s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - no jurisdiction. Mr Bazar was not dismissed within the meaning of s. 386 of the Fair Work Act

• [1] Mr. Alexander Bazar was employed as a Senior Investment Advisor at Australian Bond Exchange Pty Ltd (ABE). He commenced employment on Monday, 24 June 2024. He resigned on Monday, 3 February 2025 by sending an email to the CEO, Bradley McCosker, and other directors of Australian Bond Exchange Pty Ltd which included his written resignation.

• [2] Mr Bazar has made application pursuant to s.365 of the Fair Work Act 2009 (the Act) seeking the Fair Work Commission (the Commission) deal with a dispute over a dismissal alleging contraventions of Part 3-1 of the Act. ABE contends that the application is not validly made on two bases: First, Commission has no jurisdiction to deal with the dispute because Mr Bazars was not dismissed and second that Mr Bazar's application does not sufficiently identify a contravention of Part 3-1 of the Act.

• [3] In Coles Supply Chain v Milford Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591 at [64] - [65] the Full Court of the Federal Court of Australia made it clear that the Commission only has power to deal with a dispute under s. 365 if it is validly made. An application to deal with a dispute over a dismissal will not be validly made if there was no dismissal. The Court also made clear at [67] that where a question arises as to whether there has been a dismissal the Commission must resolve that question before proceeding to deal with the dispute.

• [4] In Lipa Pharmaceuticals v Mariam Jarouche[1] the Full Bench stated that where a respondent contends that an application is not validly made because the applicant was not dismissed the objection must be determined prior to the Commission dealing with the dispute.

• [5] To resolve the question of whether the Commission has power to deal with the dispute a hearing was conducted on 29 October 2025. Mr Bazar was unrepresented. I granted permission to ABE to be legally represented. Mr Bazar did not object to the representation, and I was satisfied the matter was of such complexity that I would be assisted by legal representation. The Respondent relied on witness statements from Bradley McCosker ABE's Chief Executive Officer and Managing Director and Mark O'Leary, Managing Director of Strategic Alliances. Mr Bazar provided a witness statement. Mr Bazar and Mr O'Leary were cross examined.

• [6] In his statement Mr McCosker described ABE as a marketplace for investing in fixed-income securities. ​It provides financial institutions, funds, and individuals with access to bonds and other securities traded in the Over-The-Counter (OTC) financial markets. ​ ABE offers services including trading, settlement, and custodial services across various OTC securities. ​ It specialises in providing retail clients access to products in financial markets.

• [7] Mr. Bazar began working for ABE as a contractor performing marketing work in early 2024. He requested that he be given an opportunity to work directly for the company as an investment advisor. In May 2024 he signed a document entitled Employment Service Agreement and commenced employment as a Senior Investment Advisor in June 2024.

• [8] During cross examination Mr Bazar confirmed that in the latter half of 2024 Mr Bazar was also in discussions with another investment firm, River X. By the end of 2024 those discussions involved the prospect of Mr Bazar taking up employment with that firm.

• [9] In January 2025 there were discussions in ABE about how certain investment products should be marketed to customers. These discussions led Mr Bazar to believe that he was being directed to mislead clients and potential clients about the investment returns on what were described as Tier 2 bank bonds. The communications included emails. On 8 January 2025 Mr Mark O'Leary circulated an email discussing Tier 1 and Tier 2 hybrid securities. The email was addressed to several recipients, including Mr Bazar. The email explained the nature of Tier 1 and Tier 2 bonds and the difference in the way they offer investors returns. It explained that investments in Tier 2 bonds have a stated maturity date, but they may be converted to shares prior to that date resulting in losses for investors. It included an attachment which was a document published by the ASX entitled "Understanding Hybrid Securities". Mr Bazar provided an account of a meeting on 20 January 2025 in which Mr O'Leary discussed promoting Tier 2 bank bonds to clients. Mr Bazar believed this was a shift in sales strategy and regarded it as a directive to promote this type of security to clients. Mr Bazar stated that on 22 January 2025 Mr O'Leary was terse with him, and he considered the conduct to be hostile. This led him to not attend a meeting on 23 January 2025. He said he was informed by a colleague that Mr O'Leary said at the meeting that employees may be made redundant. He formed the view that was part of the pressure he was under to sell the bonds. Mr O'Leary circulated an email following the meeting on 23 January 2025. It was copied to Mr Bazar. The email included the following:

Thanks for the feedback in the 9.00 this morning, and the conversation today.

My understanding with Brad is that we were going to talk Yield to Maturity, with our clients.

That wasn't the case yesterday, as yield to first call was chosen, I should have made myself clearer.

Brad has reiterated we that we should talk Yield to Maturity, as the banks do not have to make the call.

The email went on to stress the need to contact clients to sustain the business.

