s.365 - General protections

General protections applications involving an alleged dismissal - whether applicant was dismissed.

• [1] Mr Harrison has lodged an application pursuant to s 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections dispute involving an alleged dismissal. The respondents to the dispute are Mr Harrison's former employer, Toll Holdings Pty Ltd, and Mr Greg Schmerl, Toll's Head of Human Resources.

• [2] Mr Harrison contends that he was dismissed by Toll in contravention of the general protections provisions in Part 3-1 of the Act. The respondents raised a jurisdictional objection to the application. They contend that Mr Harrison was not dismissed by Toll.

• [3] The Commission must determine whether Mr Harrison was dismissed before it can exercise powers under s 368 of the Act to deal with a dispute about whether Mr Harrison was dismissed in contravention of the general protections.[1]

• [4] On 6 and 29 August 2025, I conducted a hearing, by video conference, in relation to whether Mr Harrison was dismissed by Toll. Mr Harrison gave evidence at the hearing. Toll adduced evidence from Mr Luke Eaton, Toll's Senior People Partner, Mr Bruno Condello, Toll's Head of Global Infrastructure Modernisation, and Mr Prabhu Venkataramanaiah, Toll's Head of Value Stream for Global Logistics Australia. Without meaning any disrespect, I will refer to Mr Prabhu Venkataramanaiah as Prabhu in this decision because that is how he requested to be referred to at the hearing.

• [5] The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:

(a) the person's employment with his or his employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer."

• [6] Mr Harrison relies on both s 386(1)(b) and, in the alternative, s 386(1)(a) of the Act.

• [7] The reference in s 386(1)(a) of the Act to "the person's employment with his or her employer [having been] terminated" is a reference to the person's contract of employment being brought to an end (or, perhaps in some cases, repudiated).[2]

• [8] In circumstances where the employee does not leave their employment voluntarily, the focus of the inquiry under s 386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[3]

• [9] Section 386(1)(b) of the Act concerns the resignation of an employee where the resignation was "forced" by conduct or a course of conduct on the part of the employer. The question of whether a resignation did or did not occur does not depend on the parties' subjective intentions or understandings.[4] Whether an employee resigned depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances.[5]

• [10] The test to be applied in determining whether a resignation was "forced" within the meaning of s 386(1)(b) is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign.[6] The requisite employer conduct is the essential element.[7]

• [11] The detailed witness statements filed by each party, which I have read and considered, descend into significant detail concerning alleged events and conversations on various days during Mr Harrison's employment with Toll. For the reasons explained below, I do not need to make factual findings about what happened on each of those occasions to determine whether or not Mr Harrison was dismissed within the meaning of the Act.

• [12] At 9:21am on 19 March 2025, Mr Harrison sent an email in the following terms to Mr Eaton:

I'm not sure if you are the appropriate person for me to reach out to, so if I have incorrectly engaged you, I apologise.

I was hoping to find some time with yourself or someone within P&C so that I can discuss an ongoing issue I have with a manager of the greater IT team. I have been working on and off with my direct supervisor the past few months to resolve these issues when they occur as individual instances. However it has continued [sic] occur with increasingly [sic] frequency, to the point it is now a regular occurrence. My most recent discussions with my manager have not filled me with confidence that this matter is being given the care and concern I expect.

To be clear, at this stage I do not require or request HR intervention on this matter. But I am becoming increasingly concerned that this matter will not be dealt with fairly or justly, and would like to seek both advice, and to have my concerns documented.

Is it possible to book 30 minutes with you in the next day or so to chat about this?

• [13] At 9:31am on 19 March 2025, Mr Eaton responded as follows:

I'm happy to provide you with some guidance related to your concerns. If you're ok with getting general advice to help dealing with someone I'm very happy to sit with you to discuss your situation, but depending on the nature of the conversation I'll may [sic] need to document your concerns and take action.

My calendar is up to date if you'd like to find some time.

• [14] Later on 19 March 2025, Mr Harrison and Mr Eaton exchanged some further emails seeking to set up at time for their discussion.

• [15] At 10:04am on 20 March 2025, prior to any discussion taking place between Mr Harrison and Mr Eaton, Mr Harrison sent an email to Mr Eaton in the following terms:

Not wanting to railroad you mate so I am just sending you this as a heads up, I will be submitting my resignation momentarily. When I reached out to you yesterday morning it was on the back of some comments I received and concerns I had towards those. Shortly after we spoke on email at [sic] the situation deteriorated when Bruno called me.

Ultimately my reasons for wanting to catch up no longer apply and I am exhausted by this issue and effort I have had to spend resolving it."

• [16] The statement in Mr Harrison's email that "the situation deteriorated when Bruno called me" clearly indicates that it was his conversation with Mr Condello that triggered Mr Harrison's decision to resign from his employment with Toll. That conversation took place, for about eight to ten minutes, at about 10:15am on 19 March 2025. Mr Condello gave the following account of the conversation in his first witness statement dated 9 July 2025:

5.15 I had a further discussion with the Applicant on 19 March 2025 at around 10:15AM. This was preceded by a short exchange between us on MS Teams which commenced on the afternoon of 18 March and then continued into the morning of 19 March 2025. I attach and mark as Annexure BC-5 a copy of the Teams exchange between myself and the Applicant. I note that there was nothing in the tone of the correspondence which caused me to be concerned that there was a prospect that the Applicant was considering resigning or that he had been subjected to any conduct that would constitute bullying.

