• 3. she was not confident that the Applicant would agree to move to Lobs Hole moving forward given the discussions that had taken place over a number of months prior to his resignation.[161]

• [124] Ms Watson gave evidence that the Applicant took a further period of personal leave between 10 and 14 February 2025 and between his resignation and final day of employment on 26 February 2025 she only commuted communicated with the Applicant via email.[162] Ms Watson said she understood the Applicant did not return to Cooma or otherwise return to the Project.[163]

• [125] This was refuted by the Applicant who said he worked in the Respondent's Bradley Street office during his notice period.[164] In support of this he filed a copy of am email from Ms Lowes stating that the Applicant was in the office and sat at a desk next to them from 24 to 26 February 2025.[165]

• [126] In response, Ms Watson said on 25 February 2025 she was copied into an email chain from Mr Sleigh requesting that the Applicant confirm he had returned all IT equipment and on that same day the Human Resources Officer responded stating she had received the IT equipment.[166] Ms Watson said the email chain occurred two days prior to the final day of the Applicant's notice period.[167] Further, Ms Watson filed a copy of am email from Ms Furner, the Respondent's Mobilisation Supervisor, advising her that the Applicant attended the Bradley Street office on 24 February 2025, dropped off his IT equipment and said he was on leave due to a skin cancer removal operation.[168] Ms Watson said it is unclear how the Applicant could work from the Bradely Street office on the afternoon of 25 February 2025 and day of 26 February 2024 when he had no IT equipment.[169] During the hearing the Applicant said he returned the IT equipment on Tuesday 25 February 2025 however was absent from the office on Wednesday 26 February 2025 as he had a skin cancer removal procedure and was on personal leave.

• [127] The Applicant filed a letter from Ms Ashbourne, a former employee of the Respondent who held the role Training Administrator.[170] Ms Ashbourne did not appear during the hearing to give evidence. By way of summary, Ms Ashbourne's letter suggests:

• in a meeting on 15 November 2024 Mr Sleigh described immediate changes he was going to implement;
• Mr Sleigh did not ask employees about their work or roles;
• Ms Ashbourne arranged a one on one meeting with Mr Sleigh to discuss her personal circumstances and during that meeting indicated that she would like to work from home for a period to support her daughter who lived in Newcastle during a high risk pregnancy;
• Mr Sleigh did not agree to her request and there was no discussion regarding options or time given to find a solution;
• Ms Ashbourne implied she had no option but to resign and Mr Sleigh appeared pleased to accept her resignation;
• Ms Ashbourne also explained her circumstances to Ms Watson but no support or options were offered;

• • Mr Sleigh made requests for team members in Cooma to frequently attend Lobs Hole two to three times per week for the sole purpose of meeting with him in person which she considered a 'waste of time' and 'potentially dangerous' practice.[171]

• [128] Mr Sleigh gave evidence that during the meeting with Ms Ashbourne on 15 November 2024, there was a discussion around Ms Ashbourne's personal circumstances and that Ms Ashbourne asked about working from home but he advised this was not possible because her role was site based.[172] Mr Sleigh said he discussed with Ms Ashbourne how the relocation to Lobs Hole and change to roster would impact her, Ms Ashbourne stated that she wanted to think about things further and he was happy to give her as much time as she needed.[173]

• [129] Mr Sleigh gave evidence that during the Training Team meeting on 15 November 2024:

• he outlined some of the changes he proposed to make but disagreed that he wanted to change everything straight away;

• • he was not aware of each individual's exact role but went through a process of meeting with each employee to understand this further.[174]

• [130] Mr Sleigh rejected Ms Ashbourne's observations about being pleased to accept her resignation and said he was concerned she might resign and spoke to Ms Watson about this as Ms Ashbourne was a valued team member and he did not wish to see her leave the Project.[175]

• [131] Mr Sleigh denied that he asked Ms Ashbourne to provide a draft resignation letter but said that Ms Ashbourne asked if she could send him a draft, she did so on 16 November 2024 and Mr Sleigh responded.[176]

• [132] Mr Sleigh denied making things difficult for the Training Team members in Cooma and said he made requests for them to travel to site for the purposes of them performing their roles.[177]

• [133] Mr Sleigh gave evidence that each employee was consulted about the changes, and this resulted in a range outcomes including another employee's voluntary resignation and an employee transferring internally to remain in Cooma.[178]

• [134] The Applicant said that not one staff member from the team relocated and that:

• an employee in a training administration role remains in the Bombala Office in Cooma and was not forced to relocate due to family reasons;
• another employee in a training administration role was offered an alternative role after declining to relocate and currently works as a Receptionist at an accommodation camp in Cooma;

• • another employee resigned due to pressure to relocate.[179]

