s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - no dismissal - factual dispute - whether Applicant resigned - Applicant did not resign - jurisdictional objection dismissed - application to proceed.

• [1] Mr Luke Williams-Green (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 16 May 2025. The Applicant claims that adverse action was taken against him by Woodward Foods Australia Pty Ltd (the Respondent) under ss.340, 341 and 343 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Respondent raised the jurisdictional objection that there was no dismissal under s.386 of the Act as the Applicant resigned from his employment. The Applicant contests the objection and alleges that the Respondent dismissed him.

• [3] I conducted a hearing on 23 July 2025. The Applicant was self-represented. I granted permission for the Respondent to be represented by Mr Dan Houlihan, solicitor.

• [4] The Applicant commenced employment with the Respondent on 3 April 2025. The Respondent operates in the meat industry and employs butchers and labourers.

• [5] On 29 April 2025, the Applicant was working with a supervisor, Nick. The Applicant alleges that Nick engaged in threatening behaviour. It is relevant to note what the Applicant said Nick told him, as it is part of the Applicant's argument that he felt unsafe. However, I make no findings as to the truth of the allegations. The Applicant stated that Nick said he was under the influence of methamphetamines. This caused the Applicant to feel unsafe. The Applicant then advised that he had a headache and left work early.

• [6] The application turns on the events of the following day, 30 April 2025. The Respondent contends that the Applicant resigned voluntarily on 30 April 2025. The Applicant contends that he did not provide a clear and unambiguous resignation or, alternatively, if he resigned it was in the heat of the moment was not subsequently affirmed.

• [7] On 30 April 2025, the Applicant arrived for his shift at approximately 10:00pm. He was working with Nick again. The Applicant alleges that Nick was threatening and aggressive. Approximately 10 minutes into his shift, Nick had a large meat knife strapped to his hip and allegedly threatened to cut the Applicant's head off. The Respondent argued that the video footage of the incident does not support the Applicant's version of events although "it did look to get heated a little bit at the end on both sides". There is no audio with the video footage. The Respondent contends that Nick gave the Applicant an instruction which the Applicant ignored.

• [8] Following that interaction, the Applicant went to the office and collected his house keys. Nick followed the Applicant into the office. According to the Respondent, this was protocol to make sure nothing was stolen.

• [9] The Applicant then sent the following text messages to Mr Troi Appleton, senior manager of the Respondent, at 10:28pm:

Applicant: Im leaving I'm not being threatened and spoken to like that!

Literally following me around saying he's going to knock my head of telling in my face and then telling me to meet him here out the front at 6am this is rediclous I'm out

• [10] The Applicant states that he attempted to call Mr Appleton multiple times but did not receive a response. Mr Appleton explained during the hearing that he was asleep at the time with his work phone downstairs, as he works a shift starting between 4:00am and 5:00am. Mr Appleton said he only saw one missed call from the Applicant when he woke up, a call from 10:25pm.

• [11] The Applicant then contacted another supervisor, Garry at 10:38pm via text message:

Applicant: Brother I'm leaving for to work and 10 minutes in I'm being abused with that idiot yelling in my face following me around threatening to knock my head off and to meet him out the front at 6am, then accusing me of stealing when grabbing my keys. Tried contacting Troi let him know no luck I'm leaving I'm done. Sorry bro contacting you this is rediclous

*Brother I'm leaving. 10 minutes in I'm being abused with that idiot "supervisor "yelling in my face following me around threatening to 'knock my head off' and to meet him out the front at 6am, then accusing me of stealing when grabbing my keys leaving, after putting up with his crap half last night. Tried contacting Troi let him know no luck I'm leaving I'm done. Sorry bro contacting you, this is rediclous

• [12] The Applicant did not receive a reply from Garry.

• [13] The Applicant then contacted the assistant Manager, Mr James Faulkner, and had the following text message conversation:

Applicant at 10:49pm: I'm leaving. 10 minutes in I'm being abused with that supervisor yelling in my face following me around threatening to 'knock my head off' and to meet him out the front at 6am, then accusing me of stealing when grabbing my keys leaving, after putting up with crap half last night from him. Tried contacting Troi let him know no luck. I'm leaving I'm done, this is rediclous.

Keep yourself safe and text me when you're out of there. I'll talk with Troi in the am

Applicant: Thanks mate, I've left. I'm good just not being spoken to like that and threatened lie that, this is crazy. He was talking all over the place saying random nonsense, on something

Mr Faulkner: Ok let's chats with Troi in the morning, I'm out of the loop atm being absent

Applicant: Literally telling me to come back to the warehouse at 6am for fight

• [14] The Applicant said that he did not leave the premises until he received the text message from Mr Faulkner saying, "Ok mate Keep yourself safe and text me when you're out of there.".

• [15] The following day, on 1 May 2025, Mr Appleton saw the Applicant's text messages and returned the Applicant's call at 7:52am. The Applicant did not answer.

Troi called Luke with no answer or response, due to the fact Troi was going to let him [the Applicant] go on Friday he had 5 interviews booked in for this day, he filled his position during the day.

