Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - no dismissal - jurisdictional objection upheld - application dismissed.

[1] Mr Michael Bertoli (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 20 November 2025. The Applicant claims that adverse action was taken against him by the Charles Hull Contracting Co. Pty Ltd (the Respondent) in breach of part 3-1 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed under s.386 of the Act as the Applicant resigned from his employment. The Applicant contests the objection on the basis that he was constructively dismissed s.386(1)(b) of the Act.

[3] Directions were issued and the matter was listed for hearing on 24 February 2026. The Applicant was self-represented, and Mr James Woods, Human Resources Manager, was granted permission to be represented by Mr Michael Franzone from Business Law WA Pty Ltd.

[4] The Applicant commenced full-time employment with the Respondent initially as an Auto Electrician on 7 March 2018, before being promoted to a Maintenance Supervisor.

[5] The Respondent describes an incident on or around 25 September 2025, where an employee alerted the Respondent that the Applicant had allegedly stolen five (5) car batteries from a work site for his personal use, which breaches the Company's Code of Conduct.

[6] On 2 October 2025, the Applicant attended a meeting with Mr James Woods, the Respondent's Human Resources Manager, and Mr Warren Simms, Willowdale Project Manager, where the Applicant provided his "explanation about the batteries". The Applicant stated that he had removed the batteries from site as he was worried they would be stolen over the long weekend.

[7] The Respondent continued its investigation and determined that there were inconsistencies between the Applicant's response and the available evidence.

[8] On 7 October 2025, Mr Woods advised the Applicant over a telephone call that the Respondent had lost trust in him and he was directed to attend the Waroona Workshop the following day where he would meet with Mr Craig McStay, Maintenance Manager, and Mr Woods.

[9] On 8 October 2025, the Applicant attended the workshop and returned the five batteries. Mr McStay subsequently inspected the batteries and determined that they had been used.

[10] On 9 October 2025, the Applicant was issued with a direction to attend a disciplinary meeting on 13 October 2025.

[11] On the same day, the Applicant texted Mr McStay and asked about the rates of pay in the Waroona workshop. He was advised that the casual rates were $73 per hour plus a $5 per hour incentive.

[12] On 9 October 2025, the Applicant emailed requesting the following to be provided in advance of the meeting:

A copy of any investigation findings, witness statements, or other evidence that will be relied upon regarding the alleged removal of company property.

Clarification of the specific company policy or procedure that is alleged to have been breached.

[13] The respondent provided the Applicant with a document called "Willowdale Battery Incident" containing a brief timeline of the relevant events from the Respondent's perspective.

[14] On 13 October 2025, the Applicant and the Respondent attended the Disciplinary Meeting. The Applicant's wife, Ms Teagan Bertoli, attended as a support person and took notes. Mr Woods, Mr Simms and Mr McStay attended on behalf of the Respondent. The Applicant was asked during this meeting why his employment should not be terminated.

[15] During the meeting, the Applicant and Ms Bertoli asked for a moment outside. When they came back, there was a suggestion of a mutual separation. Mr Wood, Mr Simms and Mr McStay confirm the mutual separation was suggested by the Applicant. Ms Bertoli's notes state:

Returned to room to propose mutual separation as felt there was no other way to proceed.

[16] The Applicant argued that he brought up the mutual separation proposal "after repeated questioning and loss of trust statements." The parties did not reach an agreement on the terms of the separation during the meeting.

[17] Following the meeting, the Applicant sent the "mutual separation proposal" in writing to Mr Woods via email. Those terms included 4 weeks' notice paid in lieu. The Respondent replied stating that if the Applicant "[chose] to resign instead of CHC deciding the outcome of the disciplinary meeting" then he would be paid his entitlements and would be provided with a statement of service.

[18] In the evening on 13 October 2025, the Applicant sent the following email to Mr Woods and Mr McStay:

Without Prejudice Subject to Fair Work Act 2009 (Cth) Proceedings

I write in response to your recent email stating that I may "choose to resign instead of CHC deciding the outcome of the disciplinary meeting."

