A typographical error in the headnote has been corrected.

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - irregularity waived - applicant unwell due to poor mental health - continued engagement with applicant while unwell unfair - failure to act in interests of applicant's well-being - forced resignation - dismissal at the initiative of the employer - dismissal harsh - reinstatement not appropriate - compensation awarded.

• [1] Mr Luke Wilson (formerly Luke Miller) has applied under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. He claims he was unfairly dismissed by Services Australia on 17 March 2025. Services Australia opposes the application.

• [2] Services Australia raises three arguments. First, it contends that the application is not competent as it was made before the termination of employment took effect. Second, it contends that Mr Wilson was not dismissed as he resigned. Third, it contends that the dismissal was not unfair because it was not harsh, unjust or unreasonable.

• [3] I waive the irregularity arising from the application so far as was filed before the dismissal took effect. I find that Mr Wilson was dismissed and that the dismissal was harsh, unjust or unreasonable. I have decided to award Mr Wilson compensation in lieu of reinstatement of $33,348.62, less applicable taxation and superannuation. These are my reasons.

• [4] At the hearing of the matter Mr Wilson represented himself. Services Australia was legally represented. Mr Wilson provided written material in support of his case and was questioned on that material. Services Australia relied upon witness statements of Amanda Kerr, Assistant Director Respect Team, Cassandra Prior, Senior Rehabilitation Case Manager in the Early Intervention Team, Linde Martin, Assistant Director of the Process Direct Transition Improvement Program, Lisa Thomas, Senior Rehabilitation Case Manager, Tammy Mitchell, Director of the Process Direct Transition Improvement Program, Lorena Gower, Team Leader, Stacey Graham, Service Support Manager.

• [5] Mr Wilson commenced employment with Services Australia in March 2023. He commenced as a Customer Service officer at the Toowoomba office of Services Australia. In March 2024 he requested and was granted a transfer to the Maryborough Smart Centre. On 20 May 2024, Mr Wilson transferred to the Maryborough Smart Centre in a Service Officer role. When Mr Wilson commenced at the Maryborough office. His aptitude for the work was quickly recognised, and he was offered a Temporary Performance Allowance and place him into a leadership role as a Trainer on site.

• [6] In late October 2024 Mr Wilson transferred to the Process Direct Transition Improvement Program Team, as a Project Officer. The role was a remote role. He was promoted to an acting Senior Project Officer role in the team on November 25, 2024.

• [7] He resigned on 17 March 2025. His resignation occurred when he was not well. When he resigned he had been off work since 10 February 2025. His doctor had provided him with a certificate stating that he had zero capacity for work due to the detrimental affect his work was having on his mental health.

• [8] Mr Wilson identified a number of issues that had arisen at work during 2024 that led to the decline in his mental health.

• [9] The first of those issues arose when Mr Wilson transferred to the Maryborough Centre. He was unaware at that time that the centre had significant mould issues. After working in the building for a short time Mr Wilson said that he contracted a respiratory illness. The staff at the Maryborough centre were permitted to work from home and Mr Wilson commenced working from home in late May 2024. Mr Wilson claimed that he was not informed of the office's air quality problems, which he found negligent. Ms Graham explained that the mould problem which first arose before Mr Wilson moved to the Centre was at the time of Mr Wilson's concerns being addressed. Throughout 2024 staff were updated on progress by regular newsletters, and the building was subject to regular testing to ensure it was safe.

• [10] Mr Wilson also alleges that during the latter half of 2024 he was mistreated and subjected to bullying. He says the mistreatment arose when he made complaints to management about work related matters. He considered that he was bullied by colleagues and that his complaints about bullying were ignored. He also complains that he was not supported in his work and he was not provided adequate training.

• [11] Mr Wilson focused on one issue in late November 2024 when he claims he was mistreated by a subordinate shortly after taking on a leadership role. The circumstances were that when Mr Wilson commenced as an acting Project Officer within the Process Direct Transition Improvements team in November 2024 he was line manager for Sharon Turley. In the weeks following his promotion, Mr Wilson had a number of terse interactions with Ms Turley. On 27 November 2024 during a team meeting, Ms Turley invited Mr Wilson's supervisor, Linde Martin, into the meeting to clarify a number of matters that she had taken issue with concerning Mr Wilson. He felt the subordinate had been rude to him and by complaining about him to a manager had undermined him. Mr Wilson contacted Service Australia's Respect Team on 5 December 2024 regarding concerns about Ms Turley. He was advised to engage with HR for support. The issue was resolved in December 2025, but Mr Wilson continued to feel that he was not given the support that he needed in dealing with a difficult subordinate.

• [12] Ms Martin responded that she felt she gave Mr Wilson the support he needed. She noted that Mr. Wilson's communication with her became excessive and disruptive to work. After the incident with Ms Turley, he increased the frequency of contact with her. She referred to receiving 36 phone calls and 24 text messages from Mr Mitchell between 28 November 2024 to 7 January 2025. Those phone calls lasted between 15 minutes to 1 hour, often occurring multiple times a day. Discussions often involved venting frustrations about team members and personal issues. Ms Martin also referred to concerns about Mr. Wilson's emotional state and well-being including reports of Mr. Wilson crying during conversations and expressing feelings of being bullied. Ms Martin stated she suggested Mr. Wilson take time off for his mental health. Mr. Wilson also contacted Ms Martin during the Christmas shutdown.

