s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] Kelly Dimkovska (Applicant) lodged an application with the Fair Work Commission (Commission) to deal with a general protections dispute which she alleged involves dismissal. The respondent to the application is Splice Agency Pty Ltd. (Respondent). The Respondent objected to the application, submitting that the Applicant was not dismissed from her employment but rather resigned voluntarily or, in the alternative, she repudiated her employment obligations.[1]

• [2] A person may only make an application for the Commission to deal with a dismissal dispute under s.365 of the Fair Work Act 2009 (Cth) (Act) if they have been dismissed. As such, in order to determine whether the Commission has the jurisdiction to hold a conference to deal with the dispute, the question of whether the Applicant has been dismissed needs to be determined as a threshold issue.

• [3] Section 386 of the Act 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.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part."

• [4] It is not in contention that the circumstances in s.386 (2) and (3) do not apply in this case.

• [5] A hearing was held on 27 November 2025 to determine the question of whether the Applicant was dismissed. The Applicant filed submissions on 13 October 2025 and 11 November 2025, the Respondent filed submissions on 29 October 2025 and submissions in reply on 20 November 2025.

• [6] Both the Applicant and Respondent sought to be represented by a lawyer. The nature of the jurisdictional objection raised complex factual and legal considerations, and I considered that the matter would proceed more efficiently if the Commission was assisted by lawyers in the proceedings. As such I granted permission for both the Applicant and Respondent to be represented by a lawyer pursuant to s.596(2)(a) of the Act.

• [7] The Applicant gave evidence on her own behalf, filing a witness statement dated 11 November 2025 (Applicant's Statement). The following witnesses gave evidence for the Respondent:

• Ellie Bakker, Chief Executive Officer of Splice Marketing Pty Ltd, in respect of whom witness statements dated 29 October 2025 (Bakker Statement) and 20 November 2025 (Bakker Reply Statement) were filed;
• Margaret Goody, the Director of Akyra Strategy and Development which is a human resources advisory and consultancy firm retained by the Respondent to provide services between June and August 2025. A witness statement of Ms Goody dated 20 November 2025 was filed by the Respondent (Goody Statement).

• [8] The Applicant commenced employment in February 2018[2] which transferred to the Respondent on or about 28 September 2021.[3]

• [9] On 10 June 2025 the Applicant sent an email to Ms Bakker titled "PPC Complaints - Follow-Up and Context".[4] The Applicant gave evidence that this email concerned the escalation of certain complaints made by a colleague and how it was impacting the team.[5] Ms Bakker gave evidence that the email formed part of ongoing performance and culture discussions for which the Applicant had partial leadership accountability.[6]

• [10] A copy of the email was attached to the Applicant's statement[7] and set out a list of issues, actions taken and observations and concluded by stating:

"Please let me know if there's anything I've missed or if you see things differently. At the end of the day, we should be working together towards solutions, not pointing fingers. That's not the culture we want to foster. Collaboration is key to both Account Managers and Specialists identifying problems and resolving them."

• [11] The Applicant gave evidence that on 26 June 2025 she sent an email to Ms Bakker titled "Escalations and Impact on priority Work".[8] A copy of that email was attached to the Applicant's statement[9] and in that email the Applicant indicates, among other things:

• despite her best efforts to put checks and balances in place to improve things, they were not improving;
• she considered that there had been escalated issues that could have been resolved between Account Managers without taking up her or Ms Bakker's time;
• she was becoming concerned that unnecessary escalations were becoming distractions and were impacting higher priority work;
• she believed there was a need to set clearer expectations around when something should be escalated;
• she was concerned about staff retention.

• • on 30 June 2025 at approximately 7.30 AM, she held a meeting with the Applicant (First Meeting) to discuss an overspend on a client campaign by one of the Applicant's team members;[10]

• the meeting lasted eight minutes;
• during this meeting the Applicant became defensive and raised her voice;

• • despite Ms Bakker's requests that the Applicant lower her voice, the Applicant continued to raise her voice, and she asked the Applicant to leave her office to prevent further escalation.[11]

• [13] Ms Bakker gave evidence that following the First Meeting, which she said took place on 30 June 2025, she immediately contacted Akyra HR Advisors (Akyra) for guidance and was advised to book a disciplinary meeting for the same day to address what had occurred and sent an email to the Applicant requiring her attendance.[12]

• [14] The Applicant provided a different account of events and gave evidence that:

• • the First Meeting did not take place on 30 June 2025 but took place on 25 June 2025 at about 8 AM;[13]
• • the meeting was unplanned, and Ms Bakker called her into her office to discuss another complaint about an employee regarding overspending on a client account;[14]
• • the Applicant said she agreed to investigate the matter but also raised her concerns about workplace culture;[15]
• • she did not become defensive or raise her voice and nor was she asked to lower her voice during the First Meeting;[16]
• • Ms Bakker did not ask the Applicant to leave her office and the Applicant left on her own accord.[17]

• [15] The Applicant contended that it would not have been possible for Ms Bakker to contact Akyra to book a disciplinary meeting for the same day to address what has occurred at the First Meeting as the First Meeting occurred on 25 June 2025 and not 30 June 2025.[18]

• [16] In her reply evidence, Ms Bakker acknowledged that there was an unplanned discussion with the Applicant on 25 June 2025 regarding overspend on a client account[19] and gave evidence that she was frustrated with the Applicant about the overspend and the handling of it.[20] Ms Bakker admitted that she asked the Applicant what action should be taken and for her views on the situation.[21] Ms Bakker gave evidence that the Applicant's dismissive attitude towards the issue and her minimisation of it caused her significant concern regarding the Applicant's judgement and leadership and that these concerns later formed part of the disciplinary process.[22]

• [17] It seems more likely that the First Meeting did occur on 25 June 2025 because on 27 June 2025 Ms Goody emailed Ms Bakker stating:

"Hello Ellie - thanks for your phone call earlier this week... as discussed, please find below the process for discussing a disciplinary matter with Kelly and wording for an email to request her to attend the meeting"

and which included an email script for a meeting invitation.[23]

• [18] An email attached to Ms Bakker's statement (30 June Email):[24]

• indicates it was sent to the Applicant on 30 June 2025 at 7.39 AM;
• states 'I'd like you to attend a disciplinary meeting with me today to discuss concerns regarding your behaviour. I've asked Margaret to be in the meeting with us';
• indicates the meeting would be held at 1.30 PM that day;
• states that the matters to be discussed include:
• disrespectful communication;
• failure to engage constructively;
• dissatisfaction with, and negative commentary about, the workplace culture.

