Fair Work Act 2009

s 365 - General protections

Section 365; jurisdictional objection upheld; voluntary resignation; application dismissed

[1] On 5 January 2026, Kristy Lloyd (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 Roy Hill Holdings Pty Ltd (the Respondent) on or around 14 November 2023, as a Contracts Specialist in a permanent capacity. On 15 December 2025, the Applicant gave notice of her resignation effective 9 January 2026. According to the Respondent it offered to pay out the Applicant's notice period, which the Applicant is said to have accepted. The Applicant's final day of employment was 17 December 2025.

[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 of the Act 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 her employment within the meaning of ss 12 and 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 12 March 2026. Having considered the evidence of the parties and their submissions, I have found that the Applicant was not dismissed. It follows that the Respondent's jurisdictional objection is upheld, and the Applicant's application is dismissed. An order[3] issues concurrently with this decision to that effect.

[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, Ben Sugden (Sugden) Lead Contracts in the Respondent's Procurement and Supply Team, and Elly D'Ascanio (D'Ascanio), Specialist HR in the Respondent's People and Culture Team.

[8] From the Applicant's submissions, it is apparent that she contends that she was forced to resign because of a course of conduct engaged in by the Respondent. In particular, the Applicant contends that it was the Respondent's on-going conduct, in light of her many complaints, that left her with no effective or real choice but to resign.

[9] The Applicant gave evidence that her role involved responsibility for significant contract portfolios, vendor management, tenders, and stakeholder management across multiple operational areas.

[10] The Applicant explained that during her employment she experienced domestic violence risks and significant mental health challenges, which were known to the Respondent, and the mental health concerns culminated in her hospitalisation in October 2024.

• [11] The Applicant stated that from 2024 onwards she carried a substantial workload, including during critical and politically sensitive tender periods, and that in comparison to colleagues, her workload was materially higher.[4]

[12] The Applicant reported raising concerns about her workload as referred to in a message sent to a 'Gary Donaldson' dated '22/10' (Annexure C to the Applicant's witness statement). The message from 'Gary Donaldson', Superintendent of Contracts (Donaldson), was to the effect of 'whats on your plate at the moment', the Applicant replied by listing eight paragraphs of work. It is not apparent from Annexure C that the Applicant necessarily raised concerns about her workload in that message.

[13] The Applicant said that during a period where she disclosed that she felt mentally unwell and 'foggy', she requested that management review her work for safety and support processes. The Applicant stated that in the 'Confidential - Return to Work' email, management stated that more frequent and thorough review of her work could occur. In this respect, the Applicant referred to Annexure D of her witness statement, which set out the email dated 24 September 2024 as follows:

As discussed last week, please see below some options for you to consider during this period of time:

In terms of options for taking time some time off from work, you have the following entitlements:

• DV leave (up to 10 days, completely confidential no record goes in the system, no approvals required, treated in the strictest of confidence. The only person who needs to be advised is the HR manager, Nadia)
• Personal leave (you currently have 3 available days leave in your balance)
• Flexi Day (we could factor this in also)
• Unpaid leave

Once you are feeling fit and well to work, we could look to consider the below options:

• WFH Bunbury and/or Perth for a period of time
• Office If you would prefer to work from the office, however prefer not to socialise with the team, you can sit in a secluded area within the offices (there are areas in the ROC or Gate1 A14, A13)
• Flexibility If you need to attend appointments during the day

• Me conducting a more frequent and thorough review of your work (if this makes you more comfortable)
• Reassigning any high risk/high value work elsewhere in the team for a period of time

Kathryn and myself are fully supportive of you taking any or all of the above options.

Please take some time to think about it, and once you are ready we can have a chat about what works best for you.

If there are any other options I haven't captured here that you would like to discuss please just let me know.

[14] The Applicant otherwise expressed in her submissions and evidence that:

a) working from home did not reduce workload or performance expectations;

b) although leave options existed in the policy, the workload and resourcing constraints meant leave was not practically attainable without significant adverse operational consequences;

c) the Applicant did not use any of the allocated ten days of domestic violence leave in 2024 despite ongoing safety risks, due to workload pressures; and

d) her 'return to work plan' related only to physical office attendance (presumedly after her hospitalisation).

[15] The Applicant gave evidence that up to November 2025, she had taken approximately 13.52 days of personal leave and that the number of days of personal leave increased when her doctor placed her on stress leave due to deteriorating health.