• [13] The last communication Ms Martin had with Mr Wilson was on 7 January 2025, when Mr. Wilson expressed anger over unresolved complaints. During that conversation, Mr Wilson expressed that he had considered resigning from his role and continued to raise prior issues regarding Ms Turley that he claimed had not been resolved. Ms Martin responded that she would support him. She reassured him that he was a respected member of the Project who had a lot to offer.

• [14] Mr Wilson's account is that he raised concerns about feeling unsupported by Ms Martin. ​He expressed frustration with stakeholder feedback, feelings of isolation in the Process Direct Transition Improvements team, and dissatisfaction with the team's performance. ​ He also mentioned health issues, including weight loss and stress, and stated he was back on anti-depression medication. Mr Wilson requested to move to another sub-team within the PDTI team or return to his previous role outside the project. Mr Wilson was offered three options: remain in the team, participate in mediation with Linde Martin, or return to his previous role.

• [15] Ms Graham's evidence is that on 7 January 2025, Mr Wilson rang him in a distressed and panicked state and requested to move back to the Maryborough office. Ms Graham informed Mr Wilson that Mr Wilson could return to his nominal position. Mr Wilson said that he was having a hard time in his current role and wished to return. On 9 January 2025 Ms Graham was contacted by Ms Martin who said that Mr Wilson had requested to return to his role in the Maryborough office as a result of the issues he was having. Ms Graham said Mr Wilson would be accepted back his nominal role without hesitation as he provided good work. Mr Wilson returned to the Maryborough office on 13 January 2025.

• [16] Ms Graham said that on 10 February 2025 she was told Mr Wilson had left work in a state of distress.

• [17] Mr Wilson saw his doctor on 11 February 2025 and was provided with a Queensland workers' compensation medical certificate. The certificate stated that Mr Wilson was suffering from adjustment disorder with anxiety and depressive symptoms and that the cause of the injury was stress from increased workload. The certificate set out a management plan of psychological counselling and anti-depressants were prescribed. The certificate stated that he had no capacity for any type of work from 11 February 2025 to 11 March 2025. Mr Wilson was unable to say when he provided the certificate to Services Australia. It appears from what followed that it was not provided until 17 February 2025 if at all

• [18] On 13 February 2025 a meeting was held between Mr Wilson and his support person, Mr Blaire Wilson, Mr Wilson's supervisor Ms Wylucki and Ms Graham. In Ms Graham's meeting notes the purpose of the meeting was described as:

To discuss and respond to Verbal complaint by Luke about Staff behaviour and

processes taken by Team leaders, To discuss supports required for Luke moving forward and discuss Luke's request to transfer to Hervey Bay face to face_._

• [19] At the meeting Mr Wilson raised concerns about the conduct of various members of staff going back to 2024. Ms Graham asked whether Mr Wilson was making a formal complaint or was just venting. Mr Wilson said he didn't want to return to the Maryborough site and requested more time to consider his options, expressing concern about his lack of leave and the unrealistic expectation to decide quickly. Ms Graham offered additional time, more leave, and another meeting to support Mr Wilson's decision-making process. Mr Wilson requested a transfer to the Hervey Bay service centre and suggested it be on a three-month trial. Ms Graham approved what she described as three days Early Intervention Leave for Mr Wilson to seek counselling for emotional distress.

• [20] There was a follow-up meeting on 14 February 2025. Ms Graham told Mr Wilson that his transfer request to the Hervey Bay office could not be accommodated as there were no vacancies. Mr Wilson was to remain at the Maryborough office on his current arrangements. Mr Wilson said he found the environment in Maryborough very different compared to Toowoomba, where he had more connections. He said he had concerns about staff behaviour and breaches of the APS Code of Conduct and that his earlier grievance about being bullied had been ignored. The meeting concluded on the basis that Mr Wilson advised he was happy to have a return-to-work conversation with his Team Leader and that he would put his complaints in writing and that ad hoc work from home had been approved for the following two weeks. Mr Wilson was due to return to work on 17 February 2025.

• [21] During this period Mr Wilson was also communicating with Services Australia's Respect Team. The purpose of the Respect team is to support staff and assess any concerns raised relating to bullying, sexual harassment and inappropriate behaviour within Services Australia. Ms Kerr provides an account of those communications.

• [22] On 11 February 2025, Mr Wilson phoned the Respect Team to make a complaint about his employment. Records of the conversation suggest the complaint were about Mr Wilson's experience working within the Process Direct Transition Improvement Team in late 2024. It included the incident with Sharon Turley and his concern that he had not been supported by his manager. He also raised concerns about the Maryborough Smart Centre focussing on poor business processes, poor treatment of new recruits, and inadequate training.

• [23] Mr Wilson phoned the Respect team on 14 February 2025 He spoke with Ms Hand. He also sent a series of emails. He forwarded numerous emails dating from 2024 in which he made complaints about working at the Maryborough Centre. He expressed frustration at the way those complaints had been handled and the lack of acknowledgement and resolution of his concerns. He said he didn't want to return to work at the Maryborough Smart Centre due to its impact on his health and wellbeing. On 17 February 2025 Mr Wilson had a two hour conversation with Ms Hand who he had asked to produce a document his complaints. He asked that his complaints be transcribed into a table. On 19 February 2025 Mr Wilson was sent a summary of the discussions from two days earlier. Mr Wilson responded with multiple emails which had an exasperated tone, taking issue with the summary and complaining about it in various respects. He indicated in the emails that he was off work with a workers compensation claim and did not want to be contacted again unless it related to his claim.

