s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - no dismissal - whether applicant resigned - applicant did not resign - jurisdictional objection dismissed - application to proceed to conference

• [1] Ms Keely Roff (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 23 May 2025. The Applicant claims that adverse action was taken against her by Peninsula Australia Pty Ltd (the Respondent) under ss.340 to 343, s.351 and s.352 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed under s.386 of the Act as the Applicant resigned from her employment on 5 May 2025. The Applicant contests the objection. Firstly, the Applicant argues that there was no resignation on 5 May 2025. Alternatively, the Applicant argues that if she did resign on 5 May 2025, it was a resignation in the heat of the moment and was not subsequently affirmed.[1]

• [3] Directions were issued and the matter was listed for hearing on 30 July 2025. The Applicant was represented by Mr Shane Wescott of WWC Lawyers. The Respondent was represented by Mr Troy Plummer of Irwell Law. Representation was granted on the basis that there would be no unfairness between the parties.

• [4] On 3 March 2020, the Applicant commenced employment with the Respondent. At the time of her dismissal, the Applicant was employed in the position of ANZ Sales Coach.

• [5] The Respondent is a company which provides human resources advice and work, health and safety advice.

• [6] The Respondent has previously accommodated the Applicant's relocation from Brisbane to Sydney and from Sydney to Perth.

• [7] Since mid-last year, the Applicant has been working towards opening her own business providing sales training, which she described as a "side hustle".[2] The Applicant said she was open with the Respondent regarding this ambition.

• [8] In late March 2025, the Applicant was informed that her mother had been diagnosed with cancer. The Applicant texted her manager, Mr Jermaine Mitchell on 21 March 2025:

I'll be in tomorrow. I'm not flying to QLD just yet. Today was to discuss with the family what's likely going to happen in the next month, Mums cancer is back and will be having a double mastectomy on April first. We'll take it from there. Family is still reeling from huge losses in the last few years, (My son in Utero, my sister and Grandfather) and this hit hard for everyone.

Just needed a day to make a plan and handle things for mum.

• [9] The Applicant took leave from 7 April 2025 to 11 April 2025.

• [10] On 14 April 2025, the Applicant sent a message to Mr Mitchell on Microsoft Teams as follows:

Afternoon. Could we catch up about my option on paying out my notice period? My mum is looking at coming to WA for her recovery and I'd like to be able to take the time to spend with her.

• [11] The Applicant explained that what she meant by this message is that she was enquiring if she could resign and still be paid out her two-month notice period without working that period.[3] Mr Mitchell then called the Applicant to discuss her message and the Applicant reportedly verbally advised that she no longer wanted to work with the Respondent and did not want to work out her notice period. Mr Mitchell advised that he would need to ask Senior Leaders about her request to be paid out the notice period.[4]

• [12] From 18 April to 27 April 2025, the Applicant was on a period of approved annual leave. She was due back on 28 April 2025. On 29 April 2025, the Applicant obtained a medical certificate certifying her as unfit for work until 27 May 2025.[5] The certificate was provided to the Respondent through its internal system. The Applicant subsequently texted Mr Mitchell:

Afternoon, I'm off sick today, I AN appointment tomorrow. I will log everything and give you a call afterwards.

• [13] On 30 April 2025, Mr Tyler Vivian, the Head of Inside Sales Western Australia emailed the HR Team asking that the Applicant's systems access be deactivated:

Can we please cancel/deactivate Keely Roff's systems access ASAP, she is off work for a month on sick leave and we don't wish for her to be able to use company systems.

• [14] Mr Marc Riachy, Senior HR/ER Advisor, replied as follows:

Sure can do. Can I check that this has been communicated with her first? Mentioning that it is company policy now to deactivate the employee access while they are away on an extended leave and we won't be needing her to do any work while she's away to give her the head space to look after her personal situation

Yes all good to proceed to deactivate, if anything changes we can reactivate.

Not the first time this has happened for Keely [smiley face emoji]

• [16] On 2 May 2025, the Applicant was due to receive her pay but did not receive any money. She contacted the Respondent regarding this issue. The Applicant was later informed that there had been a payroll error.

• [17] On 5 May 2025, Mr Mitchell called the Applicant. The Respondent states that the conversation was a "welfare check" as the Applicant was on an extended period of personal leave. The Applicant denies that the call was a welfare check and states that it was regarding the payroll issue.

