Fair Work Act 2009

s.365 - General protections

Designer Life (Queensland) Pty Ltd as trustee for the Designer Life (Queensland) Trust

General protections dismissal dispute - jurisdictional objection alleging no dismissal - employer had no intention of providing further shifts - resignation forced by conduct of employer - jurisdictional objection dismissed

• [1] Designer Life (Queensland) Pty Ltd as trustee for the Designer Life (Queensland) Trust (Designer Life) is a business that assists people in finding work. Lisa Miller commenced casual employment with Designer Life on 6 January 2025 in the role of Employment Services Officer Grade 1 (Career Coach).[1] Ms Miller's employment with Designer Life was reasonably brief, but not without issues. There is no dispute that Ms Miller worked regular shifts of 9am to 5pm on Monday to Friday from around 6 January 2025 to 5 March 2025.[2] There is also no dispute that Ms Miller was not rostered to work any shifts from 5 March 2025 until she formally resigned on 24 May 2025.[3]

• [2] Ms Miller complained about being bullied by her supervisor, Jam Mateo, on 7 February 2025. Designer Life had a vastly different version of events and issued Ms Miller with a written warning on 3 March 2025 regarding her own alleged behaviour. Ms Miller filed applications with the Commission for anti-bullying orders[4] and a non-dismissal general protections dispute[5] on 14 March 2025. In response to Ms Miller's application for anti-bullying orders, Designer Life submitted on 3 April 2025 that Ms Miller's casual role was "no longer required" and as a result there was no risk of further bullying. This response prompted Ms Miller to file the current general protections application involving dismissal on 7 April 2025. Designer Life subsequently raised a jurisdictional objection to Ms Miller's application on 16 May 2025 on the basis that Ms Miller remained employed by Designer Life and had not been "dismissed."

• [3] I conducted various conferences and procedural hearings in relation to the three applications filed by Ms Miller.

• [4] Ultimately, Ms Miller formally resigned on 24 May 2025 and sought to amend her general protections dismissal dispute application so that it identified a dismissal date of 24 May 2025. Designer Life did not raise any arguments in opposition to the amendment request. I allowed the amendment. Ms Miller discontinued her application for anti-bullying orders and her non-dismissal general protections dispute application given her employment with Designer Life had clearly ended by 24 May 2025.

• [5] Ms Miller argues she was forced to resign due to conduct, or a course of conduct, engaged in by Designer Life. Designer Life denies Ms Miller was forced to resign and argues she could have remained a casual employee and would have been allocated work if it became available.

• [6] I listed a hearing regarding the issue of whether Ms Miller was forced to resign on 1 July 2025 via video. I granted both parties permission to be represented by lawyers at the hearing on the basis that representation would enable the matter to be dealt with more efficiently. A schedule identifying the evidence and submissions relied on by the parties is attached at the end of this decision. None of the witnesses were required for cross-examination. I have considered all the evidence and submissions.

• [7] The jurisdictional objection raised by Designer Life turns on whether Ms Miller was "dismissed" from her employment.

• [8] The definition of "dismissed" appears in s.386 of the Fair Work Act 2009 (FW Act) which states:

(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.

• [9] Ms Miller did not press her earlier argument that she was terminated at Designer Life's initiative in accordance with s.386(1)(a) of the FW Act. Ms Miller accepts her employment ended by way of resignation but says the resignation was forced within the meaning of s.386(1)(b) of the FW Act.

• [10] In Kylie Bruce v Fingal Glen Pty Ltd (in liq)[6](Fingal Glen), the Full Bench endorsed, with one point of clarification, an earlier summary of the principles applicable to assessing whether an employee was constructively dismissed. The Full Bench stated:

"The four authorities cited above were summarised by a Full Bench of the AIRC in O'Meara v Stanley Works Pty Ltd (O'Meara) as follows:

'In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. 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.'

Subject to the comments below, we accept and adopt this as a summary of the principles applicable in determining whether an employee has been forced to resign because of the conduct of the employer within the meaning of s.386(1)(b) of the Act...

