s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - dismissed/not dismissed -

• [1] On Saturday 3 March 2025, Ms Louise Hulme resigned from her employment with Toll Transport Pty Ltd as a Driver Operator. Ms Hulme says that she was forced to resign due to how she was treated by several other Toll Employees and how Toll responded to her complaints about her treatment. Because of this, Ms Hulme says she was dismissed as per the definition in s 386 of the Fair Work Act 2009 (Cth). Ms Hulme has applied to the Commission under s 365 of the Act. Toll objects to Ms Hulme's application on the basis it did not dismiss her.

• [2] Ms Hulme needs to have been dismissed for her 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] I heard the matter on Tuesday 10 June 2025. I granted permission for both parties to be legally represented.

• [4] In this decision I do not cover all the material the parties submitted. However, I acknowledge that the material provided is very significant to the people involved.

• [5] Having considered the relevant evidence and submissions of the parties, I have found that Ms Hulme was not dismissed. Her application must therefore be dismissed.

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

• [7] Ms Hulme gave evidence in support of her case. Ms Hulme has been working as driver operator since 2012. Ms Hulme was the only witness to give probative evidence about the events of 2022 to 2024 regarding her interactions with her co-workers. However, that does not mean that I must accept her evidence. The credibility of her evidence must be assessed.

• [8] In assessing Ms Hulme's evidence, I have taken into consideration that she had both mental and physical health issues, which may have affected her recall of details. However, I did find that large parts of Ms Hulme's evidence were general in nature, with imprecise references to dates, or without proper explanation as to how she knew certain information. Ms Hulme also did not provide evidence that was presumably within her possession, such as text messages she complained about receiving.

• [9] Ms Hulme also called Mr Daniel Wilkins to give evidence. Mr Wilkins was a Toll employee from September 2023 to Thursday 11 April 2024 and worked alongside Ms Hulme. Mr Wilkins is Ms Hulme's partner. With respect to Mr Wilkins, his evidence was largely not probative, as it mostly dealt with matters that Ms Hulme had relayed to him. I have only given weight to his evidence where it deals with events he directly witnessed or participated in.

• • Mr Kane Hurst: Mr Hurst is the Branch Manager - Rockingham for Toll and reports to Mr Davey. He has worked for Toll for nearly 10 years and has previously held the positions of Warehouse Manager and Site Manager. As the Branch Manager, he is responsible for overseeing staff and resources that deliver fuel from Toll's Rockingham Depot.[3]

• • Ms Carole Damaso: Ms Damaso is the Senior HR People Partner - HR Operations for Toll. Ms Damaso has been employed by Toll for approximately 23 years and is currently based in Brisbane.[4]

• • Mr Clinton Davey: Mr Davey is the Regional Manager - West, Fuels & Gases, Resources and Industrials for Toll. Mr Davey has worked for Toll for approximately eight years. Mr Davey in his current role is responsible for managing Toll's fuel business in WA, including at Toll's Rockingham Depot.[5]

3. What were the events that led to Ms Hulme's resignation?

• [11] Ms Hulme commenced employment with Toll on Monday 11 April 2022. Ms Hulme was based at Toll's Rockingham depot, where she reported to Mr Hurst, but also reported to the Operations Manager, 'Mr A', as part of her day-to-day duties.[6]

• [12] As a driver, Ms Hulme would receive instructions each day from 'schedulers' at Toll. The schedulers inform the drivers of their route/s for the shift. The route is developed based on which customer sites require which products, as well as geographical locations.[7] Truck drivers will also share a truck with other drivers. Mr Hurst's evidence is that the drivers share common lunchrooms and may see each other on site before and after a shift, they operate the trucks alone. This means limited interactions with each other except for during handover at the start or end of shift, and during breaktimes.[8]

• [13] Ms Hulme's evidence is that for the duration of her employment with Toll, she was the target of gender-based discrimination, harassment and treatment from several other Toll Employees, but particularly from Mr A and 'Mr B', another Driver Operator at the Rockingham Depot. Ms Hulme's account is that this poor treatment started from her interview for a job with Toll, with Mr A saying words to the effect of, "the higher ups want me to hire some females, so let's see how this goes".[9]

• [14] Mr Wilkins' evidence is that a particular scheduler was biased against Ms Hulme and would treat her unfairly by giving her the worst jobs and constantly bullying her.[10] Mr Wilkins did not explain what made the jobs bad or difficult, or what the bullying behaviour was.

