s.365 - General protections

Ability Options Limited, Kathryn Key, Julia Squire, Anthony Diapocolous, Mark Twomey, Michelle Hodge

Application to deal with contraventions involving dismissal

• [1] This decision arises from an Application to the Fair Work Commission (the Commission) by Ms Melissa Hever (the Applicant) for a general protections remedy (the Application), pursuant to s.365 of the Fair Work Act 2009 (the Act), against Ability Options Limited (the Respondent) and five named individuals.

• [2] The Applicant claimed she was notified of her dismissal from employment with Ability Action Australia Pty Ltd (the Respondent) on 10 June 2025, with the dismissal taking effect on 18 June 2025. The Application was lodged on 15 August 2025, and was, if 18 June 2025 was the date of dismissal, 37 days out of time.

• [3] The Respondent raised jurisdictional objections to the Application, being:

(a) That the Applicant was not dismissed within the meaning of s.386 of the Act because she resigned and was not dismissed; and

(b) If the Applicant was dismissed, that the Application is out of time, being lodged more than 21 days after the dismissal took effect.

• [4] Directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). In response to the Directions each party filed materials. The matter was the subject of a hearing to determine the jurisdictional objections on 26 September 2025 (the Hearing). Further submissions were received from the Applicant on 16 October 2025 and 17 October 2025, after I had reserved my decision.

• [5] From 6 May 2025, various allegations were raised within the Respondent. The Applicant alleges that from 2 June 2025, she was forced to take annual leave.

• [6] On 10 June 2025, the Applicant was stood down from employment pending an investigation of certain allegations. The Applicant was first advised of the stand down and allegations by telephone and later with a letter outlining the allegations and requesting the Applicant attend a meeting on 10 June 2025.

• [7] At 4.38pm on 10 June 2025, the Applicant sent an email to the Respondent that included the following:

Following the incident involving SA, I was appointed to the role of acting practice manager without any prior training or support. Despite the traumatic nature of the experience, I received outreach from only Nathan Pearce. I devoted seven days to ensuring the centre's compliance, committing myself fully to both the organisation and its participants.

However, after reporting serious neglect, specifically concerning participants who were left unattended in the centre with no Day Program staff, after submitting an AAN, I am deeply troubled by the lack of action taken regarding these issues to date.

Instead, I find myself sidelined, pending allegations. Given these circumstances, it has become evident that Ability Options no longer aligns with my values, prompting my decision to resign.

• [8] At 8.52pm on 11 June 2025, the recipient of the above email responded to the Applicant. That response included the following:

I am writing to acknowledge receipt of your email outlining your decision to resign from your employment at Ability Options. I am really sorry you have made this decision; I understand that the last few months may have been difficult for you and appreciate your efforts during this time. I am aware that you have received details of allegations made and I would encourage you to contribute to the process. Our process continues investigations regardless of employment status and you will still be given opportunity to contribute. In the light of this, if you would like to reconsider your resignation please let Christine Brear know.

In the meantime and unless Christine hearts (sic.) from you we note your resignation effective from today and you will be paid two weeks in lieu of notice and your annual leave entitlements due on resignation_. This will be paid on Weds 18 June subject to the return of AO property, including AO laptop, phone and keys. We request that you return these to by no later than COB Friday 13th June 2025 to our Bella Vista office. Please arrange a suitable time with Christine Brear._

Thank you also for your responses to the allegations outlined in the letter dated 10th June 2025. We would like to provide you with a further opportunity to present more detail at the meeting arranged with Christine so that a comprehensive investigation can be completed. This investigation will continue and an outcome will be provided to you regardless of your resignation or whether you choose to engage further. If you choose not to, a finding will be made on the available information.

I would also thank you for taking the time to outline your further concerns/issues; these will be reviewed and maybe subject to formal investigation. Should we need any further information, we will contact you and would appreciate your further input.