First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an "important feature" of constructive dismissal, it is not sufficient that "the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee". There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The "limb" of the O'Meara test relating to resignation as a probable result of an employer's conduct should be read in this light."[7]

• [11] Designer Life argues that Ms Miller was not rostered for any shifts after 5 March 2025 due to a significant reduction in its operational requirements caused by an Australian Government pause on compulsory appointments for jobseekers due to Ex-Tropical Cyclone Alfred, and the upcoming end of a Workforce Australia contract with the Australian Government on 30 June 2025. Designer Life argues Ms Miller remained employed as a casual employee until she resigned on 24 May 2025 and would have been offered any suitable and available shifts. The evidence relied upon by Designer Life concerning the lack of available shifts for Ms Miller from 5 March 2025 is summarised below.

• [12] Govind Nair (Regional Coordinator) provided evidence which confirms there was a pause on the Australian Government's mutual obligation appointment requirements for job seekers from around 5 March 2025 until 3 April 2025.[8] Mr Nair provided evidence that "no casual employees at Woodridge, Beenleigh, Eagleby, Sunnybank, Capalaba, Browns Plains, and Beaudesert were rostered and or paid any hours between 5 March 2025 and 3 April 2025."[9]

• [13] Sharon Moore (Performance Coordinator) also provided evidence about the impact that the Australian Government's mutual obligation pause on appointments for jobseekers had on Designer Life.[10] Ms Moore ceased working for Designer Life on 28 March 2025 and her evidence is limited to what occurred until that date.[11]

• [14] Stacey Paul (People and Culture Manager) provided evidence that:

• • Designer Life was advised on 27 February 2025 that its Workforce Australia licence for Brisbane South-East and Townsville would cease on 30 June 2025. This decision meant Designer Life had to implement a transition plan to wind down participant services ahead of the 30 June 2025 end date.[12]

• • The Australian Government imposed a mutual obligation pause on compulsory appointments for jobseekers from 5 March 2025 to 3 April 2025 due to Ex-Tropical Cyclone Alfred.[13]

• • No casual employees at Woodridge, Beenleigh, Eagleby, Sunnybank, Capalaba, Browns Plains, and Beaudesert were rostered or paid any hours between 5 March 2025 to 3 April 2025.[14]

• • From 4 April 2025, Ms Miller did not receive shifts because demand did not recover at the Woodridge site as well as Beenleigh, Eagleby, Sunnybank, Capalaba, Browns Plains, and Beaudesert sites.[15]

• • Designer Life decided to reduce staffing across the relevant sites in the lead up to the Workforce Australia contract ending on 30 June 2025.[16]

• [15] Ms Paul provided a deputy/payroll extract produced on 20 June 2025 which appears to show the hours worked by Ms Miller and other relevant employees from 2 March 2025 to 6 June 2025. [17] Ms Paul also produced a table which shows a reduced number of appointments for jobseekers at the relevant sites from March to June 2025.

• [16] I accept Designer Life has provided evidence to demonstrate that there was a reduced need for casual employees such as Ms Miller from around 5 March 2025 until 3 April 2025 due primarily to a pause on compulsory appointments for jobseekers because of Ex-Tropical Cyclone Alfred.

• [17] However, the evidence led by Designer Life regarding why Ms Miller was not offered any shifts from 3 April 2025 until her resignation on 24 May 2025 is far less convincing.

• [18] The deputy/payroll extract provided by Ms Paul may have been helpful if the content in the table was explained in detail by Ms Paul. The table provided has Ms Miller's name and confirms Ms Miller did not work any hours from the fortnight ending 16 March 2025 until the fortnight ending 6 June 2025. However, the table also shows that other employees identified only by initials worked the following number of hours during fortnights ending on the dates identified below:

• 30 March 2025 = 342.42 hours
• 13 April 2025 = 250.5 hours
• 27 April 2025 = 237.5 hours
• 11 May 2025 = 267.5 hours
• 25 May 2025 = 322 hours
• 6 June 2025 = 232.73 hours

• [19] Ms Paul has provided no evidence regarding why these employees were provided with shifts after 3 April 2025 and Ms Miller was not. There may be explanations concerning some employees being permanent as opposed to Ms Miller who was a casual employee. However, Ms Paul has not provided sufficient detail to allow that to be determined.

• [20] Designer Life has also not provided any evidence to demonstrate that it genuinely intended to offer Ms Miller casual work if it became available after 3 April 2025. For example, no business records such as emails have been provided to demonstrate that any steps were taken to explore whether any shifts could be provided to Ms Miller after 3 April 2025.

