s.365 - Application to deal with contraventions involving dismissal

The Arnhem Land Progress Aboriginal Corporation

Application to deal with contraventions involving dismissal - No dismissal within the meaning of s.368 of the Act - Application dismissed

• [1] On 4 September 2025, Mr Bo-Joseph Rodda (the Applicant) filed an application under s.365 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving an alleged dismissal by The Arnhem Land Progress Aboriginal Corporation (the Respondent) on 5 September 2025.

• [2] In its Form F8A - Response to a general protections application involving dismissal, the Respondent raised a jurisdictional objection on the grounds that the Applicant was not dismissed within the meaning of s.368 of the FW Act, rather, the Applicant voluntarily resigned.

• [3] The Applicant emailed the Respondent on 25 August 2025, to provide his 'notice of an intention to resign'. The Respondent provided the Applicant with a formal 'Acknowledgment of Resignation' Letter on 27 August 2025. The Respondent made a final payment to the Applicant and provided a payslip for the payment made on 9 September 2025.

• [4] The Applicant claims that he was forced to resign and, therefore, was constructively dismissed by the Respondent.

• [5] I conducted a Jurisdictional Hearing via Microsoft Teams on 12 December 2025.

• [6] This decision determines the jurisdictional objection of the Respondent.

• [7] The leading decision setting out the principles relating to section 386(1) of the FW Act is the Full Bench decision of Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli (Bupa).[1]

• [8] Having considered the key cases, the Full Bench in Bupa summarised the position under the FW Act as follows:

"(1) There may be a dismissal within the first limb of the definition in section 386(1)(a) where, although the employee has given 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, the 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 of section 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 probable 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."[2]

• [9] The Applicant claimed that the ultimatum from the Respondent to either "transfer or resign" was due to him making a complaint about the temperature of a weekly meat delivery to the island. The Applicant alleges, that the meat delivery was left in the sun for an extended period of time before being delivered to the stores and refrigerated. The Applicant refused to sell this meat, because the temperature of the delivery had exceeded the relevant health guidelines. The operators of the big store on the island undertook their own temperature testing and decided to sell the meat.

• [10] The Applicant claims that as a result of this relevant and appropriate complaint, that the Respondent changed their attitude towards him which led to the cessation of his employment.

• [11] The Applicant claims that he was constructively dismissed because he was told by Mr Troy Kennedy, Retail Operations Manager, to either "relocate [to a new store] or resign". Mr Kennedy denied that he had said those words and that it was the Applicant that had actually used that phrase. It is not relevant who used the phrase. It was obvious that they were the two choices for the Applicant on 18 August 2025. I have taken this into account.

• [12] The Applicant also claimed that Ms Natalie Jones, Senior People and Culture Advisor, advised the Applicant that he "could only be forced to relocate if the store was closing or if there was serious misconduct".[3] Ms Jones submitted a witness statement denying ever making the alleged comment. The Applicant did not require Ms Jones for cross-examination. As a result, her witness statement and evidence are unchallenged. I have taken this into account.

• [13] Mr John Quill, Area Manager, testified that he had discussed the proposition of the Applicant moving to a bigger store in February 2025. Mr Quill advised that the store at Buthan is an entry level store due to its small size and close proximity to a larger store. Further, he stated that it is common practice for employees to move stores when they become more experienced because of an increase in remuneration and responsibility. I have taken this into account.

• [14] Relevantly, the Applicant did not recall the provisions of his own contract of employment. Clause 4(d) of the contract states:-

"The Employee's employment will be based at the location specified at Item 6 of the Schedule of Key Terms. However, the Employee may be required to travel to or work from other locations from time to time, either on a temporary or permanent basis."

• [15] Mr Kennedy advised that he had consulted with the Applicant on numerous occasions about the transfer prior to 18 August 2025. Mr Kennedy testified that there were a number of reasons that he decided to transfer the Applicant, all of which had been discussed with him previously, including his self-imposed ban on talking to the Area Manager and his refusal to interact with the operators of the big store on the island. Additionally, the fact that the Applicant had been at the small store for a "fair period of time" and that he wanted to further develop the Applicant by running a bigger store with an opportunity to manage work teams.

• [16] It is evident that the Applicant was a good employee, however, the Applicant's employment contract is clear and precise. The Respondent could transfer the Applicant at any time. It is a known fact that the Respondent transfers its employees on a regular basis to offer promotion opportunities with increases in responsibility and remuneration. The Respondent, after weighing up the Applicant's imposed employment restrictions, which Mr Kennedy advised were unworkable, utilised the provisions of the Applicant's contract.

• [17] Following the decision in Bupa above, I am satisfied and find that there was no constructive dismissal of the Applicant and that the Applicant resigned from his employment voluntarily.

• [18] As a result, Mr Rodda's application is dismissed.

[1] [2017] FWCFB 3941.

[3] Witness Statement of Mr Bo-Joseph Rodda, at [11].

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