[16] Regarding her work and leave, the Applicant noted:

a) leave options were identified (presumedly by the Respondent) but workload was not reduced;

b) her role was not resourced to allow leave without performance impact; and

c) shortly after approved leave and health disclosures, her work was scrutinised and used as the basis for performance management.

• [17] The Applicant was placed on a Performance Improvement Plan (PIP) on 12 May 2025. The Applicant said that she pushed back on the PIP in writing[5] and as a result three of the five items were removed. The Applicant detailed:

a) on 14 May 2025 she sought guidance from Human Resources before signing the PIP because she felt rushed and had not had adequate time to understand the allegations, particularly as she was about to go on leave;

b) she was informed the PIP would proceed regardless;

c) the PIP affected her remuneration and recalibration outcomes;

d) the PIP was imposed shortly before her manager commenced approximately five months extended leave, contributing to instability; and

e) the Applicant successfully completed the PIP by August 2025.

[18] In May 2025, the Applicant sought from the Respondent basement parking due to domestic violence safety risks. The Applicant gave evidence that basement parking was only approved for limited periods and could not continue due to availability constraints. The Applicant said she was told to consider alternative transport arrangements, including public transport. The Applicant said that public transport was not a reasonable option and that she was not prepared to incur ride share costs where parking facilities existed at the workplace. The Applicant took photographs on 13 June 2025 of basement spaces that appeared available after being told bays were full. The Applicant said that approximately one month after she was informed that she could no longer access basement parking, a company wide email was issued advising employees could download an application and book basement parking bays when available. The Applicant contended that she experienced the limitation of safety accommodation as dismissive of ongoing risk, particularly while under performance scrutiny.

[19] According to the Applicant, on 25 November 2025, she attended a meeting with Mark Ivory (Ivory), her manager once removed, who advised her that he and 'Craig Perkins' believed the PIP was 'wrong' and that it had been 'Kathryn's' decision to initiate the PIP. The Applicant stated that 'Kathryn' was no longer employed by the Respondent.

[20] The Applicant said that on 7 November 2025, she attended a meeting with Ivory where, in the context of a costs saving and cost avoidance meeting, he stated he would be looking at placing everyone on PIPs. The Applicant noted that after the meeting, the team remained behind to discuss the comment and she expressed to the team, that threatening performance management in that environment was not fair and would worsen an already unstable and anxious work culture - particularly for those who had recently been on a PIP.

[21] The Applicant referred to the changes within the team in 2025 that included some team members leaving by way of secondment, transfer, and redundancy, and noted that she was allocated 'Ellis'' portfolio including the 'Beneficiation Plant'. The Applicant stated that when allocated to her, she raised capacity concerns and requested support. In this respect, the Applicant again referred to Annexure C to her witness statement.

[22] The Applicant reported that she was on stress/personal leave from 17 to 21 November 2025 . According to the Applicant, management was aware that the Applicant was unwell. Then on 26 November 2025, she was informed by Sugden that she was 'heading down the path of another PIP'.

[23] Included in the Applicant's materials was an email chain titled Annexure O, which the Applicant stated detailed her explanation regarding an issue concerning the Sedgman SP2 request. Annexure O included an email from Sugden to the Applicant dated 27 November 2025 with the subject line 'Catch up - 26 and 27-11-25'. The email stated:

Following our catch up this morning and our phone call on Wednesday evening we discussed and agreed the below path forward:

• Recent escalation from a stakeholder around lack of communication on when a particular task would be actioned (Sedgman SP2 direction).
• I noted that this had been raised as an area of concern in your performance earlier in the year.
• Reviewed the timeline of the lead up to this escalation and the various opportunities that you could have taken to contact/communicate your expected timeline of completion of the task with the stakeholder i.e. phone call/meeting/email to discuss and understand and set expectations with each other.
• We agreed that a regular cadence of communication in whichever format is a key requirement of good stakeholder management.
• We reviewed your current workload and your concerns around managing competing priorities and any items that must be resolved whilst you are on your upcoming leave and we planned for that.
• Having discussed and reviewed your current workload I'm comfortable with it and I'm confident you are able to manage it.
• You noted some areas of inefficiencies in progress claims which you will work with stakeholders to improve.
• We agreed that I will set up weekly 1:1 catch ups with yourself and the rest of the team, specifically around current workload and priorities where I can also provide advice and guidance where required.
• I suggested trying to implement a "commercial goes first" approach to supplier meetings which could assist to reduce the time you need to spend in meetings.