• [15] Ms Hulme's evidence is that in or around October 2022, she spoke with Mr A to express her dissatisfaction with how the work was distributed.[11] Ms Hulme said that she had similar conversations with Mr A over the course of her employment. Ms Hulme did not give details of these conversations.

• [16] In early 2023, Ms Hulme started doing longer country runs on a better type of truck, which resulted in better remuneration. Ms Hulme's evidence is that her male co-workers complained to Toll about a woman doing the runs, and so Toll stopped offering her the work.[12] Ms Hulme's evidence does not disclose how she knows about her male co-workers complaining about her or details about the change in frequency of her country runs over time. Even during examination in chief, Ms Hulme was given the opportunity to expand on her evidence, which only went as far as 'she was told' that male co-workers had complained, but not who told her.

• [17] Ms Hulme cited that on Friday 21 July 2023, she volunteered to take a job that involved running fuel to a petrol station in Carnarvon where no other drivers were able or willing to take the job. Ms Hulme's account is that while she was on her way to Carnarvon, some of the male drivers complained about the job being given to a woman. Ms Hulme's evidence does not explain how she knew this when she was in a truck driving to Carnarvon. When Ms Hulme arrived in Carnarvon, an unnamed person questioned why a woman had been sent. After this trip, Ms Hulme was not offered any further country runs.[13] Again, during examination in chief, Ms Hulme was given the opportunity to expand on this evidence. She named two drivers who had complained, but not how she was told about the complaints.

• [18] In early 2024, Ms Hulme refused to perform a job where she felt it was unsafe, as the canopy height at the relevant petrol station was only 4.3 metres. Ms Hulme's view is that this was not high enough for the truck assigned to the job. The next day, Ms Hulme and Mr A spoke. Ms Hulme's account is that he told her she would no longer be allowed to do road train jobs given her refusal the previous day.[14]

• [19] Around November 2024, Ms Hulme became aware that another driver had been giving chocolates to the schedulers in exchange for better job runs. Ms Hulme reported this to Mr A, but he denied that this had occurred.[15]

• [20] In or around October 2022, Ms Hulme started driving a maxi tanker for the same pay. After becoming more experienced at driving the maxi tanker, Ms Hulme spoke with Mr A regarding her interest in moving up to a 20-metre truck, presumably to no effect.

• [21] In late 2022 or early 2023, Ms Hulme had a similar conversation with the supervisor at the depot where she asked why there were no opportunities for her to advance. Ms Hulme's account is that the supervisor told her he would need to talk to Mr A about it.

• [22] In around September 2023, Ms Hulme spoke with Mr A, expressing that she wanted to move up to another truck and be given other opportunities. Mr A told her, 'no worries', but she remained on the same truck and duties. [16]

• [23] In late October or early November 2024, a position driving a 20-metre tanker came up in Ms Hulme's team. Ms Hulme's evidence is that prior to this, she'd had a discussion with Mr A and he'd agreed that she would train a new driver in the team in exchange for her receiving the next opportunity to move up to a 20-metre tanker. Ms Hulme's account is that at the time this opportunity arose, she was only one of three drivers in her team with enough experience to drive a 20-metre truck and the other drivers were not interested. However, the opportunity went to another male driver in the depot with no internal application process, despite the other driver having less experience and tenure than Ms Hulme.[17]

• [24] In January 2023, a hose from Ms Hulme's truck went missing. Ms Hulme was directed to speak with a co-worker to ask for the hose back. Ms Hulme was training another woman driver at the time.

• [25] Ms Hulme's account is that she and the trainee approached this co-worker on break. The co-worker yelled at Ms Hulme and the trainee words to the effect, "go away, we don't want any females here". Ms Hulme continued to ask for the hose back. The co-worker told Ms Hulme she wasn't allowed to speak to him while he was on his break.[18]

• [26] Ms Hulme was later called into a meeting with Mr A, where she was told that the co-worker had reported the incident and gone home due to stress. Mr A sent Ms Hulme home for the day, but no action was taken regarding the co-worker's comments to Ms Hulme and the trainee.[19] Ms Hulme's evidence does not detail what she told Mr A or whether she asked for any action to be taken.

• [27] A week after this incident, Ms Hulme spoke with Mr A about moving into a different position. Ms Hulme's account is that Mr A said words to the effect of, 'if I made one phone call, you would be sacked from the new position within a week'.