• [18] During the course of this conversation, Mr Mitchell states that the Applicant "inferred" that she was resigning during this conversation. Mr Mitchell stated in testimony:

So part of that call was obviously the administration of payroll, which I was unaware of due to the emails not received to my email address. So I called her up to discuss that we had found what the challenge was, as advised by my payroll team, and that we were rectifying that payroll error. As part of that, as all employees, we check and make sure their welfare is okay. And during that conversation, Keely made it very clear, as per the statement, that she was looking to move to a fly-in-fly-out and continue to run her sales [training] business, and she did not care about her job or what we thought.[6]

• [19] The Applicant contests this characterisation of events and states that Mr Mitchell told her words to effect that taking extended periods of leave "does not look good for your reputation or your career."[7] The Applicant denies stating that she did not care what the Respondent thought. Instead, she states that the used the words "my career and my reputation are not my priority at the moment."[8] The Applicant denies mentioning her business during the conversation with Mr Mitchell.

• [20] Mr Mitchell denies stating that the leave the Applicant was taking didn't "look good".

• [21] Later in the day on 5 May 2025, Mr Stuart Holder, Board Sales Director ANZ for the Respondent emailed the Applicant:

Jermaine told me earlier that you have resigned today with immediate effect, advising that 'you do not care about your future career or what the company thinks of you'. As this is your second conversation regarding resigning from your position this email is to acknowledge and confirm acceptance of your immediate resignation. We also accept that your resignation will allow you the time to focus on your new business [ABN Redacted] and supporting and arranging travel from WA, where you currently reside and worked, to your mother in Queensland.

I would like to wish you all the best on your future endeavours.

Please note that you will have access to our EAP for 3 months post this resignation, you can contact them on [phone number redacted]

• [22] According to evidence of Mr Riachy, there is a company practice to conduct a data check prior to releasing emails, which can sometimes cause a delay. Mr Riachy says this explains why the Applicant did not receive Mr Holder's email on 5 May 2025. Mr Holder's copy of the email in evidence shows it is dated 5 May 2025 at 9:28pm. The Applicant's copy of the email is dated 8 May 2025 at 12:49pm. I accept Mr Holder's evidence that he sent the email on 5 May 2025 as the email notes "you have resigned today with immediate effect". I accept that the Applicant did not receive the email until 8 May 2025.

• [23] On 7 May 2025, the Applicant received a text message from the Respondent's Administration Officer to make arrangements for the return of company property.

Im on sick leave at the moment I haven't resigned or been fired (yet).

I can't seem to get a straight answer from anyone either. Any info you give me would

• [25] The Respondent's Administration Officer replied noted a "leavers form" had been signed by Mr Mitchell and Mr Vivian noting that the Applicant had resigned. The Applicant stated "Nope didn't resign". The Applicant stated in her text message exchange that she was calling the Fair Work Ombudsman regarding her pay.

• [26] Mr Mitchell explained during the hearing that a leaver's form is for asset management. One of the mandatory fields of the form is to upload a resignation letter. Mr Mitchell said it is company practice to upload a blank document when an employee resigns verbally and there is no resignation letter to upload.

• [27] On 7 May 2025, the Applicant emailed various members of the Respondent's staff an email entitled 'Letter of Demand for Outstanding Wages and Clarification of Employment Status':

Letter of Demand for Outstanding Wages and Clarification of Employment Status

Dear HR, IT and Payroll Teams; and David Price, Stuart Holden and Jermain Mitchell

I am writing to formally demand payment of outstanding wages owed to me from 18th April 2025 to present, which remain unpaid. As per the Fair Work Act 2009 (Cth), I am entitled to receive timely payment for all hours worked and entitlements accrued.

In addition, I lodged a period of medical leave on 29th April 2025, which remains valid until 27th May 2025. This medical certificate was provided in accordance with my rights under the National Employment Standards (NES), and entitles me to be absent from work due to personal illness. This was emailed to, and discussed, with Tyler Vivian and Jermain Mitchell; as well as lodged in Proceeda. It is unlawful for an employer to take adverse action against an employee for taking legitimate personal or carer's leave, and any failure to honour this leave will constitute a breach of the Fair Work Act, including provisions relating to general protections and unlawful dismissal.

I also wish to state clearly that I have not resigned from my position. I am aware that a

leavers form has been backdated to falsely imply that I resigned, and I reiterate that this is inaccurate, contrary to internal policy, and unlawful. I am also aware that a blank document was added in place of a resignation letter to further falsify the form. Any attempt to misrepresent my employment status amounts to misleading conduct, as well as adverse action in breach of general protections.

1. Confirm whether or not I remain employed, in writing;

2. If terminated, provide the legal basis, effective date, and evidence of the decision, along with all entitlements owed;

3. Immediately process and pay all outstanding wages owed from 18th April 2025 through the present date, including any leave entitlements including previously mentioned medical leave up to and the 27th of May (please see attached document)

leave up to and the 27th of May (please see attached document)

Failure to remedy these matters and respond in writing by Tuesday the 13th of May 2025 will result in my lodging a formal complaint with the Fair Work Ombudsman and/or taking legal action through the Fair Work Commission or other appropriate bodies, including seeking compensation for unpaid entitlements and damages.

I trust that you will treat this matter with the seriousness it warrants.