5.16 In my discussion with the Applicant I advised him that I had spoken with Prabhu and that Prabhu had indicated that he was going to call him to try to resolve his concerns. The Applicant in response to being made aware of this proposed approach did not indicate to me that he was uncomfortable at all with this suggestion. I also took the opportunity to discuss with the Applicant my views in relation to a number of the emails that he had sent to me, specifically Annexure BC-5(a) and BC-5(b). I indicated to the Applicant:

(a) In respect to Annexure BC-5(a), that it did not seem to be an unreasonable request and that Prabhu indicated that he was prepared to undertake the same activity for the site in Victoria; and

(b) In respect to Annexure BC-5(b), this is also did not seem to be an unreasonable request and was in fact assisting our team (Global Infrastructure) to help deliver on the Windows 10 upgrade program. I indicated that this was consistent with what was being asked of other Regional Service Managers of the team.

5.17 The Applicant did not argue with my view but I did have the sense that he was not satisfied at the conclusion of our conversation. Our discussion on 19 March was approximately 10 minutes in duration and following its conclusion I expected that there would be a discussion between the Applicant and Prabhu at some point in the future and that any outstanding issues were capable of being resolved through further discussion."

• [17] Mr Harrison gave the following evidence in his witness statement dated 23 July 2025 about the conversation:

"51. On 19 March 2025, Bruno called me and told me he had spoken with Prabhu, but that I would now need to organize time with Prabhu to resolve these issues directly. During this conversation:

a) Role clarification burden shifted to me: When I requested Bruno's assistance in clarifying my contested roles and responsibilities, he told me to seek clarity from Shelley Mitchell (my peer) or other peers of Prabhu instead.

b) Criticism for defending my role boundaries - Bruno said my behaviour of refusing unreasonable demands was unacceptable because it was a "visible refusal in front of other colleagues." He told me I should know better than to resist these directions when senior business members were watching - effectively saying I was not allowed to stand up for myself if people were watching. This was despite Bruno previously agreeing on 14 March 2025 that these tasks were not my job and inappropriate given my condition.

1. False claims about my performance - Bruno informed me that Prabhu had claimed my emails were simply the result of me being "very stressed and struggling." I had never discussed my mental health, stress, or workload with Prabhu.

d) False claims about meeting attendance - Bruno said Prabhu complained I was no longer attending regular meetings with his business unit. This was false - Prabhu repeatedly scheduled meetings that overlapped with my existing commitments or were outside work hours, which I had communicated repeatedly.

1. I was told this was the end of the investigation, no further action would be taken, and that this was the pathway Kartik wanted. I needed to resolve this directly with Prabhu myself. I explained that I had come to Bruno because I was unable to resolve anything with Prabhu. Bruno offered to sit in on the call as a support person but clarified he would have no authority in the conversation. At the time, I was out to coffee with Kiran Thakur (a direct report of Prabhu), so it was not appropriate to continue airing my grievances in detail. Bruno ended the call after 8 minutes."

• [18] Mr Condello's witness statement in reply dated 30 July 2025 includes the following response to paragraph [51] of Mr Harrison's witness statement:

"34. In response to [51] of the Applicant Statement, using the (a)-(d) paragraph numbering in the Applicant Statement:

(a) I clarified what the Applicant's role is and I referred to Shelley. I did not recall telling him to speak to Shelley.

(b) I agree that I said that if we have disagreements of issues internally in IT, we should not send them out publicly, referring to the Woolworths Distributions Centre issue. I do not consider I was "criticising" him. I was just giving him feedback on the issue.

(c) I recall Prabhu saying he was surprised the Applicant had issues at all and thought that he had a good relationship with the Applicant. Prabhu said that he may have had personal issues given he had not been turning up to meetings.

(d) I recall that Prabhu did say that the Applicant had not been attending regular meetings."

(a) stated that he told Mr Harrison that Prabhu would contact him to discuss the issues;

(b) said that he may have suggested for Mr Harrison to speak with Shelley Mitchell or other Toll employees in the same position as Mr Harrison about their duties and responsibilities;

(c) did not accept that he told Mr Harrison that his behaviour of refusing unreasonable demands was unacceptable because it was a "visible refusal in front of other colleagues";

(d) did not accept that he told Mr Harrison that he should know better than to resist these directions when senior members of the business were watching. Mr Condello explained to Mr Harrison that the IT department should discuss any issues they have internally, rather than in the presence of their clients (business units within Toll);

(e) expressed the view that the tasks and duties assigned by Prabhu to Mr Harrison were within the scope of his position. The issue that Prabhu and Mr Harrison needed to discuss was the frequency of such requests and the manner in which they were communicated to Mr Harrison;

(f) did not recall informing Mr Harrison that Prabhu had claimed that Mr Harrison's emails were simply the result of him being "very stressed and struggling";

(g) agreed that he informed Mr Harrison that Prabhu had said that Mr Harrison had not been attending regular meetings;

(h) did not accept that he told Mr Harrison that this was the end of the investigation, no further action would be taken, and that this was the pathway Kartik wanted;

(i) did not accept that Mr Harrison said that he had come to Mr Condello because he was unable to resolve anything with Prabhu; and

(j) agreed that he offered to sit in on the call between Mr Harrison and Prabhu, but denied that he told Mr Harrison that he would not have any authority in the conversation.

• [20] I prefer the evidence given by Mr Condello regarding his discussion with Mr Harrison on 19 March 2025 over that of Mr Harrison. I found Mr Condello to be a careful and reliable witness who answered questions directly and responsively. In contrast, a number of Mr Harrison's responses during the hearing were argumentative and non-responsive. When asked whether he was genuinely upset by matters that a reasonable person would likely regard as minor - such as being referred to as a member of Prabhu's team or being required to attend the Prestons site - Mr Harrison sought to deflect attention to other issues. This was despite the fact that he had previously complained to Mr Condello about being referred to by Prabhu as a member of his team, and to Mr Prabhu about the travel requirement to the Prestons site. I consider that Mr Harrison's evidence concerning factual matters, including his discussion with Mr Condello on 19 March 2025, has been coloured by the extent to which he feels aggrieved by what he perceives to be conduct on the part of Toll that led to the termination of his employment and contributed to his health difficulties.