• [9] At 9.22pm on 11 June 2025, the Applicant responded to the above email as follows:

Thank you for your email. Due to my current mental health, I do not feel comfortable attending Bella Vista. However, I am prepared to have a conversation regarding the allegations.

As my Teams access has been disabled, I am unable to join a Teams call. Please let me know if there is an alternative way to proceed with this discussion.

• [10] On 12 June 2025, the Applicant received a Doctor's Certificate that stated, "For inpatient rehabilitation with recent traumatic event at work causing severe PTSD, insomnia, anxiety and depression".

• [11] On 13 June 2025, the Applicant emailed the Respondent seeking to arrange for the collection of her belongings and return of the Respondent's property. On that date the Applicant also lodged Fair Work Ombudsman (the FWO) enquiry number 371355.

• [12] On 27 June 2025, the Applicant sent an email to the FWO that commenced:

I am writing this letter with a very heavy heart. Over the last few months, I've felt pushed, dismissed and mistreated by my employer, and it's taken a real toll on my mental and emotional wellbeing. I've always done my best to support my team and care for the participants we serve, but lately I've been left feeling isolated and traumatised. I just want to be heard, and for someone to see what's really going on.

• [13] On 2 July 2025, the Applicant contacted an officer of the Respondent seeking a referee for a job application.

• [14] On 7 July 2025, the Applicant provided further supporting documents to the investigation, and on 11 July 2025, the Applicant lodged a whistleblower complaint.

• [15] On 16 July 2025, the final investigation report was published, and the Applicant was provided with an outcome letter.

• [16] On 17 July 2025, the Applicant lodged an appeal against investigation outcome.

• [17] On 18 July 2025, the Applicant was provided with the outcome of the appeal.

• [18] Between 23 and 25 July 2025, there was further email correspondence between the Acting CEO and Applicant.

• [19] On 30 July 2025, a request was submitted by the Applicant for review of leave, outstanding payments and employment documentation.

• [20] On 2 August 2025, the Applicant stated she telephoned the Commission and was advised "to lodge General Protections claim promptly". [1]

• [21] On 4 August 2025, a response and information requested were provided to the Applicant.

• [22] On 8 August 2025, the FWO contacted the Applicant again to discuss her dispute.

• [23] On 11 August 2025, in a meeting with the Fair Work Ombudsman, the Applicant was advised clearly to lodge a General Protections claim.[2]

• [24] Between 12 and 15 August 2025, the Applicant performed what she described as "Self-preparation" and "Drafting", being working on preparing the claim with supporting evidence and annexures.

• [25] On 15 August 2025 the Application was filed.

• [26] In her submission dated 10 September 2025, the Applicant submitted:

The delay in lodging this application was not the result of inaction or neglect, but because of the shifting and contradictory accounts provided to me by Ability Options between 2 June and 6 June 2025, and the absence of any opportunity to challenge the one sustained

The delay in filing my application was 65 days. Importantly, from the time I received the final appeal outcome on 18 July 2025 until lodgment on 15 August 2025, only 28 days elapsed. This demonstrates that I acted promptly once I became certain the internal process was exhausted.

The delay was not due to inaction but was caused by the severe impact on my mental health, the confusion created by the employer's contradictory actions, and my genuine attempts to resolve matters through internal processes and regulator complaints before lodging externally.

• [27] The jurisdictional issue that arises in this matter is whether the Applicant was dismissed.

• [28] Section 12 of the Act defines the word "dismissed" by reference to s.386 of the Act. Sub-section (1) of s.386 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.