• [21] Further, as identified in Ms Miller's amended application, Designer Life informed the Commission and Ms Miller in a response to Ms Miller's application for anti-bullying orders on 3 April 2025 that Ms Miller was "no longer required" and as her "employment with the organisation will cease, the stop bullying order is now irrelevant, as the complainant will no longer have any connection to the workplace." That response form was signed by Ms Paul on behalf of Designer Life on 3 April 2025. I consider it is disingenuous and self-serving for Ms Paul to now attempt to step-back from that evidence and claim that Ms Miller would have been provided with casual shifts if they became available. I find Ms Paul's evidence on this point lacks credibility.

• [22] I find Designer Life had no intention of offering Ms Miller any casual shifts after the mutual obligation pause on compulsory appointments for jobseekers ended on 3 April 2025. The best evidence of that is the fact that Designer Life proceeded to not offer Ms Miller any shifts from that date until her resignation on 24 May 2025. My finding is also consistent with the evidence provided by Ms Paul on behalf of Designer Life in a form filed in the Commission on 3 April 2025 in response to Ms Miller's application for anti-bullying orders. Ms Paul confirmed that Ms Miller's services were no longer required by Designer Life. Designer Life's subsequent conduct was completely consistent with that position.

• [23] Despite Ms Paul confirming that Ms Miller was no longer required by Designer Life on 3 April 2025, Designer Life did not provide Ms Miller with formal notice that her employment had been terminated. I consider Designer Life was deliberately avoiding taking that step to prevent Ms Paul commencing proceedings concerning a dismissal. I find Designer Life intended to leave Ms Miller in a hopeless position of not being provided with any work but also not being notified that she was dismissed. I am satisfied that Designer Life intended to force Ms Miller to resign from her employment so that it could argue that Ms Miller was not "dismissed" by Designer Life.

• [24] I also find that Ms Miller's resignation was a probable result of Designer Life's conduct. There was no point in the relationship between Designer Life and Ms Miller remaining on foot. Designer Life had no intention of offering any further shifts to Ms Miller. It was inevitable that one of the parties would have to eventually act to end the employment. I find Designer Life's conduct in persistently refusing to dismiss Ms Miller despite having no intention of offering her any shifts made Ms Miller's resignation a probable, if not certain, result.

• [25] I find Ms Miller was forced to resign from her employment with Designer Life due to conduct, or a course of conduct, engaged in by Designer Life.

• [26] I find Ms Miller was "dismissed" by Designer Life on 24 May 2025 within the meaning of s.386(1)(b) of the FW Act.

• [27] I dismiss Designer Life's jurisdictional objection.

• [28] Ms Miller's application will proceed to be listed for conciliation conference on a date to be advised.

Ms M Demarco from Demarco Law representing Designer Life.

A1 Statutory declaration from Ms Miller dated 7 April 2025 and annexures LM1-LM5 and LM7-LM9. The documents concern Ms Miller's employment and previous rosters with Designer Life, various emails regarding Ms Miller's complaint against Mr Mateo, and responses from Ms Miller in relation to allegations raised by Designer Life about her own behaviour.

R1 Witness statement from Govind Nair (Regional Coordinator) dated 23 June 2025 and attached documents. The documents concern Designer Life's operational requirements and the transcript of a telephone call between Ms Miller and Mr Nair on 13 March 2025.

R2 Witness statement from Sharon Moore (Performance Coordinator) dated 23 June 2025 and attached documents. The documents relate to the issues between Ms Miller and Mr Mateo.

R3 Witness statement from Stacey Paul (People and Culture Manager) dated 26 June 2025 and attached documents. The documents concern Ms Miller's employment with Designer Life, the issues between Ms Miller and Mr Mateo, Designer Life's operational requirements, and Ms Miller's resignation.

Ms Miller filed written submissions on 6 June 2025 and 27 June 2025.

Mr Jones provided oral submissions at the end of the hearing.

Designer Life filed written submissions on 23 June 2025.

Ms Demarco provided oral submissions at the end of the hearing.

[2] Exhibit A1 at [8], Exhibit R2 at [19].

[6] [2013] FWCFB 5279.

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