• [21] At 10:26am on 20 March 2025, Mr Harrison sent a resignation email in the following terms to Mr Harrison (cc Mr Eaton):

It is with regret that I formally submit my resignation, effective today, with my last day being 15/05/2025 as per the terms in my employment contract.

This decision is not one I take lightly, however this has become unavoidable due to the persistent workplace bullying, unreasonable demands, and lack of action from management despite my repeated efforts to seek resolution.

Over the past several months, I have repeatedly raised concerns regarding:

• - Being repeatedly assigned duties outside my job description, despite clearly stating these tasks are not part of my role.
• - Intimidation and public undermining, including instances where my professional integrity was misrepresented.
• - A hostile and unrelenting work environment that has severely impacted by mental well-being add ability to perform my actual duties.
• - The failure of management to intervene, despite acknowledging the issue and the potential impact on my employment.

On 14/03/25, I explicitly informed you that if the situation was not resolved, I would be forced to resign due to the stress and anxiety it has caused. You acknowledged that Prabhu has a known pattern of this behaviour and even stated once he realises that complaint has come from me, he is likely to escalate his actions. I made it clear that the situation was untenable without active intervention by management. Despite this, instead of taking appropriate action, yesterday I was instructed to resolve the issue myself with the very individual responsible for the misconduct.

Despite my repeated concerns, no meaningful steps have been taken to address the situation, nor manage the psychosocial risk, leaving me with no reasonable choice but to resign. I had hoped for a resolution that would allow me to continue in my role go back but the ongoing stress and lack of support have made this untenable.

I am CC'ing Luke Eaton on this email to ensure there is a formal record that this resignation is being submitted due to the ongoing issues that have not been addressed despite my repeated attempts to resolve them. Given the circumstances, I believe this situation may warrant consideration as constructive dismissal. I request that HR acknowledge receipt of this resignation and provide guidance on the necessary exit procedures.

• [22] The resignation email is the first time that Mr Harrison raised allegations of workplace bullying and intimidation.

• [23] Mr Harrison did not have a discussion with Prabhu in the period between his conversation with Mr Condello on the morning of 19 March 2025 and the sending of his resignation email at 10:26am on 20 March 2025.

• [24] On 20 March 2025, after sending his resignation email, Mr Harrison spoke to Mr Eaton. Mr Harrison raised some issues concerning Prabhu's behaviour towards him but said that he wanted the situation to "go away" rather than have human resources intervene. I accept Mr Eaton's evidence that he suggested to Mr Harrison that he finish work immediately because Mr Eaton misread Mr Harrison's email.[8] Mr Eaton apologised to Mr Harrison for making that mistake.

• [25] At some time between about 11am and 2pm on 21 March 2025, Mr Harrison spoke to Mr Kartik Thakkur, the direct manager of Mr Condello and Prabhu. Mr Thakkur acknowledged that there had been failures. I accept Mr Harrison's unchallenged evidence that he informed Mr Thakkur that he did not want to resign and would like the matter resolved so he could remain at Toll. Mr Harrison's account of this conversation is somewhat different from his email to Mr Beltrami on 7 April 2025, but that email related to Mr Harrison's conversation with Mr Thakkur on 4 April 2025. In that conversation, Mr Thakkur asked Mr Harrison several times what he would see as a resolution and Mr Harrison explained that he had already resigned due to the sustained stress and he did not feel it was fair or realistic to be asked to come up with a resolution.[9]

• [26] On 24 March 2025, Prabhu called Mr Harrison without prior notice. Mr Harrison contends that Prabhu "immediately began asserting control over my role and reporting structure".[10] Mr Harrison also contends that Prabhu was aggressive during this call.[11]

• [27] I accept Prabhu's evidence that he did not know that Mr Harrison had resigned at the time he called Mr Harrison on 24 March 2025. Consistent with this, I also accept Prabhu's evidence that there was nothing adversarial about the conversation. Prabhu was seeking to understand from Mr Harrison what were the issues he wished to resolve. After observing Prabhu give evidence, I accept Mr Condello's description that Prabhu "can be direct as he likes to plough through the issues and get to the outcome".[12] For the same reason, I do not accept that Mr Condello said to Mr Harrison on 14 March 2025, "I have been expecting this phone call from you, because I know that this is how he [Prabhu] is".[13]

• [28] Following further communications between Mr Harrison and Mr Eaton in the period from 24 March 2025 until 7 April 2025, Mr Harrison had another discussion with Mr Eaton on 9 April 2025. Mr Harrison expressed dissatisfaction with the way the matter had been dealt with and stated that he considered there to be a group of people protecting Prabhu. Mr Eaton said that Toll could proceed with a formal investigation if Mr Harrison wanted to take it up. Mr Harrison confirmed that he wanted an investigation to occur. Mr Eaton explained that they could investigate the matter, and there was a formal structure they could commence.

• [29] Later on 9 April 2025, Mr Eaton sent Mr Harrison a letter "which starts the investigation". The letter relevantly stated:

"I understand that you wish to raise a complaint. Your feedback is important to us, and we aim to address any issues promptly and fairly. To help us fully understand the matter and ensure we take the appropriate steps, I kindly ask you to provide some details regarding your complaint:

Please provide the above information in as much detail as you feel comfortable sharing. This will allow us to better understand your perspective and address the issue appropriately.

We are committed to ensuring that this matter is handled confidentially and in line with workplace policies...

Attached is a confidentiality notice. Please review the notice and sign as appropriate...

Toll takes matters such as this seriously. We are conducting a full and fair investigation which requires your input. Your duty as an employee is to participate fully and honestly, and to respect the privacy of the parties involved.

