s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - - jurisdictional question - whether applicant was dismissed or resigned - applicant found to have been dismissed

• [1] Indigo Summit Pty Ltd conducted business as the Brindabella Hearing & Speech Centre. At the time of the events giving rise to these proceedings, it employed Ms Jessop as its Office Manager - Team Leader, HR & Operations ("Position").

• [2] Ms Jessop embarked on a period of parental leave in May 2023. Following an extension to that leave, she was due to return to work in February 2025.

• [3] From December 2024, Ms Jessop engaged in correspondence with Indigo Summit regarding her return to work. A dispute arose as to the position to which she would return. In short, Ms Jessop argued that Indigo Summit had made the Position redundant and that it was proposing that she take a demotion. Indigo Summit disputed that that was the case. Negotiations between the parties failed to resolve the dispute.

• [4] The result was that Ms Jessop's employment came to an end. There is a disagreement between the parties as to when and how that occurred.

• [5] Ms Jessop commenced proceedings in the Commission by filing an application under section 365 of the Fair Work Act 2009 ("Act").[1] She alleged that during her employment she had been subjected to adverse action in breach of sections 340 and 351, and that her dismissal had contravened section 340.
• [6] Indigo Summit denied any contravention of the Act. More particularly for present purposes, however, it also raised a jurisdictional objection to the Application. It contended that Ms Jessop had not been dismissed, but that her employment had come to an end at her initiative.
• [7] Section 365 relevantly provides that if a person "has been dismissed" and they allege that the dismissal contravened Part 3-1 of the Act, they may apply to the Commission to deal with the dispute. Given the language of the section, a person must have been dismissed for it to apply. If a respondent asserts that there has been no dismissal, it gives rise to a dispute as to whether the applicant is entitled to make the application. That dispute must be resolved before the Commission can exercise any of the powers the Act confers on it.[2]

• [8] This decision deals with the jurisdictional objection.

• [9] I find Indigo Summit dismissed Ms Jessop. Its jurisdictional objection is dismissed. These are my reasons.

• [10] The Act defines "dismissed" in section 386(1). That section contemplates two scenarios in which a person will have been dismissed: first, if their employment was terminated on the employer's initiative (section 386(1)(a)), or second, where they resigned from their employment, but were forced to do so because of conduct, or a course of conduct, engaged in by their employer (section 386(1)(b)).

• [11] Ms Jessop did not contend that she had been forced to resign from her employment. The question to determine is whether her employment was terminated on Indigo Summit's initiative.

• [12] A termination will be "on the employer's initiative" if it is brought about by the employer without the employee's agreement. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the enquiry is whether an action on the part of the employer was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment.[3] That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.[4]
• [13] In determining whether a termination was at the initiative of the employer, an objective analysis of the employer's conduct is required.[5] Where questions of jurisdiction are involved, it is the facts which are relevant, not the parties' subjective beliefs or the reasonableness of their conduct.[6]

• [14] Indigo Summit relied on statements from its directors, Mandy Nyhof and Steven Nyhof. Ms Jessop also provided a statement. The parties further relied on a joint "Tender Bundle" of documents. From that evidence, I consider the following to be the key factual context.

• [15] Ms Jessop commenced employment with Indigo Summit as a Health Care Administrator Coordinator in March 2016. The job description in her employment contract reflected largely clerical duties.

• [16] In August 2019 Ms Jessop was appointed to the Position. The Position Description described the duties of the Position in these terms:[7]

2. Administration Supervision & Performance Management

3. Administrative operations management (strategic planning and process evaluation)

• Mentoring
• Conflict resolution
• Team Building

8. Maintaining administration policies and procedures on TeamSpace

10. Other administrative duties as required by management"

• [17] At all times, the Health Professionals and Support Services Award ("Award") applied to Ms Jessop's employment.

• [18] In mid-May 2023, Ms Jessop embarked on a period of parental leave. In April 2024, Ms Jessop requested an extension of her parental leave until February 2025. Indigo Summit agreed to that request.

• [19] On 16 December 2024 Ms Jessop sent an email to Ms Nyhof, which stated in part:[8]

"I am still planning to return in February but was waiting to contact you until I had coordinated and confirmed daycare and preschool days/hours. ...

