s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - not dismissed - objection sustained - application dismissed.

• [1] On Tuesday 1 July 2025, Mr Liam Fynn resigned from his employment with NRI Australia Limited. Mr Fynn says that NRI dismissed him as he had no option but to resign. Mr Fynn has applied to the Commission under s 365 of the Fair Work Act 2009 (Cth). NRI objects to Mr Fynn's application on the basis it did not dismiss him.

• [2] Mr Fynn needs to have been dismissed for his application to proceed. In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court held that where there is a question over jurisdiction - as is the case here - the Commission must determine the jurisdictional issue before exercising its powers under s 368 of the Act.[2]

• [3] After the parties filed their materials, I sought the parties' views on whether the matter could be dealt with on the papers. The parties agreed that it could. I find it is appropriate to do so.

• [4] Having considered the relevant evidence and submissions of the parties, I have found that NRI did not dismiss Mr Flynn.

• [5] My detailed reasons for my decision follow.

• [6] Mr Fynn's evidence largely aligns with the evidence of NRI's Regional Technical Lead, Mr Scott Baggaley. Mr Baggaley was Mr Fynn's direct manager.

• [7] In or around January 2025, NRI was informed that it would be losing its contract with Main Roads WA, effective Friday 22 July 2025. NRI undertook a transition process where this was openly communicated to impacted staff. This included potential redeployment opportunities.

• [8] Mr Baggaley informed Mr Fynn both verbally, and in writing, that NRI would be exploring redeployment opportunities up until the end of the contract.

• [9] In around May or June 2025, Mr Fynn was in discussions with the incoming service provider who was taking over from NRI in servicing the Main Roads WA contract.

• [10] Mr Baggaley and Mr Fynn provided their Microsoft Teams and text messages over June 2025. From the Microsoft Teams messages, Mr Fynn spoke openly with Mr Baggaley about the offer from the new contract holder. On Wednesday 25 June 2025, Mr Fynn messaged Mr Baggaley on Microsoft Teams asking if he could transition to the new role on Monday 30 June, or if it would cause issues with 'notice'. Mr Baggaley told Fynn that he could move to the new role on Monday 30 June, but that he would need to hand in his resignation letter that day outlining his final day.

• [11] In the afternoon of Wednesday 25 June 2025, Mr Baggaley messaged Mr Fynn on Microsoft Teams and via SMS following up on the resignation letter, as he needed a resignation letter if Mr Fynn was starting with the new contract holder the next week.

• [12] On Thursday 26 June 2025, Mr Fynn messaged Mr Baggaley stating that he could not accept the contract with the new contract holder as they had not agreed to match his salary with NRI. Mr Baggaley sent Mr Fynn the following messages:

• 'ok but it means you very likely won't have a job with us, unless something changes'
• 'are you confident you will find a job elsewhere that will match your current salary? You could end up with no job, or on even less'
• 'if you're with us I will keep looking for opportunities but I'm just concerned for you that you may not end up with a job'.

• [13] On Friday 27 June 2025, Mr Baggaley and Mr Fynn exchanged SMS messages where Mr Baggaley asked Mr Fynn for an update on whether he would be going over to the new contract holder. Mr Fynn indicated that he needed to check something further about the position and would be getting back to Mr Baggaley on Monday 30 June about whether he had accepted the offer with the new contract holder. Mr Baggaley responded with, 'OK, thanks for [the] update...leaving it pretty late', and 'I hope they don't withdraw the offer'.

• [14] On Monday 30 June 2025, Mr Fynn informed Mr Baggaley that he had accepted the offer. The two discussed Mr Fynn's finish date with NRI.

• [15] On Tuesday 1 July 2025, Mr Fynn sent the following email to Mr Baggaley:

I am writing to formally tender my resignation from my position at NRI, with my final scheduled employment day too be Friday, 18 July 2025, as I have annual leave booked from 4 July to 18 July 2025.