• [24] On 17 February 2025, the day he was due to return to work, Mr Wilson submitted a workers compensation claim to Comcare. It appears from contemporaneous communications that there was some confusion caused by the 11 February 2025 certificate being a Queensland workers compensation certificate rather than a Comcare certificate. He was contacted on 18 February 2025 about his Comcare claim by Ms Prior, a Senior Rehabilitation Case Manager in the Early Intervention Team at Services Australia. Ms Prior provided copies of emails with Mr Wilson between 18 February 2025 and 4 March 2025. There were many. Some sent late in the night or in the early hours of the morning. The correspondence includes multiple emails detailing Mr Wilson's frustrations with Services Australia, the poor treatment he had been subjected to, and the impact it had on his mental health. He complained about the impact his work, including the need to recount the events of recent months, had had on his health and his relationship. At times the communications were aggressive. Mr Wilson stated he was not in a position to make formal employment decisions due to his mental state. He said he had contacted a solicitor and was considering lodging a formal complaint regarding his treatment. He expressed frustration over the lack of communication and support from his case manager and the agency. He stated that he had been on a 'zero capacity' medical certificate and was concerned about the impact on his financial situation.

• [25] On 20 February 2025 Mr Wilson was sent the table he requested from Ms Hand in the Respect Team on 17 February 2025. Mr Wilson responded aggressively claiming the table was inaccurate and indicated that he was going to make a formal complaint about Ms Hand. Ms Kerr took over communications with Mr Wilson from 21 February 2025 informing him that she would wait for further advice before contacting him again. Mr Wilson responded raising further concerns and Ms Kerr replied on 24 February 2025 stating again that the Respect Team would pause further dealing with his complaints until he was well enough to discuss them further. On 27 February 2025 Mr Wilson sent another email restating his original complaints about the Maryborough centre and added complaints about the way the Respect Team had handled his concerns and said that the team had caused him further stress. Ms Kerr responded the next day clarifying that the concerns raised about the workplace and the Respect Team's case management would be handled separately. ​ She stated that the processes would remain on hold until Mr Wilson was fit to participate or returned to work.

• [26] On 4 March 2025 Ms Prior had a long conversation with Mr Wilson. Ms Prior's contemporaneous notes of the meeting indicate Mr Wilson revisited issues he had previously raised, including workplace concerns, and frustrations with unanswered emails. He complained about how he had been treated by the Respect Team. He asked again about being redeployed to Hervey Bay, said he could not return to Maryborough and that he could not go back to Toowoomba. He also raised that he believed he was being dismissed and had advice that he has a strong case for unfair dismissal. Ms Prior told him he wasn't being dismissed and that the aim was for him to return to work. Mr Wilson said he was planning to complain to the minister and that he would now be including the way he was being treated by Ms Prior in the complaint. The discussion turned to Mr Wilson's return to work plan and the willingness of his general practitioner to assist in that process. Ms Prior indicated that not much could be done until his workers' compensation claim had been determined and Mr Wilson was ready to return to work. Mr Wilson said as he was no longer being paid he could not afford to seek professional help. Ms Prior's notes record that he said words to the effect of, "if I kill myself it is on you guys'.

• [27] On 4 March 2025 Mr Wilson also saw his general practitioner, Dr Cozier, who provided him with a medical certificate. It stated that Mr. Wilson had been experiencing extreme stress due to workplace practices, harassment, and bullying. Dr Cozier assessed Mr. Wilson as having no capacity for work due to his inability to focus on cognitive tasks and leadership roles. ​ The certificate specifically mentions concerns about Mr Wilson working in the Maryborough Office with Services Australia and recommended an alternative work environment and team for his return to work. ​The doctor recommended Mr Wilson engage in counselling and therapy sessions with a psychologist as part of a mental health care plan. Dr. Cozier anticipated Mr Wilson may show improvement within 2-3 months and potentially return to regular duties after three months.
• [28] On 5 March 2025 Mr Wilson sent an email accusing Ms Prior of being unprofessional rude and aggressive. The email asked that Ms Prior be replaced as his case manager. Ms Prior was replaced by Ms Thomas on 12 March 2025.
• [29] Ms Thomas spoke to Mr Wilson on 17 March 2025. The conversation occurred around midday. It was another along conversation. Ms Thomas's contemporaneous notes record that Mr Wilson repeated the complaints he had made a number of times to others including complaints about workplace conditions, including unsatisfactory dealings with the Respect team, mould issues, staff attitudes, and feeling unsafe returning to work at any Services Australia location or from home. He referred to personal health struggles, including sinus and asthma issues, mental health challenges, and increased reliance on alcohol and medication. He said that he had drafted a resignation letter, had the support of his GP to resign, and wished to have no further contact with Services Australia after resigning. Mr Wilson also mentioned his intention to consult a solicitor and pursue a constructive dismissal claim. Ms Thomas told him that she was focussed on his return to work and whether he resigned was up to him.

• [30] Mr Wilson sent Ms Thomas an email at 1.26 pm thanking her for speaking with him. The email was copied to his external rehabilitation provider, Ms Marks, and Ms Branovski from Australia Services HR Support Team. At 1.33 pm Mr Wilson sent an email to Ms Thomas stating he resigned his employment. It commenced with the words:

Please accept this as my formal 2 weeks notice of resignation as at the 17 of March 2025

• [31] There was then a lengthy explanation of his reasons for resigning. The email is discursive and difficult to follow. It referred to the following:

(a) Complaints made about the Maryborough staff placing customers in vulnerable circumstances due to errors and procedures not being followed or blatantly broken.