I'd like to return to work on Monday and Tuesdays, starting 17 February. ...I'm hoping to work one shorter day and one longer day:

Monday 8:15am-2:30pm (5.75 hours, not including 30 min lunch)

Tuesday 8:15am- 4:00pm (7.25 hours, not including 30 min lunch)

• [20] There followed a considerable amount of email correspondence between Ms Jessop and Ms Nyhof. I note in particular the following:

(1) On 21 December 2024 Ms Nyhof wrote to Ms Jessop:

"During your absence we have implemented a robust quarterly review system for all teams that is working very well. We have a stable admin team and the task management strategies we are using are effective in ensuring everything gets done in realistic timeframes. As such there is no need for the HR style role you were previously doing. We are happy to accommodate the hours you are proposing but would need to collaborate on what the role would look like and what might be achieved in 13 hours per week.

Are you around this week before Christmas? I think it would be valuable to meet up to discuss further. We are off to Canada from 2/1/25 to 8/2/25 but also happy to connect over Zoom during this time if it works better for you than this coming week."

(2) On 23 December 2024 Ms Jessop wrote to Ms Nyhof:

"Thank you for getting back to me and your willingness to accommodate my days and hours. I can't meet with you this week but can arrange a time in the New Year. Before then, it would be helpful if you could share your ideas for my role and tasks, and where you see me adding value. This will give me something to reflect on and discuss further.

It will be easier for me to see where I can best apply my skillset when I am back and can see: the changes; competencies of the admin team; needs and expectations of the management team; and how other functions of my role (outside of performance management) are being delivered. I'm hopeful that we can tailor my role to make good use of 13 hours/week, with room to grow."

(3) On 26 December 2024 Ms Nyhof wrote to Ms Jessop:

"Let's aim to meet up over Zoom in mid-January. It is important to have clarity over what the role will entail prior to you starting back. This will be helpful for you but also provide clarity to the staff over what position you will be playing in the admin team. Most of them are new recruits but things are running really well in the admin team.

I'll continue to reflect on how you may best contribute to the business and I'll be happy to discuss the primary needs of the admin team when we meet."

(4) On 28 December 2024 Ms Jessop wrote to Ms Nyhof:

"Would you please email anything, even brief bullet points, about what you have in mind for my role? (Eg, task ideas and priorities). All I have to go off is your email saying there's no need for the HR style role I was doing.

It sounds like you're going to propose some significant changes. I appreciate your intention to collaborate with me and naturally, I need some clarity about the role I'm returning to. I'll be travelling throughout January, including time with a close and terminally ill relative. I'm not sure that a single Zoom meeting during this period is going to achieve the clarity that you or I are looking for."

(5) On 10 January 2025 Ms Nyhof wrote to Ms Jessop:

"There are some key considerations in relation to your return to work and what that would look like. As mentioned we are happy to accommodate your hours and current wages but need to ensure the role meets your needs and that of the business. Here are some of the considerations:

• We have introduced a successful quarterly review process using two standardised interactive forms that are used across all 3 teams. ...With these systems in place combined with a smaller overall team, the business no longer requires a dedicated HR role.

So I am going to propose a bit of a staged approach. I think long term it will be possible to move you back into an HR performance management role but I think this will be difficult in the short term due the many changes in process, the staff who are unknown to you and the current size of the team. My proposal will also greatly assist while we try and find another admin team member."

(6) Ms Nyhof's email went on to propose "short term" and "long term" objectives. In the "short term", which was stated to be three to six months, she proposed that Ms Jessop manage the "info box", action all emails, assist the Audiology coordinator with hearing aid order processing and associated audiology tasks, manage the recruitment of new administration staff and work on front desk reception as required. The "long term" objective, which was to occur once Ms Jessop was "more integrated back into the business", would see her coordinating the quarterly review process (scheduling and conducting all meetings (with team leaders present), completion of all review documentation and reporting outcomes to the directors), assisting the team leader in managing individual performance issues, training new and existing staff and "support[ing] the admin team operationally as required which may include management of the info box or working on the front desk".

(7) On 15 January 2025 Ms Jessop wrote to Ms Nyhof:

"I can see why your initial proposal is focused on the needs of the admin team. It's understandable that you would want to see if client-facing administrative tasks would initially suit me on my return. I would however, like to return to my previous role (as negotiated when I returned from maternity leave in 2022), or to other HR and management duties that are as close as possible to those before I went on maternity leave with [name].

It is not clear from your emails if you're saying that my previous duties (of 2022-23) are no longer needed, or that this staged approach is a requirement for me to return to those duties. I do not believe that your 3-6 month plan is necessary for me to reintegrate into the business, when my role and duties are not client facing. ...