• [135] The Applicant said inductions were moved to Lobs Hole in January 2025 but that his former colleagues have told him that inductions were being transitioned back to Cooma for logistical reasons.[180]

• [136] Ms Watson gave evidence that new employee inductions will relocate back to Cooma but said the reason for this is insufficient accommodation at Lobs Hole due to urgent works being carried out by subcontractors who require on site accommodation.[181] Ms Watson said this was not anticipated by the Project or Respondents and nor was it raised by the Applicant.[182] Ms Watson gave evidence that due to the nature of new employee inductions containing some on site aspects, new employees will still be required to spend at least one night at Lobs Hole during their induction and this was one of the key reasons why the inductions were relocated from Cooma.[183] During cross examination Mr Sleigh indicated that while he believes that inductions should be carried out on site he was given a directive that inductions would need to return to Cooma as there were not enough beds for blue collar staff.

• [137] By way of summary the Applicant submitted that he was forced to resign because of:

• conduct and behaviour of Mr Sleigh and Ms Watson that created a working environment and situation that became toxic and untenable;

• • exhaustion and confusion around the status of his role, responsibilities and work life balance resulting from a unreasonable living and travel scenario based on an unsubstantiated plan and limited direction for the Applicant and his team.[184]

• [138] The Applicant put forward the following examples of why he felt pressured into resigning:[185]

• An expectation that he would need to relocate to Lobs Hole after residing in Cooma on a 5/2 contract working Monday to Friday for years.
• A lack of understanding that he was not compelled to relocate, as it was not a condition of his employment contract.
• A significant delay by the Respondent in providing a change of contract letter.
• Unsuitable travel options provided by the Respondent for his commute to and from Canberra to Lobs Hole.
• The Respondent's request to hand over his work to another colleague, which was withdrawn eight days later.
• A new job description or role scope not being provided by the Respondent to the Applicant despite his request for one.
• Work related stress caused by the Respondent's actions and intolerable working conditions.

• [139] The Respondents submitted that none of these actions were carried out for the purposes of forcing the Applicant to resign and nor did they have the probable effect of bringing the employment to an end.[186]

• • Mr Sleigh was demanding that he relocate to Lobs Hole on a 14/7 roster within seven to eight days with no official change in remuneration, conditions, responsibilities or travel details; [187]
• • his relocation was not pursued for more efficient outcomes for the Training Team but rather this was designed to force the Applicant's resignation;[188]
• • Mr Sleigh had already forced another employee into resigning by applying the same pressure.[189]

• [141] By way of summary, the Respondents submitted:

• • the conduct and behaviour of Ms Watson and Mr Sleigh was appropriate and not undertaken for the purposes of forcing the Applicant to resign;[190]
• • they worked with the Applicant to find a workable arrangement to enable him to relocate to Lobs Hole, which included deferring the relocation date on a number of occasions to enable further discussions;[191]

• Ms Ashbourne's letter is largely irrelevant, is speculative and sets out personal opinion rather than fact;

• • to the extent that Ms Ashbourne's letter may be said to be factual, it has only commented on her personal experiences and not any matter which could be said to have forced the Applicant to resign;[192]
• • whilst the Applicant may have been dissatisfied with management's actions or decisions in relation to the Training Team, it did not automatically follow that the actions or decisions left the Applicant with no choice but to resign;[193]
• • the Applicant provided no evidence or particulars in relation to his claim of exhaustion;[194]
• • there was no real confusion regarding the Applicant's role as the Applicant was employed as a Training Coordinator and there was no 'White Collar Training Coordinator' role;[195]
• • relocation of the Applicant to Lobs Hole would have facilitated the performance of his duties, not frustrated that performance;[196]
• • the Applicant did not disclose his personal circumstances to enable appropriate rostering and travel arrangements to be explored with him and was not agreeable to proposals for working a 14/7 roster which would have addressed relocation impacts;[197]
• • the Applicant's employment contract expressly required the Applicant to work at such other places as the Respondent required from time to time and relying on this contractual provision cannot be characterised as conduct which forced the Applicant to resign;[198]
• • the Second Change of Contract Letter sets out that, due to the change in location, the Applicant would be entitled to an increased location allowance of 25% (which the Respondents indicated amounted to $34,593.75 during the hearing) rather than the 10% location allowance he already received (being approximately $13,500);[199]
• • the Applicant's role did not need to be based at Cooma and there were advantages in the Applicant relocating to Lobs Hole;[200]
• • there was not a four-month delay in providing the change of condition letter, the Applicant was provided with a change of condition letter approximately one month after he requested one and between 22 December 2024 and 1 January 2025 the Applicant's position in relation to the roster and travel arrangements changed which meant the change of contract letter that had been prepared was outdated;[201]