• [28] On Thursday 6 February 2025, Mr Wilkins attended a meeting with Mr A and the driving trainer, where Mr Wilkins was offered a mentoring job to train all new drivers. Mr Wilkins said that he was surprised to be offered the position over Ms Hulme, as Ms Hulme had trained Mr Wilkins and Mr Wilkins could not service all contracts. Mr Wilkins pointed this out to Mr A. The driving trainer told Mr A that Toll should do an expression of interest process for the position. After a week or so, the position was offered to Mr Wilkins again.[20]

• [29] Mr Wilkins' evidence is that Mr B was well-known around the depot for having a short temper and being a bully. Mr Wilkins saw Mr B yelling at Ms Hulme on multiple unspecified occasions. Mr Wilkins' further evidence is that Mr B was transferred in from a different depot due to his poor behaviour.[21]

• [30] Ms Hulme's examples of inappropriate and unwanted conduct from Mr B include:[22]

• Sending her an excessive number of SMS messages.
• Referring to her as 'girl' in text messages.
• Commenting inappropriately on her appearance, such as 'you look good today'.
• Attempting to make physical contact with her and making physical contact with her.
• Calling or referring to her as 'the voice'. This was done to Ms Hulme directly and when speaking about her with other Toll employees.
• Calling her a bitch.
• After Ms Hulme's heart attack in April 2024, saying to her words to the effect of, 'How'd you have a heart attack, you don't even have a heart'.
• Making inappropriate comments about Ms Hulme to and in front of other Toll employees.
• Responding aggressively when approached about keeping the shared space in the truck cab clean.

• [31] Ms Hulme's evidence is that she reported to Mr A that Mr B would repeatedly attempt to make physical contact with her or did make physical contact with her.[23]

• [32] Ms Hulme cited an incident in March 2023 where at the start of her shift Mr B told her he wanted to see her new house. Ms Hulme said she did not agree or invite him, but he said words to the effect of, 'I'm on leave and my wife is away. You're on leave. We should catch up'.[24]

• [33] Mr B went to sit in his car in the work car park. At the end of Ms Hulme's shift, she went to her car and saw Mr B sitting in his car. Mr B followed her home.[25] When they arrived at Ms Hulme's home, Mr B told Ms Hulme that he wanted to see her home as he was interested in buying in the area. Ms Hulme's evidence is that she felt very uncomfortable, but that Mr B's explanation made sense, so she invited him into her home.[26]

• [34] After this incident, Ms Hulme mentioned to her supervisor that someone had followed her home but did not tell him it was Mr B. A few days later, the supervisor told her he knew who had followed her. Ms Hulme criticises Toll for not acting over this incident.[27]

• [35] In September or October 2024, Ms Hulme cited an incident where she was speaking to another co-worker and Mr B repeatedly approached Ms Hulme to hug her. Ms Hulme's evidence is that each time she told him to go back to work, and after this occurred five or so times, he finally left. The co-worker told Ms Hulme that she saw Mr B touching Ms Hulme's chest area. Ms Hulme reported this to Mr A, but no action was taken.[28]

• [36] In early November 2024, Ms Hulme said there was an incident where she spoke with Mr B after he left a mess in the shared cab space of their new truck. Mr B told her she could, 'just fuck off'. Ms Hulme complained to Mr A about it and how Mr B would regularly leave messes in the truck then respond aggressively when it was raised. After this conversation with Mr A, Ms Hulme received a text from Mr B that stated, 'heard you been bagging me out'.[29] MS Hulme did not provide a copy of this text message.

• [37] A few days later, Ms Hulme and Mr A met. Mr A told Ms Hulme that Mr B had made a complaint against her regarding the conversation about the truck mess. Ms Hulme was told that she would be moved to a different truck due to the issues between her and Mr B. Ms Hulme said she did not think it was fair that she had to move given she was the one who had made complaints.[30] Ms Hulme's evidence is that even though she remained on the same pay and roster, she felt she was effectively demoted or punished as her new duties involved driving a smaller truck to sites that would be closed at night. This made them less safe.[31] Further, Ms Hulme and Mr B continued to be rostered on at the same times, which meant greater opportunities for interaction between them.