• [17] At 3:58pm on 1 May 2025, the Applicant texted Mr Appleton and the following conversation ensued:

Applicant: Sorry missed your call. Can I please take be approved for annual leave tonight?

Mr Appleton: No mate, you resigned last night. Your final pay will be done on Tuesday. I have filled your position today already.

Applicant: The position is filled Ive been terminated mate. I left last night because

I wasn't been spoken to like that, I didn't resign.

Mr Appleton: You message Garry your supervisor Im leaving, Im done. You have also sent the same thing to James. You walked out at start of your shift, I have watched the cameras and seen nothing to stat you were being abused, until you fired up at Nic. He was your supervisor on the night and gave you an instruction, which you did not follow. I have heard Nic's side of the story and video footage backs up everything I am told. He has been with the company for over 4 years and has never had a complaint like this so I will believe his word over yours on this subject. Nic did his job and followed you onto the office, to make sure when you left you did not do anything wrong this is his job as a supervisor).

Either way, you were not working out for the company, you were constantly late, had already taken to many days off for my liking plus was not picking up the Job quick enough. I was going to finish you up tomorrow, by you walking out at start of shift, you have made my decision for me.

• [18] Section 386(1) of the Act relevantly provides that a person has been dismissed if:

(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] It is common for proclamations of "I'm leaving" by an employee to be interpreted by the employer as a resignation.

• [20] However, as the Full Bench recently noted in Sawyer v Wards Accounting Group Pty Ltd [2025] FWCFB 167 ('Sawyer'), it must be considered whether the words used are clear and unambiguous so as to signify an intention to bring the employment relationship to an end:

[61] The usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment. Implicit in that approach is a recognition that it is a necessary incident of the employment relationship that the other party must be notified in clear and unambiguous terms if a right to bring the contract to an end is being exercised. Consistent with that principle, an employee will not be found to have resigned unless the employee has clearly communicated an intention to do soto the employer. The only words spoken by Ms Sawyer at the meeting that could constitute notice of resignation were the final words said at the meeting which were as follows:

Damien, you need to move. I am done with your accusations. I'm leaving and I won't be back, especially after your behaviour today.

[62] Those words were spoken after what appeared to be a heated discussion about the proposed purchase of shares in Wards Accounting, the apparent intention of Mr Ward to continue working as a tax agent despite the investigation being conducted by the Tax Practitioners Board and in which Mr Ward questioned Ms Sawyer about alleged financial irregularities.

[63] The words attributed to Ms Sawyer, particularly in the context of the discussion as a whole, do not appear to us to represent unambiguous words of resignation. The phrase "I'm leaving and I won't be back" is equally consistent with being a statement that Ms Sawyer was leaving the meeting and would not be returning to the meeting. The words attributed to Ms Sawyer were spoken in the context of what was obviously a serious disagreement in relation to the conduct, and future operations, of the business. However, the context also included that Ms Sawyer had been working for Wards Accounting for nearly 16 years, had bought into the business and was treated as a partner of the firm. In the circumstances in which the words were spoken, including that they were said in the course of a heated meeting, we do not consider that Ms Sawyer could reasonably be understood to have conveyed a real intention to permanently end her employment. We also note that Ms Sawyer did not, in fact, leave the workplace and continued to perform work until approximately 5pm that day.

• [21] The analysis of the Full Bench in Sawyer is apt to apply to this matter.

• [22] The statement by the Applicant of "I'm leaving I'm done" is equally consistent with the Applicant leaving his shift early that night as it is with leaving his employment. The text messages were sent in the context of a heated argument with a supervisor. The Applicant reported the behaviour of Nick to various supervisors. The Applicant texted Mr Faulkner after he left the workplace and explained, "I'm good just not being spoken to like that and threatened lie that, this is crazy". In context, the Applicant's statement "I'm leaving I'm done" refers to leaving his shift, rather than leaving his employment. Further, the fact that the Applicant had previously left shifts early and then subsequently turned up for his next scheduled shift tends to support an argument that when the Applicant said he was leaving, he meant he was leaving for the day rather than that he was resigning. I find the Applicant's words were not clear and unambiguous and do not form a basis for an objective conclusion that the Applicant resigned on 30 April 2025.

• [23] I note the Respondent made arguments which appear to proceed on the basis that if there was a dismissal, it was justified due to the Applicant leaving shifts early or not picking up the job. Given the Respondent has made a jurisdictional objection that the Applicant in fact resigned, these are not relevant arguments for the Commission to consider.

• [24] I find that the Applicant did not resign on 30 April 2025. Consequently, the Applicant's employment was ended at the employer's initiative on 1 May 2025 when Mr Appleton told the Applicant that his final pay would be processed, and that his position had been filled already.

• [25] The Applicant was therefore dismissed at the initiative of the employer in accordance with s.386(1) of the Act. The jurisdictional objection is dismissed.

• [26] The matter will be programmed for a conciliation conference in accordance with s.368 of the Act.

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