Accordingly, you should not interfere with the investigation in any way. In order to allow us to conduct a full and fair investigation and avoid rumours and keep disruptions to a minimum, we ask that you not talk about the matters discussed in this room with your co-workers or with any individuals outside of your immediate family/household (excluding professional advisors for the purpose of seeking legal advice).

If you choose not to sign the notice, please note that Toll's requirements of you as an employee participating in an investigation (as outlined above) are mandatory and apply regardless..."

• [30] In response, Mr Harrison sent an email in the following terms to Mr Eaton at 5pm on 9 April 2025:

"After reviewing the document, and our discussion earlier today I have not insignificant concerns regarding the independence and fairness of this process, and my participation in it due to the repeated breaches of trust and existing retaliatory treatment I have received.

Could I please ask that your manager is in the meeting tomorrow."

• [31] On 10 April 2025, Mr Harrison spoke to Mr Eaton. It was not possible for Mr Eaton's manager to participate in the call because he was on leave at the time. Mr Harrison spoke about the process for making a complaint and the need for specific details to allow other people to respond. Mr Harrison raised concerns about Mr Eaton's impartiality in investigating the issues because Mr Eaton had sent him the confidentiality notice, which was taken from Toll's standard operating procedure for dealing with complaints. Mr Harrison did not articulate with any clarity his concerns about the confidentiality notice but was adamant in his discussion with Mr Eaton that he could not sign it.

• [32] I accept Mr Eaton's evidence that in their discussion on 10 April 2025 Mr Harrison said that if Prabhu's behaviour changed, he would rescind his resignation.[14] Mr Harrison says that he raised the idea that he might be willing to "return if the matter was properly resolved" in his discussion with Mr Eaton a few days earlier, on 7 April 2025. I prefer Mr Eaton's evidence about this matter. Mr Harrison sent an email to Mr Damian Beltrami, Toll's Chief Information Officer, at 12:30pm on 7 April 2025. In that email Mr Harrison referred to the fact that he had resigned and stated that he did not feel it was fair or realistic to be asked to come up with a resolution.[15] Mr Harrison did not propose rescinding his resignation in that email. Given that Mr Harrison spoke to Mr Eaton about 20 minutes after sending his email to Mr Beltrami on 7 April 2025, I consider it more likely than not that Mr Harrison would have referred to the idea of rescinding his resignation in his email to Mr Beltrami if he spoke to Mr Eaton about it on the same day.

• [33] On 11 April 2025, Mr Eaton emailed Mr Harrison indicating that one of Mr Eaton's colleagues would be dealing with his complaint. However, the investigation did not commence because Mr Harrison did not provide details of his complaint and did not sign the confidentiality notice.

• [34] In these proceedings, Mr Harrison raised the following concerns about the confidentiality notice:[16]

"After the meeting I received a letter from Luke [Eaton] containing confidentiality requirements that would have unlawfully restricted my statutory rights. Beyond prohibiting discussion with colleagues or external parties with no time limits, it would have prevented me from seeking medical treatment for my work-related mental health injury, as doctors are not 'legal advisors'. It would also have prevented me from lodging a workplace health and safety claim or speaking to Fair Work Australia [sic]. The only carve-outs were for 'immediate family' and 'legal advisors' - a restriction so broad it would have interfered with my fundamental rights to healthcare and statutory protections. I sought legal advice for this letter, it was conveyed to me that this would likely constitute an unlawful order that bore no resemblance to legitimate investigation confidentiality requirements. This was not about conducting a fair investigation - it was about silencing me and preventing me from exercising my legal rights."

• [35] Mr Eaton gave evidence, which I accept, that Mr Harrison did not raise these concerns with him at the time the confidentiality notice was sent to Mr Harrison, and if they had been raised, Mr Eaton would have (a) confirmed that the confidentiality notice was not intended impede his ability to seek medical support and (b) explained to Mr Harrison that if he thought particular witnesses should be spoken to during the investigation, Mr Harrison could provide the names of those witnesses to Mr Eaton and he would talk to them as part of the investigation.

• [36] In the period from 14 to 23 April 2025, Mr Harrison was absent from work on a mixture of personal leave and annual leave. He had about six days' personal leave and three weeks annual leave accrued at that time.

• [37] In the period from 24 April 2025 until the last day of his employment with Toll on 15 May 2025, Mr Harrison was absent from work and in receipt of workers' compensation payments. Those payments continued until 6 August 2025.

• [38] In the period from 11 April 2025 until his last day of employment with Toll on 15 May 2025, Mr Harrison communicated with various Toll employees about the commencement of an investigation. For example, on 14 April 2025 Mr Harrison met with Toll's Global Head of Security to discuss the commencement of an investigation under Toll's Serious Misconduct/Whistleblower policy. On 23 April 2025, Mr Schmerl responded to an earlier communication from Mr Harrison, asking him to particularise his complaint in writing. Mr Harrison did not provide such particulars. Mr Harrison considered that he had already provided detailed written complaints to Toll. On 7 May 2025, Mr Harrison agreed to meet with Mr Schmerl to progress matters, but Mr Schmerl did not respond.

• [39] On 5 May 2025, Mr Harrison made a complaint to SafeWork NSW in relation to conduct to which he alleges he was subjected while employed by Toll.[17]

• [40] Mr Harrison contends that he was forced to resign from his employment with Toll because of conduct, or a course of conduct, engaged in by Toll within the meaning of s 386(1)(b) of the Act. By way of overview, Mr Harrison contends that he was subjected to a systematic course of conduct by Toll, primarily through Prabhu, that:

(a) fundamentally altered his role and responsibilities without consultation;

(b) imposed unreasonable and excessive workload demands;

(c) created public embarrassment and undermined his professional standing;

(d) repeatedly took adverse action against Mr Harrison for exercising protected rights; and

(e) demonstrated a pattern of disregard for his concerns and well-being.