I wish to make it clear that at no point have I offered to resign and I do not consider resignation to be voluntary under the current circumstances, as the actions and communications by the company including:

• The disciplinary letter states my conduct is "unacceptable" before any formal meeting or opportunity to respond.
• Management's prior verbal actions offering resignation, reducing pay, and changing my position before formal investigation demonstrate that a decision about consequences had already been formed.
• Subsequent communications are inconsistent: The company now claims the outcome is not decided, but prior written and verbal statements already indicated a negative decision.
• A reasonable person would view this as lack of impartiality and a breach of procedural fairness. The fact that my statements were requested after adverse statements about my conduct were already made strongly supports this.
• No consideration was given to my length of service, good standing, previous trust, or prior approval to use company assets.
• During the meeting, I was spoken over, limiting my ability to respond fully.
• Photo evidence submitted today as part of the investigation was not forwarded to me despite my prior request for all evidence being relied upon.

These things demonstrate a failure to follow fair and reasonable procedural standards and have created undue pressure and coercion. Any resignation under these conditions may constitute coercion under the Fair Work Act 2009 (Cth).

In the interest of clarity and resolving this matter, I request that any discussion of separation or resignation be conducted on a mutually agreed basis, documented in writing, including:

• Payment of all accrued entitlements, including leave and pro-rata long service leave;
• Confirmation that my employment record will reflect that any separation occurs by mutual agreement, with no reference to alleged misconduct, and
• Provision of a written reference detailing my position, period of service, and quality of work.

I have not submitted a resignation, and I will not do so until the above conditions are agreed and documented.

If mutual separation cannot be agreed, I am prepared to continue under my current employment while the company proceeds with the disciplinary process, with all procedural rights preserved. Please note that my absence from site to date has been taken as stress leave, supported by medical documentation supplied to Craig Mcstay, and I request written confirmation of your understanding of this position and any next steps before any further action is taken.

[19] Following the meeting, the Applicant provided a backdated medical certificate for personal leave from 8 October 2025 to 3 November 2025.

[20] The Applicant subsequently sought confirmation as to when his long service leave would fall due.

[21] The Applicant sent a further emails on 17 October 2025 stating that he had not resigned and asking the Respondent to confirm he remained employed and asking why his access had been removed. On 20 October 2025, Mr Woods confirmed the information would be provided in due course. On 29 October 2025, the Applicant replied, stating, "I have reached the point where I feel I have no real or practical choice but to consider my employment as having been brought to an end by the company's conduct."

[22] On 31 October 2025, Mr Woods emailed the Applicant, stating:

We confirm that you remain an employee of Charles Hull Contracting Pty Ltd (Charles Hull). Further, we confirm that you are currently on approved personal leave, supported by the medical certificate that you provided, covering the period from 8 October 2025 to 3 November 2025. During this time, you have and will continue to receive your entitlements, including payment for your leave in accordance with your employment terms.

Following the disciplinary meeting held on 13 October 2025, you provided your medical certificate and have been on leave since. On this basis, the disciplinary process has not yet been finalised and any disciplinary action the organisation would take (if any) has not been determined. For the avoidance of doubt, we advise that at this stage no decision has been made by Charles Hull in relation to the status of your ongoing employment.

We understand that it is that your position that you feel your employment has come to an end. If you decide to confirm your resignation, the Company will arrange to pay out your outstanding entitlements. If you would like to confirm your resignation, please confirm so in writing.

If you choose not proceed with your resignation, the investigation and disciplinary process will proceed, and we will arrange to meet with you upon your return from leave to discuss the matter further.

[23] The email goes on to confirm the specifics of the Applicant's current accrued annual and person leave entitlements.

[24] On 4 November 2025, the Applicant emailed a further medical certificate covering a period until 11 November 2025. The Applicant then confirmed that he would be resigning effective 10 November 2025, stating:

I acknowledge your confirmation that my employment with Charles Hull Contracting Pty Ltd remains current and that the disciplinary process has not been finalised

However, prior to any formal outcome, I was verbally advised of changes to my role, remuneration and roster, and have since been removed from site and workplace communications. These actions have already altered my position to my prejudice and are inconsistent with the statement that no decision has been made.