As always, please reach out to me when you need to or if you have any concerns about anything, same as when we worked together recently.

Enjoy your trip to Bali, make sure you switch off and relax and I'll speak to you when you get back next week.

[24] The Applicant replied to Sugden's email by email dated 27 November 2025 in the following terms:

Thanks for sending through the summary from our catch up. I appreciate you taking the time to talk through it with me.

I have taken on your feedback and just want to provide summary of my response to some of the below points that I discussed in our meeting

Sedgman SP2 direction, communication timeline and context

• The original email request relating to Sedgman SP2 was received at 6:29pm on Thursday 13 November 2025.
• I commenced leave from 11am on Friday 14 November 2025. At that point I had not yet seen the email due to other work being completed prior to taking leave.
• From Monday 17 to Friday 21 November 2025, I was on sick leave due to stress/sick leave and was not online. Management was aware I was unwell and away during that period, I did offer to do some work from home.
• While I was away, Ellis stepped in to assist with SP1 claim 12. Claim 11 had already been with stakeholders since 12 November and was not approved until 18 November while I was on leave and then sick leave.
• I returned to work on Monday 24 November 2025 to 304 emails, multiple priority items, two meetings that day (the Medical Services Tender meeting and the Ecotech, Aecom end of life asset meeting). I worked through urgent priorities and prepared the required follow up information from those meetings.
• On Tuesday 25 November I continued working through backlog and prioritised deliverables. Once I had reviewed the SP2 matter and could give a realistic committed timeframe, I contacted Thomas and provided him with an update and expected completion timing, and completed the draft the same day and it was issued this morning (delayed due to Nitro Pro license issues)
• I also note that when the Beneficiation Plant workload was reallocated to me, I raised with Gary that the turnaround for those items would likely be slower than when Ellis was managing them, given they were additional responsibilities on top of my existing scope.

I acknowledge your note that stakeholder communication had been raised earlier in the year under the PIP. As discussed, I did not agree with the basis for that at the time, however I still worked through it constructively, no issues and appreciate your support during that time and have since put it behind me to move forward. Given the above, I believe my response timing was reasonable in the context of approved leave, sick leave, and the volume of work on return. I also note that the broader team and business were aware of my leave and absence, and the historical urgency around the Beneficiation Plant items, so additional interim support or communication could have been actioned during that period.

I remain committed to continuing to prioritise effectively and maintaining regular stakeholder communication, have taken on your feedback and updated Thomas and Needra of my leave and upon my return will organise regular catch ups outside of those already occurring for the claims. I also appreciate the plan we discussed to reintroduce weekly 1:1 catch ups focused on workload and priorities.

Thanks again for the discussion and for your ongoing support.

[25] The Applicant stated that on 15 December 2025, she met with Sugden and sought clarity on Christmas working arrangements, discussed workload, and informed him that she would be resigning. The Applicant then said she spoke to Donaldson and explained that there was an excessive workload, cumulative pressure, safety accommodation handling and deteriorating health. The Applicant said she provided four weeks' notice and notwithstanding having not requested to finish early, the Respondent informed the Applicant that it would finish her employment within two days (payment in lieu of notice was provided).

[26] Sugden gave evidence that he was asked to oversee the Applicant's PIP in the absence of Kathryn Jamieson, Manager Contracts, who had left the business by early May 2025 and Donaldson, Lead Contracts, who was embarking on a period of extended leave.

[27] Sugden said he was pleased with the Applicant's performance and attitude during the PIP, and she successfully completed it on 13 August 2025.

[28] In relation to workload and the Applicant's evidence about her workload in comparison to her colleagues, Sugden explained that it was difficult to compare workloads based simply on numbers of contracts, as each contract and contract stakeholder required a different level of work. For example, a business critical contract may require more work than a dozen non business critical contracts. Sugden did not consider the Applicant's workload excessive in comparison to her colleagues as evinced in the Table at Annexure B.