• [41] Mr Harrison contends that this conduct escalated over time and, when combined with management's inadequate response, created conditions where resignation became inevitable. Mr Harrison says that these matters were brought to the direct attention of Senior and Executive

leadership in HR, IT and Compliance - however despite this no formal investigation was ever conducted. Mr Harrison contends that, viewed objectively, his resignation was the probable result of Toll's course of conduct, considered cumulatively.

• [42] In the alternative, Mr Harrison contends that he was dismissed within the meaning of s 386(1)(a) of the Act. Mr Harrison says that he was psychologically impaired due to Toll's conduct at the time he resigned, such that he could not reasonably have been understood to be conveying a real intention to resign. This, together with Toll blocking any pathway he might have had to rescind his resignation, Toll refusing to conduct an investigation, and "continued problematic conduct" after his resignation, is alleged by Mr Harrison to constitute dismissal on Toll's initiative within the meaning of s 386(1)(a) of the Act. Mr Harrison also contends that his resignation was acceptance of Toll's repudiation, not initiation by Mr Harrison of his termination.

• [43] Mr Harrison submits that post-resignation conduct on the part of Toll and its employees is relevant in two ways. First, it is contended that post-resignation conduct provides objective evidence of the pre-resignation environment. For example, where an employer continues the same problematic conduct after resignation (aggressive call on 24 March 2025) it corroborates the claim that the pre-resignation conduct was systematic, not isolated. Secondly, Mr Harrison contends that his immediate and consistent efforts to rescind his resignation demonstrate that (a) his resignation was not voluntary but forced by circumstances,[18] (b) he genuinely wanted to maintain employment, and (c) Toll's refusal to investigate prevented any possibility of rescission of his resignation.

• [44] Toll submits that Mr Harrison was not dismissed within the meaning of s 386(1)(a) or s 386(1)(b) of the Act. Toll submits that much of the conduct about which Mr Harrison now complains occurred well before he submitted his resignation on 20 March 2025, with the result that the conduct is too remote to bear on Mr Harrison's decision to resign.

• [45] I accept Mr Harrison's evidence that he has been diagnosed with two mental health disorders and has been certified as unfit for duties. I have sympathy for Mr Harrison's personal circumstances. However, for the reasons explained below, Mr Harrison was not dismissed within the meaning of s 386(1)(a) or (b) of the Act.

• [46] It is clear from the content of Mr Harrison's email to Mr Eaton at 9:21am on 19 March 2025 (see paragraph [12] above) that Mr Harrison was not, at the time of sending that email, feeling any compulsion to resign. At 9:21am on 19 March 2025, Mr Harrison was simply "hoping to find some time with ... someone within P&C ... [to] discuss an ongoing issue ... [he had] with a manager of the greater IT team". At that time, Mr Harrison did not "require or request HR intervention on this matter. But ... [he was] becoming increasingly concerned that this matter will not be dealt with fairly or justly, and would like to seek both advice, and to have my concerns documented". Yet, at 10:04am on 20 March 2025, about 24 hours after reaching out to Mr Eaton to organise a discussion in the "next day or so", Mr Harrison gave Mr Eaton the "heads up" that he would be "resigning momentarily".[19] The reason for Mr Harrison's change in position was evidently his discussion with Mr Condello at about 10:15am on 19 March 2025, at which time Mr Harrison considered that the "situation deteriorated".

• [47] Based on my findings set out above as to what was discussed between Mr Harrison and Mr Condello in their short discussion on 19 March 2025, there was nothing in those communications that indicated an intention on the part of Toll to bring Mr Harrison's employment to an end, nor would such communications, on any reasonable view, probably have that effect such that Mr Harrison had no effective or real choice but to resign. The main point to come out of the discussion was that Prabhu would call Mr Harrison, and Mr Condello would sit in on the call, to allow them to discuss Mr Harrison's concerns. Although Mr Harrison says that he felt uncomfortable discussing work issues with Prabhu on a one-on-one basis, the evidence shows that Mr Harrison was able, at times, to achieve reasonable outcomes when he discussed issues with Prabhu in the presence of Mr Condello. Their discussion on 31 January 2025 is a good example. At that time, Mr Harrison discussed with Prabhu his desire for Mr Harrison to be based at the Prestons site five days per week. The compromise outcome reached in the discussion, in which Mr Condello was present, was that Mr Harrison would work at that site for 2/3 days per week for up to six weeks. During that discussion, Mr Harrison and Mr Condello exchanged the following messages:[20]

Mr Condello: "Now's your time to raise anything you have a concern about."

Mr Harrison: "I've raised the bulk of them, if its 2 - 3 days a week tops then I'm mostly okay.

I still feel this is not being setup for success with limited definitions, and limited support from the GMs."

• [48] Even if I had preferred Mr Harrison's account of his discussion with Mr Condello on 19 March 2025, the outcome would have been the same. I consider that the matters raised in that discussion were reasonable and appropriate.[21] It was reasonable for Mr Condello to suggest that Mr Harrison speak with Ms Shelley Mitchell, who performed the same role as Mr Harrison, to seek clarity on the extent of the duties and responsibilities of an employee in Mr Harrison's position. It was appropriate for Mr Condello to discuss with Mr Harrison that he should not refuse work requests from Prabhu in the presence of internal "clients" of the IT team. Mr Condello was of the reasonable opinion that such issues should be sorted out "in house", not in the presence of an internal "client". Mr Condello sharing with Mr Harrison that Prabhu had raised concerns about Mr Harrison being "very stressed and struggling" was an appropriate step for a manager in Mr Condello's position to take. It was also appropriate for Mr Condello to raise with Mr Harrison a concern on Prabhu's part that Mr Harrison was no longer attending regular meetings with his business unit. Mr Condello needed to understand if that was correct and how to deal with it.

