s.365 - Application to deal with contraventions involving dismissal

Auto & General Holdings Pty Ltd, Compare The Market Pty Ltd

Application to deal with contraventions involving dismissal - jurisdictional objection - whether applicant dismissed - applicant not dismissed - application dismissed for want of jurisdiction

• [1] Mr Kai Goulter has applied for the Fair Work Commission to deal with a general protections dispute involving dismissal, alleging contraventions of Part 3-1 of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). The former employer, Compare the Market Pty Ltd ("the First Respondent"), has objected to the application on the basis that Mr Goulter was not dismissed. The objection was heard on 22 April 2025, on which date I gave an ex tempore decision. The following is the text of that decision.

• [2] Mr Goulter, I am not satisfied that you were left with no effective option other than to resign on the 31st of August or the 2nd of September 2024.

• [3] It seems to me that you had raised some issues with your employer over the preceding days, which they had then considered and sought to investigate. They had formed views that you were not satisfied with. That's very clear on the material, but a mere lack of satisfaction on the part of an employee in respect of an employer's views, or findings, or investigation as to allegations or complaints made, is not necessarily a situation that leaves the employee in a situation where they have got no effective option other than to resign.

• [4] It's not an easy thing to demonstrate that a resignation constitutes a dismissal for the purposes of section 386 of the Fair Work Act. It's certainly not a minor matter. You're trying to persuade the Commission that even though you resigned, in reality you had no effective other option, and I'm not convinced that that's the case given what I've heard from the parties today.

• [5] I've certainly listened to all of the evidence very closely. I've read all of the material that's been before me, and I think it's very clear that there were other effective options other than resignation. I think the employer - and I am satisfied that the employer - did take steps in relation to the issues that you raised. Where there were issues you didn't raise, you could have raised them. There's nothing to suggest that if you had, they wouldn't have also been considered. And it also appears to me that they were quite accepting of your wishes in terms of wanting to take extra time off, even in your first couple of weeks to try to get legal advice, and get a statutory declaration, even though that wasn't something that they required.

• [6] So, in my view, the conduct that has been proved of the employer in those couple of weeks leading up to the resignation is not such as to leave the employee with no effective option other than to resign.

• [7] I will just say for completeness, I know it wasn't argued on this basis, but it also seems pretty clear to me that this wasn't a heat of the moment resignation. You tried to send it on the 31st of August. It looks like there was some sort of IT issue that prevented it from getting through. Maybe it was the blocking, maybe it wasn't, but by the 2nd of September you still were very clearly of the view that you wanted to resign. That's clear from the text messages with Ms Wisely as well as the one with Ms Sweeney.

• [8] So, I appreciate this isn't the outcome that you were seeking, but I am not able to dismiss the jurisdictional objection on the basis of the material before me. Having heard the evidence and listened to the submissions and read all of the material, I uphold the jurisdictional objection.

• [9] Consequently, your application in respect of the general protections provisions is dismissed, and I order accordingly.

C. Martin of Counsel, instructed by Colin Biggers Paisley, for the First Respondent

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