I understand that you want to move our discussions to Zoom. I think a conversation will be more productive when I know the extent to which you are willing to keep my current role, or rework it to be as close as possible to the HR duties that I have grown and contributed in.

I had suggested returning on 17th February, but could we please delay this a couple weeks?"

(8) On 16 January 2025 Ms Nyhof confirmed that she was happy for Ms Jessop to delay her return until 11 March 2025. She stated that she was available to meet Ms Jessop in person any time after 11 February 2025.

(9) On 30 January 2025 Ms Jessop wrote to Ms Nyhof:

"Ordinarily, I'm open to and supportive of discussions and brainstorming. In these particular circumstances, where you have initiated a significant redesign of my role, I'd prefer to continue emailing so I have time to review and consider the proposed options. I'm happy to meet when we're on the same page and fine tuning tasks, but we're still defining the scope of this role (whether it is to be client facing for the foreseeable future).

You have proposed that the best use of my initial 13 hours/week is managing the info box. You have referenced recruitment duties but only in the time available after I personally action every email and voicemail, assist with hearing aid processing, and cover the front desk reception, as needed. Your longer term proposal (which is conditional on me being more integrated into the business) is still a reduction of my current role, but with the ongoing requirement of ad hoc client facing duties. As a whole, this proposal not only seems like a significant demotion but suggests that my particular contributions at BHSC are no longer valued.

It's possible I have misread the situation, but my previous requests for clarification from you have not brought me any further understanding or reassurance. I've been hesitant to meet while there is so much uncertainty for me around your wishes. I have been direct and forthcoming in my communication so we can arrive at a mutually agreeable position, but I don't know if your initial

ideas are in fact negotiable, or what other options are available to me.

Would you please get back to me as soon as possible so I have time to consider your response before further discussions."

(10) On 3 February 2025 Ms Nyhof wrote to Ms Jessop:

"...In my email of 21/12/24 I advised you that the HR style role you had previously been doing was no longer a business requirement due to the implementation of a formal staff management and performance review quarterly process. Robust admin task protocols have also been implemented and are achieving positive outcomes.

... Further to your response on 24/12/24 I tried to meet you half way and I proposed an approach that could see the redevelopment of the role over time once you had been brought up to speed with the changes that have occurred in the last 2 years and gotten to know all new staff members. Yes I believe a staged reintegration is required. You have been out of the role for almost two years and as mentioned a lot has changed. It is important to earn the respect of the other staff members in order to do any kind of HR or performance role effectively and this takes time. It is also important to have a full grasp of the policies and procedures in order to manage people effectively. While you feel you can do this

without following my proposal outlined on 24/12/24 and instead by bringing yourself up to speed in the background, this will not be well received by other staff members when our greatest need in the admin is on the frontline engaging with clients and completing necessary tasks to ensure the sustainability of the business. A staged approach and helping out initially as per my proposal would be most beneficial to the business, the team and to your credibility with the team. I understand from your emails that this is not what you are seeking.

We hope to return you to a suitable role that is consistent with the business' requirements as it stands currently and aligns with your career aspirations. However, any such role must meet the needs of the business. We expect this to take time."

(11) On 11 February 2025 Ms Jessop wrote to Ms Nyhof:

"You have clearly indicated that my pre-parental leave job no longer exists and the BHSC policy manual provides in that situation, BHSC will follow its redeployment and redundancy procedures to determine if a suitable alternative position is available. I have not been able to locate any redeployment and redundancy procedures in the policy manual, and assume that your correspondence with me in relation to redeployment is in accordance with those procedures. It is clear the redeployment option you've proposed is not a suitable alternative position, as your proposal involves a significant demotion and is therefore not reasonable in terms of the status of my pre-parental leave job and career pathway. I understand that these circumstances trigger a redundancy process which should be commenced now that it is clear there are no suitable alternative positions for me in the business.

I am grateful for all the opportunities I've had at BHSC and the strong relationships I've built with you, and all the staff who have come through our doors in my time. I really want to complete these next steps with as much good faith and dignity as possible."

(12) On 14 February 2025 Ms Nyhof wrote to Ms Jessop:

"I have not made mention of redundancy during my discussions with you. We are keen to welcome you back next month. In our written discussions thus far I have confirmed the following:

• We can provide 13 hours per week on the days and times you have requested.