• (a) prior to Mr Harrison's discussion with Mr Condello on 19 March 2025, Mr Harrison did not believe - and nor would any reasonable person have believed - that Toll had engaged in any conduct, or course of conduct, with the intention of bringing Mr Harrison's employment to an end. Nor would any such conduct, viewed reasonably, have been likely to produce that effect, such that Mr Harrison was left with no effective or real choice but to resign. This is evident from Mr Condello's email to Mr Eaton sent at 9:21am on 19 March 2025 (see paragraph [12] above);[22] and

(b) Mr Harrison's brief conversation with Mr Condello on 19 March 2025 did not indicate any intention on the part of Toll to bring Mr Harrison's employment to an end. Nor would that communication, viewed objectively, have been likely to produce such an effect as to leave Mr Harrison with no effective or real choice but to resign.

• [50] I consider that, following his short telephone conversation with Mr Condello on 19 March 2025, Mr Harrison retained a real and effective choice to pursue several alternatives rather than resigning the next day.

• [51] First, Mr Harrison could have participated in the discussion with Prabhu, with Mr Condello present, to see whether his issues could be resolved. In that regard, it is relevant to note that, as explained above, Mr Harrison did communicate with Prabhu and Mr Condello on 31 January 2025 in relation to Prabhu's desire that Mr Harrison attend the Prestons site five days per week for a period of time. As I have stated, the outcome of that discussion was a compromise, whereby Mr Harrison agreed to attend the Prestons site for 2/3 days per week for up to six weeks, with another employee attending the Prestons site for the other 2/3 days per week.

• [52] Secondly, Mr Harrison could have proceeded with his initial plan to seek advice from Mr Eaton in Human Resources and have his concerns formally documented.

• [53] Thirdly, Mr Harrison could have requested HR intervention - an option he clearly understood was available to him[23] - which would likely have triggered an internal investigation. I do not accept Mr Harrison's submission that the confidentiality notice subsequently sent to him by Mr Eaton, for his review and signature "as appropriate", would have impeded a fair and reasonable investigation prior to his resignation. Nor would it have prevented him from exercising any legal rights or accessing medical treatment or support. As Mr Eaton explained in his evidence, had Mr Harrison raised concerns about accessing medical support, he would have been informed that the confidentiality notice was not intended to restrict such access. Mr Harrison could have provided Mr Eaton with the names of employees he wished to be interviewed as part of the investigation, and I am confident those individuals would have been interviewed. He would have been required to submit a written complaint detailing the matters to be investigated. It is not sufficient for an employee to assert that their complaint has been conveyed through prior discussions or communications. It is entirely reasonable for an employer to require written particulars to ensure clarity regarding the scope of the investigation and to provide any individuals subject to allegations with a clear understanding of the claims against them. Furthermore, I do not accept that the confidentiality notice would have precluded Mr Harrison from exercising any statutory rights, such as lodging a workers' compensation claim or making a complaint to SafeWork NSW.

• [54] Fourthly, Mr Harrison could have made a complaint to a more senior Toll manager, as he did on 14 April 2025 when he met with Toll's Global Head of Security.

• [55] Fifthly, Mr Harrison could have made a complaint to an external body, such as SafeWork NSW (as he did on 5 May 2025) or to the Commission (e.g., alleging bullying).

• [56] Given that not even Mr Harrison believed, prior to his discussion with Mr Condello on 19 March 2025, that Toll either intended to terminate his employment or had engaged in conduct which left him with no real or effective choice but to resign, I do not need to address the pre-19 March 2025 conduct about which Mr Harrison now complains. However, for completeness I make the following findings about that conduct, without referring in detail to each piece of evidence:

• (a) I do not accept Mr Harrison's contention that Toll fundamentally altered his role and responsibilities without consultation. I am satisfied that the tasks assigned by Prabhu to Mr Harrison were within the scope of his duties and responsibilities as a Regional Service Integrity Manager. It is clear from Mr Harrison's evidence and submissions that he believed he was employed in a leadership and governance role. He considered it irrelevant whether he was competent to perform a task. However, as well as the primary duties and responsibilities set out in Mr Harrison's Job Description,[24] he was contractually obliged to perform any duties that were within his skills, competency and training.[25] The fact that Mr Harrison was able to undertake most of the tasks assigned to him establishes that those tasks were within the scope of his skills, competency and training. One example of this is the Starlink device which Mr Harrison installed at a Coca Cola site in November 2024 to resolve an issue. I am satisfied that other duties such as RAG reporting (communicated to Mr Harrison in early December 2024), the matters dealt with in the emails between Mr Harrison and Prabhu on 13 March 2025, and the matters addressed in the changes made by Prabhu to the slide presentation fell within the scope of duties which could reasonably be expected of Mr Harrison in his role as a Regional Service Integrity Manager. Prabhu's conduct in making benign changes to the slide pack presentation at the request of Prabhu's manager was a legitimate exercise of managerial prerogative.

• (b) I do not accept that Toll imposed unreasonable and excessive workload demands on Mr Harrison. Although Mr Harrison did work some long days during October 2024 when he was based at the Prestons site to deal with an urgent problem, I am not satisfied on the evidence that excessive hours were worked by Mr Harrison on a regular basis after the end of October 2024, which was more than four months prior to his resignation. It was inevitable that there would be times that an employee in Mr Harrison's role would be required to work additional hours to meet the operational needs of the business. On one day when Prabhu was aware that Mr Harrison worked extended hours into the night, until around 1am, to fix a problem, Prabhu directed him to take a taxi home and Toll covered the costs of doing so.[26] I also accept Prabhu's evidence that Mr Harrison had support to assist in his role, including a dedicated onsite engineer and cross functional teams such as the major incident management team, network security, applications support and end-user computing teams, who could have provided more assistance or resources if requested.[27] The workload demands that Mr Harrison says he was experiencing was a topic that he could have discussed in detail with Prabhu, with Mr Condello's participation, prior to submitting his resignation.

