s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal-jurisdictional objection that the Applicant was not dismissed-jurisdictional objection upheld-application dismissed

• [1] This decision concerns an application made by Mr Mark Marshall (the Applicant) to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (the Act). The Applicant contends that Mercure Port of Echuca (the Respondent) contravened various provisions of Part 3-1 of the Act by dismissing him from his employment. The Respondent disputes that the Applicant was dismissed asserting he resigned from his employment and pressed a jurisdictional objection on that basis.

• [2] The Fair Work Commission (Commission) generally does not have a determinative function in relation to applications brought under s.365 of the Act unless the parties agree to the Commission arbitrating the matter. Rather, the Commission's role is to convene a conference and to issue a certificate to the Applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the Respondent denies that the Applicant was dismissed withing the meaning of s.386 of the Act and objects to the application on this basis, the Commission is required first to determine whether the Applicant was in fact dismissed or not.[1]

• [3] The parties filed materials in accordance with the directions. The Applicant filed written submissions, and a witness statement. The Respondent filed submissions and provided a witness statement from Ms J Wirth, acting housekeeping supervisor for the Respondent. A hearing by Microsoft Teams was held on Wednesday, 7 May 2025.

The events leading to the end of the employment relationship

• [4] The Applicant worked as a hotel cleaner for the Respondent. His duties included cleaning the reception area, public toilets, conference rooms, restaurant, BBQ area, all bins, linen distribution, stocking storerooms and cleaning trolleys, stripping rooms and collecting rubbish from the rooms.[2]

• [5] The Applicant's evidence was generally to the effect that he liked his job.[3] However, on the weekend of the 22nd and 23rd of February 2025 the Applicant complained that the workload was particularly heavy and that it was very hot in Echuca.

• [6] His evidence was that while breaks were scheduled for staff, he was unable to take a break as he was too busy. Ms J Brown, the housekeeping manager, gave him a note regarding returning to an area where it was said he had not completed cleaning the mats and a spill of coffee or milk. The Applicant accepted that he raised his voice and started to report to Ms Brown by saying "yes miss"[4].

• [7] Shortly thereafter, the Applicant attended a meeting with Mr A Freak, the General Manager, Ms Brown and Ms Wirth.

• [8] Ms Wirth gave evidence that at the meeting the Applicant threw his keys on the desk and indicated he was leaving and that the Applicant said, "I quit"[5]. Mr Freak gave evidence that the Applicant said he was resigning. The Applicant was somewhat inconsistent as to what was said by him. At the mention hearing, the Applicant agreed that he resigned but that he did so in the heat of the moment. At the substantive hearing, the Applicant, gave evidence that he said, "am I being fired?".[6] There is no evidence that any of the employer representatives advised the Applicant that they were intending to dismiss him. The unchallenged evidence of Ms Wirth is that she confirmed she was not sacking him but simply wanted to complete a conversation with him as to the work required.[7] Mr Freak did not advise the Applicant he was intending to dismiss him.[8] Nevertheless, the Applicant said "Well, beat you to it". He was unsure if he said, "I quit".[9] Irrespective, the Applicant's evidence is that his intention was to resign.[10] He then left the premises.

• [9] Approximately one hour after the Applicant resigned the Applicant rang Mr Freak on the main reception phone. Mr Freak did not take the call at the time but returned the Applicant's call shortly after the Applicant had rung. At the mention hearing on 31 March 2025, the Applicant disputed that there was a phone call however during the jurisdictional hearing he conceded that the phone call did take place. In that call, the Applicant apologised for his actions, however confirmed that he did not intend to return to the workplace. He did not seek to retract his resignation. Mr Freak subsequently accepted the Applicant's resignation and advised his payroll person, Mr P Dunster, by email that day that the Applicant had resigned.

• [10] The Applicant's evidence as to workload was also inconsistent. A significant amount of evidence was given by the Applicant as to the heavy workload he was under, particularly on the 22nd and 23rd of February. However, when I put to the Applicant that I understood his position to be that he felt he had no option but resign because of the heavy workload he replied "no not under the heavy work, I like my job"[11]. However, he maintained, and I accept that the workload on the weekend of the 22nd and 23rd was particularly busy.[12]

• [11] As to the taking of breaks, the Applicant gave evidence that there had been difficulty securing breaks but that had been resolved some weeks prior to his resignation.[13] Despite this, the Applicant maintained that he still did not get a chance to take a break.[14] However, his evidence in conclusion was "Just on the break situation it didn't really bother me on the break situation."[15] Mr Freak gave evidence that the employees were able to take the breaks that they were entitled to under the award.[16]

• [12] Ultimately the Applicant's evidence was to the effect that while the workload was generally heavy it was manageable, but that weekend of the 22nd to the 23rd of February it was hot and particularly busy.[17]

• [13] Mr Freak asserted that while the role being performed by the Applicant was both physically demanding and dynamic in nature as it is across the industry, the expectations placed upon the Applicant were no different from the other employees within the department and the requests made to the Applicant were reasonable and consistent with what would be expected in the role at similar properties.[18] Ms Wirth gave evidence that all the work the Applicant was asked to do was in his job description.[19] The Applicant also agreed at hearing that all these tasks described by Ms Wirth were in his job description.[20]

• [14] Section 386 of the Act sets out the meaning of dismissed.