This decision has been made in light of the upcoming business transition of the managed services contract at Main Roads, and my acceptance of a role with Kinetic, who will be continuing the delivery of services from 22 July 2025. I understand that there is currently no ongoing role available for me within NRI following this transition.

While I will be continuing similar work under the new arrangement, I understand that some entitlements, such as personal/carers leave and long service leave, may not transfer across. I mention this only as part of the overall context oof the transition.

I would like to take this opportunity to sincerely thank you and the wider team at NRI for the support, opportunities, and professional development provided to me over the past six years. It has been a rewarding experience, and I am genuinely grateful for the time I've spent with the organisation.

Please let me know if there is anything further I can do to assist during the transition.'

3. Why does Fynn say he had no choice but to resign?

(a) Mr Baggaley's messages made it clear that if he did not accept the incoming provider's offer, he risked not having a job at all.

(c) He had already delayed commencement of his new role partly due to pre-booked annual leave. He believed that if he delayed the commencement further, the offer from the new contract holder would be withdrawn.

• [17] Mr Fynn says because of the above reasons, his resignation was not a genuine voluntary decision. He had no real choice but to resign and accept the incoming provider's role.

• [18] 'Dismissed' is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly 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.'

• [19] The definition of dismissal in s 386(1) of the Act has two parts. The first deals with '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'. These two limbs and how they might apply to a resignation was examined by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli,[3] which noted the following:[4]

• There may be a dismissal within the first limb of s 386(1) where a resignation was made in the 'heat of the moment or when the employee was in such a state of emotional stress or mental confusion that they could not reasonably be conveying a real intention to resign.

• The test for a 'forced' resignation under the second limb of s 386(1) is whether the employer engaged in the alleged conduct with the intention of ending the employment or whether termination of employment was the probable result of the employer's conduct because the employee had no effective or real choice but to resign.

• [20] Though not explicitly stated, Mr Fynn relies on the second limb in s 386(1). The onus is on Mr Fynn to prove that he did not resign voluntarily.[5] It is well recognised that it is a narrow line that distinguishes conduct that leaves an employee with no choice but to resign, compared to an employee resigning by choice, but that this narrow line must be 'closely drawn and rigorously observed'.[6]

• [21] Based on the evidence, I find that Mr Fynn was not dismissed. I accept that Mr Fynn resigned as NRI had lost its contract with Main Roads WA, had not yet secured him a redeployment opportunity, and he did not want to miss out on the role with the new contract holder. Mr Fynn made a conscious decision to find other employment and to resign.

• [22] I find that NRI did not engage in conduct with the intention of ending Mr Fynn's employment. NRI engaged in a proper and appropriate consultation process given the loss of the Main Roads WA contract.

• [23] I accept that Mr Baggaley sent messages to Mr Fynn following up on whether he would be resigning and expressing sentiments such as 'I hope they don't withdraw the offer'. I find that these were reasonable messages from Mr Baggaley given that Mr Fynn had shared with Mr Baggaley his concerns about the offer and the delays in hearing back from the incoming contract holder. I do not find that Mr Baggaley's messages constitute conduct intended to end the employment relationship.

• [24] I also find that Mr Fynn had choices other than resigning. I accept the evidence of the messages that redeployment into another role was looking unlikely, but that NRI was still actively exploring other options for Mr Fynn. Mr Fynn could have also waited to be made redundant and receive the appropriate redundancy payment for his five plus years of service. Mr Fynn did not provide evidence that he had tried to negotiate a later start date with the incoming contract holder, simply that he felt the offer would be withdrawn if he did seek a later commencement date.

• [25] Accordingly, I find that Mr Fynn was not dismissed within the meaning of s 386 of the Act. I order that his application be dismissed for want of jurisdiction.

[1] [2020] FCAFC 152.

[3] [2017] FWCFB 3941.

[5] Australian Hearing v Peary (2009) 185 IR 367 [30].

[6] Doumit v ABB Engineering Construction Pty Ltd (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999, 12.

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