s.365 - General protections

General Protections Application to deal with contravention involving dismissal - jurisdictional objection - whether applicant was dismissed - applicant was not dismissed - General Protections application dismissed for want of jurisdiction

• [1] Mr Ming Han has applied under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a general protections dispute involving dismissal.

• [2] The Respondent, The Sleeping Giant Pty Ltd, filed its F8A Response to the general protections application on 14 April 2025, in which it raised a jurisdictional objection that the Applicant was not dismissed as required by s.365(a) of the Act.

• [3] A hearing in relation to the jurisdictional objection was conducted on 2 June 2025. The Applicant represented himself and the Respondent was represented by Ms Natalie Hawkins (Head of Retail). The Applicant gave evidence on his own behalf. Mr Laurence Braal (Area Manager) and Ms Rafeala Carvalho (Human Resources Manager) gave evidence on behalf of the Respondent.

• [4] The Respondent contends that the Applicant was not dismissed and relies on an email from the Applicant to Mr Braal sent at about 1:30pm on 14 March 2025. The Applicant's email of 14 March 2025 was entitled "A letter of resignation" and was a communication in which the Applicant gave notice of his resignation to be effective on 21 March 2025.

• [5] The Applicant contends that he was dismissed by the Respondent. His contention in this regard was encapsulated in a written statement of the Applicant appended to his Form F2 and also filed by him pursuant to Directions made by the Commission in respect of the jurisdictional objection. The Applicant's written statement was in evidence before the Commission and encapsulates the Applicant's position in respect of dismissal in the following paragraph:

On March 2025, after I had several days of contemplating, as well as my health and well being, I handed in my resignation to Lawrence [Braal]. Lawrence conduct has created an intolerable or untenable work environment for me, effectively forcing me to resign. He has made me feel extremely uncomfortable, the work environment so difficult and I have no reasonable choice but to leave.

• [6] Section 365 of the Act identifies the persons who are entitled to make a general protections application involving dismissal to the Commission. Relevantly, section 365(a) establishes a requirement that the "person has been dismissed".

• [7] Section 12 of the Act defines the term "dismissed" by reference to s 386. Section 386 is relevantly in the following terms:

(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.

• [8] In Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli (Bupa)[1] a Full Bench of the Commission considered the circumstances in which a resignation by an employee may constitute a dismissal at the initiative of the employer within the meaning of 386(1). The Full Bench held as follows:

[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 probably 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.

• [9] I will consider whether the Applicant was dismissed having regard to the tests set out by the Full Bench in Bupa. This is because the cessation of the Applicant's employment occurred in circumstances where he provided a written resignation to the Respondent but contends that the resignation was given in circumstances which constituted a dismissal at the initiative of the Respondent.

• [10] As is evident from the extract from the Applicant's statement set out under paragraph [5] above, the matters that the Applicant relies on to contend that he was dismissed are allegations he makes regarding Mr Braal's conduct. The Applicant's case effectively amounts to an allegation that he was dismissed within the meaning of s 386(1)(b) of the Act.

• [11] The Applicant was employed by the Respondent in a retail salesperson position. The Respondent is a national retailer of bedroom products, in particular beds and mattresses. It has a number of retail stores including one in which recently opened in Springvale, Victoria. On 20 November 2024, the Applicant commenced employment in the Springvale Store. At the commencement of his employment, the manager of the Springvale Store was Ms Samra Yacqub. The Area Manager responsible for the Springvale Store, amongst other stores, was Mr Braal.

• [12] The Applicant was very focused on making sales and was a capable salesperson. He was evidently effective in communicating with customers and closing sales.

• [13] However, his keen focus on sales also contributed to some conflict between the Applicant and some other staff at the Springvale Store. A probation performance review document dated 20 February 2025 by his then Store manager Ms Samra Yacqub recorded as follows in relation on the Applicant:

Ming is good in communicating with customers & closing sales ...

Gets little bit hyper when he thinks other staff member making sales or taking his sales. Just need to work on his work ethics and attitude towards fellow colleagues.

• [14] The Applicant relies on three alleged circumstances, constituted by conversations between him and Mr Braal, as a result of which he says Mr Braal's conduct forced him to resign on 14 March 2025. Where there is a conflict between the evidence of the Applicant and Mr Braal in relation to these conversations, I tend to prefer the evidence of Mr Braal. Mr Braal struck me as a credible witness and his evidence was generally clear in this evidence. Conversely, the Applicant struck me as a witness who was prone to exaggerate about his interactions with Mr Braal.