• [29] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Tavassoli),[3] the Full Bench of the Commission conducted a detailed analysis of authorities relating to whether particular resignations constituted dismissal pursuant to various legislative schemes. After that analysis, the Full Bench provided the following distillation:

[47] Having regard to the above authorities and the bifurcation in the definition of

"dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a)

where, although the employee has given an ostensible communication of a

resignation, the resignation is not legally effective because it was expressed in

the "heat of the moment" or when the employee was in a state of emotional

stress or mental confusion such that the employee could not reasonably be

understood to be conveying a real intention to resign. Although "jostling" by

the employer may contribute to the resignation being legally ineffective,

employer conduct is not a necessary element. In this situation if the employer

simply treats the ostensible resignation as terminating the employment rather

than clarifying or confirming with the employee after a reasonable time that the

employee genuinely intended to resign, this may be characterised as a

termination of the employment at the initiative of the employer.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of

the employer will be a dismissal within the second limb of the definition in

s.386(1)(b). The test to be applied here 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.

Unlike the situation in (1), the requisite employer conduct is the essential

[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.

• [30] While the Applicant barely addressed her resignation in her submissions, she appeared to rely on the first limb of the definition in s.386(1)(a).

• [31] The Applicant submitted that the email at 8.52pm on 11 June 2025 acknowledged her resignation as "effective from today." and that "was the first clear indication that Ability Options regarded my resignation as final". That submission, however, misstates the contents of that email. The resignation was only "effective from today" if the Applicant did not accept the invitation to reconsider the resignation.
• [32] The invitation to reconsider the resignation was a genuine and honest attempt by the Respondent to give the Applicant time to consider her resignation, and it ensured that the resignation could not be characterised as a termination of the employment at the initiative of the employer.

• [33] The Applicant's subsequent conduct served to confirm her resignation, particularly her email seeking to arrange for the collection of her belongings and return of the Respondent's property.

• [34] The Respondent engaged in no conduct with the intention of bringing the employment to an end, and accordingly there was no dismissal.

• [35] For the reasons set out above, I am satisfied that the Applicant was not dismissed by the Respondent.

• [36] As the Applicant was not dismissed, she could not apply for relief under Sub-division A of Part 3-1 of the Act. The Application must be dismissed.

• [37] For completeness, and proceeding on the assumption that I am wrong in my determination about the absence of a dismissal, I will consider the Applicant's application for an extension of the time to file the Application.

• [38] The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[4] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[5]

• [39] While the Applicant resigned on 10 June 2025, she claimed her dismissal was effective on 18 June 2025. It is difficult to understand how it is that the Applicant asserts the effective date of the dismissal as 18 June, and it would seem that the employment relationship ceased at the latest by 13 June 2025. Nonetheless, accepting the Applicant's case as to dismissal date, if she was dismissed on 18 June 2025, the Application was due to be filed by midnight on 9 July 2025. The Applicant was therefore, on her case, 37 days out of time.

• [40] In her Form F8, the Applicant noted that her Application was being made outside the 21 day timeframe. She answered as follows regarding why it was being lodged late:

I was diagnosed with work-related Post-Traumatic Stress Disorder (PTSD), which significantly affected my ability to manage complex processes and meet strict deadlines. I acted in good faith to resolve the matter internally by lodging complaints and engaging with the organisation's grievance and whistleblower procedures, relying on repeated

assurances that my concerns would be addressed. The internal investigation process took approximately five weeks and was lengthy and unclear, and I did not realise the statutory timeframe was running during this period. The delay was caused by my medical condition, the protracted nature of internal procedures, and my genuine belief that resolution was possible without external escalation. Once it became clear that internal resolution would not occur, I promptly sought advice and prepared this application.

• [41] While the Applicant did have a medical certificate from 12 June 2025 that diagnosed PTSD, the Applicant's conduct between her resignation and the filing of the Application clearly discloses that whatever illnesses she was suffering did not restrict her ability to advance her interests. She was clearly able to lodge complaints and engage with the Respondent's grievance and whistleblower procedures, and so would have been equally able to prepare and file a general protections application.

• [42] I refer to the decision of the Full Bench in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank where the majority (Watson VP and Smith DP) observed:[6]

'[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person's life, and such effects are unfortunately not unusual.'

