s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection that Applicant not dismissed - Applicant found to be constructively dismissed- jurisdictional objection dismissed

• [1] This decision concerns an application made by Ms Kristine Ramos (the Applicant) to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (the Act). The Applicant contends that Envirochem Australia Pty Ltd (the Respondent) contravened various provisions of Part 3-1 of the Act by dismissing her from her employment. The Respondent denies the allegations and also disputes that the Applicant was dismissed asserting she resigned from her employment and pressed a jurisdictional objection on that basis.

• [2] The Fair Work Commission (Commission) generally does not have a determinative function in relation to applications brought under s.365 of the Act unless the parties agree to the Commission arbitrating the matter. Rather, the Commission's role is to convene a conference and to issue a certificate to the Applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the Respondent denies that the Applicant was dismissed within the meaning of s.386 of the Act and objects to the application on this basis, the Commission is required first to determine whether the Applicant was in fact dismissed or not.[1]

• [3] At the conclusion of the hearing on 15 October 2025 I dismissed the jurisdictional objection. These are my reasons for doing so.

• [4] The Applicant was employed as a salesperson/consultant from 27 February 2024 to 18 August 2025. She is a resident of the Philippines and was on a student visa when she began her employment with the Respondent. However, the Respondent later sponsored her visa. The Applicant accepted that she resigned her employment but, submitted that she was constructively dismissed. At the hearing, Mr Easton and Ms Summerton, the directors for the Respondent, gave evidence on behalf of the Respondent. The Applicant gave evidence on her own behalf. The Respondent submitted witness statements from other employees however, none of those employees attended the hearing. Accordingly, I have taken into account the evidence in those witness statements but have accorded them little weight.

• [5] The uncontested evidence was that Mr Easton engaged in various behaviours over a significant period of time that were directed at the Applicant including hugging her, sending emojis such as red lips kiss emojis, house at night and person in bed emojis, and "I love you" messages. Mr Easton also accepted that he said to the Applicant "Why can't you be submissive like other Chinese and Japanese girls".

• [6] The Applicant's evidence was to the effect that this was unwanted conduct and had an impact on her mental and emotional wellbeing. She further stated that she continues to deal with mental health challenges and also feels unsafe at her residence due to Mr Easton's enquiries into her personal life. Mr Easton's evidence is that there was a context for the conduct to the effect that he looked upon the Applicant as a daughter and that it was not unwanted conduct.

• [7] The Applicant complained of this unwanted behaviour to Ms Summerton. Ms Summerton is also the de facto partner of Mr Easton. The Applicant showed Ms Summerton the text messages and generally complained of the behaviour of Mr Easton. Ms Summerton took no action to deal with the conduct of Mr Easton despite Mr Easton admitting to at least some of the conduct. Ms Summerton took the view that the Applicant had "twisted the whole situation to suit herself".

• [8] Shortly thereafter, the Applicant advised Ms Summerton she intended to resign as she felt uncomfortable working for the Respondent. The Applicant then commenced a period of four weeks or so of personal leave, providing certificates for the period. On 18 August 2025 she in fact formally resigned (citing health related reasons). Approximately two weeks after her resignation Mr Easton sent a text message to the Applicant on her birthday which included a photo and stated, "A happy time with a filipina Puta". Both the Applicant and Mr Easton confirmed at the hearing that the translation of the word 'puta' was whore or prostitute.

• [9] I prefer the evidence of the Applicant over that of Mr Easton. I do not accept the evidence of Mr Easton that the Applicant was a willing participant in his various behaviours. The behaviour of Mr Easton was completely unacceptable. It was unwanted behaviour that was causing the Applicant distress. She took action to deal with it, complaining to Ms Summerton who did nothing and sided with her partner. In the circumstances I'm satisfied consistent with the authorities[2] that the combined actions of the two directors left the Applicant with no choice but resign. There is a sufficient causal connection between the conduct and the resignation that it forced the resignation. On that basis, I am satisfied that the Applicant was constructively dismissed, and the jurisdictional objection is dismissed. I note that at the conclusion of the hearing, I conducted a conference pursuant to s.368 of the Act during which time the parties reached agreement on confidential terms of settlement and the file was closed.

[1] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd [2020] FWCFB 5365).

[2] Tao Yang v SAL HR Services Pty Ltd [2023] FWC 1325.

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