(b) The failure of Services Australia to inform Mr Wilson prior to moving to Maryborough of the health hazards associated with mould, resulting in him having health issues and then being isolated at home to avoid the hazard.

(c) The lack of support when he was required to train other staff at Maryborough.

(d) His transfer to the PDTI Team which was a hostile and mismanaged and him being subjected to bullying which resulted in a decline in his mental health.

(e) The Respect team's failure to deal with his many complaints by failing to not record complaints correctly and also trying to organise meetings to discuss them while he was subject to a zero capacity medical certificate.

(f) Being required to meet with managers while he was on a zero capacity medical certificate and had no mental capacity yet was asked to make career decisions that were not then accommodated, adding further stress and decline to his mental health.

(g) Being placed on only three days' early intervention leave as he had exhausted sick leave and Annual leave entitlements and was waiting for Comcare to determine his workers' compensation claim.

(h) The mishandling of his worker's compensation case by a caseworker who was rude and aggressive and ignored multiple calls and only responded to some emails.

(i) The refusal of a manager to provide a reference for another role.

(j) Being bullied by the Respect team and told if he made a complaint to the minister there could be repercussions.

• [32] Mr Wilson wrote that he no longer felt physically or psychologically safe working for Services Australia as he understood that upon his return to work, he would have to go over his multiple complaints with leadership again which would only reopen his injuries. He stated that he had an outstanding work ethic which had been recognised by numerous leaders and that he had a passion for being a public servant. The email said he would rather take a pay cut and work elsewhere for the sake of his mental health. He said that he no longer had job security or safety and had just been sitting in limbo as he had zero capacity to work and had been forced to look for other work as he could not sit around and be on zero income waiting for his workers' compensation claim to be approved.
• [33] The email concluded with the words:

With deepest hurt I make this 2 weeks resignation formal!

• [34] Mr Wilson did not forward the email to his manager. Ms Thomas did. Ms Thomas also sought advice about what should happen given the resignation email was received while Mr Wilson's workers' compensation claim was still being considered. She said she was also concerned about Mr Wilson's wellbeing. After discussing this with her team Ms Thomas contacted Ms Marks and asked her to contact Mr Wilson's doctor to confirm that he supported Mr Wilson's decision to resign. Ms Marks wrote to Dr Crozier at 2.52 pm on 17 March 2025. The letter noted that Mr Wilson had resigned and included the following:

Service Australia have advised that before this resignation can be formally accepted there is a medical requirement determining that Mr Miller is 'sound of mind' to make this decision. Can you please confirm in writing your medical recommendations on this.

• [35] There was an email exchange in the morning of 18 March 2025 between Mr Wilson and Ms Thomas. The exchange included Mr Wilson asking if his resignation had been received and accepted. In the email Mr Wilson enquired about his termination pay and suggested that he would pursue Services Australia for constructive dismissal if that issue could not be resolved. It also went to how Mr Wilson would return Services Australia property.

• [36] Mr Wilson was contacted during the course of the morning by his doctor who told him that Services Australia had asked him to confirm that Mr Wilson was in a sound state of mind to resign. Mr Wilson took exception to his doctor being contacted and spoke to Ms Thomas over the phone about his concerns. Ms Thomas said that during the phone call Mr Wilson was clearly upset and emotional.

• [37] Mr Wilson's doctor responded to Ms Marks' request on 18 March 2025. The response read:

We received correspondence on 17th March by email from Candi Marks (IPAR Rehabilitation) enquiring about Luke's tender for resignation to his usual employer Services Australia. The question put to me is whether Luke has "sound mind" to make this decision and appealing to medical judgement.

I am to understand this amounts to asking for an assessment on Luke's capacity to make decisions about his work choices.

I was made aware of Luke's decision to change employment during recent consultation with Luke. I certify that Luke has current capacity and competency to make his own choices about work. He maintains his choice and understands the relevant information. Luke appreciates the situation and consequences of withdrawing his employment. Luke can rationalise the options he has at his disposal. This culminates in adequate capacity. He is aware of the risks and benefits and alternatives.

Luke has expressed consent to disclose this to third parties_._

• [38] Dr. Cozier provided a further letter later on 18 March 2025. It read:

Luke reports some grievance with the handling of his notice of resignation. We recently received correspondence that requested an assessment of capacity. Upon discussing this a statement was issued with Luke's consent. However it is noted that Luke cites that he feels the request has amounted to breaching professional boundaries, patient doctor condientiality and his autonomy.

• [39] Mr Wilson filed this application for an unfair dismissal remedy on 18 March 2025.

• [40] There was an email exchange between Mr Wilson and Ms Branovski from Australia Services HR Support Team on 19 March 2025. Ms Branovski addressed Mr Wilson's complaint about the rehabilitation provider contacting his doctor and said it was in accordance with the Fair Work Commission's 'heat of the moment resignation' guidelines, she described those guidelines as:

Where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise. In special circumstances an employer may be required to allow a reasonable period of time to pass. The employer may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.

• [41] Mr Wilson responded that he had read the cases on heat of the moment resignations and that his resignation did not constitute that. He said that here was nothing heat of the moment about it and what was done was by Services Australia was unlawful. He accused Services Australia of engaging in underhanded tactics. He also pointed out that he had asked whether his resignation had been received and accepted but had not been given an answer. He concluded his email with the statement:

Your all supposed to be here to rehabilitate not exasperate a person's condition. Shame on you all.