• [43] The Applicant's own case is that she approached the FWO on 13 June 2025, and thereafter had numerous communications and a meeting with the FWO. It is inconceivable that the FWO did not refer to the general protections and/or unfair dismissal jurisdictions of the Commission, and the time limits on filing applications, when advising her.

• [44] Nonetheless, on 2 August 2025, when already 24 days out of time, the Applicant telephoned the Commission and was advised "to lodge General Protections claim promptly". That she did not do so for a further 13 days points to unacceptability of the delay for that period.

• [45] As to the Applicant's use of internal procedures and seeking "resolution without external escalation", while such steps do not ordinarily constitute acceptable reasons for delay,[7]

in this matter such steps concluded approximately one month before the filing of the Application. Between 16 and 18 July 2025, the final investigation report was published, the Applicant was provided with an outcome letter, the Applicant lodged an appeal against investigation outcome, and the Applicant was provided with the outcome of the appeal.

• [46] In all the circumstances, the Commission cannot be satisfied that the Applicant's stated reasons for filing the Application out of time constitute exceptional circumstances, as contemplated by the statute. This factor weighs in the Respondent's favour.

• [47] The Applicant did not take sufficient action to dispute her dismissal directly with the Respondent after it occurred. While she did lodge complaints and engaged with the Respondent's grievance and whistleblower procedures, those complaints did not relate to the resignation and the alleged dismissal.

• [48] The Respondent conducted an investigation into the matters raised in the complaints and provided a prompt response and appeal. Despite the response and appeal, the Applicant did not take further immediate action to dispute the dismissal for a further 28 days.

• [49] In all the circumstances I consider this factor is a neutral consideration.

• [50] The Applicant submitted the Respondent had not suffered or will not suffer any prejudice due to her "short delay in filing this application". The Respondent submitted that requiring it to now defend an out-of-time application would be unfair, as it is a reputable not for profit provider to people with disabilities which has operated since 1976 and their limited resources and efforts are best spent focusing on their core business.

• [51] A 37 day delay in filing can in no way be described as a short delay. It is substantial, and it is undoubtedly the case that if an extension were granted there would be a significant draw on the Respondent's resources. In all the circumstances, this factor weighs in the Respondent's favour.

• [52] This is a general protections claim. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

"It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues."

• [53] In the matter of Kornicki v Telstra-Network Technology Group[8] a predecessor of the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."[9]

• [54] I adopt this reasoning of the Full Bench of the former Commission in relation to the consideration of merits. I consider that this is a neutral factor.

Fairness as between the Applicant and other persons in a similar position

• [55] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

• [56] In the present case, the Applicant has made submissions referencing paragraph (e) of s.366(2), however those submissions refer to her position only, and not by comparison to other persons in a similar situation.

• [57] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration. Consequently, no weight can be given to this consideration.

• [58] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any significant weight, being the absence of any acceptable reason for delay and prejudice to the Respondent, both weigh in favour of a conclusion there are not exceptional circumstances. None of the factors weigh against such a conclusion.

• [59] Having regard to the matters I would have been required to take into account under s.366(2) if I had found dismissal to have occurred, and all of the matters raised by the Applicant, I am not satisfied that there would have been exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [60] Because I would not have been satisfied that there are exceptional circumstances, there would have been no basis for me to allow an extension of time, and I would have declined to grant an extension of time under s.366(2).

• [61] The Respondent engaged in no conduct with the intention of bringing the employment to an end, and accordingly there was no dismissal.

• [62] As the Applicant was not dismissed, she could not apply for relief under Sub-division A of Part 3-1 of the Act. The Application must be dismissed.

[3] [2017] FWCFB 3941.

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[6] [2015] FWCFB 287, at para [15].

[7] Gao v Department of Human Services [2011] FWAFB 5605 (Giudice J, Harrison SDP, Asbury C, 23 August 2011).

[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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