• at the time of the Applicant's resignation, his relocation had not been finalised and the details around his roster and travel were still being worked out;

• • confusion arose because the Applicant had not advised the Respondent that he was residing in Yass Valley, rather than Canberra, but there was limited opportunity for alternative travel arrangements to be explored with the Applicant because he resigned;[202]
• • at all times during his employment, the Applicant was a remote worker who was required to travel to Cooma during the work week and the situation was not such that the change to the Applicant's location and required travel arrangements meant that the Applicant would be required to work away from his place of residency in circumstances where he had previously worked close to home;[203]
• • Ms Watson and Mr Sleigh engaged with the Applicant to explore ways of alleviating or eliminating any impacts of relocation to Lobs Hole;[204]
• • if the Applicant relocated to Lobs Hole and remained on a 5/2 roster, the additional travel time would have been approximately 4 hours per week (being the time to travel from Cooma to Lobs Hole).[205]

• [142] The Respondent referred to the matter of Brewer v Greenlight Human Capital[206]in which the Commission considered whether a change in location at an employer's direction, but in accordance with the terms of the employees contract, could force an employee to resign and therefore be dismissed within the meaning of s.386(1)(b) of the Act and did not accept such an argument where an employee was required to travel an additional 1 hour and 10 minutes per day.[207]

• • the handover of work to the Training Administrator Ms Reed and handing back of that work was reasonable management action carried out in a reasonable way and the Applicant was agreeable to that approach;[208]
• • in relation to the Applicant's claim that he was never provided with an updated position description, the position of 'White Collar Training Coordinator' did not exist and the general Training Coordinator position description applied;[209]
• • the Applicant has not provided details of what the "intolerable working conditions" he referred to were;[210]
• • at no time did the Applicant raise with the Respondents that he was stressed and being dissatisfied at work does not mean an employee was forced to resign;[211]
• • that there is no evidence in the Applicant's resignation email of 30 January 2025 that it was a 'heat of the moment' resignation and this was only raised by the Applicant in his further email on 5 February 2025.[212]

• [144] The Respondent submitted the Applicant had an onus of satisfying the Commission his resignation was not voluntary, he did not discharge this onus, the Commission cannot be satisfied that the Applicant was dismissed by the Respondent and the application must be dismissed in accordance with s.587(1)(a) of the Act on the basis that there is no jurisdiction.[213]

• [145] The Applicant provided an ostensible resignation via email on 30 January 2025. Having considered the evidence, I find that the factual matrix that contextualised the Applicant's resignation email is as set out below.

• [146] The Applicant commenced employment pursuant to an employment contract of which clause 4.1 stated that his place of work would "initially be at the Company's Office in Cooma, or such other places as the Company may reasonably request from time to time". Clause 4.1 does not, in my view, give the Respondent the express contractual right to require the Applicant to work anywhere. Rather, the clause contemplates the Applicant working in either Cooma or another place as requested by the Respondent on occasion, as long as that request is reasonable.

• [147] Clause 4.2, read in the context of clause 4.1, contemplates a requirement to travel and work elsewhere in the performance of duties, but does not displace the Applicant's primary place of work as described in clause 4.1.

• [148] On 31 July 2023 the Applicant moved to the Training Team in the role of 'Training Coordinator' as described in the First Change of Conditions Letter. I accept that the Applicant and Mr Reid likely discussed that the Applicant's role was intended to have a focus on white collar workers.

• [149] However, Mr Sleigh took on the role of Training Manager on 11 November 2024 and I accept that this was to fill the vacancy left by Mr Reid when his employment with the Respondent ended. Mr Sleigh formed the view that change was needed very quickly and sought to implement change very quickly. In particular, on 19 November 2024 he held a meeting with the Training Team members in Cooma to advise them they would be relocating to Lobs Hole, at least 1 hour and 45 minutes away from their current place of work, on an anticipated date of 28 November 2024.

• [150] It is likely that there were two drivers behind the decision to relocate the employees in Cooma, the first being Mr Sleigh's desire to have his team centrally located and the second being Ms Watson's desire not to renew the lease of the Massie Street Office where the Cooma based Training Team members were located.

• [151] In my view, the announcement of this change was managed poorly. Mr Sleigh had only been in the role a short time and would not have had much time to observe and engage with the Training Team members to understand their day-to-day activities, personal circumstances or how such a change may have impacted them prior to the decision being made. I accept that Mr Sleigh was unhappy about the Applicant's refusal to attend the meeting at Lobs Hole on 19 November 2024 and made this known. It is likely that this was because of the nature of the changes that Mr Sleigh intended to announce in person.