• • on 30 June 2025 she received the 30 June Email at 7.40 AM,[25] 20 minutes before she started work and after she had greeted everyone at the office before sitting down at her desk;[26]
• • she promptly messaged Ms Bakker through Google Chat and told her she would be requiring the rest of the day off due to mental health reasons however Ms Bakker advised the Applicant she would need to return for the disciplinary meeting, which the Applicant acknowledged.[27]

Meeting between Ms Bakker and the Applicant on 30 June 2025

• [20] The meeting proceeded at 1.30 PM on 30 June 2025 (Second Meeting) and present at that meeting were the Applicant, her husband, Ms Bakker and Ms Goody.[28] Ms Bakker gave evidence that during that meeting:

• she described the content of the First Meeting and the Applicant's conduct during that meeting;
• the Applicant was invited to respond but 'reserved her right to comment';
• Ms Goody explained the Applicant's right to a support person and next steps in the process;
• the Applicant requested 48 hours to respond which was agreed to;
• all parties agreed to attend a follow up meeting on 4 July 2024 at 9.30 AM;

• • she handed the Applicant a letter outlining the matters for discussion and sent it to the Applicant via email.[29]

• [21] Ms Bakker attached a copy of her notes of the Second Meeting to her statement.[30]

• [22] The Applicant denied that Ms Bakker handed her a letter and said that this is why she requested Ms Bakker to email her a letter so she could respond appropriately.[31]

• [23] The Applicant was sent an email standing her down on full pay and giving her until 3 July 2025 to respond to the matters raised.[32] By way of summary, it was alleged that the Applicant had engaged in negative commentary by making comments about the workplace culture, had a dismissive attitude, had a lack of collaboration, had a dismissive tone, lacked emotional regulation and engaged in behaviour that was impacting workplace culture.[33]

• [24] The Applicant sent her response to the matters raised on 2 July 2025.[34]

• [25] The following day Ms Bakker sent the Applicant's response to Ms Goody seeking advice on next steps and asking:

"Would I listen to her responses? How do I respond afterwards?

• [26] Ms Goody gave evidence that she and Ms Bakker discussed possible outcomes, and it was considered that the appropriate outcome was to give Ms Bakker a "first and final warning".[36]

• [27] A meeting was held at 12.00 PM on 4 July 2024 (4 July Meeting) in which the Applicant, her husband, Ms Bakker and Ms Goody were in attendance.[37] The Applicant gave evidence that the meeting lasted just over three minutes, and the outcome was a written warning.[38]

• [28] Ms Bakker subsequently sent the Applicant a letter, providing a "first and final warning"[39] and stating:

"After careful consideration of both the situation and your response, it is expected

that you demonstrate immediate and sustained improvement in your behaviour,

particularly in relation to the areas outlined above. This letter serves as a first and

final warning. Should there be no significant and consistent improvement in your

conduct as a C-Suite leader - including your ability to model appropriate behaviour

for your team and the broader organisation - your employment may be subject to

• [29] The Applicant commenced a period of leave for medical reasons from 4 July 2025,[41] had pre-approved annual leave between 21 July 2025 and 25 July 2025[42] and sent Ms Bakker a medical certificate covering her absence from work until Friday 8 August 2025.[43]
• [30] Ms Bakker gave evidence that clients were notified that the Applicant was on leave and that their accounts would revert to her upon her return.[44] Ms Bakker attached a copy of an email sent to a client which indicated that the Applicant had taken some personal leave, would be away from the Respondent in the near future and that Ms Bakker would be supporting the client in her absence.[45]

• [31] The Applicant gave evidence that during her time away from work she considered her options, received legal advice and organised to meet with Ms Bakker on 12 August 2025 to propose a mutual separation.[46]

• [32] Ms Bakker also gave evidence that during the Applicant's leave:

• the Respondent relocated offices as part of a pre-planned move in which the Applicant had been involved in planning;
• the Applicant's belongings were packed by other employees and securely transferred; and

• • a designated new space was established for the Applicant within the new office and labelled "Kelly's office."[47]

Communications between Ms Bakker and Ms Goody on 8 August 2025

• [33] Ms Bakker gave evidence that during the end of her leave period, the Applicant requested a meeting with her.[48]

• [34] On 8 August 2025, Ms Bakker sent Ms Goody an email indicating that the Applicant had booked a one on one meeting with her and asking:

"Would you mind helping me prep for all scenarios:

1. Resignation
2. If she demands work from home
3. Wants to extend her leave

Happy to chat over the phone if that's easier."[49]

• [35] Ms Goody and Ms Bakker agreed to discuss the matter that afternoon.[50]

• [36] A meeting between the Applicant and Ms Bakker occurred at a café on 12 August 2025 (12 August Meeting).[51] The Applicant gave evidence that she organised this meeting to propose a mutual separation.[52]

• the Applicant commenced the meeting with words to the effect that "she could not believe how different things now felt for her because she had always imagined continuing to work at Splice";

• • the Applicant repeatedly made statements to the effect of "I cannot believe this is happening" and "this is the hardest thing I've ever had to do."[53]

• [38] During the 12 August Meeting the Applicant read from a prepared document.[54]

• [39] Ms Bakker gave evidence that in reading the document, the Applicant stated words to the effect that:

• she felt Ms Bakker wanted her out of Splice Marketing;
• she felt she could no longer work at Splice Marketing;
• she was resigning from Splice Marketing; and

• • she believed that she had certain entitlements to be paid out.[55]

• [40] The Applicant disagreed with Ms Bakker's recollection of what the Applicant said[56] and gave evidence that the document she read included the following points:

• "Following the disciplinary process, which resulted in a first and final warning, it's clear to me that you no longer wish to have me working in the business";
• "I also have concerns about remaining in an environment where I feel I must constantly question whether I am 'smiling' or 'bubbly' enough in a meeting, or where raising concerns about workplace culture and trying to protect others could lead to dismissal. It's not possible to work effectively under those conditions";
• "That said, despite what I've been through, I do not want to escalate this further. We've known each other for close to a decade, and we've been through a lot together. I don't want to cause damage to Splice or continue feeling this level of deep distress. My preference is to find a fair and respectful way forward that allows both of us to move on without additional stress or legal costs"; and

• • "I propose we agree to a clean, negotiated exit on the following terms: I part ways with Splice. I'm paid out my legal entitlements, including my long service leave accrual. I am paid my four weeks' notice, with only light touch points if required during that time".[57]

• [41] In her reply evidence Ms Bakker said that the points the Applicant quoted are generally consistent with what she recalled the Applicant reading from her notes.[58]

• [42] The Applicant attached a copy of the notes she took of the conversation that day.[59] During the hearing the Applicant gave evidence that she made those notes the day of the 12 August Meeting when she returned home. Those notes record that the Applicant read the above points and that:

• Ms Bakker indicated she did not "try to push [the Applicant]" out and said she felt "she was losing control of the business and everyone seemed unhappy";
• Ms Bakker said she was sorry and had at many times wanted to drive to the Applicant's house but couldn't because of how official everything had gotten;
• the Applicant said she did not take medical leave to make Ms Bakker angry and had to take it because of how the situation had impacted her;
• Ms Bakker said she would speak to the accountant and HR to see if she could pay out what was in the negotiated exit over time rather than immediately but would need the Applicant to send her everything in writing;
• Ms Bakker said she would do anything she could to help the Applicant along in her next chapter;
• she asked the Applicant what she would like to tell the team and the Applicant responded that she did didn't have anything specific she wanted said;

• • she wished Ms Bakker all the best and said it was one of the hardest goodbyes.[60]

• she explained to the Applicant that her position remained secure;
• she reiterated to the Applicant that she had followed standard HR procedures, and had been guided by the advice provided to her by her HR advisor;
• she denied the suggestion that she wanted the Applicant to leave and pointed out that the Applicant's allocated office had been made ready for her to return to work, and that the Applicant's clients and team had only temporarily been reassigned during her leave;
• the Applicant said words to the effect that she would not be working out any notice period, and would not be returning to the office;

• • the Applicant said words to the effect that she would send an email to Ms Bakker later that day confirming her resignation.[61]

• [44] The Applicant did not agree with Ms Bakker's account of what was said[62] and maintained that:

• Ms Bakker said she would speak to the accountant and HR and see if she could pay the amounts in the offer over time rather than all at once;

• • she also requested that the Applicant send the request or 'all this' in writing to her.[63]

• [45] Ms Bakker did not agree with the Applicant's characterisation of her statements regarding speaking to the Respondent's accountant and human resources.[64] Ms Bakker gave evidence that:

• she did not state words to the effect that she disagreed with the Applicant's proposal regarding her entitlements or with the Applicant's suggestion that they could be paid over a period of time rather as a single lump sum;

• • she was not aware whether that could be done and indicated that she would need to clarify with the relevant persons.[65]

• • after reading the letter, the Applicant said words to the effect of "I'm sorry", "I won't work out my notice period", and "I guess that's it" and she understood that the Applicant was resigning;[66]
• • the Applicant referred to her exit from the Respondent as "inevitable";[67]
• • as the meeting concluded, she and the Applicant hugged and each said goodbye.[68]

• [47] The Applicant gave evidence that at no point did she resign or say she was resigning.[69] Ms Bakker admitted that the Applicant did not use the word "resign" or any of its variations.[70]

Telephone call between Ms Bakker and Ms Goody on 12 August 2025 following 12 August Meeting

• on 12 August 2025, Ms Bakker contacted her via telephone and said words to the effect that the Applicant had resigned or that she was going to resign, and that the Applicant was soon going to send a confirmation email to that effect;

• • Ms Bakker asked for her guidance on how to handle the situation.[71]

• [49] The Applicant gave evidence that, as requested by Ms Bakker, she sent an email to Ms Bakker with the details of the negotiated exit offer (12 August Email).[72] The 12 August Email stated:

Thank you for meeting me today. It was incredibly difficult but I'm feeling a little more at peace now.

As I mentioned, over the last few weeks, I've had time to reflect, and I wanted to openly share where things stand for me. This situation has had a significant impact on me, and even having the conversation this morning caused me a great level of sadness and anxiety.

Following the disciplinary process, which resulted in a first and final warning, it feels as though you no longer wish to have me working in the business. I also have concerns about remaining in an environment where I feel I must constantly question whether I am "smiling" or "bubbly" enough in a meeting, or where raising concerns about workplace culture could lead to dismissal. It's not possible for me to continue under working those conditions.

Given the disciplinary action, I sought independent advice from both employment lawyers and HR professionals to understand my position. They have identified serious concerns about how the process was handled, the reasons for the disciplinary action (particularly as one specifically related to me exercising A workplace right) and the severity of the outcome. They have provided me with my options for my next steps in lodging a claim.

As I said, despite what I've been through and the advice I have received, I do not want to escalate this further. We've known each other for close to a decade, and we've been through a lot together. The last thing I want to do is cause damage to Splice but I also can't continue feeling this level of deep distress.

My preference is to find a fair and respectful way forward that allows both of us to move on without additional stress or legal costs.

I'd like to propose we agree to a clean, negotiated exit on the following terms:

• I part ways with Splice as soon as possible (I have another medical certificate if required in the meantime).
• I'm paid up my legal entitlements, including my long service leave accrual (just over 7.5 years).
• I am paid my 4 weeks' notice without the requirement to work it - which I think you may prefer anyway.