[29] At hearing, Sugden further explained that regarding the 'non-contracted vendor allocations' as described by the Applicant in the Table, he understood those to be a reference to non-contractual matters such that they were matters that had been raised under purchase orders where terms and conditions did not need to be negotiated. That is, they were purely administrative and that really all that had to be done in relation to them, was to tick a box. Sugden said that he did not consider that the 'non-contracted vendor allocations' were a part of the Applicant's day-to-day workload.

[30] In his witness statement, Sugden provided the following unchallenged evidence:

I was happy to make accommodations for the Applicant when she requested them. For

(a) I agreed to a request to amend the Applicant's work hours on 27 May 2025 and 14 October 2025, so that she could attend appointments at the police station during work hours;

(b) I agreed to a request to work from home between Tuesday 01 July 2025 and Friday 03 July 2025, so that the Applicant could attend medical appointments near her home during work hours;

(c) I agreed to allow the Applicant to book paid personal leave on Thursday 17 August 2025 to support a family member who was facing criminal charges in a court in Bunbury, even though personal leave is not available for that scenario under HIO's leave policies. When the hearing was unexpectedly delayed to later in the day, I agreed to the Applicant's request to work from her parents' home in Bunbury on Friday 18 August 2025 rather than drive back to Perth late on Thursday night after the hearing;

(d) I agreed to a request to work from home on Friday 12 September 2025 (received on Wednesday 10 September 2025), because the Applicant's return flight from annual leave in Bali did not land until late at night on Thursday 11 September 2025 and she was concerned she would be too fatigued to drive to work the next morning;

(e) I agreed to a request for flexible work hours on Thursday 04 December 2025, because the Applicant was very distressed after learning of a friend's medical emergency in, I think, either Thailand or Vietnam. I recall I told the Applicant she had my full support to do whatever she needed to and to only come to work if she was in the right frame of mind.

[31] Sugden reported that he was generally satisfied with the Applicant's work, particularly during her PIP. Towards the end of 2025, he noted some matters were being escalated to him by internal stakeholders. Sugden said that the concerns mostly related to a perceived lack of action and communication by the Applicant when dealing with internal stakeholders and external vendors.

[32] Sugden acknowledged that on 26 November 2025, he discussed the feedback he had received about the Applicant, with the Applicant, and suggested that at their regular weekly catch up the following day that they review her workload and priorities. Sugden continued that on 27 November 2025, he arranged with the Applicant to come into work early for their regular weekly catch up so she could leave early to catch a 2:30pm flight to Bali for some annual leave. Sugden noted that at that meeting they discussed the stakeholder feedback and he noted that some of the feedback was similar to the PIP focus areas (for example, a lack of communication with stakeholders). Whilst Sugden admitted he could not recall the precise words he had used, he reports having said words to the effect of 'just something to stay on top of so we don't end up down that road again.' Sugden gave evidence that he did not say to the Applicant that he had any plans to put the Applicant on another PIP and notes that he held no such plan.

[33] Regarding the feedback he provided to the Applicant, Sugden recalled providing a specific example of a direction letter and payment certificate the Applicant had been tasked with drafting and issuing on Thursday, 13 November 2025. When the internal stakeholder did not receive it, they sent a follow up email to the Applicant on Tuesday, 18 November 2025, and again the following week on Tuesday 25 November 2025. On 26 November 2025, the Applicant replied to the internal stakeholder that she would draft the direction letter and payment certificate that day as she was going on annual leave the following day.

[34] According to Sugden, the Applicant was on paid personal leave between Monday, 17 November 2025 and Friday, 21 November 2025. He identified that his concern related to the periods 13 to 14 November 2025 and 24 to 26 November 2025, when the Applicant was in the office but not completing an important and urgent task, or notifying their stakeholder of the delay until it had been escalated to him.

[35] Sugden considered that the meeting of 27 November 2025 was cordial and after the meeting he sent the Applicant an email summarising what was discussed. Sugden said that he next met with the Applicant on 8 December 2025 at their regular weekly catch up meeting. The stakeholder feedback was not again discussed and the meeting, was, according to Sugden, unremarkable. Whilst Sugden reports having had a few interactions with the Applicant during the remainder of the week, again, he commented that they were unremarkable.

[36] Sugden said that the Applicant told him she was resigning on 15 December 2025 and advised that she was looking to take some time off as her personal life had been stressful over the previous year and that her ultimate dream was to live and work in Bali. As part of that discussion, the Applicant asked Sugden what the office working arrangements would be over the Christmas period during her notice period, as she planned to spend it in Albany with family. Sugden said that he informed the Applicant that no office closures were planned and that other than the public holidays, normal office hours applied, but he would double check with Craig and Elly to make sure. Shortly after the meeting the Applicant emailed her resignation letter to Sugden.