• Your pay will remain at the same level - there is no reduction in your pay for the role proposed.

• We have provided a reasonable, time specified pathway, with retraining requirements, back to your previous or a similar role that aligns with the current needs of the business.

• The tasks proposed following a period of retraining are in line with your pre-maternity leave position.

It is not completely clear from your email if you intend to resign. Please clarify if this is your intention. ..."

• [21] On 27 February 2025 Mackenzie Workplace Law, on behalf of Ms Jessop, sent a letter addressed to Brindabella Hearing & Speech Centre. In short, it asserted that the Position had become redundant, alleged a number of contraventions of the Act and of Ms Jessop's employment contract, and proposed terms on which to resolve the dispute. There followed extensive correspondence between Mackenzie Workplace Law and Indigo Summit in which the parties attempted to negotiate a resolution. It is not necessary to traverse that correspondence in detail. However, I note the following:

(1) On 7 March 2025 Indigo Summit sent a letter to Mackenzie Workplace Law in response to its letter of 27 February 2025. In that letter Indigo Summit stated:

"In light of your client being unwilling to engage further in a process to suitably re-employ her, we feel that we have no option but to accept that she will not be returning to our workforce.

We do not necessarily accept that this is a redundancy rather than a resignation, for reasons stated in this response."

(2) On 25 March 2025, Ms Nyhof sent an email to Deborah Mackenzie of Mackenzie Workplace Law in which she stated:

"We refer you back to our previous correspondence to support our very clear position that we do not consider this a genuine redundancy."

(3) On 17 April 2025, in a letter to Mackenzie Workplace Law, Indigo Summit stated:

"Your client declined this offer. It is very straightforward. This is not a genuine redundancy. It is simply a failure of your client to return to work on the agreed date."

(4) The parties reached agreement on the terms to be included in a Deed of Settlement, other than in respect of the date to be included as Ms Jessop's "Termination Date". Indigo Summit proposed 11 March 2025; Ms Jessop suggested 1 May 2025. The disagreement over that date spelt the end of the negotiations.

(5) On 12 May 2025, Ms Mackenzie sent an email to Ms Nyhof in which she stated:

"As there has been no final agreement reached in relation to the termination date, my client's employment remains ongoing."

(6) On 14 May 2025, Ms Nyhof sent an email to Ms Mackenzie in which she stated:

"We acknowledge that the issues surrounding the employment termination of your client are not clear cut and we remain committed to doing the right thing by her while ensuring the process and outcome are fair for all.

We have never disputed that she is entitled to accrued annual leave and long service leave. In order to progress this matter, as a goodwill gesture and to remain focussed on resolving the issue of an employment termination payment we have just now made payment of the agreed amounts into her bank account. I have attached a copy of the bank remittance and payslip. The resulting superannuation owing will be paid in our next round of staff superannuation payments within the next 2 weeks.

We will still require the return of all BHSC possessions. ..."

(7) On 15 May 2025, Ms Mackenzie sent an email to Ms Nyhof in which she stated:

"My client has taken your email, the payment of her accrued entitlements and your request for the return of BHSC property as clear indication that her employment with BHSC has now been terminated."

• [22] Meanwhile, on 4 April 2025 Indigo Summit entered into an agreement to sell the Brindabella Hearing & Speech Centre business. It did not disclose the sale to Ms Jessop.

• [23] On 14 May 2025 Indigo Summit had commenced proceedings in the Commission under section 739. It sought the Commission's assistance in determining whether the situation was one of "genuine redundancy" and what payments Ms Jessop was entitled to receive.

• [24] Ms Jessop commenced these proceedings on 3 June 2025.

• [25] Indigo Summit's submissions may be distilled to the following propositions:

• (1) A dismissal does not take effect until and unless it is communicated to an employee: Burns v Aboriginal Legal Service of Western Australia (Inc).[9] As Indigo Summit has not communicated to Ms Jessop that she was dismissed, it cannot be established that a dismissal has occurred.

(2) Indigo Summit complied with the return to work guarantee in section 84 by offering Ms Jessop "an available position for which [she was] qualified and suited nearest in status and pay to the pre‑parental leave position". This was despite the fact that Ms Jessop was not entitled to the return to work guarantee, for reasons including that she had not sought to be returned to the Position but to a role with reduced hours.