I have given a great deal to Splice, building the business with you and supporting you every step of the way and I believe this exit gives us both the opportunity to close this chapter respectfully.

As discussed today, if it would help and make it less financially impactful on Splice I would be open to the idea of receiving my final payout figure over a specific period of time EG get paid fortnightly as part of the normal pay cycle with the idea of receiving the final payout by the end of October. Having said that, I would like to receive the final calculated figure before we sign off on anything.

Once we agree on everything, I would like to arrange to drop any property from Splice (work laptop and keys) and collect my personal belongings. Happy for you to let me know when this will work for you, this could even be on a weekend if preferable."[73]

Email correspondence between Ms Goody and Ms Bakker on 12 August 2025

• [50] Ms Goody gave evidence that at 12:05 PM on 12 August 2025, she sent Ms Bakker an email, a copy of which was attached to her statement.[74] That email attached a deed of release for Ms Bakker's review and included a draft email to the Applicant which stated:

"Subject: Deed of Release Following Meeting on 12 August 2025

Dear Kelly - following your meeting with me on 12 August 2025 where you attended your verbal communication regarding your intention to resign from your position at Splice Marketing.

As part of the process to formalise the conclusion of your employment, please find attached a Deed of Release for your review. This document outlines the terms and mutual understandings relating to the cessation of your employment.

We encourage you to read the document carefully. If you have any questions or would like to discuss any aspect of it, please feel free to contact me via email with your query.

Once you have reviewed the document, we kindly ask that you return a signed copy by close of business on Monday 18 August 2025.

We appreciate your contributions to Splice Marketing and wish you all the best in your future endeavours."[75]

• [51] Ms Bakker responded to the email at 12:28 PM and forwarded the Applicant's 12 August Email to Ms Goody.[76] Ms Goody gave evidence that at the time of receiving and reviewing the email, she understood that the Applicant had resigned from her employment, including because Ms Bakker had previously communicated that there would be a forthcoming email confirming resignation.[77]

• [52] On the evening of 12 August 2025 Ms Bakker responded to the 12 August Email stating:

I acknowledge your state of your resignation and confirm that it has been accepted.

I will follow up tomorrow with a formal response once I have had the opportunity to consult with legal and HR."[78]

Communications between Ms Bakker and Ms Goody on 13 August 2025

• [53] At 9.56AM on 13 August 2025 Ms Bakker sent Ms Goody a further email concerning the amount owing to the Applicant and seeking Ms Goody's help to confirm the Applicant's entitlements.[79] That email stated:

She voluntarily resigned though. I have many screenshots of her activity on LinkedIn engaging with content about toxic workplaces and quitting your job whilst employed with us which has all occurred over the past few weeks.

Can you help me confirm her entitlements?"[80]

• [54] At 11.39 AM on 13 August 2025 Ms Goody replied to Ms Bakker stating:

• As Kelly resigned, there is no obligation to pay long service leave.
• All Kelly is entitled to is her annual leave entitlements less tax (and superannuation would be paid on the annual leave).
• Should you pay an ex-gratia payment, it would only be payable if Kelly removes the adverse comments in relation to Splice Marketing from LinkedIn at any other social media channels (confirming you have screenshots of the adverse comments)
• Revised date of release attached for your review."

• [55] The Applicant gave evidence that on 13 August 2025 Ms Bakker sent her a deed of release (Deed) via email (13 August Email), a copy of which was attached to her statement.[81] The background section of the deed stated:

"A. The Employee was employed by the Employer from 5 February 2018

B. The Employee's employment ending on 12 August 2025, following confirmation

from the Employee in writing of the verbal resignation given to the Employer in person on 12 August 2025 (End Date).

1. The employment of the Employee will be terminated with effect on and from the End Date.

D. The Employer and the Employee have agreed to settle all claims arising out of /

end of the employment of the Employee, on the terms set out in this deed".

• [56] Ms Bakker's 13 August Email stated:

I am writing to provide you with the enclosed Deed of Release for your review and signature. Please take the time to read the document, and if you wish, seek independent legal advice before signing.

I also want to raise a matter that has only recently been brought to my attention

by a few staff members, which was then escalated to their managers. They expressed

concern about your recent engagement with social media posts on LinkedIn relating

to "toxic and nightmare workplace culture and leaders" and "quitting a job",

during a period when you were still an active employee of Splice Marketing (past

three weeks). These interactions were reported as upsetting to some who saw them,

raised questions, and have now placed me in a difficult and uncomfortable position

Since this was raised, I have reviewed the posts myself and, unfortunately, I can understand the concerns that were expressed. I wanted to address this directly with you so there is clarity and transparency around the issue.

While I respect that everyone has the right to personal views online engagement, As an Executive of the business you are visible representative of Splice Marketing and remain closely connected to clients, staff, an industry peers who actively see your activity on LinkedIn. For that reason, the frequency of your engagement with such posts in recent weeks is concerning. I ask that you remain mindful of the impact these interactions can have on colleagues, client relationships, and the broader perception of the business.

Please let me know once you have reviewed the Deed and whether you have any questions. The Deed outlines the agreed terms and conditions for finalising your employment, and payment will be made in accordance with those terms on completion of the required steps".

• [57] The Applicant gave evidence that due to the reference to resignation, that her terms had not been met and that there was no indication that Ms Bakker was open to negotiating a mutual separation, on 14 August 2025 she requested time to consult with her lawyer before providing a formal response.[82]

Ms Bakker's email to the Applicant on 19 August 2025

• [58] Ms Bakker gave evidence that on 19 August 2025 a staff member alerted her that the Applicant had been engaging with social media posts referencing "toxic workplaces" and "call management" while she was on leave and in the weeks leading up to the 12 August 2025 meeting.[83] Ms Bakker attached a copy of screenshots of the Applicant's social media activity to her statement.[84] These included posts from other people that the Applicant has 'liked' or 'loved'.

• [59] On 19 August 2025 Ms Bakker sent another email to the Applicant stating:

We refer to the above matter and confirm that you resigned from your employment on 12 August 2025.

We understand that you have also obtained employment elsewhere and convinced other ventures, as adumbrated below.