[37] The resignation letter was attached to an email dated 15 December 2025, in which the Applicant wrote to Sugden, amongst other things, the following:

I also wanted to note the matters we spoke about regarding the Christmas working arrangements. In previous years, the business has permitted working from home over the Christmas period, largely due to the office being closed on certain days, such as when public holidays fall adjacent to weekends, and the reduced availability of cleaning services and amenities (bathrooms, milk, coffee, etc.). As my family is in Albany and I will be there for Christmas and given the six hour travel time each way, Christmas traffic and associated fatigue, it would be helpful to understand what the arrangements will be for this year. If working from home is not permitted, I will submit leave for those days.

I also appreciate the opportunity to speak openly this morning regarding my recent health challenges, particularly the stress related issues I have been managing. While I am prioritising my wellbeing and have considered these with offering to work through Christmas based on previous years arrangements, I remain very mindful of the pressures currently on the business and my colleagues, especially with planned leave and ongoing resourcing constraints. I do not wish to add to that, and I am committed to supporting the team as best I can throughout the transition period and ensuring a smooth handover prior to my final day.

Please let me know if there is anything further you need from me at this stage, I know we have a meeting today so will discuss workload and how to proceed with handovers considering the additional Contracts to be handed over through the merge of the new teams.

[38] Sugden gave evidence that having escalated the Applicant's email dated 15 December 2025 to leaders, it was agreed that given the Applicant's personal circumstances and her Christmas plans, she would not be required to work out her full notice period, and her notice would be paid in lieu if she preferred.

[39] Sugden said that he met with the Applicant shortly afterwards and communicated the offer to her. It was Sugden's evidence that the Applicant expressed that her preference was to be paid in lieu of notice and therefore it was agreed she would complete her handover over the next two days and her final day would be Wednesday, 17 December 2025.

[40] D'Ascanio gave viva voce evidence of having assisted the Applicant to secure basement parking on the Applicant's request. D'Ascanio explained that she was able to secure two - two-week blocks of parking, but thereafter she would not be able to obtain the approval for the continued use of the car bay by the Applicant.

[41] In her witness statement, D'Ascanio explained that whilst she considered that the Applicant's leaders had been very supportive of the Applicant - noting that prior to the discussion with the Applicant on 27 November 2025, Sugden had sought advice on raising the performance feedback, that it was, at all times, open to the Applicant to raise her concerns through the Respondent's Fair Treatment Procedure (FTP). The FTP referred to speaking to your leader, manager once removed, general manager or an executive team member, other available support included Chaplains, HR, the Employee Assistance Program, Ethics Officers and the Whistleblower Program. D'Ascanio further noted that the Applicant could also have requested a Flexible Working Arrangement in accordance with the Respondent's Flexible Work Procedure.

[42] The Applicant asserts that she was forced to resign because of a course of conduct engaged in by the Respondent therefore rendering her resignation involuntary. In particular, she draws support for her contention based on the Respondent's purported conduct commencing in May 2025 until her resignation. That conduct included:

(a) the allocation of a workload that remained excessive notwithstanding raising concerns with leadership on multiple occasions;

(b) resourcing instability that had persisted;

(c) the foreshadowing of a further PIP by Sugden;

(d) acknowledgement by leadership that the PIP had been incorrectly instituted;

(e) the Respondent being dismissive of the Applicant's ongoing safety risk arising from domestic violence; and

(f) performance management being threatened in a team meeting.

[43] The Applicant notes that the conduct in cumulation with her deteriorating health condition left her with no choice but to resign.

[44] For the following reasons I am unpersuaded that the Applicant was dismissed. However, before traversing those reasons, it is necessary to consider the relevant legislation and applicable principles of law.

• [45] 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 the Federal Circuit Court[8] and Federal Court[9] have accepted 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.

