• [6] The Applicant has been on certificated leave since 6 June. His certificates of capacity states that he is suffering from a psychological injury. His most recent certificate says he is unfit until 18 August 2025. Mr Fick's evidence is that the rosters are posted one week in advance and that on 6 June, the Applicant was rostered to work one shift on 14 June for 7.5 hours. The Applicant did not work that shift as he was on sick leave. He has not been rostered for further shifts. The Applicant's evidence is that the rosters are posted two weeks in advance.

• [7] During the hearing Mr Fick said that the Applicant had said he was leaving, that he felt unsafe and he would be seeking assistance outside of work and so Mr Fick assumed he wasn't going to be coming back to work and proceeded to take the Applicant off the roster.[5]

• [8] The Applicant also filed a workers compensation claim on 19 June. The Respondent disputed liability for that claim.

• [9] The Applicant claims that Mr Fick said to him on 6 June "Your last shift here in on 13 June. We don't need you anymore." Further, when asked when he would be needed again, the Applicant claims that Mr Fick said, "In September". Mr Fick disputes that version of events. Mr Fick states that he did not say there would be no shifts until September but did say words to the effect that September would be when they would start getting busy again.[6]

• [10] Section 386 of the Act sets out the meaning of dismissed.

(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.

• [11] A useful summary of the relevant law was set out by Deputy President Hampton in Tao Yang v SAL HR Services Pty Ltd[7]. Essentially the general principles to be applied in circumstances such as these are well established in case law. An employer is generally able to treat a clear and unambiguous resignation as a resignation. However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise. That is, in some circumstances it may be unreasonable to assume a resignation and accept it immediately. Further, the employer may have a duty to confirm the intention to resign if, they during that time, they are put on notice that the resignation was not intended[8].

• [12] As stated, the general principles to be applied are well settled. Stated succinctly, they include:

• The question as to whether there was a dismissal within the meaning of the Act is a jurisdictional fact that must be established by the Applicant;
• A termination at the initiative of the employer involves the conduct (or course of 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;
• The employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
• Conduct includes an omission;
• Resignations that are clear and unambiguous may be treated on face value unless special circumstances are present which warrant the employer confirming the intention of the employee;
• Considerable caution should be exercised in treating a resignation as other than voluntary (forced) 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 real choice but to resign; and
• In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the parties' conduct is required.

• [13] The expression 'termination at the initiative of the employer' is a reference to a termination that is brought about by an employer and which is not agreed to by the employee.[9]

• [14] The analysis of whether there has been a termination at the initiative of the employer for the purpose of s.386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment.[10]

• [15] A termination is at the employer's initiative when:

• the employer's action 'directly and consequentially' results in the termination of employment, and

• • had the employer not taken this action, the employee would have remained employed.[11]

• [16] There must be action by the employer that either intends to bring the relationship to an end or has that probable result.[12]

• [17] Dealing first with whether there has been a constructive dismissal, it is apparent that there has not been a constructive dismissal. In order for there to be a constructive dismissal, there needs to be an act of the employee that can be considered objectively as a resignation. Section 386(1)(b) of the Act refers to an employee resigning because of conduct or a course of conduct engaged in by their employer. Resignation is a necessary precondition for there to be a finding that there was a termination of employment that falls within the second limb of s.386(1)(b). There is no evidence that the Applicant resigned. Indeed, the Applicant's clear evidence is that he did not resign and has not resigned. The Respondent's position is clearly that the Applicant took no action that could be considered a resignation as their position is that the employment remains on foot. It is clear on the evidence that the Applicant has not been constructively dismissed.

• [18] In any event, even if the Applicant had resigned on 6 June, there is no evidence that the conduct or course of conduct of the Respondent was such that the Applicant had no real choice other than to end his employment. The allegations raised by the Applicant were under investigation by the employer. Whilst the Applicant thought people were talking about the allegations, he had made that is not a basis to make a finding that the employers conduct was such as to bring the employment relationship to an end of have that probable result.

• [19] Further, I am not satisfied that there has been a termination at the initiative of the employer.

• [20] The Applicant's assertion that Mr Fick told him he would not be rostered until September is not accepted. The evidence of Mr Fick was credible, and I prefer his evidence to that of the Applicant. In any event, even if Mr Fick did say that the Applicant would not be offered shifts until September that was not action that could be considered to have terminated the Applicant's employment or to have that probable result. Consistent with the terms of engagement the Applicant was not guaranteed hours of work and there is no commitment to providing continuing and definite work. While there is no dispute that the Applicant has not worked since 6 June that is not surprising given that he left the workplace on 6 June declaring it to be unsafe and has since then been unable to work and has supplied certificates of capacity to that effect. It would not be acceptable for the Respondent to roster the Applicant in the circumstances. There is simply no evidence of any action taken by the employer that either intended to bring the employment relationship to an end or has that probable result.

• [21] In summary, there is no evidence before the Commission of the following:

(a) Resignation from the Applicant;

(b) Notice of termination being provided by the Respondent, to the Applicant, in accordance with the employment contract, or otherwise;

(c) The Respondent otherwise terminating the employment of the Applicant in accordance with the employment contract.

• [22] The Respondent was entitled under the employment contract to reduce the hours of the Applicant on 6 June 2025.

• [23] The Respondent accepts that the Applicant was removed from the casual roster on 6 June 2025, but that was due to the Applicant notifying the Respondent that he felt unsafe in the workplace and was leaving work immediately, prior to his current shift coming to an end.

• [24] The Applicant has subsequently provided the Respondent with a workers compensation medical certificate dated 7 July 2025, which certifies him incapacitated for work for the period 6 June to 18 July 2025, and a further certificate certifying him as incapacitated for work until 18 August 2025, with the stated cause being "sexually inappropriate comments".

• [25] The Respondent submits and I agree that the Applicant has not been dismissed, and that it was reasonable, in the circumstances, to remove the Applicant from the casual roster for those shifts scheduled for 11 June 2025 and 13 June 2025:

(a) Because of what the Applicant said to Mr Fick at the time (approximately 11:45am on 6 June 2025); and

(b) Because of the workers compensation medical certificate that was subsequently provided to the Respondent, certifying that the Applicant was incapacitated for those shifts in any event.

• [26] The Applicant did not resign, and therefore it could not be found that the Applicant was constructively dismissed.

• [27] For the reasons stated above I am not satisfied, having considered the evidence, that there was a termination at the initiative of the employer. Nor am I satisfied that the Applicant has been constructively dismissed.

• [28] The jurisdictional objection is upheld, and the application is dismissed.

• [29] An order[13] to this effect is issued in conjunction with the publication of this decision.

[2] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd [2020] FWCFB 5365.

[7] [2023] FWC 1325, [50].

[8] Ngo v Link Printing Pty Ltd (1999) 94 IR 375 at [12].

[9] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Hatcher VP, Colman DP, Saunders C, 8 December 2017) at para. 75; see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200].

[10] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Hatcher VP, Colman DP, Saunders C, 8 December 2017) at para. 75.

[11] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200 at p. 205].

[12] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 (Watson VP, O'Callaghan SDP, Cargill C, 8 July 2011) at para. 24, [(2011) 212 IR 248]; citing O'Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100]

[13] PR790402.

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