We confirm that we will pay you your statutory entitlement shortly.

In due course, we will write to you more formally about the matters below, however, in the interim:

1. Please ensure you return the company laptop, keyboard and mouse by 4:00pm, 22 August 2025. Please note you are not to attend the office in person, you can make arrangements directly with me via email to provide them to me off-site (or via another person), otherwise I am content to receive them to the office by courier. You are not to delete any data whatsoever on the company laptop.

1. In terms of post-employment obligations, we recommend that you review your contract of employment. In addition to that, you also have duties that you owe to our company.

1. In this respect, we require that you delete all contact details of our customers from your mobile phone and other devices and these are client lists at law. Furthermore, we require that you unfollow and delete any communications with our customers on your social media and business profiles, such as LinkedIn as they constitute client lists as well. Please do so by no later 3:00pm, 20 August 2025.

1. We caution you against contacting any of our clients and warn you against using any company confidential information to your benefit or the benefit of another. We understand you have recently commenced registering a company or started up a business and we are conducting investigations in relation to that.

1. Accordingly, please also confirm by 3:00pm, 20 August 2025 that you will not contact any of our customers and you will not use company information to your benefit or the benefit of another and that you will abide by your contractual obligations not to compete with our company.

The Applicant's response to Ms Bakker's email of 19 August 2025

• [60] On the evening of 19 August 2025 the Applicant replied to Ms Bakker's email of 19 August 2025, advising that she had lodged a Form F8 application with the Commission and stating:

"At no stage did I resign and I do not accept the characterization that I resigned."[86]

• [61] The Applicant gave evidence that Ms Bakker did not respond to this email and to date has not paid termination entitlements.[87]

• • on 19 August 2025 she was alerted by multiple individuals that the Applicant had announced her new position as Founder and Chief Marketing Officer of a business (Business 1) and made a post on social media with links to a website for that business;[88]
• • she conducted online searches and identified that the domain for the business had been registered under the name of the Applicant's husband[89] on 28 July 2025;[90]
• • Business 1 contained content and imagery originating from the Respondent and targeted the Respondent's market;[91]
• • the website for Business 1 was launched while the Applicant was on leave;[92]
• • Business 1 was registered for GST on 1 August 2025.[93]

• [63] Ms Bakker also gave evidence that the Applicant announced her commencement in a position with another company (Business 2) and that:

• an ASIC search shows that Business 2 was first registered in March 2025;
• a search of the domain details for the website of Business 2 shows that it is registered to the Applicant's husband and was last updated on 15 July 2025;
• the LinkedIn profile associated with Business 2 made a post on 19 August 2025 stating that it had "officially launched" and that this occurred "after many months of planning";
• the LinkedIn post mentioned the Applicant and Business 1 having spent hours "planning, designing, developing, and SEO optimising this site in preparation for the launch";

• • the Applicant lists Business 2 as her employer since August 2025;[94]
• • in other posts on the Applicant's LinkedIn profile, she refers to the difficulties of "launching 2 new businesses".[95]

• • Business 1 was established in October 2023[96] and does not compete with the Respondent;[97]
• • in October 2023 she informed Ms Bakker that she wanted undertake work for her husband's place of work, (Client), to generate additional income and Ms Bakker approved;[98]
• • in early 2024 she formally requested to move to four days per week to reduce the Respondent's operational costs while dedicating one day to work for her Client and Ms Bakker was supportive of this arrangement;[99]
• • in early 2025 she advised Ms Bakker that she was winding down her work with her Client and wished to return to full time employment with the Respondent;[100]
• • she officially launched Business 1 publicly on 19 August 2025[101] and at the time of website launch the Client was the only client she had been contracted to work with, and this engagement had been publicly available on her LinkedIn profile since 2023.[102]

• • Business 2 was established in March 2025, is a business that implements a HR system "HiBob" into businesses and does not compete with the Respondent;[103]
• • she met with Ms Bakker in early 2025 and told her about the HiBob HR System and recommended that it be 'looked into' to streamline the Respondent's HR administration;[104]
• • Ms Bakker stated she was eager to see the platform in a testing environment, the Applicant agreed to get this underway and disclosed that she intended to support Business 2 with the marketing and operations side of the business;[105]
• • Ms Bakker asked the Applicant if she would need to reduce her hours of work to accommodate this and the Applicant said she did not need to;[106]
• • Ms Bakker offered to get the Respondent's web development team to build the website for Business 2 in exchange for the Applicant's husband setting up the testing environment and implementing the HiBob software;[107]
• • the Applicant's husband completed setting up the testing environment and discussion about purchasing a HiBob subscription was continuing when the disciplinary action occurred.[108]

• [66] The Applicant gave evidence that Ms Bakker had prior knowledge of both Business 1 and Business 2 and she only visibly launched them to replace her lost income after her employment ended.[109]

• [67] Ms Bakker denied having prior knowledge of Business 1 or the Applicant's intent to start a business that provided marketing services to clients within the industry and said there was no discussion regarding this business or consent given for the Applicant to engage in that business.[110]

• the Applicant had asked her whether she would be able to work one day per week for the Client and that she agreed;

• • at a later date the Applicant indicated she was no longer working for the Client and wanted to revert to full time employment and she agreed.[111]

• [69] Ms Bakker said she understood the Applicant to be acting as an employee of the Client or subcontracting in her own right but was not aware that the Applicant was undertaking the work under the banner of Business 1 and had she known the Applicant was consulting under that framework she would very likely not have agreed.[112]

• [70] The Applicant alleged she was dismissed[113] and submitted, by way of summary, that:

• • It was clear and unambiguous from the email send by the Applicant on 12 August 2025 that it was a proposal for a mutual exit.[114]
• • Even if the Applicant's correspondence can be considered to express an intent to resign (albeit subject to terms), it cannot be severed from the intent of the communication to be a mutual settlement.[115]
• • The conduct of the Respondent is in contrast with the objection its presses.[116]
• • It is unclear as to whether the Respondent wishes to accept the Applicant's offer or impute a resignation on to the Applicant in isolation.[117]
• • The Respondent's objection rests on the argument that the Applicant intended to bring her employment to an end on 12 August 2025, but this position is untenable as no solidified date for when the resignation was to take effect was discussed, nor would any reasonable person assume it was designed to take effect as a resignation.[118]
• • The Respondent took steps to unilaterally bring the employment relationship to an end by treating the Applicant's proposal as a resignation and whether or not this was by mistake or intentional, the acts of the Respondent function as termination at its initiative.[119]

• [71] By way of summary, the Respondent submitted that:

• • The Applicant voluntarily resigned from her employment or, in the alternative, she repudiated her employment obligations[120] and in those circumstances the Applicant was not dismissed.[121]
• • In the 12 August Meeting after the Applicant read her prepared statement, a conversation occurred between the Applicant and Ms Bakker during which the Applicant stated she was resigning, was not going to return to work and was not going to work out her notice period and that she would send an email to confirm her resignation later that day.[122]

• The Applicant commenced the 12 August Email by stating she was feeling "a little more at peace now" and stated:

"I'd like to propose we agree to a clean, negotiated exit on the following terms:

• I part ways with Splice as soon as possible ...
• I'm paid out my legal entitlements, including my long service leave accrual ...
  • • I am paid my four weeks' notice without the requirement to work it - which I think you may prefer anyway."[123]

• • Ms Bakker replied to the 12 August Email stating "I acknowledge receipt of your resignation and confirm it has been accepted" and the Applicant did not respond but filed her application on 18 August 2025 and sent an email to Ms Bakker on 19 August purporting to deny she had resigned on 12 August 2025.[124]
• • The Applicant's conduct and statements are what brought the employment relationship to an end by stating she either could not or would not return to work, and that she expected to be paid out her entitlements.[125]
• • Clause 10 of the Applicant's contract provided that the Applicant could resign in writing at any time, would be subject to the two week notice period in the schedule to the contract and if she decided not to work out her notice period she would not be paid for that time.[126] Noting the Applicant's statements during the 12 August 2025 meeting and the confirmation of the conversation in the 12 August Email, the Applicant was, in those circumstances, effectively invoking those matters in the contract, in addition to her specific statements that she was resigning.[127]
• • The reasonable person in this matter is the person in the position of Ms Bakker with her knowledge of the contract, what the Applicant had said and all the other circumstances and that reasonable person would have understood that the Applicant was saying that her employment was then at an end.[128]
• • On the basis of what the Applicant had raised during the 12 August Meeting, the 12 August Email and other relevant points in the context of the matter, she had effectively indicated that she was not able to, or was unwilling to, return to work with the Respondent, including for any notice period.[129] The Applicant also expressly stated to Ms Bakker that she was resigning and would confirm this later by email which she did.[130] In those circumstances, Ms Bakker was entitled to consider that the Applicant was notifying her that the employment relationship was then at an end.[131]

• Ms Bakker's email regarding her acknowledgement and acceptance of the Applicant's resignation was not questioned or doubted as an accurate reflection of what had occurred; and

• • if the Applicant considered she had not resigned at that time, a responding email to clarify that position should have followed.[132]

• • the inference to be drawn from the evidence relating to Business 1 and Business 2 to which the Applicant was connected was that the Applicant had undertaken steps to commence new employment or undertake new business opportunities at least before the 12 August Meeting;[133] and
• • an objective view of her knowledge at that time indicates an intent not to return to work with the Respondent by the time of the 12 August Meeting.[134]

• [74] The Respondent submitted, in the alternative, that Ms Bakker was entitled to consider that the Applicant was:

• repudiating or renouncing her obligations of employment; or

• • abandoning the employment relationship.[135]

• [75] The Respondent submitted that by contrast, the evidence shows that the Respondent intended that the Applicant remain employment including by moving her belongings and creating an office space for her in the Respondent's new office.[136]

• [76] Referring to Mohazab v Dick Smith Electronics Pty Ltd (No 2)[137] the Respondent submitted that had the Applicant not taking the actions she did, she would have remained employed, and it is therefore the case that the termination of her employment was at her own instance, not that of the Respondent.[138]

• [77] The Applicant held concerns about her employment with the Respondent, including concerns about workplace culture and having received a first and final warning after a tenure exceeding 7 years. After reflection during a period of leave, this prompted her to arrange to meet with Ms Bakker on 12 August 2025 to discuss a mutual separation.

• [78] The Applicant had sought legal advice and had prepared a document to read. While Ms Bakker sought to recall what was said during the meeting in her evidence, it is apparent that the Applicant was well-prepared for the meeting, and I accept that she recorded her notes of the meeting when she returned home on the day of the meeting. I am persuaded that what transpired at the 12 August Meeting is largely as recorded in those notes which were attached to the Applicant's statement.[139] Those notes indicate that the Applicant had formed a view that Ms Bakker did not want her working for the Respondent anymore and as such, she proposed a mutual separation. The terms of that proposal were that:

• the Applicant "part ways" with the Respondent "as soon as possible";
• the Applicant be paid out her "legal entitlements" including her long service accrual; and
• the Applicant be paid four weeks' notice, with only "light touch points" required during that time.

• [79] The last aspect of this proposal concerning notice is somewhat confusing. On the one hand, it appears to suggest the Applicant would be paid in lieu of working through her notice period and on the other hand it appears to contemplate some work during a notice period.

• [80] It is apparent from the proposal put forward by the Applicant that she was seeking payment of her "long service leave accrual" and considered this to form part of her "legal entitlements". The complication however was that the Applicant had been employed for less than 10 years and was therefore not entitled to long service leave under s.95(2) of the Industrial Relations Act 2006 (Cth)(Qld)(IR Act). The Applicant had completed at least 7 years' service and ss.95(3) and (4) of the IR Act have the effect that an employee who has completed at least 7 but less than 10 years continuous service will be entitled to a proportionate payment only if one of the circumstances in s.95(4) existed at that time. None of the circumstances in s.95(4) existed as at the time the Applicant put forward her proposal. This meant that long service leave did not form part of her "legal entitlements".