• [42] He forwarded his email exchanges with Ms Branovski to Comcare stating that Services Australia were "freaking out because they didn't want me to resign and as I stated your doing this to ensure it's not a heat of the moment which it clearly wasn't." He then sent another email to Ms Branovski in the following terms:

I ask that this is escalated to mr David Hazlehurst on my behalf along with every single email as I wish to make a formal complaint of what you have all done.

• [43] Mr Hazlehurst being the Chief Executive Officer of Services Australia. There were no further exchanges. There was no formal acceptance of the resignation by Services Australia.

• [44] Mr Wilson commenced employment with another employer as a full-time optical assistant on 24 March 2025. His wages were $25.65 per hour for 38 hours per week.

• [45] The Respondent has raised that the application is not competent because it was filed before the dismissal took effect. The Respondent also accepts that this amounts to an irregularity that is susceptible to correction under s. 586(b) of the Act. Section 586(b) permits the Commission to waive an irregularity in the form, or manner of making, an application. The power goes to the procedures of the Commission, and it should be exercised taking into account all of the circumstances. [1]

• [46] The irregularity was raised at a conference conducted prior to the hearing where I indicated that I would exercise the power under s. 586(b). The Respondent raised the issue again in its written submissions filed prior to hearing submitting that the Respondent opposed the exercise of the discretion on the grounds that there was a jurisdictional objection that Mr Wilson was not dismissed and that the application was confused and unclear as the Applicant did not clearly articulate how he says that he was dismissed.

• [47] The irregularity arises because Mr Wilson's resignation on 17 March 2025 stated that he was giving 2 weeks' formal notice of his resignation. The intended date of the resignation would have taken effect on 31 March 2025. Mr Wilson did not work the two week period, nor was he paid for that time. He also made clear at the time of the dismissal that he felt he had been constructively dismissed and advised that he was making an unfair dismissal application.

• [48] I will exercise the discretion in s. 586(b). The filing of the application was irregular in the sense Mr Wilson stated that he was giving 2 weeks' notice and filed his application the day within that two week period. There was no direct response to Mr Wilson's resignation letter informing him that it was accepted and of his termination date. Mr Wilson's employment ended in a state of confusion. Amidst that confusion it was clear that Mr Wilson intended to bring these proceedings. Correcting the irregularity will not result in prejudice to Services Australia, and I was not asked to determine the issue prior to the matter being set down for hearing. It would be unjust to dispose of the proceedings on the basis of an irregularity after a full hearing has been conducted.

• [49] Section 12 of the Act defines dismissed by referring to s386. Section 386(1) provides that a person has been dismissed if:

(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.

• [50] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

• [51] A Full Bench of the Commission considered the two limbs of s.386(1) in Bupa Aged Care Australia Pty Ltd v. Tavassoli [2017] FWCFB 3941 (Bupa). After considering in detail the case law associated with the expression "terminated on the employer's initiative", including notions of constructive dismissal and forced resignation, 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 probabl(e) 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.

• [52] Mr Wilson contends that he was forced to resign by Services Australia's conduct. He resisted any notion that his resignation was a 'heat of the moment' resignation. The first limb of the test espoused in Bupa is more than just heat of the moment resignation it includes circumstances where 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. The test to be applied in the second limb includes 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. Under the first limb employer conduct is not an essential element. Under the second limb it is.

• [53] At the time he resigned Mr Wilson was not well. So much is clear from the chronology of events. He left work in an agitated state on 10 February 2025. On 11 February 2025 his doctor diagnosed him with adjustment disorder, anxiety and depressive symptoms. The cause of the injury was stress from increased workload. He had no capacity to work from 11 February to 11 March 2025. It is clear from the written communications and the accounts of those he spoke to that his mental health was getting worse. On 4 March 2025 Dr Crozier saw Mr Wilson again and concluded that Mr Wilson had been experiencing extreme stress due to workplace practices, harassment, and bullying. Dr Cozier assessed Mr Wilson as having no capacity for work. ​ ​The doctor recommended Mr Wilson engage in counselling and therapy sessions with a psychologist as part of a mental health care plan. He anticipated Mr Wilson may show improvement within 2-3 months and potentially return to regular duties after three months.

• [54] During the period of his illness Mr Wilson was engaging with Services Australia. He continued to make complaints about the way he was treated in late 2024 at the Maryborough offices and in the Process Direct Transition Improvement Program team. He was dealing with local management about where he should be deployed. His preference was to no longer work at the Maryborough office which had been the subject of some of his complaints. He met with Ms Graham on 13 February 2025 and requested to be moved to the Hervey Bay office. He was told the following day that this would not happen. Ms Graham was unaware of the 11 February Doctor's certificate but held the view was that Mr Wilson was not well. She approved special leave for him from 11 February to 14 February 2025. Her evidence was that she was concerned about his health and well-being and referred him to the Employee Assistance program or his own counsellor. She agreed in her evidence that he was in a very dark place. After those meetings Ms Graham informed her manager about her concerns about his well-being.

• [55] At the same time Mr Wilson was also dealing with Australia Services Respect team. He contacted the team by telephone on 11 February, 14 February and 17 February 2025. He also sent numerous emails. The accounts of these discussions and the text of the emails indicate that he was in an agitated state. He was pressing his complaints about the conduct he had been subjected to in late 2024. Due to complaints by Mr Wilson about how his complaints were being handled Ms Kerr took over communications with him on 24 February 2025. The Respect team was also unaware of Dr Cozier's medical certificate from 11 February 2025. It was clear to her that he was not well, and he said as much asking that he no longer be contacted as he was unwell. On 24 February 2025 Ms Kerr told him that his complaints would be progressed once he was well again.