• [10] Mr Bazar stated that he understood that there was a directive in place to promote tier 2 bonds and it involved a requirement that the bonds were to be promoted by emphasising the returns on a Yield to Maturity basis instead of Yield to Call (YTC) also referred to as Yield to Worst (YTW). Providing information about YTC returns made the investment less attractive. Mr Bazar was concerned about this directive as he believed the more accurate information for clients was YTC. He acted on that understanding by engaging with other employees about the frequency of bonds being "called" and provided them with an email including a link to some research he had done on the topic. He did not forward that email to Mr O'Leary.

• [11] On 31 January 2025 Mr. Bazar met with Mr O'Leary over coffee. The meeting was at Mr O'Leary's instigation. He said he was concerned about Mr Bazar's performance and the attitude he'd been displaying at work. Mr O'Leary's account of the meeting is that it involved a wide ranging discussion. He described Mr Bazar as being angry about many things. Both work related and over other matters. Mr Bazar's account of the meeting was that it was a discussion about his concerns about quoting YTM for Tier 2 bonds and what he described as the toxic workplace environment. Mr Bazar's account t was that he told Mr O'Leary that he intended to resign because he had no choice but to resign. Mr O'Leary's account of the meeting is that Mr Bazar did not raise his objections that quoting YTM rather than YTC would mislead clients or concerns about the work environment. Mr O'Leary's account of the discussion was that it ended with Mr O'Leary telling Mr Bazar that if he did not want to stay with the business he should consider resigning and that he would assist by way providing references and assist in finding other work.

• [12] On 3 February 2025 at 12.31 pm sent a text message to ask if her had time to talk. The message said that it had "been pretty crazy" at work in the past week and that some things were said "which I simply can't accept". The message goes on to say:

So I've had to make the regrettable decision to move on. I wanted to speak to you first before I i sent the email to Brad.

• [13] Mr Bazar said he then spoke to his colleague. At 3.18 pm Mr Bazar sent an email to Mr McCosker and others attaching his resignation. The text of the email was:

Regrettably I've taken the difficult decision to resign from my position here at the Australian Bond Exchange.

Thanks for all the opportunities provided during my tenure.

Let me know what you require from me during any transition period.

• [14] Attached to the email was a short resignation letter. It read:

I am writing to formally resign from my position at the Australian Bond Exchange.

Please advise what you need from me regarding the transition period.

Thanks for the opportunities provided during my tenure.

• [15] In accordance with Mr Bazar's contract, he was required to give 4 weeks' notice. Accordingly, Mr Bazar remained employed for a further 4 weeks.

• [16] In the days following Mr Bazar contacted a number of ABE's clients by email informing them that he was no longer with ABE suggesting that they consider a number of investment products and informing them that he was working independently as he wanted to be able to offer a broader range of investment opportunities to clients. The email address he used to send these emails came from the domain name riverx.com.au.

• [17] On 7 February 2025 ABE met with Mr Bazar and a representative from River X to raise concerns about Mr Bazar's conduct since he tendered his resignation. At the conclusion of the meeting, it was agreed that Mr Bazar's resignation would be effective from 10 February 2025 and that date would be regarded as the date at which the employ7ment terminated. ABE wrote to Mr Bazar on 12 February 2025 confirming those arrangements and reminding him of his post-employment obligations concerning confidentiality, restraint on competing with ABE, non-disparagement of the company and returning ABE property.

• [18] On 17 February 2025 Mr Bazar filed the current proceedings alleging that he had been constructively dismissed because he had exercised a workplace right by complaining about the directive to quote Tier 2 bonds on the basis of YTM rather YTC.

• [19] ABE contends that the Commission has no power to deal with Mr Bazar's application on two bases: First, the Commission has no jurisdiction to deal with the dispute because Mr Bazar was not dismissed and second that Mr Bazar's application does not identify a contravention of Part 3-1 of the Act.

• [20] The first issue raised by ABE is that Mr Bazar was not dismissed, he resigned.

• [21] Whether someone has been dismissed under the Act is to be determined by reference to ss. 12 and 386. Section 12, the Dictionary, defines the expression dismissed by referring to s. 386. Section 386(1) reads:

(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.

• [22] A Full Bench of the Commission considered the two limbs of s.386(1) in Bupa Aged Care Australia Pty Ltd v. Tavassoli (BUPA).[2] After considering in detail the case law associated with expression "terminated on the employer's initiative" including notions of constructive dismissal and forced resignation,2 the Full Bench said:

[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.

• [23] Mr. Bazar alleges he was forced to resign and so the termination of his employment is caught by the definition of dismissal in s. 386(1)(b) of the Act. He claims that the conduct of the employer that forced him to resign was a direction to engage in unethical and possibly unlawful conduct. Specifically, he says he was directed to mislead customers when advising them about an investment product being bank bonds. He says he was directed to quote the investment returns on bank bond by reference to Yield to Maturity (YTM) instead of Yield to Call (YTC) which he believed misled clients. Misleading clients, he said, is contrary to the Section 1041H Corporations Act 2001 (Cth) and ASIC Regulatory Guide 234.50 and 243.57 which are directed at ensuring financial services providers advice and promotional materials, including quoted returns, are not misleading or deceptive.

