause notice on 4 June 2025 and not long after having become medically unfit for work, by 10 June 2025, the Applicant was able to email Mr Nolan about his excessive workload and overtime, and to categorically deny the allegations in the show cause notice. At that time, the Applicant was sufficiently astute to put forward a proposal to submit his resignation under certain conditions, those conditions included, amongst others, no finding made in respect of the alleged misconduct, an ex-gratia payment, payment of statutory entitlements, positive or neutral reference, and a non-disparagement agreement.

• [73] Dissatisfied with Mr Nolan's email dated 12 June 2025, in which Mr Nolan provided a counteroffer to the Applicant absent an ex-gratia payment, the Applicant put forward a further offer to depart the Respondent business on mutually acceptable terms. The offer included the provision of an ex-gratia payment (email dated 12 June 2025), to which again, Mr Nolan responded by email on that same day stating that the Respondent did not accept the Applicant's resignation proposal terms.

• [74] Ultimately, the Applicant emailed Mr Nolan a final proposal for mutual separation with formal resignation on 17 June 2025. However, that same 'proposal' set out that the Applicant resigned effective immediately whilst also outlining a final mutual separation proposal. The email concluded with the request that Mr Nolan please confirm receipt of the Applicant's resignation and outline the final payment arrangements. On 17 June 2025, Mr Nolan acknowledged receipt of the Applicant's resignation, noting that the Applicant had resigned effective immediately without providing four weeks' notice, and that the Respondent accepted the immediate resignation without notice.

• [75] As to whether the Applicant had fallen into error by communicating both a proposal to exit the Respondent business and a resignation of immediate effect, later in the day on 17 June 2025, the Applicant subsequently thanked Mr Nolan for his response that the Respondent accepted the Applicant's immediate resignation, and that the Applicant's statutory and accrued entitlements would be processed shortly.

• [76] The Applicant pressed that his decision to resign was made in response to an untenable working environment and was not a voluntary departure in the ordinary sense. However, to the extent that the Applicant relies upon the impending disciplinary meeting or Investigation findings as forming part of that untenable working environment, it is well established that a fear of discipline or dismissal is not by itself generally considered to be grounds for claiming a forced resignation.[28]

• [77] As noted, the Applicant essentially asserted that the resignation he provided to the Respondent in writing on 17 June 2025 was involuntary and arose in response to the Respondent's purported increase in the scope of his role, denial of leave, procedural failings, health impacts and system lockout. Whilst I have addressed the purported increase in the scope of the Applicant's role, alleged procedural failings of the Investigation, health impacts, excessive overtime, I have not, to this point, addressed the purported denial of leave and system lockout.

• [78] The Applicant's spreadsheet indicated that he had taken leave during his employment with the Respondent, whether carer's leave or personal leave. That leave does not appear to have been denied. As to the leave that the Applicant applied for on 27 May 2025, whilst appreciative of the importance this leave held for the Applicant, just prior to the date that the Applicant made his leave request, the Respondent's evidence is that it was notified by its supplier about the purported misconduct of the Applicant. I do not disbelieve the Respondent's evidence on this point and therefore find it unsurprising that the alleged misconduct of the Applicant and an Investigation into the same, took priority over the Respondent granting the Applicant his request for leave (although the Applicant was, for a period, instructed not to work whilst paid) whilst it was conducting its Investigation. Furthermore, the Respondent did not deny the Applicant leave when the Applicant provided medical certificates during the Investigative process and up to the proposed disciplinary meeting. This conduct from the Respondent was not unreasonable.

• [79] As to the reasonableness of the Respondent removing the Applicant's access to the Respondent's systems, in light of the allegations of misconduct levelled at the Applicant, it was not unreasonable of the Respondent to secure its technological infrastructure or to instruct the Applicant not to attend work whilst the Investigation was occurring and the disciplinary meeting was pending.

• [80] On balance, I am not persuaded, having considered and weighed the evidence before me, that the Applicant was forced to resign because of conduct, or a course of conduct, engaged in by the Respondent (s 386(1)(b)). As the Applicant elected to rely upon s 386(1)(b) of the Act to press that he had been dismissed, it has proved unnecessary to provide detailed consideration of s 386(1)(a).

• [81] As I have concluded that the Applicant was not dismissed by the Respondent, it follows that his application does not meet the requirements of s 365 of the Act and the Commission does not have jurisdiction to deal with it. As a result of my determination, the application made by the Applicant pursuant to s 365 of the Act is dismissed. An Order[29] to this effect will be issued with this decision.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37 ('Milford').

[3] Witness Statement of Lewis Patrick Nolan, [Annexure LPN3] ('Nolan Statement').

[21] Morris v Allied Express Transport Pty Ltd [2016] FCCA 1589, [117].

[23] [2017] FWCFB 3941 ('Bupa').

[24] [2023] FWCFB 101.

[26] [2018] FWCFB 5, [10]-[11].

[27] Woodward v Neutrog Australia Pty Ltd [2021] FWC 2991, [63].

[28] See Love v Alcoa of Australia Limited [2012] FWAFB 6754; Davidson v Commonwealth [2011] FWA 3610 and on appeal [2011] FWAFB 6265.

[29] PR791201.

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