• [56] Mr Wilson made a workers' compensation claim on 17 February 2025. From that date he was dealing with Ms Prior in Australia Services Early Intervention Team. The communications with the team were of a similar ilk to the communications described above. He had long phone conversations. He sent many emails. Those communications went to his complainants about what had occurred in 2024. There were further complaints about how the earlier complaints had not been dealt with by his managers or by the Respect team. He restated the ongoing adverse impact these matters were having on his mental health. In a similar pattern to his earlier communications with others he commenced in a cordial manner that quickly turned to hostility on Mr Wilson's part as he accused those he was dealing of being rude, hostile and obstructive. In an email on 4 March 2025 Mr Wilson stated:

My partner is witness to the fact that I have stated along with the drs certificate not in a place to be making any formal decisions about my employment and that you are of no support what so ever. Anything further from you can be in writing as you have been more detrimental to my rehabilitation rather then helping in any way.

• [57] In a lengthy and heated exchange over the phone with Ms Prior on 4 March Mr Wilson said he believed he was being dismissed and had advice that he had a strong case for unfair dismissal. Ms Prior's assurances that he was not went unheeded. Mr Wilson complained that he was no longer being paid and said words to the effect that "if I kill myself it is on you guys'. Following that call Mr Wilson requested that Ms Prior be taken off his case.

• [58] Ms Thomas took over and the next contact with Mr Wilson was on 17 March 2025. Ms Thomas's notes from that meeting show that Mr Wilson's state of mind had not improved. He revisited at length his grievances which had expanded from the complaints from late 2024 to the events of February and March 2025. He stated he did not feel safe returning to Servies Australia. He spoke about resigning. He said that since deciding to resign he was sleeping better. He said he was planning to run an unfair dismissal case. He spoke about using alcohol and medication to deal with stress and isolation. His resignation letter was received shortly after that phone call.

• [59] The resignation letter itself continued to refer to his many complaints. It referred to his workers compensation claim and that he no longer had any income. He accused his case managers of being rude and aggressive and made allegations of bullying. The letter is not rational. Services Australia appeared to take the same view. It sought medical confirmation of his capacity to make the decision to resign. Mr Wilson objected to his doctor being contacted, feeling it breached his privacy and autonomy. Despite an initial letter from Dr Cozier, which appeared to be written on Mr Wilson's instruction, or at least with his knowledge, stating that he was competent to resign, Mr Wilson complained about the handling of his resignation as unfair and accused Services Australia of exacerbating his condition and using underhanded tactics by contacting his doctor. He said he was making formal complaints about what had occurred.

• [60] These various communications indicate that Mr Wilson was not well, and his condition did not improve. He was difficult to deal with. The officers at Services Australia did their best to deal with his irrational behaviour. There can be no criticism of individually of any of the managers or other staff who dealt with him during this period. The test to be applied here, under the first limb referred to in BUPA, is whether the evidence suggests that Mr Wilson was in a state of emotional stress or mental confusion such that he could not reasonably be understood to be conveying a real intention to resign.

• [61] I find that Mr Wilson was in a state of emotional distress when he resigned. Mr Wilson's resignation came about from his emotional response to the frustration he was feeling about how his complaints about the events of late 2024 were dealt with. That response intensified over the course of February and March 2025. In February his doctor diagnosed an adjustment disorder with anxiety and depressive symptoms. On 4 March 2025 the diagnosis was that Mr Wilson had been experiencing extreme stress. Dr Cozier assessed Mr Wilson as having no capacity for work due to his inability to focus on cognitive tasks and leadership roles. On 18 March 2025 Dr Cozier responded to a request from Services Australia as to whether Mr Wilson was of "sound mind" and responded that Mr Wilson had capacity and competency to make his own choices about work. The letter confirms Mr Wilson's capacity to make decisions but does not provide any medical opinion about whether his stress and anxiety had improved. The conversation that Mr Wilson had with Ms Thomas on 17 March 2025, and the resignation letter suggest it had not. The communications following the resignation also suggest that Mr Wilson was still not well.

• [62] I consider that Mr Wilson's state of emotional stress on 17 March 2025 was such that he could not reasonably be understood to be conveying a real or rational intention to resign. The stress first identified by and recorded in the medical certificate on 11 February 2025 had not improved. The two-to-three-month period of recovery that Dr Cozier identified on 4 March 2025 had not passed. In my view, Mr Wilson was in no state to resign on 17 March 2025.

• [63] It is clear that Services Australia had its doubts as well as Ms Branovski sought to ensure that his doctor provide some reassurance albeit through a request by Mr Wilson's external rehabilitation provider. Ms Branovski wrote in an email on 18 March 2025 that Services Australia was seeking to establish whether Mr Wilson's resignation was a 'heat of the moment' resignation. In that email she acknowledged that where a resignation is made in the heat of the moment or under extreme pressure, special circumstances may arise and that an employer may be required to allow a reasonable period of time to pass for the employee to indicate that the resignation was not intended. Services Australia having received Dr Cozier's response that Mr Wilson was of sound mind did not allow a reasonable period of time to pass to seek confirmation. This was not reasonable for two reasons. First, all indications were that Mr Wilson was still not well when he resigned. The conversation with Ms Thomas continued to recount the many matters that were the cause of his emotional stress and they were conveyed in an agitated way. The resignation letter itself was similarly unfocussed and discursive. The request to Dr Cozier was of a general nature and failed to bring to his attention the manner in which Mr Wilson resigned. I am of the view that that information was necessary for Dr Cozier to give the opinion sought. Second in the responses after the resignation Mr Wilson was equivocal, seeking confirmation as to whether his resignation was accepted, complaining about the contact made with Dr Cozier, asking that his circumstances be brought to the attention of the CEO of Services Australia. In his final communication on 19 March 2025 he stated:

Your all supposed to be here to rehabilitate not exasperate a person's condition. Shame on you all.