• [15] The Applicant also relies on a fourth conversation he had with Mr Braal. However, this fourth conversation is not relevant as to whether the Applicant's resignation constituted a dismissal. This is because that conversation occurred on 18 March 2025 which was four days after the Applicant emailed his resignation to Mr Braal on 14 March 2025.

First Alleged Circumstance - The Conversation between the Applicant and Braal in Early January 2025

• [16] The first circumstance relates to a complaint the Applicant made to Mr Braal about the Applicant's then Store Manager, Ms Yacqub. The Applicant's complaint seems to have been made in about early January 2025 when he complained to Mr Braal that Ms Yacqub had taken clients the Applicant had initially served and then claimed the sales under her name. The Applicant claimed in his statement that Mr Braal immediately dismissed the Applicant's complaints on the basis that he knew Ms Yacqub and trusted her.

• [17] During his oral evidence, the Applicant agreed that during this conversation, Mr Braal spoke to him in calm manner. The Applicant also gave oral evidence that Mr Braal suggested to the Applicant that he should learn how to more quickly operate the Pronto point of sale system so that other staff were not able to engage with new customers while the Applicant was delayed completing a transaction on Pronto.

• [18] Mr Braal gave evidence about this conversation with the Applicant which he said occurred in about early January 2025. I will shortly go to Mr Braal's account about his conversation with the Applicant.

• [19] However, before I do so, I consider it relevant to set out Mr Braal's uncontradicted oral evidence about a prior conversation he had had with Ms Yacqub about the Applicant. Mr Braal's evidence was that Ms Yacqub had contacted him and said that the Applicant, in trying to get sales, would excessively claim that a lot of customers who came into the store were the Applicant's customers. Mr Braal gave evidence that he responded to Ms Yacqub's concern by observing that the Applicant was trying to prove himself, that there should not be an excessive reaction by her and that the Applicant should be given more time to improve. Further, Mr Braal's evidence was that Ms Yacqub accepted that she would give the Applicant more time. I accept Mr Braal's account of his conversation with Ms Yacqub.

• [20] I return now to Mr Braal's account of the early January 2025 conversation with the Applicant. Mr Braal's evidence was that the Applicant complained that his sales were being taken away from him and that he wasn't getting a fair chance to make sales. Mr Braal's evidence was that he told Mr Han that Ms Yacqub had been a store manager in NSW, he [Mr Braal] knew Ms Yacqub well and that and she was more than capable of sorting the issues out. Mr Braal's evidence was that he spoke to the Applicant in a normal tone. Mr Braal denies that he dismissed the Applicant's complaint outright.

• [21] The accounts given by the Applicant and Mr Braal about this conversation are not substantially different.

• [22] However, the Applicant's issue about Mr Braal's conduct was that Mr Braal was allegedly dismissive of his complaint or didn't listen to his complaint because Mr Braal expressed confidence in Ms Yacqub by referring to the fact that he had known Ms Yacqub for a long time.

• [23] I do not accept that Mr Braal did not listen to the Applicant's complaint. Mr Braal listened to the Applicant's complaint. Mr Braal's response was to express some confidence in Ms Yacqub's ability to deal with the matter. This was not unreasonable by Mr Braal. In fact, it was entirely reasonable. Ms Yacqub was a store manager who Mr Braal had experience in dealing with including when she served as a store manager in NSW. Ms Yacqub had already spoken to Mr Braal about a concern she held that the Applicant had a tendency to excessively claim customers as his own. Mr Braal had counselled Ms Yacqub to be patient with the Applicant.

• [24] In these circumstances, it was entirely reasonable for Mr Braal to express confidence to the Applicant about Ms Yacqub's ability to resolve issues as Store Manager. I accept that the Applicant likely did not know that Mr Braal and Ms Yacqub had already spoken about the Applicant. But this makes no difference to my assessment of the reasonableness of Mr Braal's conduct in his interaction with the Applicant. Mr Braal's tone in this conversation was calm. Furthermore, Mr Braal made a practical suggestion to the Applicant as to how he could improve his availability to deal with new customers, namely, to improve the speed with which he operated the Pronto point of sale system. The making of this suggestion by Mr Braal showed positive engagement by him with the Applicant in a manner intended by Mr Braal to improve the Applicant's availability to engage with new customers.

