s.365 - Application to deal with contraventions involving dismissal

Cityside Properties Pty Ltd Trading AS Traversgray Real Estate

Application to deal with contraventions involving dismissal - jurisdictional objection - not dismissed -

• [1] This is an application by Lillya Brincat under s 365 of the _Fair Work Act 2009 (_the Act) raising a dispute over termination of employment alleging a dismissal contrary to the provisions of Part 3-1 of the Act. Ms Brincat brings the application against her former employer Cityside Properties Pty Ltd (Respondent).

• [2] The Respondent raised a jurisdictional objection to the matter proceeding, claiming that Ms Brincat was not dismissed she resigned. Ms Brincat accepts she resigned but claims that the resignation was forced by the conduct of the Respondent.

• [3] A hearing was held on 15 October 2025. The parties sought to be represented by lawyers. They were given permission under s. 596 to do so as the matter involved some complexity and so the prerequisite in s. 596(2)(a) applied. Evidence was led providing accounts of the events that led to the termination.

• [4] At the conclusion of the hearing, I advised the parties that I had decided to dismiss the jurisdictional objection and gave short reasons. I indicated that, if sought, I would provide written reasons. Ms Brincat asked for written reasons. These are those reasons.

• [5] The decision to be made is whether a dismissal has occurred within the terms of s 386(1) Act. A dismissal is defined in s. 386 at s. 386(1)(b) to include:

(b)A person has been dismissed if the person's employment with his or her employer has been terminated on the employers initiative or 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.

• [6] In considering Section 386(1) of the Act, the Full Bench of the Commission, in Bupa Aged Care Australia Proprietary Limited v Tavassoli [2017] FWCFB3941 made the following observations:

[47] Having regard to the above authorities and the bifurcation in the definition of dismissal established in Section 386, subsection one of the Fair Work Act, we consider the position under the Fair Work Act may be summarised as follows.

(1) There may be a dismissal within the first limb of the definition of section 386 1-A where although the employee has given an ostensible communication of the 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 necessary, 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 a course of 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 has no effective or real choice but to resign.

• [7] The facts in this matter may be briefly stated. Ms Brincat worked for the Respondent as a Property Manager from January 2022. She resigned on 24 July 2025. The key events leading up to the resignation involved the following:

a) At around midday on 23 July 2025 Ms Brincat was provided with a show cause letter. The letter outlined a long list of concerns about Ms Brincat's conduct and performance. Over 20 matters were raised in the letter and they related to events occurring on 11 different days going back as far as April 2024 with the most recent matter being 20 June 2025.

b) Ms Brincat was required to provide a written response by midday the following day 24 July 2025 and a meeting was scheduled to occur in the afternoon of 24 July 2025 at 4.00 pm.

1. Ms Brincat prepared her response and provided it within time. The response was comprehensive. It addressed each of the matters raised and included the following concluding remarks:

After taking the time to respond to each point raised in your letter - and outlining the broader pattern of experiences I've endured - it is clear to me that this process is not about fair performance management or constructive dialogue.

This process - and the way it has been delivered - feels less like a fair opportunity for improvement and more like a calculated effort to discredit and push me out.

This is not about helping me improve. It's about justifying a decision that appears to have already been made - one built on selective narratives, vague accusations, and complete disregard for fairness, empathy, or professionalism.

d) A meeting was held as scheduled at 4.00 pm. Ms Brincat took a support person with her, Mr Jesse Mazzotta. Ms Brincat was present as was Ms Naomi Travers a Director of the Respondent. There was conflicting evidence about what was said at the commencement of the meeting:

(i) Ms Travers said the meeting commenced with Mr Mazzotta saying words to the effect of:

"The Applicant has written a resignation letter and will be resigning."

(ii) Ms Brincat said the meeting commenced with Mr Mazzotta saying:

" Clearly there's a lot that's happened here. And it really feels like there's no other way forward. Or is there really any other option for Lilia but to resign?"

(iii) Mr Mazzotta said the meeting commenced with him saying:

"Given everything that's happened, there's no real option for Lillya but resignation there's no way forward, is there?"

I prefer the accounts of Ms Brincat and Mr Mazzotta. Ms Travers was uncertain in her responses in cross examination. Ms Brincat and Mr Mazotta were not. Ms Brincat and Mr Mizotta's account is consistent with the content of the letter Ms Brincat provided only a couple of hours earlier in which she expressed a view consistent with the evidence that she felt she had no option other than to resign.

e) The witnesses agree that Ms Travers responded to Mr Mazotta by saying that resignation was the best way forward for Ms Brincat. The meeting was short. There was no discussion of Ms Brincat's lengthy response to the show cause letter. Following the initial exchange the rest of the meetin g was a discussion about Ms Brincat's entitlements to termination pay and when they would be paid.

f) Shortly after the meeting Ms Brincat provided a letter of resignation. The Respondent made her termination payment shortly after that.

g) The whole process from Ms Brincat being provided the Show Cause Letter and her resignation taking effect took less than 48 hours.

• [8] I find that the Respondent engaged in a course of conduct with the intention of bringing the employment to an end, and that the termination of the employment was the probable result of that conduct, such that Ms Brincat had no effective or real choice but to resign. The conduct was the provision of a lengthy show cause letter on 23 July 2025, the requirement that a response be given within 24 hours, conducting a meeting to discuss the response 4 hours later, conducting the meeting in a manner such that the concerns raised by Mr Brincat in the response was never discussed, the indication in the meeting that the best way forward was for Ms Brincat to resign, and accepting the resignation readily without giving Ms Brincat an option other than to resign.

• [9] I find that the conduct described meets the description in Bupa and amounts to a dismissal for the purposes of s. 386 of the Act.

• [10] The jurisdictional objection is dismissed.

Mr H Pararajasingham of counsel instructed by Ms N Dunn for the Respondent

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