• [24] Mr. Bazar further claims he raised concerns internally about the quoting practice but was ignored, leading to a toxic work environment which was also a factor in his resignation. Mr. Bazar describes a hostile workplace culture, including demeaning comments and pressure to meet sales targets despite a lack of viable products.

• [25] ABE asserts that Mr. Bazar resigned voluntarily.​ It denies that it forced him to resign. It asserts that quoting YTM is standard industry practice and refutes any suggestion that it directed Mr Bazar to engage in unethical or misleading conduct. It referred me to the Australian Financial Markets Association (AFMA) Credit Product Conventions which supports the practice used and denies that its practices are contrary to regulation nor are they are not misleading or deceptive.

• [26] BEA submits that Mr. Bazar did not raise any concerns about its quoting practices. It contends that the evidence establishes that, far from being forced to resign, Mr Bazar chose to resign so that he could take up employment with River X in accordance with the arrangements that were put in place in late 2024.

• [27] The relevant test to be applied here is the test set out by the Full Bench in BUPA set out above. In particular the test in [47](2) of 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. The focus is on ABE's conduct. Mr Bazar describes that conduct as the instruction given in the 23 January 2025 email to quote to clients returns on Tier 2 bank bonds based on YTM and the "toxic culture" at the time of the resignation. I note that the evidence and submissions did not go to a suggestion that ABE had engaged in that conduct to intentionally bring about Mr Bazar's resignation. Rather it is put that the conduct left Mr Bazar with no other effective or real choice other than to resign.

• [28] I find that ABE's conduct was not such that it forced Mr Bazar to resign. It is clear from the evidence that in January 2025 there were discussion in the business about the manner in which information about the bonds was to be presented to clients. As part of those discussions Mr O'Leary recorded in the 23 January 2025 email his understanding that the position was that YTM would be the emphasis of discussions with clients. The focus was not on YTC because while that may have an impact on returns it was contingent upon banks making the call. So much is clear from the text of the email. Mr Bazar disagreed with this approach and engaged in some discussion about it with his colleagues. His concern however did not raise to a complaint that he was being asked to do something unethical or unlawful. He certainly made no written complaint that he was being asked to do something unethical or unlawful. ABE points out that it had mechanisms in place for such a compliant to be made. It has a whistleblower policy and procedure, and Mr Bazar had access to the firm's general counsel who was responsible for governance issues. A complaint could have been made to the general counsel. Mr Bazar accepted that he did not take up either of those options. At best Mr Bazar's evidence is that his view about the instruction formed part of the wide ranging discussion he had with Mr O'Leary on 31 January 2025. Mr O'Leary did not recall Mr Bazar raising any ethical or legal objection to the practice. His view was that it was the practice to quote returns on a YTM basis because the contracts are written on that basis and that any discussions with clients would also involve the possibility of a call being made that would result in reduced returns. He accepted that the firm was emphasising YTM but maintained that the practice was consistent with industry practice and guidelines.

• [29] I have no doubt that Mr Bazar holds a strong view that clients should be quoted on the YTC basis. He spent must time in the proceedings trying to convince me that his view was correct. That question however is not the issue that I have to determine in this case. The question here is whether Mr Bazar faced with an instruction that he disagreed with had no effective or real choice but to resign. I find that the circumstances did not leave Mr Bazar in that position. He had other options available to him. Those options included informing ABE, in writing, his objections to the instructions and the reasons for them. His written objection could have been made to Mr O'Leary or Mr McCosker or both. He could have made it to the company's general counsel. As his complaint involved suggestions the firm may have been acting unethically or unlawfully, a whistleblower complaint could have been made in accordance with ABE's policy. Mr Bazar chose not to take those options. He chose to resign. I find that his resignation while being motivated by his strong belief, was not a forced resignation.

• [30] Mr Bazar also raised the toxic culture in the business. The evidence did not suggest that there was a toxic culture. Again, it is clear that Mr Bazar was not comfortable with the approach taken by ABE in promoting Tier 2 bank bonds. Mr Bazar also said that he apprehended that his job may be on the line if he failed to follow that approach. The evidence about there being a threat to his employment however was at best a second hand account of what was said at a meeting that he chose not to attend. This is insufficient to find that ABE had engaged in conduct that forced him to resign. I find also find that the culture at ABE did not force Mr Bazar to resign.

• [31] As I find Mr Bazar was not forced to resign, I find he was not dismissed within the meaning of s. 386 of the Act. As there was no dismissal, I uphold ABE's jurisdictional objection. There is no need to consider ABE's further objection that Mr Bazar has failed to identify a relevant contravention of Part 3-1 of the Act.

[1] [2023] FWCFB 101

[2] [2017] FWCFB 3941

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