• [38] In around early April 2024, Ms Hulme requested leave due to stress. Her evidence is Mr A denied her request. On Thursday 11 April 2024, Ms Hulme suffered a heart attack. A week or so after her heart attack, she spoke to Mr A on the phone. Ms Hulme's account is that Mr A told her Toll's position was that her heart attack was not stress or work-related.[32]

• [39] Ms Hulme was away from work for five weeks after her heart attack. While she was waiting to be cleared to return to her regular role, she asked Mr A if she could work in the office at the depot to learn scheduling work. [33] Ms Hulme's evidence is that an undisclosed employee of Toll told her she was not allowed to work in scheduling due to a conflict of interest.

• [40] Ms Hulme's account is that despite Toll HR telling her to take it easy once she was cleared to return to her regular role, a particular scheduler would allocate difficult jobs to her. This included jobs that were difficult to navigate or jobs at sites that required manual delivery and checking of fuel levels.[34]

• [41] Ms Hulme cited an incident on Monday 22 July 2024, where a leading hand touched tumblers on a trailer. A few days later, a trainer told her to ask about a tumbler that had been changed. Ms Hulme told the trainer about the leading hand, and the trainer told her that Toll thought she had changed the tumbler. When Ms Hulme spoke to Mr A about it later, Mr A told her he didn't think the leading hand would have done that. Ms Hulme pointed out there was CCTV footage. Ms Hulme felt that her account was disregarded for sexist reasons.[35]

• [42] Ms Hulme's evidence is that from November 2024 onwards, Mr B was verbally aggressive towards Mr Wilkins. Ms Hulme attributes this to her relationship with Mr Wilkins becoming public. Further, that Mr A would make threats about scheduling Mr Wilkins on a different shift to her so that they could not spend time together.[36]

• [43] Ms Hulme's evidence is that Mr A repeatedly told her that if she wanted to stay on the same swing as Mr Wilkins, she needed to keep doing her current role. Despite this, Ms Hulme and Mr Wilkins would be rostered on so that they 'could not spend any time together'.[37]

• [44] In November 2024, Toll rolled out a new workplace policy called 'Respect @ Work'. Ms Hulme's account is that during a toolbox meeting about the rollout, Mr A said words to the effect of, 'With the new policy if anyone wants to use it, what goes up must come down'. Ms Hulme felt that this comment was threatening and aimed directly at her.[38]

• [45] On or around Tuesday 26 November 2024, Ms Hulme reached out to Mr Davey. They spoke on Monday 2 December 2024 where Ms Hulme raised issues about Mr B and Mr A's conduct towards her. Mr Davey asked Ms Hulme to lodge a formal complaint so that there could be an investigation.[39]

• [46] On Thursday 5 December 2024, Ms Hulme filed a formal complaint with Toll HR. Neither party provided me with an explicit copy of this formal complaint, though from the hyperlink it appears to be Ms Hulme's diary she started keeping in July 2024.[40]

• [47] On Friday 6 December 2024, Ms Hulme met with Ms Kristina Constantinou and Ms Damaso. Mr Davey also attended via video link but left partway through the meeting.[41] Ms Hulme gave a copy of her diary of incidents and spoke about how she had been treated.[42]

• [48] On Tuesday 28 January 2025, Ms Damaso, Mr Davey and other HR representatives discussed the investigation. It was identified that there was an opportunity to improve awareness around workplace behaviour and that Mr A and Mr B should complete workplace conduct refresher training.[43]

• [49] Ms Hulme's evidence is that after the meeting she found it very stressful to continue working at the depot. Mr A did not speak to her during the investigation period and Mr Hurst said hello to her once.[44]

• [50] In the early morning of Monday 10 February 2025, Ms Hulme applied for a Fuel Tanker Night Shift Driver position with another company. Ms Hulme ended up commencing employment with this company after she resigned from Toll.

• [51] On Monday 10 February 2025, Ms Hulme - along with a Transport Workers Union organiser - met with Ms Damaso. Ms Damaso's evidence is that she read to Ms Hulme the final outcomes from the letter outlined in [55] of this Decision and told Ms Hulme that it would be recommended that all site personnel undergo workplace behavioural awareness training; a procedure be created for workers to be notified of vacant roles and how to apply for them; and that Mr A and Mr B would undergo additional training.[45]

• [52] During cross-examination Ms Hulme stated that she did not recall Ms Damaso saying that all site personnel would undergo the workplace behavioural awareness training, but recalled Ms Damaso speaking about the procedure recommendation and the additional training for Mr A and Mr B.