I hereby provide notice of my resignation, effective close of business 10 November 2025, to coincide with the end of my certified period of personal leave.

This resignation is not voluntary. It is made under duress and as a result of the company's conduct, including the ongoing uncertainty surrounding my employment status, repeated references to resignation as the only option, and the absence of procedural fairness or a final outcome following the meeting of 13 October 2025.

I have attached an updated medical certificate extending my personal leave in continuation of the certificate previously provided.

I also note that I had earlier expressed a willingness to resolve this matter through a mutual separation arrangement on fair and reasonable terms. That offer was made in good faith and has not been acknowledged or progressed. Instead, the company has continued to refer solely to resignation as the only option available to me.

Given the circumstances, I consider my employment effectively terminated by the company's conduct and reserve my right to pursue appropriate remedies under the Fair

[25] On 5 November 2025, Mr Woods replied, offering the Applicant until 7 November 2025 to retract the resignation. Mr Woods stated:

As outlined previously, the disciplinary process has not yet been finalised and any disciplinary action that the Company would take (if any) has not been determined. If you choose to retract your resignation, the investigation and disciplinary process will proceed, and we will organise to meet with you upon your return from leave to discuss the matter further.

If we do not hear from you by this time, or you write to us again confirming you wish to resign, we will formally accept your resignation in writing. If you decide to confirm your resignation, we will arrange to pay out your outstanding entitlement of annual leave and your notice period. If you decide to confirm your resignation, could you please also confirm whether you intend to work your notice period, as contained in your contract of employment

[26] The Applicant responded on 5 November 2025 with:

I confirm that my position remains unchanged. As stated in my correspondence of 4 November 2025, my resignation was made under duress and as a result of the company's conduct. It should not be interpreted as a voluntary resignation.

I note that I remain on certified personal leave until 10 November 2025 and am therefore unable to attend work during this period. As discussed at the meeting on 13 October 2025, my notice period should be paid out in the usual manner.

I acknowledge my contract provides for four weeks' notice; however, as I remain medically unfit for work, the balance of the notice period should be paid in lieu in accordance with the Fair Work Act 2009 (Cth) and prior discussions

[27] On 10 November 2025, the Respondent emailed accepting the Applicant's resignation.

[28] The Applicant faintly argued that he may have been dismissed on a different basis. He stated in his submissions, "A significant reduction in remuneration and supervisory duties constitutes serious alteration of employment and is capable of constituting dismissal." It is true that this could constitute dismissal, if the change occurred and if the Applicant did not affirm the contract.

[29] However, I am not satisfied that any reduction in remuneration or duties actually occurred. The Applicant stated that he had been demoted but no such demotion had occurred. During the disciplinary process he continued on the same rate of pay. Further, the Applicant's text messages show that he was negotiating the hourly rate for workshop work (which was not ultimately agreed). That is not consistent with the Applicant's contention that he was to be unilaterally demoted to workshop duties. The Applicant had previously signed a variation of contract when he was promoted. It was the Respondent's position that a signed contract was required for any changes to the Applicant's conditions or duties. The Applicant admitted during the hearing that no changes had been put in place and no changes had been agreed upon.

[30] I find that the Applicant was not demoted.

Was the Applicant forced to resign under s.386(1)(b) of the Act?

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

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

• (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.[1]

• [32] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee to be terminated at the initiative of the employer.[2] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[3]

• [33] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[4] It is sufficient that the employer's conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[5]

• [34] All the circumstances - including the conduct of both the employer and employee - must be examined.[6] In other words, it must be shown that "the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."[7]

[35] The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) said, in relation to determining whether the ending of an employment relationship is a voluntary or forced resignation:

"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination.

The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively.

The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."[8]

• [36] Furthermore, in Pawel v Australian Industrial Relations Commission,[9] the Full Bench noted:

"Mere "causation" or "motivation" will not satisfy the requirement that the termination be at the initiative of the employer."