• [25] I do not consider that Mr Braal was dismissive of the Applicant's complaint in the sense that he did not listen to the Applicant. As I have found, I consider that Mr Braal listened to the Applicant's complaint. The Applicant also alleges that Mr Braal was dismissive as he did not investigate the Applicant's complaint about Ms Yacqub. In the circumstances, I consider that it was reasonable for Mr Braal not to further investigate the Applicant's complaint.

• [26] I also note that Mr Braal gave oral evidence that in about late January he had a second conversation with Ms Yacqub in which he suggested she devise sales rules for staff at the Springvale Store to reduce any conflict between staff. I accept his account of this further conversation with Ms Yacqub. The five sales rules specified some directions to staff including how sales would be attributed in a situation where a customer who had been served by one staff member subsequently returned to the store and was served by another staff member who closed the sale. These sales rules were approved by Mr Braal and sent by Ms Yacqub to the Springvale Store sales staff including the Applicant via WhatsApp message. The Springvale Store staff were asked to indicate their acceptance of the rules by reply message. Mr Braal gave evidence that these rules were expressly accepted by all the Springvale sales staff except the Applicant. The Applicant gave evidence that he did not agree with the sales rules in totality and so did not respond to a request from Ms Yacqub to acknowledge and accept the rules. Clearly, the devising and sending of sales rules is indicative of reasonable efforts by Mr Braal to minimise conflict between the Applicant and other Springvale store staff about customer sales.

The Second Alleged Circumstance - Alleged Conversation Between Applicant and Braal regarding a Casual Salesperson

• [27] Sometime in or about January 2025, a new young casual salesperson was employed by the Respondent at the Springvale Store. The Applicant soon came to believe that the casual salesperson would immediately approach customers in the store and thereby reduce the Applicant's opportunity to serve customers and make sales.

• [28] The Applicant gave evidence that he complained to Ms Yacqub about the casual salesperson and that Ms Yacqub conveyed to him that the casual salesperson was young and did not know that the sales staff should take their turn to serve customers.

• [29] The Applicant's evidence was that after Mr Braal learned of the Applicant's complaint, Mr Braal warned the Applicant that this could not continue and instead of listening to the Applicant's explanation he arbitrarily accused the Applicant of provoking the situation.

• [30] Mr Braal gave evidence that he did not have a conversation with the Applicant about the casual salesperson. Mr Braal gave evidence that he may have spoken with Ms Yacqub about the Applicant's complaint about the casual salesperson but denies that he spoke directly to the Applicant about the matter.

• [31] Based on the evidence before me, I am not satisfied that Mr Braal spoke directly with the Applicant about the Applicant's complaint to Ms Yacqub regarding the casual salesperson. Mr Braal denied that the conversation occurred and there is not contemporaneous record of the alleged conversation. The Applicant's evidence regarding the alleged conversation with Mr Braal about the casual salesperson, conclusionary as it was, is not sufficiently probative for me to make a finding that a conversation occurred directly between them about the casual salesperson, let alone one in which Mr Braal made some unreasonable or arbitrary accusation against the Applicant.

Third Alleged Circumstance - Conversation Between the Applicant and Braal on Labour Day, Victoria (10 March 2025)

• [32] The third alleged circumstance relates to an incident alleged to have occurred on 10 March 2025, being Labour Day in Victoria. The Applicant's statement refers to a phone call made by Mr Braal to the Applicant whilst he was working in the Springvale store (the first conversation).

• [33] The Applicant was working at the Springvale Store on Labour Day. His evidence was that it a was a very busy day with many customers in the store. This was presumably because of the public holiday. The Applicant gave evidence that whilst he was working, he was interrupted multiple times by another employee named Victoria. The interruptions were about an invoice sent to a customer to whom the Applicant had made a sale on a previous day.

• [34] The Applicant gave evidence in his statement that he phoned the customer, and the customer informed him that she was upset about a phone call she had received from Victoria a short time ago. The Applicant said in his statement that after he had finished his telephone call to the customer, he spoke to Victoria and told her that he would complain about what he termed her "misconduct" to Mr Braal. The Applicant gave evidence that Victoria then went to the warehouse at the back the Springvale store where she telephoned Mr Braal and made a false accusation against him (the Applicant) alleging that he was using foul language and screaming about customers.

• [35] The Applicant gave evidence that Mr Braal then telephoned him at the Springvale store and chastised him very loudly and blamed him for not getting along with colleagues. The Applicant says that he was stunned by Mr Braal's comments and what he considered was Mr Braal's biased judgement and that he felt totally helpless as a result of this interaction. The Applicant denied evidence given by Mr Braal (below at paragraph [39]) that during the phone call the Applicant asked Mr Braal whether he (Mr Braal) wanted the Applicant to resign or that he had used inappropriate language to describe a co-worker.