• [152] At the time Mr Sleigh announced the change on 19 November 2024, Training Team members did not have all the information about the reasons for the change as they were not made aware that the lease for the Massie Street Office would not be renewed. While the Massie Street Office closure was a key driver for the change, by not communicating this it is understandable that the Applicant may have had suspicions about why Mr Sleigh was in such a hurry to implement the change without first engaging with the Applicant to understand how it impacted him or how the change would be implemented.

• [153] The Applicant did not have a clear understanding that he would be required to change locations following the announcement of the change on 19 November 2024 as he emailed Mr Sleigh for clarification.[214] Mr Sleigh's reply demonstrates that he did not fully understand the impacts of the change on the Applicant because he asked him if he was a local resident employee, FIFO or DIDO when he responded that day.[215] Given that there were only four people in the Cooma office who were impacted by the change, it is peculiar and unfortunate that Mr Sleigh did not attempt to understand the existing arrangements applying to employees and how they stood to be impacted by the change prior to this point.

• [154] When the Applicant responded he indicated that he was DIDO from Canberra.[216] However this was another example of poor communication as Mr Sleigh then understood that the Applicant's place of residence was Canberra, when it was actually in the Yass Valley, which is located approximately half an hour away from Canberra. Mr Sleigh's ignorance of the Applicant's arrangements before announcing the change was further apparent in his email to the Applicant in which he asked the Applicant whether the Cooma office base was formally written into his contract,[217] which it was.

• [155] Employees based at Lobs Hole work pursuant to a 14/7 roster to manage travel impacts and the Applicant was unsure as to whether his 5/2 roster would be impacted as he emailed Mr Sleigh asking this question.[218] Mr Sleigh responded on 22 November 2024 indicating that everyone would be on a 14/7 roster and that he wanted to achieve the Applicant's relocation and move to the 14/7 roster by 28 November 2024, less than a week later.[219] This would have been a significant change for the Applicant in terms of how his work and personal time were structured and yet there did not appear to be any acknowledgement of this by Mr Sleigh.

• [156] The Applicant emailed Mr Sleigh in response stating that the proposed date of 28 November 2024 was "extremely unrealistic" and that he had no discussions or consultation with anyone about the massive impacts on his family and life outside of work.[220] The Applicant sought to negotiate a more "realistic" relocation date and sought a letter of offer via the 'change of conditions' process in order to have all the information to make an informed decision about future.[221] Such a response was understandable in circumstances where it appeared as though the relocation and rostering changes had been decided and were intended to be implemented hastily yet the Applicant did not have key details about the change, including whether his remuneration would change or what his travel arrangements to and from the Lobs Hole location would be. It is also understandable that there would be impacts for the Applicant's personal life if he was no longer to return home every weekend.

• [157] Mr Sleigh's response to the Applicant was not likely to have been received well by the Applicant. Instead of seeking to understand the Applicant's circumstances, Mr Sleigh appears to have suggested in his email that he had given employees until 22 November 2024 to give feedback, being a short period of three days after the change was announced, and was surprised the Applicant had not raised his feedback earlier."[222] Mr Sleigh indicated that that he was happy to negotiate a suitable date to support his situation but did not otherwise indicate that any of the other aspects of the change were up for negotiation.[223] It also appears that Mr Sleigh acknowledged that the Applicant returned home on weekends to spend time with his family as he suggested that the Applicant "enjoy [his] family time" in closing out the email. It is perplexing that Mr Sleigh had not contemplated that there may be problems with a rapid implementation of such a change or that the Applicant may have wanted time to discuss the proposed arrangement with his family who also stood to be impacted.[224]

• [158] On 28 November 2024 Mr Sleigh emailed human resources requesting that a meeting be set up with the Applicant to find and secure an agreed outcome. Mr Sleigh concluded that email stating "We'd like to get a fair and reasonable outcome confirmed ASAP as we need the support here onsite", and the Applicant responded indicating that he looked forward to discussing the matter further. Mr Sleigh's communications suggest that the Applicant's relocation to Lobs Hole was not up for negotiation but that he was willing to negotiate how and when this would happen.

• [159] There was a delay in organising the meeting which Mr Sleigh attributed to conflicting schedules and rosters of himself, the Applicant and human resources staff.[225] The Applicant followed up on 23 December 2024. It is understandable that the Applicant was seeking both an opportunity to discuss the impacts of the change and get clarity during this period of uncertainty and it was reasonable for him to ask for "a lot more consultation and information prior to committing to changes", again flagging that the change would "impact [the Applicant's] current social and family situation at home".

• [160] The Applicant had a discussion with Mr Young the following day who subsequently emailed the Applicant with further details of the proposed changes indicating a transition to a 14/7 roster arrangement at Lobs Hole effective 10 February 2025. While Mr Sleigh appears to hold the belief that the Applicant had agreed to this transitional arrangement and move to the 14/7 roster at Lobs Hole, the Applicant's evidence was that he did not agree to the arrangement. It appears that Mr Sleigh may have misunderstood the position of the Applicant because on 27 December 2025 the Applicant sent an email advising that after discussing the proposed change with his family and taking into account responsibilities with his farm at home and other family commitments, the change of work location and move to the 14/7 roster would not work for him.