• [53] Ms Damaso's evidence is that during the meeting Ms Hulme said words to the effect, 'I may as well resign'. Ms Hulme agreed she said this. Ms Damaso said words to the effect, 'it will take a little while to get the training completed and make improvements'.[46]

• [54] On Friday 14 February 2025, Ms Hulme texted Mr Davey, 'Hi Clinton could you please push that report through as the union is waiting for it. Also I'm waiting for it so I can put my notice in'. Mr Davey texted Ms Hulme back apologising for the delay. Mr Davey also asked Ms Hulme if she was resigning, and if they could catch up the following week to discuss. Ms Hulme replied that she wanted to 'move along' as it was 'too much to deal with in our yard'. They arranged to talk on Monday.[47]

• [55] On Friday 14 February 2025, Mr Davey emailed Ms Hulme the below outcome letter:

Allegations reported by you - findings and outcome of the investigation

I refer to the investigation conducted by Toll Group (the Company) into the Allegations that you have raised on 5 December 2024. In relation to your colleagues at Rockingham Fuels. The investigation is now complete, and findings have been made.

In reaching the following findings, I have considered all relevant information. I have taken into account all of the information that has been collected throughout the investigation, including:

• your written statement dated 5 December 2024 (Written Statement);
• the information that you provided at our meeting on 6 December 2024 (Meeting); and
• the reports from, and meetings/interviews with other parties.

1. Constantly being overlooked for positions and not given opportunities over less competent workers (Unable to be substantiated)
2. Scheduling Unfairness
   1. Drivers are bribing schedulers for their preferred runs with chocolates (Unable to be Substantiated).
   2. Louise alleged she was given harder driving routes that challenged her physical state upon returning from a heart attack (Unable to be substantiated)
3. [Mr A] allegedly stated to Louise in her interview to the words and effect of "the higher ups want me to hire some females so let's see how this goes", which was perceived as an act of discrimination. (Unable to be substantiated)
4. [Mr A] allegedly stated in a RESPECT @ Work Policy Toolbox roll out to the words and effect of "With the new policy if anyone wants to use it 'what goes up must come down", which was perceived as a threat. (Unable to be substantiated)
5. [Mr A] allegedly stated to Louise when requesting a transfer for a new role to the words and effect of "If I made one phone call, you would be sacked from the new position within a week". (Unable to be substantiated)
6. [Mr B] constant harassment towards Louise Hulme:
   1. Comments on Louise's appearance. (Unable to be substantiated)
   2. Constantly calls Louise the following names directly and indirectly towards her. (Partially substantiated)
   3. When approached about keeping shared space in the truck cab c lean it is always met with aggression and words to the effect of "I don't give a fuck". (Partially substantiated)
   4. Constantly saying inappropriate things about Louise (Substantiated)
   5. On or around late September/early October 2024 during a group hug incident [Mr B] inappropriately 'groped/copped a feel' of Louise. (Unable to be substantiated)
   6. Constant text messages sent by [Mr B]. (Unable to be substantiated)
7. Upon notification of the 'group hug' incident which occurred on or around late September to early October 2024 by Louise, [Mr A] allegedly failed to take reasonable management action. (Unable to be substantiated)

Thank you for raising your concerns and allowing us to do a thorough investigation which has uncovered opportunities for improvement which will help us build a better working environment and a safe workplace for all at the Fuels Rockingham site.

As a result of the findings and the information obtained through the investigation, recommendations have been put forward for the following:

• Workplace Behavioural awareness training to be delivered to all site personnel.
• Identifying and documenting a procedure for Expressions of Interests for new opportunities, extra time, promotions, transfer etc to ensure opportunities are clearly communicated to all drivers.
• Required personnel to attend additional training.

Toll's commitment towards acceptable workplace behaviours are outlined in the Toll Group's Workplace Behaviours Policy and Standard.

As per your Offer of Employment dated 2 June 2022 clause 5(a) "you must comply with all Tolls policies and procedures..."

• To treat everyone in line with our beliefs and our values of: integrity and trust, safety, teamwork, being open and transparent and continuous improvement;
• To support and promote Toll's commitments to workplace behaviour;
• To communicate professionally and respectfully with co-workers;
• To treat others with humility and respect.

As a result of the findings and the information obtained through the investigation, you are required to undertake refresher training with respect to workplace behaviours.