• [64] I suspect Mr Wilson intended to use the word exacerbate in this exclamatory remark. Although clearly, at the end of the process, Mr Wilson remained exasperated.

• [65] I find that Services Australia treated the ostensible resignation as terminating the employment rather than taking steps to clarify or confirm with Mr Wilson after a reasonable time that he genuinely intended to resign. For these reasons I find that the termination of Mr Wilson's employment was a dismissal at the initiative of the employer. It is a dismissal that falls within the first limb of the definition of dismissal in s386(1)(a).

• [66] I also find that the resignation falls within the second limb of the definition found in s. 386(1)(b). I consider that Services Australia's conduct between 11 February 2025 and 17 March 2025 was such that the probable result of that conduct was that Mr Wilson had no effective or real choice but to resign. I have already set out the conduct in detail. It involved Services Australia engaging with Mr Wilson over that 5 week period when he was unfit for work. In that Dr Cozier described his anxiety as becoming extreme stress.

• [67] Ms Kerr gave evidence that while it was unusual for the Respect team to engage with employees who were medically unfit for work that an employee may wish to engage, and the team would respect that wish. She also acknowledged that at times the team would tell an employee that it was best for them to get well before further engaging with her team. She said that she took that view herself when his case was referred to her. However, Ms Prior and Ms Thomas engaged with Mr Wilson a similar way. I accept that Ms Prior and Ms Thomas were faced with a very difficult situation. Mr Wilson insisted on engaging when he should not have. His emails and long rambling conversations were doing him no good. By engaging with him the Services Australia staff were unwittingly exacerbating his condition. And I note during these communications, on a number of occasions, Mr Wilson talked about constructive dismissal, feeling he was being dismissed, and having to resign. The ongoing contact and the repeated re-agitation of the complaints that had given rise to Mr Wilson's emotional stress put him in a state of mind the probable result of which was him giving up in the way he did and resigning.

• [68] I regard the fact that Mr Wilson had not been paid from 11 February until his resignation as a relevant factor also. He had exhausted his leave entitlements and had made a workers' compensation claim.

• [69] Services Australia provided a submission on why it was that Comcare had not made any payments to Mr Wilson. I understand the practice under State based workers' compensation schemes is that payment is made pending the consideration of a claim. The further submission confirmed that in Queensland, at least, it is the practice of Queensland's WorkCover to routinely make payments while a claim is being assessed. Services Australia points out that Comcare does not have the same practice. The submission suggests that as Comcare is governed by the Public Governance, Performance and Accountability Act 2013 (Cth) it has a positive duty to promote the proper use and management of public resources. This means that an accountable authority of a Commonwealth entity must govern the entity in a way that promotes the proper use and management of public resources for which the authority is responsible. I was also taken to Rule 18 of the Public Governance, Performance and Accountability Rule 2014 (Cth) that monies must only be applied in a proper manner, to promote "the efficient, effective, economical and ethical use of the money".

• [70] It was put that making payments to Mr Wilson where he had not established an entitlement to payment, whether by Comcare or otherwise by Services Australia, would be antithetical to the principle of accountability for the use of public funds as required by the PGPA Act and its Rules. It was also put that doing so would not promote the ethical use of funds. I disagree. I don't see why Comcare cannot adopt the practice used by similar state agencies to ensure injured workers receive some payment while awaiting assessment of their claims. To do so would in my view amount to the efficient, effective, economical and ethical use of money. In Mr Wilson's case it would have allowed him to have some income and be able to afford to engage in treatment to address his illness.

• [71] I also note that regulation 11A of the Safety, Rehabilitation and Compensation Amendment (Period for Decision-making) Regulations 2023 which requires that claims for compensation must be determined within 20 calendar days, appears to apply to Mr Wilson's claim. The 20 calendar days had expired by the time Mr Wilson resigned. It appears that his claim was not determined until 2 July 2025, when it was denied. I do not need to make a definitive finding in this regard. I do find however that no payments were made to Mr Wilson by Services Australia, or Comcare on behalf of Services Australia, for a 5 week period prior to him resigning. This conduct contributed to Mr Wilson's resignation. It was conduct that had the probable result that would lead to someone in Mr Wilson's situation resigning.

• [72] In these circumstances I find the probable result of Services Australia's conduct between 11 February 2025 and 17 March 2025 resulted in Mr Wilson having no effective or real choice but to resign. Services Australia contends that Mr Wilson had other options. I find that his state of mind and financial situation were such that he had no option but to resign both for the sake of his health and to enable him to earn an income.

• [73] The next issue is whether Mr Wilson's dismissal was harsh, unjust or unreasonable for the purposes of section 385 of the Act. Section 387 provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the Commission considers relevant.