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

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

• [48] 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'),[10] 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.[11] 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.[12]

[49] While a summary of the position under s 386(1) of the Act 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)[13]

• [50] Preceding the Fair Work Bill 2008, a 'forced' resignation could constitute a dismissal 'at the initiative of the employer'. However, in 2009 the legislature brought into operation s 386(1)(b)[14]. It was observed that s 386(1)(a) was intended to capture the case law relating to the meaning of 'termination at the initiative of the employer' as that phrase was understood in Mohazab, while the second limb of s 386(1) would cover the circumstances where a person resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer.[15]

• [51] Prior to that legislative amendment, the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd[16] said:

[23]... It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.

• [52] The question is not merely whether the act of the employer, which must be a principal contributing factor[17], 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.

• [53] It has been said that often it will be a narrow line that distinguishes conduct that leaves an employee with no real choice but to resign from employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer[18]. The Full Bench of the Australian Industrial Relations Commission cautioned 'but narrow though it be, it is important that the line be closely drawn and rigorously observed', the Bench continued:

Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination[19]...

[54] Insofar as it is necessary to address the matter and noting that the Applicant clarified that her resignation was not tendered in the heat of the moment, having considered and weighed the evidence before me, I do not consider that the Applicant resigned in circumstances which can be described as in the 'heat of the moment' or when the Applicant was in a state of emotional stress or mental confusion such that the Applicant could not reasonably be understood as conveying a real intention to resign.

[55] As to whether the Applicant was forced to resign because of the Respondent's conduct or a course of conduct engaged in by the Respondent, the Applicant provides several reasons why she considers the Respondent's conduct forced her to resign.

[56] First, the Applicant relies upon an excessive workload and draws comparisons to the workload of colleagues. In this regard, the Applicant refers to two tables at Annexure B of her witness statement. As was highlighted at the hearing, it is unclear where the data from Annexure B has been extracted, the document is undated and it does not strike me as a legitimate business record of the Respondent. It is unclear whether the data reflects workload in 2024 or 2025. In such circumstances, little to no weight can be accorded to Annexure B.

[57] Whilst I have accorded no weight to Annexure B, Sugden was asked questions about the Table in Annexure B that set out the allocations of the Applicant and her colleagues' workloads. I have detailed that evidence at paragraphs [28] - [29] of this decision. I am persuaded by Sugden's evidence regarding the difficulty in comparing allocations on a like for like basis - noting that some business critical contracts require more work than others, and, in addition, that the 'non-contracted vendor allocations' were matters that had been raised under purchase orders where terms and conditions did not need to be negotiated. That is, they were purely administrative and that really all that had to be done was to tick a box. Sugden did not consider the Applicant's workload excessive in comparison to her colleagues as evinced in the Table at Annexure B. Insofar as there is a divergence in the evidence between Sugden and the Applicant, I prefer the evidence of Sugden who I consider provided a candid and objective account - identifying when his communication may have been better framed, noting his appraisal of the Applicant's performance, and being positioned to speak in an informed manner as to case loads within the team reporting to him.

[58] The Applicant reported raising concerns about her workload as referred to in a message sent to a Donaldson dated '22/10' (Annexure C to the Applicant's witness statement). The message from Donaldson was to the effect of 'whats on your plate at the moment', and the Applicant replied by listing eight paragraphs of work. It is not apparent from Annexure C that the Applicant raised formal complaints about her workload in that message or sought to escalate concerns.

[59] The Applicant nevertheless reports having raised concerns about workload from 2024 (see for example Annexure O) and the performance expectations place upon her. However, the evidence provided demonstrates, on an objective level, that the responses from the Respondent were measured and supportive. In this regard, I refer, for example, to the email dated 24 September 2024 from Donaldson to the Applicant and Annexure O. Whilst the Applicant spoke to the accessing of leave being not practically attainable without significant adverse operational consequences, the evidence does not support such assertion. The evidence of Sugden shows that the Applicant was able to access leave and that flexibility was afforded to the Applicant in light of personal circumstances (see paragraph [30] of this Decision). That the Applicant did not make use of the ten days of domestic violence leave ultimately was her choice. It is apparent that the Applicant did not hold such reservations (about operational consequences) in taking annual leave or otherwise asking for ad-hoc flexibility or personal leave days.

