//
[184]
[2025] FWC 1118
General information, not legal advice.
Fair Work Commission
2025-04-22
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
The Trustee for O'Neill Family Trust Trading AS Rescue Books Bookkeeping
Application to deal with contraventions involving dismissal - jurisdictional objection - whether employee dismissed - employee not terminated at the employer's initiative - employee resigned - application dismissed
Email exchanges leading up to Ms D'Andilly's return to work
I'm following up on the emails I sent on September 24, 2024, as I haven't yet received a
Joe mentioned last week that he had spoken with you the day before We discussed the
need to get the training plan on track and I've scheduled a 1:1 meeting with Ab2 today to
better understand the requirements needed ongoing and with regard to the training
schedule. Additionally, I have signed the training plan and emailed it back to Nathan at
I also wanted to inform you that unfortunately after multiple attempts to address wage
discrepancies related to additional hours worked outside my ordinary hours, I've been in
contact with Fair Work to assist in mediating, discussing, and negotiating the correct
entitlements and penalty rates I believe are owed to me during my employment and
Per Fair Work's request, I've compiled and attached for your reference, a basic
spreadsheet detailing all time worked outside my agreed ordinary hours (Tuesday &
Thuersday (sic) /16 hours per week). The spreadsheet shows the gross amounts, with the final
column reflecting the amounts I believe are owed, these figures are minus what has already
been paid at ordinary rates as you will see on the referenced spreadsheet.
If you can please review this at your earliest convenience.
Let me know if you need any additional details or have questions regarding these
..... "You will need to use click up for each client that you work on and mark each item when it is completed not batch it completed.
I want to know what you have done at the end of the day so that anything that is missed or
not done can be discussed and you will email this to me.
You will no longer speak to clients if there is an issue you will speak to me first and I will
You will need to scan all receipts and invoices received by clients and add them to a folder
in their file called scans and upload them into Hubdoc.
If there is nothing left to do, then you can work on your studies.
You will need to reply to this email that it is understood what you need to do."
I understand that there has been some dissatisfaction on your part regarding the overtime
entitlements and the spreadsheet I provided, and I would like to address this openly and
As part of my Cert IV Bookkeeping and Accounting traineeship, I have always aimed to meet the needs of the business while undertaking my training on top of that. However, due to correct processes and formal procedures not being appropriately followed, it has led to some upsets and complications regarding overtime entitlements owed.
My intentions have always been about supporting you and doing my best at my job. I'm
hoping that moving forward, we can have clear communications around my award rate,
working hours, and that any changes are agreed upon in advance to avoid future issues. I think clarification regarding the below 3 points would be very helpful in these circumstances;
I am happy to discuss any necessary changes and complete the required paperwork to
ensure everything is up-to-date. I have attached the variation document as required to be completed and a copy stored for payroll purposes.
I'm eager to continue contributing positively to the team
Thank you for your understanding. I appreciate your feedback.
I am attaching a copy of the original training contract that we signed and would note that both your and my obligations under that contract are outlined on page 5. Below are my responses to your two questions.
1. The Traineeship arrangement and training contract are the agreement between myself, you and the RTO that covers the training/traineeship and as you can see in that contract, it lasts for the nominal duration of the traineeship. There is no guarantee of ongoing employment once the traineeship has been completed. As your employer, I am committed to seeing through the training agreement with you. It will be discussed with you closer to the completion of the traineeship whether there is an opportunity for continued employment which may also depend on operational needs at the time.
2. Pay rate - as per the training agreement and the nature of your work with me at Rescue Books, while you have completed on-line theory components as a predominantly off the job, there has also been a significant portion of on-the-job training that has been provided to you by me. Training in the practical application of all the theory you have been studying is provided by me through the guidance, direction, practice and correction (where needed) in the day to day work that you have been doing every day at Rescue Books. Therefore, the 20% discount for training being provided on the job as well as off the job, is applied to the relevant hourly rate under the Award which comes to $22.95, and your hourly rate of $26.85 continues to be above the Award.
I have no way to even access the practice protect portal !? I was more than happy to come to work and start fresh but I feel as though this has been made into nothing but a hostile environment. I'm sorry but this is not in any way an appropriate work environment nor good for my own mental health. I wish you all the best but as of right now I am giving you my resignation and will not be returning so I adhere to the awards term regarding termination."
I did not get the chance this morning to re - instate your access to the practice protect portal before you returned from leave. Disabling the access is a security measure when you are on a longer period of leave in order to protect confidential client data.
I am disappointed that you feel that this is a hostile environment and I thought we were having a fresh start as well, now that we have your agreed Training Plan. I wanted to put in place a clear structure and documented expectations of work and processes that would be done to support your traineeship and that if/when there was not client work that you would be able to use that work time to do online studies. It was my intention to make sure I was giving clear guidance on what is required so that I can provide appropriate training relevant to the structured course.
If you still wish to resign, I will accept your resignation. Under the Award, 2 weeks notice is
required to be given, otherwise monies can be withheld from a final pay where sufficient
notice is not given. There is also the capacity for the employer and employee to agree to
Therefore I need to clarify the following things from your email stating you are resigning
and not returning, so can you please reply back to confirm whether:
b) if so, are you requesting that we mutually agree that the 2 weeks notice period be
I would also like to say that I only got your Fair Work complaint yesterday and I am
currently working through that, I will review the calculations and come back to you in due
Can you please reply as soon as possible confirming your intentions regarding your
Please see below email sent to you on Tuesday Oct 1.