[37] Forced resignation has been interpreted by the Commission in the following ways:

• • the actual conduct of the employer forced to do so, such that there was an element of compulsion present;[10]
• • a 'critical action' or 'critical actions' of the employer which was intended to bring the employment relationship to an end;[11]
• • as a result of some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect;[12] and
• • the employer's conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.[13]

[38] The Applicant stated that he was forced to resign because of the following conduct, as stated in his submissions:

[39] As outlined above, there was no demotion and no pay reduction. I reject those arguments.

[40] The Applicant was directed to attend the Waroona Workshop on 8 October 2025 instead of his usual workplace at Willowdale. However, a change of site is not the same as a "removal from site" as the Applicant contends. Further, it was prudent for the Respondent to remove the Applicant from the site where the alleged theft had occurred while the investigation took place. The Respondent argues that while the Applicant was directed to work at the Waroona Workshop, on 8 October 2025, he stated that he was not in the right frame of mind and did not complete his shift. He never, in fact, performed work at the workshop. As to the alleged loss of supervisory status, I note this change was discussed but, on the Applicant's admission, never occurred.

[41] The Respondent removed system access during the period in which the Applicant was on personal leave. However, there is nothing objectionable about that. The Applicant had provided a medical certificate stating that he would be unfit for work for a period of 3 weeks. Further, I do not consider that there was "prolonged" uncertainty about the Applicant's employment status. The longest period of delay in getting back to the Applicant appears to be 8 days and that occurred when the Applicant was on leave.

[42] On 7 October 2025, Mr Woods advised that as a result of the seriousness of the alleged conduct, the Respondent had lost trust in him. Further, during the meeting on 13 October 2025, the Applicant was asked why his employment should not be terminated. I have difficulty with the submission that either of these statements forced the Applicant to resign. By asking the Applicant why his employment should not be terminated, the Respondent was affording procedural fairness to the Applicant, not denying it. As to the comment that the Respondent had lost trust in the Applicant, this must be considered in context. The Applicant had admitted that he had removed 5 batteries from site. Those batteries are worth approximately $150 to $200 per unit.

[43] I refer to my previous decision of Moore v Woolworths Group Limited T/A Big W [2020] FWC 963 in which I said:

It would be a perverse outcome to consider an objectively fair investigation and show cause process as imposing forcibly upon the Applicant that they must resign.

[44] My conclusion is the same in this matter. This is not a case in which the Applicant was provided a pre-written resignation letter and told to sign it. All the evidence indicates that it was the Applicant, not the Respondent, who brought up the idea of a mutual separation during the meeting on 13 October 2025.

[45] The Applicant resigned before the Respondent finished its investigation process. The Applicant admitted in the hearing that he had not been advised of any outcome of the investigation. I consider that the Respondent acted in a manner which was procedurally fair and commensurate with what I would expect of an employer of that size. The Applicant was provided with notice of the allegations against him in writing. When he requested it, he was provided with further information (which took the form of a short timeline and a copy of the Code of Conduct). The Applicant suggested that he was not given enough information, including witness statements, but again I note that he had admitted to removing the batteries from site. The Applicant was asked to explain why he should not be dismissed.

[46] I do not find the Applicant's resignation to meet the threshold of a forced resignation per s.386(1)(b) of the Act. Therefore, the Applicant is not eligible to lodge an application under s.365 of the Act. The jurisdictional objection is upheld, and the Application is dismissed.

M Franzone of Business Law WA Pty Ltd for the Respondent

[1] Fair Work Act 2009 (Cth) s 386(1)(b).

[2] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

[4] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200.

[5] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [31].

[6] Whirisky v DivaT Home Care [2021] FWC 650 at [77].

[7] Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [28].

[9] (1999) FCA 1660 at 58.

[10] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.

[11] Boulic v Robot Building Supplies [2010] FWA 6905, [16].

[12] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [1995] IRCA 625; (1995) 62 IR 200, 205-206.

[13] Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].

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