(3) Indigo Summit had clearly communicated its wish for Ms Jessop to return to work. It had sought to accommodate Ms Jessop's request for reduced working hours. It had unsuccessfully sought to meet with her to discuss the available role. At no time did Indigo Summit inform Ms Jessop that the Position no longer existed. It was never proposed that Ms Jessop return to anything other than a management role. She was being offered the same salary at her requested hours of work from the same location. The new role that was offered to Ms Jessop would not have resulted in a reduction in status.

(4) Ms Jessop declined the offer being made to her. In the circumstances, the end of the employment relationship was at her initiative.

• [26] Ms Jessop submitted that evidence demonstrated that she did not voluntarily leave her employment. She submitted that Indigo Summit took a course of action that had the probable effect of ending her employment. That course of action included:

(2) failing to consult with Ms Jessop before making the Position redundant, or about the sale of the business. These failures to consult were said to be in breach of section 83 of the Act and of clause 34 of the Award;

(3) failing to comply with the return to work guarantee in section 84; and

(4) paying out Ms Jessop's accrued annual leave and long service leave entitlements, and requiring that she return its property.

• [27] I have deliberately traversed at some length the correspondence between the parties from December 2024 to May 2025. I draw the following conclusions from the correspondence, noting in particular the sections I have highlighted.

• [28] First, during Ms Jessop's absence on parental leave, Indigo Summit decided that it no longer required the Position to be performed by anyone. This is reflected in the statement in Ms Nyhof's email to Ms Jessop of 16 December 2024 that "there is no need for the HR style role you were previously doing". The same message was conveyed in Ms Nyhof's emails of 10 January 2025 and 3 February 2025.

• [29] In light of that evidence, I do not accept Mr Nyhof's evidence that at no time did he or Ms Nyhof "make any final decision that Liana's role of Office Manager (HR) was not needed by the business".[10] I also do not accept Indigo Summit's submission that "[at] no time did the Respondent advise the Applicant that her role no longer existed".[11] While those precise words may not have been used, that was the clear import of Ms Nyhof's messages.

• [30] Second, as at December 2024 Indigo Summit did not know precisely what role was to be offered to Ms Jessop on her return. This is reflected, for example, in Ms Nyhof referring on 21 December 2024 to the "need to collaborate on what the role would look like".

• [31] Third, there continued to be uncertainty or ambivalence as to the position that Ms Jessop would occupy in the business, both in the short but particularly in the long term. The closest that Indigo Summit came in this regard was Ms Nyhof's email to Ms Jessop of 10 January 2025, in which she put forward a "staged approach". But that was a proposal for discussion rather than a clear offer of an alternative position. It did not offer a precise role so much as an aspiration. In any event, there was no certainty as to when the "long term objective" would be met.

• [32] Fourth, I accept that Ms Nyhof made a number of requests that Ms Jessop meet with her to discuss the ongoing employment relationship. There is nothing to suggest that she was not genuine in that regard. At the same time, it was reasonable for Ms Jessop to seek some certainty as to what was being proposed in order to prepare for any meeting. To the extent that Indigo Summit contended that Ms Jessop did not properly engage, I do not agree. Her response was understandable in the context of the messages she was receiving.

• [33] Fifth, while Mr Nyhof gave evidence that his intent "was always that [Ms Jessop] was returning to a management role",[12] that is not reflected in the correspondence. Ms Nyhof had made it clear in her emails that Ms Jessop's return to management duties was subject to her being "more integrated back into the business". This was also reflected in Ms Nyhof's statement that the business:[13]

"...at all times made clear that Liana would have the financial security of her management salary, while recognising that she would need some time before she would be in a position to fulfil some management duties."

• [34] Sixth, I can infer from this evidence that the duties that Indigo Summit proposed that Ms Jessop perform "in the short term" were not considered by the business to be "management duties". To that extent at least - that is, in the "short term" - the proposed duties were of a lesser status than the Position.

• [35] As to the "long term" objective, Ms Jessop gave evidence as to why she considered the "possible future role" to be a reduced role compared to the Position.[14] Indigo Summit did not meaningfully engage with that evidence, other than to describe it (and other evidence) as "speculation as to the business and workplace circumstances at that time, or reflect a misinterpretation of emails".[15] Having regard to the position description for the Position and the terms of Ms Nyhof's email to Ms Jessop of 10 January 2025, I accept Ms Jessop's evidence.