• [36] Furthermore, the Applicant gave oral evidence that later in the day, on his way home, he called Mr Braal and had a second conversation (the second conversation). During this second conversation, the Applicant says that he reminded Mr Braal that he was still in his probation period and said words to the effect "I have an axe on my neck".

• [37] The Applicant gave oral evidence that in one of the conversations with Mr Braal on 10 March 2025, he told Mr Braal that he needed a few days to reflect as he could not keep working in these conditions. The Applicant could not recall what Mr Braal said in response to this. The Applicant said in his oral evidence that he can't recall Mr Braal's response because it was a very heated conversation and it had now been some time and his memory has faded. The Applicant's evidence was not clear as to whether this exchange with Mr Braal, in respect of the Applicant's taking a few days to reflect, occurred during the first or second conversation. In any event, the temporal sequence of these statements is not a material matter.

• [38] Mr Braal gave evidence that on 10 March 2025, he received a phone call from Victoria in which she was distressed about the Applicant's behaviour and complained to Mr Braal about the Applicant's conduct.

• [39] Mr Braal gave oral evidence that he then phoned the Applicant and that during this call he told the Applicant, amongst other things, that Victoria was very upset. Mr Braal said that the Applicant told him he was angry that Victoria had looked into his order. Mr Braal said that he informed the Applicant that Victoria was entitled to look up and correct an order. Mr Braal said that the Applicant was quite upset and used some inappropriate language to describe a co-worker and that in response he asked the Applicant to step back and think about how he treated co-workers. Mr Braal says that the Applicant asked him (Mr Braal) whether he wished the Applicant to resign. Mr Braal's evidence was that he told that the Applicant that he did not wish him to resign and that Mr Braal wanted the Applicant to reflect on his behaviour towards his co-workers. Mr Braal denied that he chastised the Applicant loudly during this phone call, saying instead that he asked the Applicant to try and get along with other co-workers.

• [40] I do not accept the Applicant's account of the conversation in the phone call made by Mr Braal as referred to in paragraph [35] above. I prefer Mr Braal's account of this conversation referred to in paragraph [39] above. As I have noted, where there is a conflict between the evidence of the Applicant and Mr Braal, I prefer the evidence of Mr Braal.

• [41] I do not consider that Mr Braal behaved unreasonably in the phone conversation on 10 March 2025. Mr Braal had received a complaint from a distressed employee about her interactions with the Applicant. Mr Braal's phone conversation with the Applicant about this matter was reasonable. I accept Mr Braal's evidence that the Applicant asked him whether Mr Braal wanted him to resign and that Mr Braal told the Applicant that he did not want him to resign. I further accept that Mr Braal asked the Applicant to step back and think about how he treated his co-workers. I consider that Mr Braal's indication to the Applicant that he did not want the Applicant to resign and wanted him to get on with colleagues was a genuine expression of Mr Braal's sentiment regarding the Applicant.

Applicant's Emailed Written Resignation (14 March 2025)

• [42] The Applicant gave evidence in his statement, that after his conversation with Mr Braal on 10 March 2025, he had "several days of contemplating". After this contemplation which included consideration of his health and wellbeing, he gave his resignation to Mr Braal.

• [43] In that regard, on 14 March 2025 at 1:34pm, the Applicant sent Mr Braal an email entitled "A letter of resignation" which was in the following terms:

According to the employment contracts I have signed with the company, which I am obligated to do so in order to provide one week notice. I will cease to work further shifts after I finish my work at 6:00pm on March 21st, 2025

• [44] Later that day on 14 March 2025, at 5:11pm, Mr Braal sent an email to the Applicant in which Mr Braal acknowledged and accepted the resignation email. The Applicant worked out the one week notice period after 14 March 2025.

• [45] Ms Rafaelo Carvalho, Human Resources Manager of the Respondent, gave evidence during the hearing. Mr Carvalho's evidence was to the effect that the Applicant contacted her on 19 March 2025 to inquire whether he would receive his sales commission up to the date of his departure and that no other issues were raised regarding the Applicant's employment during this interaction. I accept this evidence.

• [46] The Applicant's employment ceased on 21 March 2025, as notified in his resignation email.

Consideration - Whether the Applicant was Dismissed (s 386 of the Act)

• [47] For the reasons that follow, I do not consider that the Applicant was "dismissed" within the meaning of 386 of the Act.