[60] An issue that the Applicant seeks to rely upon as exhibiting unreasonable conduct by the Respondent is its failure to allocate a basement parking bay to her during a period in which she was subject to domestic violence safety risks. The Applicant was afforded a four-week period in which to utilise basement parking as arranged by the Respondent. It was, during this period, open to the Applicant to secure an alternative permanent arrangement. That the Respondent did not provide ongoing basement parking is, in my opinion, not unreasonable. There was no evidence to suggest that the Applicant's position attracted a contractual entitlement and the Applicant's own evidence suggests that not long after her use of the basement parking, access to basement parking became available in circumstances where she paid for it. During the hearing it became apparent that at all material times the car park in question included fee-paying car parking bays that the Applicant could have purchased. Whilst not detracting from the confronting difficulties of domestic violence, the Respondent's action of providing the Applicant with a temporary accommodation of basement parking was reasonable.

[61] Regarding the establishment of the PIP, that the Applicant was able to address with the Respondent the items in the PIP which she considered were unwarranted and that such items were removed, again suggests that the Respondent demonstrated reasonableness in its approach. That the Applicant did not agree with the establishment of the PIP and that others within the business questioned its initiation, namely Ivory and Craig Perkins, who are said to have claimed it was 'wrong', does not in turn mean that its establishment and implementation were unjustified. Ultimately, it was Sugden that supervised the implementation of the PIP and carried it through to conclusion. Clearly, had he thought it unjustified it was open to him to conclude it earlier than he did. His evidence was that he was pleased with the Applicant's progress and that she successfully completed the PIP.

[62] As to remarks purportedly made by Ivory that he would look to place all employees on a PIP, it is evident from the Applicant's account that the remark was made to a group and was not targeted toward her. However, clearly the discussion with Sugden in November 2025 traversed the Applicant's performance. As I have noted, I preferred the evidence of Sugden over that of the Applicant. He presented as candid, noting the fallibility of memory and that he could not recall the precise words that he had used regarding the issue of stakeholder communication having been raised earlier in the year under the PIP. I am, on balance, persuaded by his evidence that more likely than not he did not suggest, infer or otherwise state that the Applicant would be placed on a further PIP. That Sugden took advice from HR prior to the meeting, then, in writing, communicated a cogent summary of the meeting with the Applicant, received the Applicant's feedback and then, as communicated, had his regular weekly catch up meeting with the Applicant, does not demonstrate unreasonable conduct.

[63] Regarding the leave taken by the Applicant in the November period, the Applicant reports that she was on stress leave and that management was aware that she was unwell. However, her evidence does not align with that of Sugden or D'Ascanio who, whilst aware that the Applicant had taken personal leave, did not know the reason for such leave. In any event, at all material times, it was open to the Applicant to communicate to Sugden and D'Ascanio that she required assistance with her workload or additional support. Where unable to obtain the assistance or support she considered she required, there were avenues available to the Applicant to escalate matters further. Whether through the Respondent's Fair Treatment Procedure or through its Whistleblower's program.

[64] As to the Respondent's Christmas working arrangements and the Respondent's act of paying the Applicant's notice period in lieu, whilst framed as an unreasonable act by the Applicant, I consider that the Respondent gave thought to the Applicant's preference to spend the holiday period in Albany and thereafter simply took steps to accommodate that preference.

[65] The Applicant's choice was not so negated that the only option available to her in the circumstances was resignation. The evidence does not support such findings. There were alternative options available to the Applicant other than resigning from her employment. Furthermore, it was open to the Applicant to research and explore those options before deciding to bring her employment to an end - a decision she exercised and a choice she made, voluntarily.

[66] I find that the Applicant was not 'dismissed' as that term is understood by reference to ss 12, and 386(1)(a) and (b) of the Act.

[67] The jurisdictional objection is upheld, and the substantive application under s 365 of the Act is dismissed.

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

[3] PR798108.

[4] Witness Statement of Kristy Lloyd dated 25 February 2026 (Lloyd Statement), [8].

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

[10] [2017] FWCFB 3941 ('Bupa').

[11] [2023] FWCFB 101, [18].

[13] [2018] FWCFB 5 [10]-[11].

[14] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1528].

[16] [2006] AIRC 496.

[17] A.S. Doumit v ABB Engineering Construction Pty Ltd (Australian Industrial Relations Commission, Munro J, Duncan DP and Merriman C, 9 December 1996) Print N6999.

[19] Ibid, cited with approval in BC Stubbs v Austar Entertainment Pty Ltd (Australian Industrial Relations Commission, Ross VP, Munro J and Harrison C, 9 April 1998) Print Q0008.

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