(c) I do not accept that Toll created public embarrassment or undermined Mr Harrison's professional standing. One example of such conduct relates to Mr Harrison taking offence at being described by Prabhu, in the presence of a "client", as a member of his team. Mr Harrison had a dotted line report to Prabhu. It was reasonable for Prabhu to refer to Mr Harrison as a member of his team. To the extent that Prabhu may have misdescribed Mr Harrison's job title or role in various communications, I do not consider it was intentional, nor was it of any great magnitude.

(d) As to Mr Harrison's contention that adverse action was taken against him for exercising his rights, that is the ultimate issue in these proceedings. I do not have the jurisdiction or power to determine that question. My function is to determine whether or not Mr Harrison was dismissed. I am satisfied, based on the evidence before the Commission, that the directions and instructions given by Toll's managerial employees to Mr Harrison were issued because they believed that those things needed to be done for the business.

• (e) I do not accept, based on the evidence before the Commission, that Prabhu, or anyone else at Toll, demonstrated a pattern of disregard for Mr Harrison's concerns and well-being. I accept Prabhu's evidence that he had a positive opinion of Mr Harrison's work[28] and believed he had a good working relationship with Mr Harrison.[29] Mr Condello worked with Mr Harrison to try and resolve the issues he raised about his workload and the lack of clarity around the tasks he was asked to undertake. Mr Harrison complained that he was being required to travel to the Prestons site 2/3 times per week, which Mr Harrison considered to be inconvenient and impact his quality of life because he shared a 'primary' car with his wife and Mr Harrison usually dropped his wife off at a train station when he drove to Toll's offices at Sydney Olympic Park. However, Mr Harrison's contract of employment (i) stated that his initial place of work was Sydney Olympic Park, which was a similar distance away from Mr Harrison's home to the Prestons site, (ii) permitted Toll to require Mr Harrison to work in other locations from time to time, and (iii) expressly stated that the salary paid to Mr Harrison compensated him to "provide a motor vehicle for work purposes, as required ... to cover all reasonable costs associated with you providing a motor vehicle for work purposes, including fuel and tolls".[30] Requiring Mr Harrison to attend the Prestons site did not constitute a disregard for Mr Harrison's concerns and well-being; it was a lawful and reasonable instruction for legitimate business reasons. Further, Mr Harrison ceased attending the Prestons site in the second week of March 2025, prior to his resignation. A further example in relation to Prabhu's interactions with Mr Harrison is the request by Prabhu on 13 March 2025 for Mr Harrison to visit a Woolworths site "and assess feasible options to put in a second PC..."[31] Prabhu indicated in the same email that he would "visit the site in Vic" to undertake the same assessment. Mr Harrison refused to undertake this task. At the time he refused to undertake the assessment, Mr Harrison made no mention of being unable to attend or walk through the site because he was in a moon boot following a non-work related injury. Yet, that is the complaint Mr Harrison now makes.[32] The contemporaneous reason given by Mr Harrison for refusing to do the assessment was because he did not look after end-user computing. I am satisfied that the request by Prabhu for Mr Harrison to visit the site and "assess feasible options" was a reasonable one for an employee in Mr Harrison's position. Prabhu was not aware that Mr Harrison had a broken foot at the time.[33] Mr Condello was aware that Mr Harrison's foot was in a moon boot, but Mr Harrison had informed Mr Condello in a Teams message that, "Foot's alright, just limited in mobility". I do not accept Mr Harrison's contention that the task was reclassified into a "massive task" after he complained about the initial direction. I accept that Prabhu assigned a lot of tasks to Mr Harrison and he needed to communicate with Prabhu about which of those tasks ought be given priority and which could potentially be assigned to others. Those types of communications are often required between employees.

• [57] I am also satisfied, based on the evidence before the Commission, that Toll did not engage in any conduct, or course of conduct, with the intention of bringing Mr Harrison's employment to an end. Mr Condello was genuinely disappointed about Mr Harrison's resignation.[34] Prabhu was of the opinion that Mr Harrison did good work when he was reporting to him. Prabhu nominated Mr Harrison for a "shine" award in October 2024. Prabhu's only significant issue with Mr Harrison was that he did not do some of the work he was responsible for.[35] Toll clearly wanted Mr Harrison to continue in his role.

• [58] In relation to Mr Harrison's alternative case - that he was dismissed at Toll's initiative within the meaning of s 386(1)(a) of the Act - I accept that he was experiencing emotional stress at the time he decided to resign. Notwithstanding this, the evidence establishes that Mr Harrison made a considered decision to resign. Mr Harrison spoke with Mr Condello at approximately 10:15am on 19 March 2025, but he did not send his resignation email to Mr Condello for another 24 hours.[36] As Mr Harrison stated in that email, "[t]his decision is not one I take lightly." The level of detail and clarity in the email indicates that he had carefully considered his decision and was able to articulate his reasons for resigning.

• [59] I do not accept that Mr Harrison's resignation was given "in the heat of the moment". The resignation was communicated in writing to Mr Condello about 24 hours after their discussion on 19 March 2025, which was the catalyst for Mr Harrison's decision to resign.