• Complete refresher training "Working at Toll" via Workday lea[r]ning.
• Review and sign Toll Workplace Behaviour Policy.

This is to be completed no later than the 28 February 2025.

You might find it helpful to access the confidential counselling service that is available to you, free of charge, through our EAP provider - the contact number is [redacted].

Please also remember that this investigation and the outcomes are confidential. You must not discuss it with any other employee (except someone who is acting as a support person for you).

Thank you for your cooperation and patience while we conducted this investigation. If you have any questions, please contact me on [redacted].

I look forward to your continued contribution to the Toll.

• [56] On Saturday 15 February 2025, Ms Hulme sent the below email to Mr Davey:

'Hi Clinton I totally reject the outcome of this investigation and feel totally let down by Toll. It doesn't even cover all the issues raised some points are conveniently left out. I am always polite to everyone at toll. I feel like I have to walk on eggshells most of the time. I am so stressed out by this letter and the discrimination, harassment and bullying I receive at toll. I no longer feel I'm able to continue my employment with toll. I give you my notice to be concluded on the 3rd of march 2025. How dare you guys say I need counselling and training after treating me the way you have.'[49]

• [57] That same day, Ms Hulme sent a short resignation email to Mr A, giving two weeks' notice of her resignation with her last day being Monday 3 March 2025. The next day she forwarded the email to Mr Hurst.[50]

• [58] On Monday 17 February 2025, Mr Hurst acknowledged Ms Hulme's email, noting that she had annual leave booked, which made Monday 17 February 2025 her last shift.[51]

• [59] '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."

• [60] 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,[52] which noted the following:[53]

• 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.

• [61] Ms Hulme submits that she was dismissed within the meaning of the second limb of s 386(1). Specifically, Ms Hulme does not argue that Toll engaged in conduct with the intention of ending the employment; rather, termination of employment was the probable result of Toll's conduct because she had no effective or real choice but to resign.

• [62] The legal principles in this area were not controversial between the parties. The onus is on Ms Hulme to prove that she did not resign voluntarily.[54] 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'.[55]

• [63] Ms Hulme submits the following:[56]

• That from the commencement of her employment with Toll, she was treated less favourably due to her gender.

• She was repeatedly victimised by co-workers and was the victim of sexual harassment.

• She repeatedly raised concerns about her treatment; however, Toll allowed the behaviour to continue.

• Through the investigation and the investigation outcome, Toll sought to minimise the poor conduct of Mr A, made some findings against Mr B, then, incomprehensibly, proposed that Ms Hulme should undergo professional development.

• [64] Ms Hulme submits that it is clear and unambiguous that she was left with no real choice but to resign. Further, by suggesting to Ms Hulme that she was the one who needed to take remedial steps because of the investigation, the decision to resign was a probable consequence of the action (and inaction) of Toll and its employees.[57]

• [65] In closing submissions, Ms Hulme argued that there were deficiencies in Toll's investigation - Toll did not ask her for witnesses in support of her complaints; she was not given the opportunity to respond to the evidence or claims of other witnesses; and she was not given a copy of the investigation report. Despite this, Ms Hulme says that the lack of procedural fairness is a small component of her argument. Ms Hulme says that it is Toll's decision on her complaint, the communication of that complaint, and the imposition of refresher training on her as a penalty that left her with no choice but to resign.

• [66] Ms Hulme also submitted that as Toll did not call Mr A or Mr B to give evidence, I should accept her uncontradicted evidence and find that she was subject to the conduct and poor treatment outlined in her evidence.

• [67] Toll submits that Ms Hulme was not dismissed as:[58]

• Toll did not engage in conduct that forced Ms Hulme to resign, or engage in conduct with the intention of bringing about Ms Hulme's resignation; and

• • at the time of Ms Hulme's resignation, she had other options that did not involve her resigning. Accordingly, she was not in the situation where she had no 'effective or real choice but to resign'.[59]

• [68] Toll further submits that its conduct in relation to Ms Hulme was reasonable management conduct consistent with her ongoing employment. Toll says it took Ms Hulme's allegations seriously and investigated them, and the investigation outcomes addressed the conduct issues identified.[60]

• [69] I accept and understand that male-dominated industries and workplaces can have issues with sexism and poor treatment towards women. I also accept that Ms Hulme was greatly affected by her employment with Toll, and I do not doubt the genuineness of her distress.