• [36] Seventh, the employment did not end on 11 March 2025. In this regard, Ms Nyhof stated:[16]

"From 11 March 2025 onwards, my understanding of the situation is that Liana had decided not to return, but that the negotiations related to what her final entitlements were. I did not think at any point after 11 March that Liana was still an employee of the Respondent."

"It was clear in my mind that once we received correspondence from Liana's lawyer that Liana did not wish to return to work at BHSC. This was her choice."

• [38] It is clear from the correspondence between the parties that there was a diminishing likelihood of Ms Jessop returning to work for Indigo Summit the longer the correspondence continued. However, there is no evidence that Ms Jessop resigned. The closest Indigo Summit came to suggesting that was the statement in its letter to Mackenzie Workplace Law of 7 March 2025 that it did "not necessarily accept that this is a redundancy rather than a resignation". Ms Nyhof did not contend in her emails after 11 March 2025 that Ms Jessop was no longer an employee of Indigo Summit. As Ms Nyhof stated in her email to Ms McKenzie on 14 May 2025, "the issues surrounding the employment termination of [Ms Jessop were] not clear cut".

• [39] I accept Ms Jessop's submission that:[18]

"By March 2025, the parties were already negotiating an exit for the Applicant, which the Applicant considered ought to be by way of redundancy, and no steps had been taken

• [40] Eighth, it was Indigo Summit which first took action that was unequivocally predicated on the employment having come to an end. That is, on 14 May 2025 it paid out Ms Jessop's accrued annual leave, which is required under section 90(2) "when the employment of an employee ends". It also made a payment of pro rata long service leave, which assuming it to have been paid under section 11C of the Long Service Leave Act 1976 (ACT), is an entitlement arising when (relevantly) a person's employment is terminated by the employer for a reason other than the person's serious and wilful misconduct. It is also relevant that on the same day, Indigo Summit requested that Ms Jessop return its property.

• [41] In light of the conclusions I have expressed above, I turn to consider the arguments that Indigo Summit advanced in support of the objection.

• [42] Clearly, Indigo Summit did not expressly inform Ms Jessop that she had been dismissed. (Had it done so there would have been no basis to raise its objection to the proceedings.) But Indigo Summit's consequential reliance on Burns v Aboriginal Legal Service of Western Australia (Inc) is misplaced.

• [43] In that case, the Full Bench considered when a notice of termination issued by the employer took effect, in the context of considering whether to grant the applicant an extension of time to file an application for relief under section 170CE of the Workplace Relations Act 1996. The employer had issued a letter of termination dated 18 April 2000 purporting to make the termination effective on 14 April 2000. The letter was delivered to the applicant's house on 19 April 2000. The Full Bench determined that the termination took effect on the latter date. Its observation that "a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated"[19] must be seen in that context. The case does not stand as authority for the proposition that there can be no dismissal unless and until the employer communicates that to the employee.

• [44] Such an approach would, in any event, be inconsistent with the terms of section 386 and the authorities to which I referred above.

• [45] I also do not consider that Indigo Summit gains much assistance from section 84. That section is in these terms:

On ending a period of unpaid parental leave, an employee is entitled to return to:

(b) if that position no longer exists - an available position for which the employee is qualified and suited nearest in status and pay to the pre‑parental leave position.

• [46] Indigo Summit contended that it had offered Ms Jessop an available position for which she was qualified and suited, which was nearest in status and pay to the Position. For the reasons set out above, I am not persuaded that a particular position was offered to Ms Jessop. Rather, proposals were made as to how and in what capacity she might return, subject to the details being discussed and confirmed.

• [47] I am mindful that on one reading, Ms Jessop's submissions regarding section 84 appear to be predicated on her having been offered a position. She submitted that "[t]he position offered was as far removed in status to her pre-parental leave position as possible in the Respondent's business".[20] It followed, in her submission, that she "could not possibly seriously consider taking the 'available position'",[21] with the result that it was not "nearest in status and pay" to the Position.[22]

• [48] However, I read Ms Jessop's submissions as a whole to suggest that to the extent that it could be said that a position had been offered to her, it did not meet the return to work guarantee. I note in particular her submission that "[n]o final agreement was ever reached to vary the terms of the Applicant's employment in relation to either the hours to be worked or the alternative position".[23]

• [49] But even were I to accept that Ms Jessop had been offered a position, and that it was "nearest in status and pay to the pre‑parental leave position", that only means that Indigo Summit had complied with the requirements of section 84. The section did not compel Ms Jessop to accept the new position. Ms Jessop's failure to do so would not, of itself, have resulted in her leaving the employment of her own accord.