• [60] A reasonable person, aware of the relevant background circumstances, would have understood from the clear language used in Mr Harrison's resignation email that he had a genuine and real intention to resign.[37] Toll did not act to hasten the termination of Mr Harrison's employment following receipt of his resignation. Although Mr Eaton initially misunderstood Mr Harrison's intention to work through his notice period until 15 May 2025, he promptly apologised upon realising the error. Mr Harrison remained employed by Toll during a relatively lengthy notice period, albeit he was absent from work from 14 April 2025 until 15 May 2025.

• [61] Following his resignation, Mr Harrison made statements to the effect that he would consider rescinding his resignation if Prabhu's behaviour changed,[38] and that he preferred for the matter to be resolved so that he could remain at Toll rather than resign.[39] However, at no point did Mr Harrison unconditionally request that his resignation be withdrawn or rescinded. It was always contingent on Prabhu's behaviour changing or the matter (being his dispute with Prabhu) being resolved. Further, the earliest that Mr Harrison expressed his conditional desire to remain employed with Toll was between about 11am and 2pm on 21 March 2025. That was more than 24 hours after Mr Harrison communicated, by email, his clear desire to resign. In my view, if Mr Harrison truly did not intend to resign at 10:26am on 20 March 2025 when he sent his resignation email to Mr Condello, he had the balance of that day and overnight (perhaps) to consider whether he should seek to rescind his resignation. By the time of his discussion with Mr Thakkur at some point between 11am and 2pm on 21 March 2025, I consider that a reasonable period of time had elapsed.[40]

• [62] I do not accept that Toll obstructed Mr Harrison's ability to rescind his resignation. Mr Harrison was informed that he could lodge a complaint and have it investigated. However, at no stage did he provide written particulars of his complaint, as requested. The provision of such particulars was necessary for any investigation to commence, and Toll's requirement in that regard was reasonable. It was also reasonable for Toll to require confidentiality in relation to any investigation process.

• [63] Any legitimate concerns Mr Harrison may have had about accessing medical or other support, or about exercising statutory rights, could have been raised and addressed either prior to or during the course of the investigation. The evidence does not support a finding that Toll's conduct foreclosed these avenues or otherwise prevented Mr Harrison from reconsidering his resignation.

• [64] Having regard to all the circumstances, I am satisfied that a reasonable person with knowledge of the relevant background would have understood that Mr Harrison had a real and continuing intention to resign. It is evident that Mr Harrison was unhappy in his role, his concerns about Prabhu were ongoing, and he genuinely wished to leave his employment. The decision to end Mr Harrison's employment was his own - it was not initiated by Toll.

• [65] I do not accept Mr Harrison's argument that his resignation was an acceptance of Toll's repudiation of his employment contract. For the reasons explained in paragraph [56] above, I do not accept that Toll repudiated Mr Harrison's employment contract.

• [66] I also do not accept Mr Harrison's argument that post-resignation conduct provides objective evidence of the pre-resignation environment. This argument falls down on two levels. First, it is not uncommon for changes to occur in the working environment and relations between an employee who has given notice of their resignation and their manager in the period between the giving of notice and the end of the employment relationship. It follows that post-resignation conduct may not be a good indicator of the pre-resignation working environment. Secondly, the evidence in this case does not establish that Prabhu or any other employee of Toll engaged in inappropriate conduct towards Mr Harrison after he gave notice of his resignation. I have found that Prabhu did not behave aggressively in his call with Mr Harrison on 24 March 2025. Prabhu was attempting to address Mr Harrison's concerns in that call. Prabhu did not directly engage with Mr Harrison after 24 March 2025. Instead, Prabhu allocated work to Ms Mitchell, who prioritised the tasks and assigned some of them to Mr Harrison.[41] I do not accept that Mr Eaton was "aggressive and pushy" in his conversation with Mr Harrison on 10 April 2025, or otherwise behaved inappropriately towards Mr Harrison. I consider that Mr Eaton acted reasonably when he was fulfilling his role as a Senior People Partner by explaining to Mr Harrison the procedure for making a complaint and forwarding him a standard initiation of complaint letter, together with a standard confidentiality notice. On the basis of the evidence before the Commission, I am not satisfied that any of Toll's employees treated Mr Harrison inappropriately in the period between 20 March 2025 and 15 May 2025.

• [67] I am satisfied, based on all the evidence before the Commission, whether viewed individually or collectively, that:

(a) there was no action on the part of Toll that was the principal contributing factor which resulted, directly or consequentially, in the termination of Mr Harrison's employment;

(b) Mr Harrison's employment was not terminated on Toll's initiative;

(c) Mr Harrison's resignation was not the probable result of Toll's conduct or any course of conduct that left him with no effective or real choice but to resign;

(d) Toll did not engage in any conduct, or course of conduct, with the intention of bringing Mr Harrison's employment to an end; and

(e) Mr Harrison was not forced to resign from his employment with Toll because of any conduct, or any course of conduct, engaged in by Toll.

• [68] It follows that Mr Harrison was not dismissed. Accordingly, the respondents' jurisdictional objection is upheld and Mr Harrison's general protections application is dismissed.

Mr M Mead, solicitor, on behalf of the Respondents

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67]

[2] Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 at [63]

[3] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200

[4] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704 at [30]

[5] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704 at [30]

[6] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(2)]

[7] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(2)]

[13] Hearing Book at pp 124[40] and 177[30(b)]

[18] Rutter v AngloGold Ashanti Australia Limited [2023] FWC 1891 at [33]- [36]

[23] Hearing Book at p 42 ("... at this stage I do not require or request HR intervention on this matter")

[27] Hearing Book at pp198-199[42(c)]

[37] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(1)]

[38] Mr Harrison said this to Mr Eaton on 10 April 2025: Hearing Book at p 35[28]

[39] Mr Harrison said this to Mr Thakkur on 21 March 2025: Hearing Book at p 127[61]

[40] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [42]

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