• [81] It is not in contention that the Applicant did not use the word "resign" or any of its variations in the 12 August Meeting.[140] The meeting was emotional and the Applicant's own evidence indicates she wished Ms Bakker all the best and said that it was one of the hardest goodbyes.[141] In doing so, it seems likely that the Applicant assumed, given the lack of express rejection of her proposal, that it was likely to be accepted. Ms Bakker also likely held the view that the relationship would likely come to an end. However the Applicant had proposed that the ending of the relationship be on certain terms, and those terms were not settled at the 12 August Meeting. It is clear that Ms Bakker is not a person who has a high level of confidence with human resources matters and would typically reach out to Ms Goody for advice as to what to do. I find, on the balance of probabilities, that Ms Bakker did not accept the Applicant's proposal of mutual separation at the 12 August 2025 as she wanted to speak to Ms Goody first. I also accept the Applicant's evidence that Ms Bakker asked her to put something in writing. Ms Bakker likely did this because wanted to get advice and further consider what to do upon receipt of that advice. Despite the emotional meeting dynamics, the employment relationship did not end at the 12 August Meeting.

• [82] Ms Bakker did speak to Ms Goody following the 12 August Meeting and I accept Ms Goody's evidence that on 12 August 2025 Ms Bakker told her that the Applicant had resigned or was going to resign and that the Applicant was going to send a confirmation letter to that effect. The Applicant did not send a confirmation letter to that effect. Rather, in the 12 August Email the Applicant again set out a proposal for mutual separation but this time she changed the aspect of the proposal concerning notice. The proposal was that:

• the Applicant "part ways" with the Respondent "as soon as possible"
• the Applicant be paid out her "legal entitlements" including her long service accrual; and
• the Applicant be paid four weeks' notice without the requirement to work it.

• [83] The proposal indicated that the Applicant was open to payment by way of instalments but stated that "I would like to receive the final calculated figure before we sign off on anything". The Applicant also stated in her revised proposal:

"Once we agree on everything, I would like to arrange to drop off any property from Splice (work laptop and keys) and collect my personal belongings."

• [84] Concerning the aspect of the proposal that she part ways with the Respondent "as soon as possible", the Applicant indicated she had "another medical certificate if required in the meantime". By indicating that she could provide another medical certificate to cover her absence, retaining her company property and leaving her belongings at work until such time as agreement was reached, it is apparent that the Applicant considered that the relationship remained on foot pending that agreement.
• [85] Despite describing long service leave as a "legislative entitlement" the Applicant was not entitled to payment of any long service leave and nor were the arrangements concerning "notice" settled. Payments in respect of long service leave and notice were clearly payments she was seeking that the Respondent agree to as a condition of her employment ending.

• [86] The Respondent did not agree to this proposal, the proposal was not a resignation, and I find that the Applicant did not resign on 12 August 2025 as asserted by the Respondent. Considered objectively, the Applicant's conduct did not show an intention to no longer be bound by her employment contract in putting forward the proposal that she did. Rather, things had become difficult and she simply wanted "to find a fair and respectful way forward that...[allowed the Applicant and Respondent] to move on without additional stress or legal costs" and acted constructively in putting forward a proposal for consideration.

• [87] The Applicant had already been working through another entity at certain stages while she was employed. That she launched her involvement in other businesses in a more public way does not establish a resignation in clear and unambiguous terms, nor does it establish a repudiation of her employment contract. Nor do her acts of 'liking' or 'loving' the social media posts that other people had posted.

• [88] As of 12 August 2025, there was a proposal that was open to the Respondent to accept or reject and had Ms Bakker accepted it, the employment relationship would have come to an end on mutual terms, including any terms negotiated in a deed of settlement. But the Respondent did not accept the proposal, the relationship remained on foot and if it was to come to an end, it needed to come to an end by another means.

• [89] This leads to the question of whether the Applicant's employment was terminated on the employer's initiative. A termination is at the employer's initiative when:

• the employer's action 'directly and consequentially' results in the termination of employment, and

• • had the employer not taken this action, the employee would have remained employed.[142]

There must be action by the employer that either intends to bring the relationship to an end or has that probable result.[143] The question of whether the act of an employer results 'directly or consequentially' in the termination of employment is an important consideration but it is not the only consideration.[144] It is important to examine all of the circumstances including the conduct of the employer and the employee.[145]

• [90] If it was at all unclear to Ms Bakker that the Applicant did not resign during the meeting of 12 August 2025, it should have been clear to her following the Applicant's 12 August 2025 email that the Applicant was instead putting forward a proposal for mutual separation for her consideration.

• [91] In this context, the Respondent's actions warrant careful consideration. On the evening of 12 August 2025 Ms Bakker responded to the 12 August Email purporting to acknowledge a resignation that the Applicant did not provide. Ms Bakker did not appear to have sought advice about the specific contents of this email prior to sending it.

• [92] On 13 August 2025 Ms Bakker sought help from Ms Goody to confirm the Applicant's entitlements. In that email Ms Bakker told Ms Goody that the Applicant had resigned. However, the Applicant had not resigned, and Ms Goody's advice that the Applicant was not entitled to long service leave was therefore based on incorrect information.

• [93] A Deed of Release was prepared and sent to the Applicant on 13 August 2025 that did not set out any payment in respect of long service leave. The email attaching the Deed stated:

"Please take the time to read the document, and if you wish, seek independent legal advice before signing".

• [94] Two things would have been apparent to the Applicant at this time. Firstly, Ms Bakker was purporting to accept a resignation she did not provide and secondly, the Deed did not meet her expectations as there was no long service leave payment included and there had been no further discussion with her about this aspect of the proposal. This would have been concerning for the Applicant, and it is understandable that she wanted to and did seek legal advice before responding. In her email of 14 August 2025[146] the Applicant put the Respondent on notice that she was going to seek advice on next steps and had been advised not to take any actions in the interim. The Applicant's email indicated that she would likely respond the following Tuesday, which would have been 19 August 2025.