• [48] The Applicant's case was put on the basis that he was effectively forced to resign due to the conduct by Mr Braal. This is effectively a contention that his dismissal falls within the meaning of dismissal set out in s 386(1)(b) of the Act.

• [49] The Applicant relied upon three circumstances in respect of the conduct of Mr Braal in support of this contention. I refer to my findings in paragraphs [23] - [25] above regarding the first alleged circumstance, paragraph [31] above regarding the second alleged circumstance and paragraph [40] - [41] regarding the third alleged circumstance. Based on these findings, there is no proper basis to conclude that the Respondent through Mr Braal engaged in conduct with the intention of bringing the employment to an end or that termination of the employment was the probable result of Mr Braal's conduct such that the Applicant had no effective or real choice but to resign.

• [50] In relation to Mr Braal's intention regarding the Applicant's employment, I do not consider that at any stage Mr Braal acted with the intention of bringing the Applicant's employment to an end. My conclusion is this regard is further fortified by Mr Braal's counselling Ms Yacqub to be patient with the Applicant (as referred to in paragraph [23] above) and the fact that on 10 March 2025, Mr Braal specifically told the Applicant that he did not want him to resign, in response to the Applicant's question to Mr Braal regarding a resignation.

• [51] I am mindful that when considering whether a matter is a forced resignation within the meaning of s 386(1)(b), the requisite employer conduct is the essential focus. Having regard to the Applicant's case, that requires focus on Mr Braal's conduct. I find that Mr Braal's conduct did not force the Applicant's resignation.

• [52] Therefore, the Applicant was not dismissed within the meaning of s 386(1)(b) of the Act.

• [53] The Applicant did not put his case on the basis that his dismissal was given in the heat of the moment or given 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. However, from an abundance of caution, I have considered whether the Applicant's resignation could constitute a dismissal within the meaning of this test for the purposes of s 386(1)(a) of the Act.

• [54] I find that the Applicant's resignation, very clearly did not constitute a heat of the moment resignation or one given in a state of emotional stress or confusion such that the Applicant could not be reasonably understood by the Respondent to be conveying a real intention to resign.

• [55] In that regard, as the Applicant said in his statement, he gave his resignation after "several days of contemplating". The most proximate incident that the Applicant refers to prior to the giving of his resignation was on Labour Day in Victoria, 10 March 2025. This was four days before the Applicant gave notice of resignation on 14 March 2025. This temporal distance is not consistent with a heat of the moment resignation.

• [56] Furthermore, the Applicant's resignation was communicated in a properly composed email dated 14 March 2025 which gave no indication of emotional stress or confusion. The resignation email gave actual notice, expressly noting an obligation to provide notice under the contract of employment, thereby communicating to the employer that the Applicant would continue to work for the duration of the notice period. The Applicant then worked during the notice period. The Applicant's only subsequent inquiry to the Respondent in connection with his resignation was to Ms Carvahlo on 19 March 2025 and was directed only to his eligibility for sales commission payments. Nothing in these circumstances constitutes a heat of the moment resignation or one given in a state of emotional stress or confusion such that the Applicant could not be reasonably understood by the Respondent to be conveying a real intention to resign.

• [57] Furthermore, I note that the Applicant gave evidence that in one of the two conversations he says occurred with Mr Braal on 10 March 2025, he said to Mr Braal, in the context of a heated conversation, that he needed a few days to reflect as he could not keep working in these conditions (see paragraph [37]). Even if I accept the Applicant's evidence in this regard, this evidence provides no proper basis to find that the Applicant's subsequent email resignation to Mr Braal on 14 March 2025 constituted a resignation given in a state of emotional stress or mental confusion such that he could not be understood by the Respondent to conveying a real intention to resign. In that regard, if the Applicant, during a heated conversation on 10 March 2025, said to Mr Braal that he needed to a few days to reflect, his subsequent resignation on 14 March 2025 is indicative of the resignation being given after reflection rather than being given in a state of stress or confusion.

• [58] Therefore, the Applicant was not dismissed within the meaning of s 386(1)(a) of the Act.

• [59] Having regard to the above matters, I find that the Applicant was not dismissed within the meaning of s 386 of the Act. His application made under s 365 of the Act must therefore fail for want of jurisdiction.

• [60] A separate order dismissing the application will be issued.

Ms N Hawkins, Head of Retail, for the Respondent.

[1] [2017] FWCFB 3941; (2017) 217 IR 245.

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