• [70] I accept and sympathise that Ms Hulme felt that she had no choice but to resign given the investigation did not turn out exactly as she had expected. However, the test for whether an applicant has real or effective choices other than resignation is an objective one and requires more than dissatisfaction.

• [71] I find that Hulme did have other real or effective choices other than resignation. Though Ms Hulme was aggrieved at the outcome of the investigation, some of her allegations were substantiated and there were recommendations that addressed the issues with lack of transparency of opportunities and the behaviour of Mr A and Mr B. Ms Hulme could have waited to see if the training addressed the poor behaviour of Mr A or Mr B. Ms Hulme could have followed up with Mr Davey, who wanted to talk to her about her decision to resign.

• [72] Ms Hulme also could have made an application to this Commission for stop bullying or stop sexual harassment order. During cross-examination, Ms Hulme confirmed that during her complaint with Toll, she was represented by and received advice from the TWU. When Ms Hulme was asked whether she had spoken the TWU about the possibility of making an application for a stop sexual harassment order, Ms Hulme confirmed that the TWU Organiser assisting her 'might have mentioned' that she could have proceeded with an application.

• [73] Given this, it is not necessary for me to make findings on the investigation or whether the conduct that Ms Hulme complained of occurred. However, I would note that Ms Hulme's argument in closing that Toll had to prove that their investigation was adequate and that Toll needed to call witnesses to prove the disputed events didn't happen is incorrect. The onus is on Ms Hulme to prove that she was dismissed, which includes the planks of her argument.

• [74] I also note that Toll did not provide the investigation report and Ms Hulme did not request it, even though it was not covered by legal privilege. I accept that Ms Hulme was not asked for a list of witnesses, nor was she given the opportunity to speak to any claims or issues that arose from the other witnesses. This could speak to procedural issues. To the extent that I need to make any findings, I find that there was simply not enough evidence before me to properly assess this. If Ms Hulme's formal complaint was her the diary she had started keeping in July 2024, it does identify individuals who could have been interviewed but I do not know who was actually interviewed. Based on the evidence before me, I cannot be satisfied on balance that the investigation was procedurally or substantively flawed.

• [75] Accordingly, I find that Ms Hulme was not dismissed within the meaning of s 386 of the Act. I order that her application be dismissed for want of jurisdiction.

S Millman of Counsel for the Applicant, instructed by Transport Workers' Union

N Ellery of Counsel for the Respondent, instructed by Herbert Smith Freehills

[1] [2020] FCAFC 152.

[3] Witness Statement of Kane Hurst, Digital Court Book 100 [1]-[5].

[4] Witness Statement of Carole Damaso, DCB 113 [1]-[4].

[5] Witness Statement of Clinton Davey, DCB 120 [1]-[3].

[6] Pseudonyms have generally been used in this decision where the individual did not give evidence, and negative commentary has been made about them or attributed to them.

[7] Witness Statement of Kane Hurst, DCB 101 [9].

[8] Ibid 101 [9]-[11]; Witness Statement of Louise Hulme, DCB 61 [28].

[9] Witness Statement of Louise Hulme, DCB 28 [11].

[10] Witness Statement of Daniel Jason Wilkins, DCB 48 [11]-[12]; See also Ibid 48 [15].

[11] Witness Statement of Louise Hulme, DCB 28-29 [12].

[20] Witness Statement of Daniel Jason Wilkins, DCB 50 [27].

[22] Witness Statement of Louise Hulme, DCB 29-30 [19].

[39] Witness Statement of Clinton Davey, DCB 121 [11]-[16].

[41] Witness Statement of Louise Hulme, DCB 56-57 [3(e)].

[43] Witness Statement of Clinton Davey, DCB 122 [23].

[44] Witness Statement of Louise Hulme, DCB 36 [64].

[45] Witness Statement of Carole Damaso, DCB 114 [12]-[16].

[52] [2017] FWCFB 3941.

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

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

[56] Applicant's Submissions, DCB 24-25 [25]-[34].

[58] Respondent's Submissions, DCB 95-96 [24]-28].

[59] See for example Jessica Watson v National Jet Systems Ltd [2021] FWC 6182 at [172], upheld on appeal in Jessica Watson v National Jet Operations Services Pty Ltd [2022] FWCFB 103.

[60] Respondent's Submissions, DCB 96 [29]-[31].

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