• [161] It is clear that Mr Sleigh and the Applicant were not aligned on the pathway forward and Ms Watson became involved. By this stage the Applicant had also made an application to the Commission for orders to stop bullying in relation to Mr Sleigh.

• [162] Following a discussion with Ms Watson, the Applicant emailed Ms Watson indicating that he was happy to look at a transition to Lobs Hole on 10 February 2025 working on a 5/2 roster.[226] It is likely that the Applicant and Ms Watson discussed provision of a change of contract letter because the Applicant also said in his email of 21 January 2025:

"With the CoC can you please have HR provide an updated White Collar Training Coordinator PD for review aligned with responsibilities at Lobs Hole."[227]

• [163] The communications between Ms Watson and the Applicant on 23 January 2025 also indicate that Ms Watson discussed with the Applicant that the lease of the Massie Street office would not be renewed. The Applicant said he felt compelled to agree to the relocation after he was advised that his usual place of work was being closed[228] and felt pressured by Mr Sleigh to agree to relocation as he was concerned about termination of his position.[229] It was reasonable for the Applicant to have concerns about Mr Sleigh's motivations as when the Applicant had communicated that the change to his rostered work location did not work for him Mr Sleigh responded "If your decision stands as below I will require you to hand over in preparation for the workload planned and coming for 2025".[230] However, by this stage Ms Watson had stepped in to try and find a solution and it appeared that there was some capacity to negotiate the terms of a relocation.

• [164] I accept that the relocation to Lobs Hole was not the Applicant's preferred outcome however it seems likely that the Applicant's main concern had been the initial proposed requirement that he work a 14/7 roster, with the evidence suggesting he was open to working at Lobs Hole and finding a workable solution regarding relocation. As such, upon being made aware that there would be no desk available at the Massie Street Office, on 23 January 2025 the Applicant indicated that he was happy to bring the date of relocation forward to 3 February 2025 and have this reflected in his change of contract letter.[231]

• [165] On 29 January 2025, after it became clear that the arrangement would involve relocation Lobs Hole but that the Applicant would remain working on a 5/2 roster, the human resources team provided the Applicant with the Second Change of Conditions Letter reflecting this and that the Applicant would be paid a 25 per cent allowance. While the Applicant raised concerns about the delay in the provision of this letter, I accept that it is largely attributable to the fact that no firm conclusions had been reached about what the arrangement would be.

• [166] On 30 January 2025 the Applicant sent an email confirming that he was happy to change his contract regarding his location of work.[232] However, the final details to be settled were the arrangements in respect of the Applicant's travel. In the Applicant's email of 30 January 2025, the Applicant raised that options for travel via bus seemed limited and he sought to understand the Respondent's proposed travel arrangements given he was living in Yass Valley and the Respondents expectations regarding travel would "impact [his] final decision".[233]

• [167] It does not appear that Applicant and Mr Sleigh had discussed travel expectations to fit the 5/2 roster and relocation to Lobs Hole in any detail at this stage. An exchange of views about this was likely best suited to a verbal discussion in an attempt to trouble shoot and find a solution that worked for all parties. However, this is not what happened and regrettably an exchange of emails followed between 3.36pm and 6.44pm in which:

• Mr Sleigh suggested that the Applicant depart Cooma for Lobs Hole every Monday at 5.20AM to which the Applicant responded "so your expectation is I travel to Cooma on Sunday? Or leave home at 3.20am Monday morning?"
• Mr Sleigh suggested that the Applicant depart Lobs Hole for Cooma at 3.15pm, arriving in Cooma at 6pm to which the Applicant responded that he would "be home by 8pm Friday night after starting at 6.30am that morning, which is a 13.5 hour day."
• Mr Sleigh then suggested that FIFO options may need to be explored and asked the Applicant if he saw alternative options.
• The Applicant appeared to believe that Mr Sleigh was suggesting that the Applicant work Monday to Friday at Lobs Hole and then stay in Cooma over the weekend with the consequence that he would not return to his home and questioned whether Mr Sleigh was making a deliberate attempt to provide options so unreasonable that he could not accept then.
• The Applicant said that all the options provided were unsustainable and suggested his role of 'White Collar -Training Coordinator' based at Cooma was redundant.
• Mr Sleigh responded indicating that at no point had the Applicant's role been suggested as redundant and the Respondent was happy to provide accommodation for the Applicant to manage fatigue, including an additional Saturday night in Cooma should the Applicant wish to stay in Cooma.
• The Applicant responded indicating he would prefer not to drive to Cooma and would catch project buses with other staff to and from Canberra and requesting a position description for a 'White Collar Training Coordinator' based at Lobs Hole.