• [50] By way of analogy, I note the redundancy pay provisions of the Act, which have some bearing on the circumstances of this case. That is, Indigo Summit determined that it had "no need" for the Position; that the Position was "no longer a business requirement". In relying on section 84(b), it can be taken to accept that the Position, being the "pre-parental leave position", no longer existed. In the language of section 119, Indigo Summit no longer required the job (previously) done by Ms Jessop to be done by anyone.

• [51] Section 120 allows the Commission to reduce the amount of redundancy pay to be paid by an employer to an employee under section 119 if, amongst other reasons, the employer obtains "other acceptable employment" for the employee. Relevantly for present purposes, an entitlement to redundancy pay under section 119 arises "if the employee's employment is terminated at the employer's initiative". As a matter of logic, the legislation contemplates that an entitlement to redundancy pay may still arise if an employee has been offered, and has rejected, an offer of other acceptable employment. That is, the rejection of the offer does not preclude the termination being at the initiative of the employer.

• [52] On an objective analysis of the evidence, Indigo Summit determined that the Position was no longer required. It delivered equivocal messages to Ms Jessop as to her ongoing role in the business, while at the same time making it clear that she would be required to take a lesser role in the "short term". Most significantly, on 14 May 2025, when negotiations for Ms Jessop's departure fell over, it paid out her accrued entitlements and demanded the return of its property.

• [53] Ms Jessop's initial refusal to meet with Ms Nyhof was reasonable, despite the apparent frustration that it caused to Ms Nyhof. Indigo Summit had decided during Ms Jessop's absence that her position was no longer required. She might reasonably have expected that Indigo Summit would also have decided what this meant for her ongoing employment. When faced with Ms Nyhof's initial equivocation as to what her role would be, it was not unreasonable for Ms Jessop to request in advance of any meeting some certainty as to what Indigo Summit was proposing.

• [54] As I have already stated, in the context of all of the facts, Indigo Summit's reliance on Ms Jessop's asserted failure to return to work on 11 March 2025 is misplaced.

• [55] I accept Ms Jessop's submission that Indigo Summit took a course of action that had the probable effect of ending her employment. I find that the conduct of Indigo Summit was the principal contributing factor which resulted in the termination of the employment. That termination occurred on 14 May 2025.

• [56] It follows that Ms Jessop was dismissed within the meaning of section 386(1). Consequently, she was entitled to make the application under section 365. The jurisdictional objection is dismissed.

• [57] The matter will be listed for a conference under section 368 at a time to be determined.

[1] In this decision, unless otherwise stated references to legislative provisions are to provisions of the Act

[2] Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [67]. See also Lipa Pharmaceuticals Ltd v Mariam Jarouche (2023) 324 IR 375; [2023] FWCFB 101 at [4].

[3] Saeid Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75(2)], citing Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200

[4] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200 at 205-206

[5] O'Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]

[6] Searle v Moly Mines Ltd (2008) 174 IR 21; [2008] AIRCFB 1088 at [38]

[7] Statement of Liana Jessop, 29 August 2025, Annexure LJ2

[8] The emails and other correspondence to which I refer in this decision, unless otherwise identified, appear largely chronologically in the Tender Bundle

[9] Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24]

[10] Statement of Steven Birger Nyhof, 12 September 2025, par 5(a)

[11] Respondent's Outline of Submissions in Reply, 12 September 2025, par 3.5

[12] Statement of Steven Birger Nyhof, 12 September 2025, par 5(b)

[13] Statement of Mandy Elizabeth Nyhof, 12 September 2025, par 31

[14] Statement of Liana Jessop, 29 August 2025, pars 41-42

[15] Statement of Mandy Elizabeth Nyhof, 12 September 2025, par 19

[16] Statement of Mandy Elizabeth Nyhof, 12 September 2025, par 32

[17] Statement of Steven Birger Nyhof, 12 September 2025, par 6

[18] Applicant's Submissions on the Respondent's Jurisdictional Objection, 29 August 2025, par 42

[19] Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24]

[20] Applicant's Submissions on the Respondent's Jurisdictional Objection, 29 August 2025, par 65

[21] Applicant's Submissions on the Respondent's Jurisdictional Objection, 29 August 2025, par 67

[22] Relying on Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771 at [23]

[23] Applicant's Submissions on the Respondent's Jurisdictional Objection, 29 August 2025, par 63

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