• [95] However, before the Applicant responded, on 19 August 2025 Ms Bakker sent another email to the Applicant purporting to confirm a resignation and requesting the return of company property. The email stated:

"Please note you are not to attend the office in person, you can make arrangements directly with me via email to provide them to me off-site (or via another person), otherwise I am content to receive them to the office by courier."

and recommended that the Applicant review her contract in respect of 'post-employment' obligations.

• [96] The Applicant's email of 19 August 2025 made it abundantly clear that she did not intend to resign when she stated:

"At no stage did I resign and I do not accept the characterization that I resigned."[147]

• [97] It seems unlikely that there was a genuine misunderstanding on the part of Ms Bakker about the Applicant's intentions. However, even if there was, rather than conceding that it may have misunderstood the Applicant's intentions, the Respondent instead continued to insist that the Applicant had resigned when she did not, including via the current proceedings.

• [98] The Respondent purported to accept a resignation that was not provided on two occasions, requested the return of company property, told the Applicant not to attend the office in person and reminded the Applicant of post-employment obligations. The Respondent did not alter its position when the Applicant plainly stated that she did not resign in her email on 19 August 2025 but rather pressed the existence of resignation in circumstances where there was none. The Applicant had merely put forward proposal to bring the employment to an end on mutual terms which were not accepted.

• [99] I find that it was the actions of the Respondent that 'directly and consequentially' resulted in the termination of employment, and had the employer not taken the actions it did, the employee would have remained employed. Those actions either intended to bring the relationship to an end or had that probable result.

• [100] As such, I find that the Applicant's employment was terminated at the Respondent's initiative, and the Applicant was dismissed within the meaning of s.386(1)(a). The matter will now be listed for a conference with the aim of assisting the parties in reaching a resolution.

[2] Application, response to q. 1.1; Applicant's Statement at [1]; Bakker Reply Statement at [5].

[7] Applicant's Statement, Attachment KD-2.

[9] Applicant's Statement, Attachment KD-3.

[13] Applicant's Statement at [11], [64], [73].

[14] Applicant's Statement at [11], [64].

[23] Goody Statement, Attachment MG-01.

[30] Bakker Statement, Attachment EB-3.

[32] Applicant's Statement at [25] - [26], Attachment KD-5.

[33] Applicant's Statement at [28], Attachment KD-5.

[34] Applicant's Statement at [29], Attachment KD-6; Bakker Statement at [13], Attachments EB-4 and EB-5.

[35] Goody Statement, Attachment MG-05.

[37] Applicant's Statement at [31]; Bakker Statement at [15].

[40] Applicant's Statement at [35] - [38], Attachments KD-8 and KD-9; Bakker Statement at [16], Exhibit EB-6.

[42] Applicant's Statement at [33]; Bakker Statement at [18].

[45] Bakker Statement, Attachment EB-8.

[46] Applicant's Statement at [41] - [42].

[49] Goody statement at [18], Annexure MG-08.

[50] Goody statement at [18], Annexure MG-08.

[54] Applicant's Statement at [43]; Bakker Statement at [21].

[56] Applicant's Statement at [78], [81].

[59] Applicant's Statement at [45]; Attachment KD-11

[60] Applicant's Statement, Attachment KD-11.

[62] Applicant's statement at [82] - [89].

[63] Applicant's Statement at [44], [88].

[72] Applicant's Statement at [46], Attachment KD-12.

[73] Bakker Statement, Attachment EB-9.

[74] Goody Statement at [20], Attachment MG-09.

[75] Goody Statement, Attachment MG-09.

[78] Applicant's Statement, Attachment KD-12.

[80] Goody Statement, Attachment MG-12.

[81] Applicant's Statement at [49], Attachment KD-13.

[82] Applicant's Statement at [52], Attachment KD-14.

[85] Applicant's Statement, Attachment KD-15.

[86] Applicant's Statement, Attachment KD-16.

[100] Applicant's Statement at [100].

[101] Applicant's Statement at [95].

[102] Applicant's Statement at [102].

[103] Applicant's Statement at [104].

[104] Applicant's Statement at [105].

[105] Applicant's Statement at [106].

[106] Applicant's Statement at [107].

[107] Applicant's Statement at [108].

[108] Applicant's Statement at [109].

[109] Applicant's Statement at [110].

[110] Bakker Reply Statement at [58].

[111] Bakker Reply Statement at [59].

[112] Bakker Reply Statement at [59].

[113] Application, response to q. 1.3.

[114] Applicant's Initial Submissions at [6].

[115] Applicant's Initial Submissions at [9].

[116] Applicant's Initial Submissions at [10].

[117] Applicant's Initial Submissions at [11].

[118] Applicant's Initial Submissions at [13].

[119] Applicant's Initial Submissions at [15].

[120] Respondent's Submissions at [3].

[121] Respondent's Submissions at [4].

[122] Respondent's Submissions at [13].

[123] Respondent's Submissions at [13].

[124] Respondent's Submissions at [15].

[125] Respondent's Submissions at [21].

[126] Respondent's Submissions at [22].

[127] Respondent's Submissions at [23].

[128] Respondent's Submissions at [24].

[129] Respondent's Submissions at [26].

[130] Respondent's Submissions at [26].

[131] Respondent's Submissions at [26].

[132] Respondent's Submissions at [28].

[133] Respondent's Submissions at [29].

[134] Respondent's Submissions at [29].

[135] Respondent's Submissions at [27].

[136] Respondent's Submissions at [30].

[137] [1995] IRCA 625; (1995) 62 IR 200.

[138] Respondent's Submissions at [31].

[139] Applicant's Statement, Attachment KD-11

[140] Bakker Reply Statement at [49].

[141] Applicant's Statement, Attachment KD-11

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

[143] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769; (2011) 212 IR 248, 256; citing O'Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23].

[144] Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904.

[145] O'Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23]; citing Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904; Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200; ABB Engineering Construction Pty Ltd v Doumit, (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999.

[146] Applicant's Statement, Attachment KD-14.

[147] Applicant's Statement, Attachment KD-16.

Printed by authority of the Commonwealth Government Printer