• [168] The Applicant provided his email resignation to Ms Watson at 8.11pm that evening, Thursday 30 January 2025.

• [169] Ms Wason acknowledged the resignation on Saturday 1 February 2025 and indicated she would have a discussion with the Applicant in the office the following Monday. However, the Applicant took a further period of personal leave from Monday 3 February 2025 to Friday 7 February 2025[234] and no discussion took place. On 5 February 2025, during this period of leave, the Applicant attempted to retract his resignation "[d]ue to the circumstances and emotions of the discussion late on the evening of January 30th".[235] Ms Watson did not allow him to do so.

• [170] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[236] the Full Bench observed that the usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment.[237]

• [171] The Full Bench went on to consider case law and authorities dealing with circumstances in which an ostensible resignation may not operate as an effective resignation capable of acceptance by the employer and found:

'[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 element.[238]

• [172] In coming to this finding the Full Bench in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli identified that confusion may arise in consideration of a whether the mental or emotional state of the employee causes the employee to communicate a resignation without truly intending to resign resignation or whether a resignation is a 'forced resignation' and said:

'[39] It may be noted that the UK decision in Barclay v. City of Glasgow District Council[239] referred to in Minato included an employee "being jostled into a decision" to resign as one of the "special circumstances" which might require an employer to obtain confirmation of the employee's intention to resign. This is apt to confuse, since such "jostling" may shade into the "forced resignation" situation discussed earlier. However it is reasonably clear that the cases concerning "special circumstances" are focused on situations where the mental or emotional state of the employee causes the employee to communicate a resignation without truly intending to resign. For example, in Achal v Electrolux Pty Ltd[240] the Queensland Industrial Relations Commission (Hall CIC) said:

"... There is now a respectable line of English authority for the proposition that a resignation given in heat or in a state of emotional stress or as a result of being jostled into a decision by the employer, may be withdrawn, see Sothem v Franks Charlesly and Co [1981] IRLR 278 at 280 per Fox LJ, and Barclay v City of Glasgow DC [1983] IRLR 313, at 315. The latter case was not cited to Gray J in Birrell v Australian National Airlines Commission [1984] FCA 378; (1984) 9 IR 101 when his Honour held (at 110 to 111):

'All this having been said, I regard the decision in Martin v Yeoman Aggregates Ltd [1983] ICR 314, as confined to its facts, and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly. A principle such as that does not at all fit the present case. The Applicant did not speak in the heat of the moment, but rather took the considered and deliberate step of giving notice to terminate his contract of employment. At the time when he handed over the letter, he did intend to resign. His subsequent reconsideration of this step, in the light of what he took to be the reaction of TAA to it, does not approximate to the action of a person who, realizing that he has said something in anger which he did not intend, immediately makes amends.'

Birrell's case (ibid) was not a case of resignation in a distressed rather than an angry state. It was not necessary for his Honour to decide, and I do not understand his Honour to have decided, that an employee whose distress is real and obvious and whose employer jostles her into resigning whilst in that state may not withdraw the resignation unilaterally on recovering her composure where the employer will not be prejudiced thereby, save to the extent that the advantage flowing from the resignation evaporates..."[241]

• [173] It is likely that the Applicant became frustrated with the travel suggestions put to him on the evening of 30 January 2025 and this, combined with his overall frustrations about the approach of Mr Sleigh and how the change had been managed resulted in him providing an email resignation at 8.11pm that evening. While the Applicant was on a period of personal leave, there is no evidence of a medical condition that impeded his capacity to make a decision about his employment. The resignation was set out in the email in an unambiguous manner, with the Applicant providing four weeks' notice in accordance with his employment contract. The evidence does not establish that the resignation was given in the heat of the moment or that the Applicant was in a state of emotional stress or mental confusion such that he could not reasonably be understood to be conveying a real intention to resign and nor did the Applicant position his case in this way. Further, between the time of the resignation on Thursday 30 January 2025 and Ms Watson's response to the resignation on Saturday 1 February 2025, no circumstances arose to put the Respondents on notice that resignation may not have been intended by the Applicant. It was not until 5 February, almost six days later, that the Applicant sought to retract his resignation. In these circumstances I consider the resignation was an effective resignation, subject to the consideration of s.386(1)(b) which is the primary provision on which the Applicant relies in support of his position that he was dismissed.