• [28] On 8 May 2025, the Applicant received the email from Mr Holder set out at paragraph [21] above.

• [29] On 9 May 2025, the Applicant replied to Mr Holder's email:

Thankyou for responding to my email and I am truely disheartened that a five year working relationship has come to this. I will always admire you both and be grateful for the support I have been shown in the past. However, It seems you have either been misinformed, blatantly mislead or feigning ignorance to continue a false narrative.

1. It is evident that my words were intentionally contorted and taken out of context to misrepresent my position, reflecting a deliberate and unethical attempt to mislead. This is both disappointing and unaccetable. I mentioned to Jermain that "my career and reputation can not be my priority under my current circumstances" when threatened that my absense would affect both.

2. I had several conversations with leadership around my deterorating mental state and affairs at home, not just two. These conversations were in the spirit of transparency and not once had I resigned.

3. Congratulations on finding my ABN. I can't imagine it would have taken much time as I had no intention of hiding it. Unfortunately due to my health and that of my family, all career asspirations have been put on hold and there is no opperational business under that number.

4. Im appauled at any mention of my personal affairs but, again to clarify, Jermain was also made aware that my mother will be seeing out part of her recovery in WA with me. Where I could work and care for her simultaneously if needed.

The undertone of your previous email is nothing short of unprofessional and threatening. I hope this email provides you some clarity to better understand the situation your director has put you in.

Given the current tone and direction of this conversation, I will be stepping back to allow the appropriate addministration manage things from here.

My most sincere apologies for your plight and kind regards.

• [30] The Applicant lodged her general protections application on 23 May 2025.

• [31] It is well accepted that the fact of resignation is an objective question. In Koutalis v Pollett [2015] FCA 1165; (2015) 235 FCR 370 it was held:

[43] The question whether a resignation did or did not occur does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis' business' premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:

"This Court, in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461-462 [22]]."

[44] In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee's employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116, namely:

"In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight."

• [32] The Full Bench recently affirmed this approach in Sawyer v Wards Accounting Group Pty Ltd [2025] FWCFB 167 ('Sawyer'):

[61] The usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment. Implicit in that approach is a recognition that it is a necessary incident of the employment relationship that the other party must be notified in clear and unambiguous terms if a right to bring the contract to an end is being exercised. Consistent with that principle, an employee will not be found to have resigned unless the employee has clearly communicated an intention to do so to the employer...

• [33] The Full Bench noted in that case that the words "I'm leaving" were not, in context, sufficiently clear and unambiguous to bring the employment to an end. The Applicant's words were equally referrable to leaving the meeting and to leaving employment.

• [34] I found Mr Holder to be the most convincing of the witnesses. However, he was not directly involved in the conversation on 5 May 2025.

• [35] The evidence of Mr Mitchell is that he "inferred" the Applicant resigned as she indicated that her job was not a priority and she did not care about what the Respondent thought and wanted to work on her business.

• [36] I find it probable that the Applicant did use words to the effect of "I don't care" regarding her career or what the Respondent thought of her. This is consistent with the Applicant's evidence that she was under stress at the time, and she was also agitated regarding the payroll issue. The Applicant also notes that Mr Mitchell seemed upset after their conversation.

• [37] The Applicant's statement that she does not care what the Respondent thinks of her is disrespectful, particularly when considering the steps taken by the Respondent to accommodate her relocations. That being said, I understand the Applicant was experiencing personal issues at the time. However, the Applicant's statement does not rise to the level of a clear and unambiguous intention to resign.

• [38] I find that the Respondent formed a subjective view that the Applicant wanted to leave. Whether this is correct or not is beside the point. Taking Mr Mitchell's evidence at its highest, the Applicant indicated that she did not care about her job and that she wanted to work on her business. Inferring that one wants to leave their job is different to an employee actually stating that they are leaving.

• [39] The Applicant has argued in the alternative that the inferred resignation could be considered a heat of the moment resignation. However, I do not find it necessary to consider this argument.

• [40] The Applicant did not clearly or unambiguously state that she resigned. An enquiry regarding whether her notice period could be paid out does not get to the threshold of a resignation. At the time, the Respondent advised that further approvals would have to be obtained for the notice to be paid out and, subsequently, there was no follow through by the Applicant.

• [41] The Respondent acted in haste. Perhaps the Applicant's attitude and approach to the situation was not entirely professional and the Respondent was frustrated with the Applicant, however, these are not reasons that should be considered when determining whether there was a resignation in fact.

• [42] I find that the Applicant did not resign. Therefore, the Respondent's decision to "accept" the Applicant's resignation on 5 May 2025 was a dismissal within the meaning s.386(1) of the Act. The Applicant's employment was ended at the initiative of the Respondent.

• [43] The jurisdictional objection is dismissed and the matter will be scheduled for a conference in accordance with s.368 of the Act.

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