Can you please clarify your intentions as outlined in the email below by responding to me by 2.00pm today Thursday 3 October 2024.
If I haven't heard back from you by 2.00pm today regarding your intentions, then I will assume that your resignation stands.
Additionally, as you haven't returned to work since your resignation email on Tuesday, that you wish to waive the required 2 weeks' notice period and have your employment end effective Tuesday 1 October 2024, which I am happy to agree to.
In this case, I will process a final pay within 7 days of that date. Please let me know by 2.00pm."
"Thank you for your email seeking clarification. I can confirm that I do still wish to resign from my position, effective immediately. Additionally, I would appreciate it if we could mutually agree to waive the two-week notice period, as mentioned in your email.
I am grateful for the opportunity to have been part of the team and wish the company continued success."
Issues with the training contract, pay rate and overtime
".....the general principles to be applied are well settled. Stated succinctly, they
the Act is a jurisdictional fact that must be established by the applicant;
conduct) engaged in by the employer as the principal constituting factor leading
to the termination. There must be a sufficient causal connection between the
conduct and the resignation such that it 'forced' the resignation;
employment relationship to an end or had that probable result;
voluntary where the conduct of the employer is ambiguous, and it is necessary to determine whether the employer's conduct was of such a nature that
resignation was the probable result such that the employee had no effective or
the employer, an objective analysis of the employer's conduct is required."
of s 386(1)(b) of the Act 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
which resulted directly or consequentially in the termination. These she says, were deliberate decisions, made with the intention of forcing her to resign. Consequently, she does not believe the employment relationship was left voluntarily because, if not for Ms O'Neill's actions, she would have remained in the employment relationship.
"365 Application for the FWC to deal with a dismissal dispute
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."
(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."
"[21] In this Commission the concept have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
'[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.'
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
'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.'
[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether 'the act of the employer [resulted] directly or consequentially in the termination of the employment.' Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign." (footnotes omitted).
"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."
Was the employment terminated on the employer's initiative?
Was the employee forced to resign because of the employer's conduct?
"Resignation to escape a difficult or unpleasant situation in a workplace will not amount to dismissal where the employee has other options besides resignation. This is so even where the situation in a workplace is objectively difficult or unpleasant or where the options are to resign or be subject to an investigation or disciplinary process, as distinct from resign or be dismissed. Here the Applicant opted to resign to remove herself from a situation which she perceived to be unfair and from conduct she perceived to be bullying. While some of the Applicant's concerns were valid, on balance the conduct the Applicant complains of was not such that I could be satisfied that the Applicant was forced to resign. The Applicant had options other than resignation and it cannot be said that the conduct or a course of conduct she complains about had the intended or probable effect of ending her employment. Finally, I consider that even if all the conduct described by the Applicant occurred, it is not a course of conduct that objectively, was so egregious, that it gave the Applicant no real choice but to resign. While I do not underestimate the difficulties the Applicant would have faced if she remained at work, and the adverse impact upon her of resigning from her employment with the Respondent, I do not accept that she was forced to resign by a course of conduct engaged in by the Respondent."
"It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management's actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign."
[2] P. 6 to 22 of the DCB - Apprentice/Traineeship Training Contract.
[3] P. 88 of the DCB - Email dated 30 August 2022.
[4] P. 51 of the DCB - Statement of Emily D'Andilly.
[5] P. 52 of the DCB - Statement of Emily D'Andilly.
[6] P.118 to 119 of the DCB - Text Messages from 3 August 2024.
[7] P.118 to 119 of the DCB - Text Messages from 3 August 2024.
[8] P.119 of the DCB - Text Messages from 3 August 2024.
[9] P.120 of the DCB - Text Messages from 29 August 2024.
[10] P.121 of the DCB - Text Messages from 29 August 2024.
[11] P.205 of the DCB - First Statement of Tracey O'Neill.
[12] P.324 to 325 of the DCB - Second Statement of Tracey O'Neill.
[13] P.154 of the DCB - Email dated 30 September 2024 from Emily D'Andilly at 6:33am.
[14] P.158 of the DCB - Email dated 30 September 2024 from Tracey O'Neill at 2:21pm.
[15] 155 of the DCB - Email dated 30 September 2024 from Emily D'Andilly at 4:09pm.
[16] 156 to 157 of the DCB - Email dated 30 September 2024 from Tracey O'Neill at 4:20pm.
[17] P. 59 of the DCB - Statement of Emily D'Andilly.
[18] P.186 of the DCB - Applicant's Resignation Email.
[19] P.315 to 316 of the DCB - Email Chain (TON-21).
[20] P.314 of the DCB - Email Chain (TON-21).
[21] P.314 of the DCB - Email Chain (TON-21).
[22] P.186 of the DCB - Applicant's Resignation Email.
[23] [2024] FWC 3109 at [50].
[24] [2024] FWC 1386 at [74].
[25] Respectively [2024] FWC 3109 at [50]; [2024] FWC 1386 at [74].
[26] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [47].
[27] [2021] FWC 4796 at [151].
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Miss Emily D'Andilly
The Trustee for O'Neill Family Trust Trading AS Rescue Books Bookkeeping [2025] FWC 1118