• [174] Mr Sleigh's management style, including rapid decision making without prior consultation, was no doubt unsettling for the Applicant. Further Mr Sleigh's decisions did not always lead to the best or workable outcomes, as demonstrated by the need to reverse his decision about the transfer of duties from the Applicant to Ms Reed and the fact that the Cooma employees were ultimately not able to move to Lobs Hole. However, I do not accept that Mr Sleigh's actions were intended to force the Applicant's resignation. Mr Sleigh had acknowledged that the Applicant had provided "exceptional and dedicated service in supporting [the Respondent's] white collar programme"[242] but had also identified the Training Team was "under resourced and desperately needs coverage to deliver all of required services across the board."[243] Mr Sleigh clearly wanted to implement change quickly to address his own perceptions of where things could be improved and this included a desire to retain the Applicant but utilise his capability in a way that was different from what the Applicant had been accustomed to and from a different work location.

• [175] Similarly, I do not accept that Ms Watson's conduct was intended to force the Applicant to resign, rather she stepped in to try and find a resolution when it became apparent that Mr Sleigh and the Applicant were not aligned on the pathway forward and likely because the Applicant raised concerns about Mr Sleigh's behaviour.

• [176] I acknowledge the management of the change process was poor and there was a lack of sensitivity around how the changes may have impacted the Applicant's personal life, including in some of the travel options presented to the Applicant by Mr Sleigh on 30 January 2025 which were understandably undesirable to the Applicant. However, by this stage the Respondents had understood the Applicant had agreed to relocate to Lobs Hole pursuant to a 5/2 roster and the Applicant's travel arrangements to facilitate this had not yet been decided. Ms Watson's evidence during cross examination suggests that not all travel options had been discussed. Ms Watson also gave evidence that there was another option that could have been explored involving the Applicant traveling between Lobs Hole and Cooma during work time, including:

• driving from his residence in Yass Valley to Cooma on Monday morning, which is a driving distance of approximately two hours;
• catching a bus from Cooma to Lobs Hole at around midday, being the bus that collects employees returning form their time off and takes them to Lobs Hole;

• • catching a bus from Lobs Hole to Cooma on Friday which would return the Applicant to Cooma by 3.30pm.[244]

• [177] During the hearing the Applicant submitted that despite his ability to work out of Cooma before his transfer to Lobs Hole:

• there was a requirement that he participate in a 6am pre-start meeting which would mean that the Applicant would need to leave his home on a Monday at 4am; and
• on Friday when departing the only bus that leaves in the afternoon is a 3.30pm bus, arriving in Cooma at 6/6.30pm which would mean that he would not arrive at home until 8/8.30pm which would be in breach of fatigue management policies on the project.

• [178] The Applicant also indicated that the relocation would have made it difficult for him to deliver a full 40-hour week and travel during work time would have likely exacerbated this concern.

• [179] During the hearing both Ms Watson and the Applicant appeared to agree that they had not yet discussed the travel arrangements to support the relocation at this stage. No firm decisions about travel arrangements had been made and the implications of travel time during work in respect of the Applicant's expected work output was something the Applicant and Respondents could have discussed as they explored options. Further, Mr Sleigh had pointed out in his email of 30 January 2025 that while the team had a "huge programme to deliver" and was about to start an additional programme, there had been discussion about more resources joining the project to support the Applicant's role with the workload.

• [180] While the Applicant's frustration about the management of the change was understandable, it remained open to him to explore alternatives through further discussion and see where the arrangements ultimately landed and whether a workable solution could be found. In this context, I consider there were other avenues that the Applicant could have pursued instead of resignation. I also note that the Applicant had made an application to the Commission for orders to stop bullying in relation to Mr Sleigh's conduct and could have chosen not to resign and to participate in that process to see if the Commission could assist in resolving his concerns about Mr Sleigh.

• [181] While the Respondents should have handled the change in a more compassionate way by seeking to understand the Applicant's personal circumstances and having an informed discussion about the impacts of the proposed change upon the Applicant and mitigation much earlier, at the time the Applicant sent his resignation email they were clearly still trying to find a solution that worked for all parties. In this context I do not accept that the Respondents engaged in conduct with the intention of bringing the employment to an end or that termination of the Applicant's employment was the probable result of their conduct such that the Applicant had no effective or real choice but to resign.

• [182] Accordingly, I find that the Applicant's employment was not terminated on the Respondents' initiative and find that the Applicant was not forced to resign because of conduct, or a course of conduct, engaged in by the Respondents. I find that the Applicant was not dismissed in accordance with s.386(1) of the Act and as such the Commission does not have the jurisdiction to deal with the Application. Based on my conclusion that the Applicant was not dismissed within the meaning of the Act, I dismiss the application.

Mr M. Osborne of Norton Rose Fulbright Australia for the Respondent.

[1] Applicant's Submissions, Annexure 1.

[2] Applicant's Submissions, Annexure 3.