(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.

• [15] A useful summary of the relevant law was set out by Deputy President Hampton in Tao Yang v SAL HR Services Pty Ltd[21]. Essentially the general principles to be applied in circumstances such as these are well established in case law. An employer is generally able to treat a clear and unambiguous resignation as a resignation. However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise. That is, in some circumstances it may be unreasonable to assume a resignation and accept it immediately. Further, the employer may have a duty to confirm the intention to resign if, they during that time, they are put on notice that the resignation was not intended[22].

• [16] As stated, the general principles to be applied are well settled. Stated succinctly, they include:

• The question as to whether there was a dismissal within the meaning of the Act is a jurisdictional fact that must be established by the Applicant;
• A termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it "forced" the resignation;
• The employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
• Conduct includes an omission;
• Resignations that are clear and unambiguous may be treated on face value unless special circumstances are present which warrant the employer confirming the intention of the employee;
• Considerable caution should be exercised in treating a resignation as other than voluntary (forced) where the conduct of the employer is ambiguous and it is necessary to determine whether the employer's conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
• In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the parties' conduct is required.

• [17] I agree with those principles and will apply them here so far as they are relevant.

• [18] While most of the evidence in this matter is not in contest, there are some disputed facts. Mr Marshall was earnest in the way he gave his evidence but struggled to maintain focus on the various issues under consideration. As set out earlier, his evidence was often inconsistent. I accept that some of that inconsistency can be explained by his evident difficulties with literacy. However, in contrast the evidence of the Respondent's witnesses were consistent and credible. Where there is disputed evidence, I prefer the evidence of the Respondent's witnesses.

Was the resignation one given in the heat of the moment?

• [19] It's apparent on the evidence that on the day he resigned the Applicant was somewhat fatigued and frustrated by the amount of work he was undertaking in the relatively hot weather. He was also clearly frustrated with being asked to clean areas that he understood he had already cleaned. The Applicant could have dealt with the situation in a number of ways, including by simply doing what he could do in the time allocated and advising the employer he could do no more. However, after very little discussion, the Applicant resigned from his employment. However, I am satisfied that he did so impulsively and under some pressure. As such, special circumstances arise. Those special circumstances are such that the employer needed to allow a reasonable period of time to pass before confirming the intention to resign. In fact, the employer did not immediately act to accept the resignation. The Applicant called Mr Freak approximately one hour after the dismissal. During that conversation the Applicant apologised for his conduct, however, he did not seek to rescind his resignation and rather confirmed that he would not be returning.

• [20] Subsequent to that phone call the employer was entitled to treat, what was by then, a clear and unambiguous resignation as a resignation. There was no additional duty for them to confirm the intention of the Applicant when the Applicant had made it clear in the subsequent phone conversation that he would not be returning. While the Applicant attended the workplace two days later seeking to see the employer to ask for reinstatement, there was no obligation on the employer to meet with the Applicant or allow the Applicant to retract his resignation at that late stage.

• [21] As to whether the Applicant had no choice but to resign, this turns on the evidence as to the Applicant's workload.

• [22] I am satisfied on the evidence that the Applicant had a heavy workload on the weekend of the 22nd and 23rd of February and that the weather was likely hot. The evidence is that at least two other employees were also behind schedule.[23] However, the Applicant was not in the position that he had no choice but to resign. The unchallenged evidence of Mr Freak is that the Applicant did not appropriately escalate those concerns.[24] He could have made complaints about the workload and allowed some time for the employer to act on those complaints. He did not do that but chose instead to resign. In any event, I am not satisfied on the evidence that the workload of the Applicant was so onerous that he had no choice but resign.

• [23] The Applicant was no doubt under work pressure on the relevant weekend, however, his resignation appears to have been motivated more by his frustration at having been required to clean an area he believed he had already cleaned. Having reacted by yelling at his supervisor, he was concerned he may be terminated, and he chose to "beat [them] to it"[25]. However, there is no evidence that the Respondent was moving to terminate the Applicant.

• [24] In the circumstances, I'm not satisfied the resignation was a forced resignation.

• [25] For the reasons stated above I am not satisfied that there was a termination at the initiative of the employer, nor am I satisfied that the Applicant was forced to resign because of conduct, or a course of conduct engaged in by the employer. Therefore, I'm not satisfied the Applicant was dismissed within the meaning of s.386 of the Act.

• [26] The jurisdictional objection is upheld, and the application is dismissed.

• [27] An order[26] to this effect is issued in conjunction with the publication of this decision.

[1] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd [2020] FWCFB 5365).

[2] Digital Hearing Book (DHB), page 29.

[21] [2023] FWC 1325, [50].

[22] Ngo v Link Printing Pty Ltd(1999) 94 IR 375 at [12].

[26] PR787265.

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