[3] Applicant's Submissions, Annexure 3.

[4] Applicant's Submissions, Annexure 4.

[12] Sleigh Statement at [2]; Watson Statement at [2].

[27] Applicant's Submissions, Annexure 4.

[28] Applicant's Submissions, Annexure 4.

[33] Applicant's Statement, Annexure 4.

[46] Sleigh Statement in Reply at [5].

[47] Sleigh Statement in Reply at [5].

[53] Sleigh Statement at [1]; Watson Statement at [7].

[57] Applicant's Submissions, Annexure 8.

[62] Sleigh Statement at [11], [30].

[103] Applicant's Submissions at [8].

[119] Sleigh Reply Statement at [21].

[120] Watson Reply Statement at [29].

[121] Sleigh Reply Statement, Annexure 1.

[122] Sleigh Reply Statement, Annexure 1

[123] Sleigh Reply Statement at [21].

[125] Watson Reply Statement at [25].

[126] Applicant's Submissions, Annexure 6.

[127] Applicant's Submissions, Annexure 6.

[128] Applicant's Submissions, Annexure 6.

[129] Sleigh Statement, Attachment 10.

[130] Applicant's Submissions, Annexure 6.

[131] Applicant's Submissions, Annexure 6.

[132] Applicant's Submissions, Annexure 6.

[136] Watson Statement in Reply at [9].

[137] Sleigh Reply Statement at [18].

[138] Sleigh Reply Statement at [18].

[144] Watson Statement in Reply at [10].

[145] Watson Statement in Reply at [10].

[149] Sleigh Statement, Attachment 12; Watson Statement, Attachment 5.

[150] Sleigh Statement, Attachment 12; Watson Statement Attachment 6.

[152] Watson Reply Statement at [12].

[153] Watson Reply Statement at [13].

[154] Watson Reply Statement at [13].

[155] Sleigh Reply Statement at [28].

[156] Sleigh Reply Statement at [28].

[159] Sleigh Statement, Attachment 12; Watson Statement, Attachment 7.

[160] Sleigh Statement, Attachment 12; Watson Statement, Attachment 7.

[165] Applicant's Submissions, Annexure 3.

[166] Watson Reply Statement at [31] - [32], Attachment 1.

[167] Watson Reply Statement at [32].

[168] Watson Reply Statement at [34], Attachment 2.

[169] Watson Reply Statement at [32] - [33].

[170] Applicant's Submissions, Annexure 1.

[171] Applicant's Submissions, Annexure 1.

[172] Sleigh Reply Statement at [34].

[173] Sleigh Reply Statement at [34].

[174] Sleigh Reply Statement at [35].

[175] Sleigh Reply Statement at [36].

[176] Sleigh Reply Statement at [37].

[177] Sleigh Reply Statement at [40].

[179] Applicant's Submissions at [3].

[181] Watson Reply Statement at [5].

[182] Watson Reply Statement at [5].

[183] Watson Reply Statement at [5].

[184] Applicant's Submissions at [1].

[186] Respondent's Reply Submissions at [6].

[188] Applicant's Submissions, pp.6 and 7.

[190] Respondent's Reply Submissions at [7].

[191] Respondent's Submissions at [13].

[192] Respondent's Reply Submissions at [8].

[193] Respondent's Reply Submissions at [9].

[194] Respondent's Reply Submissions at [10].

[195] Respondent's Reply Submissions at [12].

[196] Respondent's Reply Submissions at [12].

[197] Respondent's Reply Submissions at [13].

[198] Respondent's Reply Submissions at [14].

[199] Respondent's Reply Submissions at [16].

[200] Respondent's Reply Submissions at [17].

[201] Respondent's Reply Submissions at [18].

[202] Respondent's Reply Submissions at [19].

[203] Respondent's Reply Submissions at [20].

[204] Respondent's submissions at [23].

[205] Respondent's Reply Submissions at [21].

[206] [2018] FWC 4852.

[207] [2018] FWC 4852 at [9]. [50] and [51].

[208] Respondent's Submissions at [24].

[209] Respondent's Submissions at [25].

[210] Respondent's Submissions at [26].

[211] Respondent's Submissions at [27].

[212] Respondent's Submissions at [15].

[213] Respondent's Submissions at [28].

[225] Sleigh Reply Statement at [24].

[232] Applicant's Submissions, Annexure 6.

[233] Applicant's Submissions, Annexure 6.

[235] Sleigh Statement, Attachment 12; Watson Statement, Attachment 7.

[236] [2017] FWCFB 3941.

[237] [2017] FWCFB 3941 at [35].

[238] [2017] FWCFB 3941 at [35].

[239] [1983] IRLR 313.

[240] (1993) 50 IR 236.

[241] [2017] FWCFB 3941 at [39].

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