• [74] I have found that Mr Wilson was dismissed due to the conduct of Services Australia in treating his ostensible resignation as terminating the employment rather than taking steps to clarify or confirm with Mr Wilson after a reasonable time that he genuinely intended to resign. I have also found that the resignation was the probable result of Services Australia's conduct between 11 February 2025 and 17 March 2025, giving Mr Wilson no effective or real choice but to resign. The reason for Mr Wilson's dismissal was therefore not due to his conduct or capacity, and s 387(a) is not relevant.

• [75] Services Australia submits that Mr Wilson's conduct towards four colleagues between December 2024 and March 2025 amounted to breaches of the Services Australia's code of conduct. No particulars of the breaches of the code were provided, and it was acknowledged that this conduct was not raised with Mr Wilson as misconduct. I do not accept that a valid reason for the dismissal can said to arise from that conduct.

• [76] Each of the matters in s 387 (b) to (e) are also not relevant. For the purposes of s 387(f), Services Australia is a large employer. It has over 34,000 employees. That size did not have an impact on the procedures followed to effect the dismissal although I consider this factor is neutral in the assessment of whether the dismissal was harsh, unjust or unreasonable. Services Australia also has dedicated human resource specialists making s 387(g) irrelevant.

• [77] The matters that are relevant to a finding that the dismissal are the conduct of Services Australia and Mr Wilson in February and March 2025. I have set that conduct out in detail earlier in these reasons.

• [78] Mr Wilson's behaviour during that period in many respects was not appropriate. His obsession with what he perceived to be wrongdoing by a number of officers of Services Australia during 2024, his dogged pursuit of complaints about that conduct, and his insistence that his complaints be dealt with immediately and in a manner that he deemed apt was unreasonable. His behaviour towards those he dealt with, in the lengthy conversations he had and the numerous emails he sent was often rude, aggressive and unacceptable. He was however ill. His obsession and bad conduct were a factor of that illness. The Services Australia officers who dealt with Mr Wilson during this time did their best to deal with an employee who was to say the least difficult. The evidence demonstrates that each of them held well founded concerns about his well-being. I cannot, and do not, fault them for the approach they took to their dealings with Mr Wilson.

• [79] Services Australia however did fail to take steps to deal with Mr Wilson appropriately. The medical evidence, together with the observations made by the officers who dealt with Mr Wilson, strongly suggest that more care should have been taken for Mr Wilson's well-being. There should have been one point of contact. Had that been the case that person would no doubt have concluded that Mr Wilson needed a break from work He should have been told to concentrate on his health rather than his complaints. Ms Kerr took that view first. Others were of the same view, but the lack of coordination meant Mr Wilson spent much time when he should have been recovering on his "zero hours" certificate away from work. I note that this observation is made with hindsight but consider that there were sufficient signs at the time that should have led to a different approach being taken. The approach that Ms Kerr ultimately took was to not deal with Mr Wilson until he was better. That was an approach that should have been taken sooner and by all who were dealing with Mr Wilson. On 4 March 2025 Dr Cozier considered that Mr Wilson needed 8 to 12 weeks for his health improve after which he may be ready to return to full duties. It is regrettable that Mr Wilson was not given that opportunity as Services Australia staff continued to engage with him. His resignation came only two weeks after that assessment was made.

• [80] The fact that Mr Wilson was not given space to recover leads me to conclude that his dismissal was harsh. It was harsh in circumstances where he had demonstrated when he was well a capacity to contribute positively to the agency. His work was considered to be good by his superiors. He had been promoted since commencing in 2023 and was acting up in a project at the time that he fell ill. Mr Wilson said that when things were going well he loved his job and felt he was in a position to embark on a fulfilling career.

• [81] These matters contribute to my finding that Mr Wilson's dismissal, at what was a difficult time for him, was harsh.

• [82] Having found that the dismissal was harsh I find that Mr Wilson was unfairly dismissed.

• [83] Mr Wilson seeks compensation rather than reinstatement. He commenced employment in another job a week after he was dismissed. His new role pays $25.65 per hour for 38 hours per week, or $50,684.00 per annum. His salary at Services Australia was $78,824.00.

• [84] The Commission can only order the payment of compensation where it is satisfied that reinstatement is inappropriate, and it considers that an order for compensation in lieu of reinstatement is appropriate in all the circumstances. I consider that it is inappropriate to order reinstatement. Mr Wilson was treated harshly by Services Australia and understandably does not to wish to work there again. Given his new employment and his stated preference not to return to Services Australia, it is appropriate to respect his wishes.

• [85] I am satisfied that it is appropriate in the circumstances to make an order for compensation in lieu of reinstatement. In doing so, I am required by s 392 to take into account of all the circumstances of the case, including the matters listed in s 392(2)(a) to (g). The often quoted approach to the assessment of the quantum of compensation under s 392 is to apply the "Sprigg formula". That formula is derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul's Licensed Festival Supermarket [1998] AIRC 989; (1998) 88 IR 21 which dealt with compensation in lieu of reinstatement in similar provisions in earlier legislation. The application of that formula, in the context of the current legislation, was explained by the Full Bench in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206.

• [86] The first step is to determine what Mr Wilson would have received, or would have been likely to receive, if he had not been dismissed. This requires an assessment of how long he would have remained at Services Australia and the remuneration he would have earned during that period. The next step is to make the various adjustments for matters that include the impact on the business, monies earned since dismissal, any reduction on account of the employee's misconduct and the application of the cap of no more than the earnings in the six months prior to the dismissal. A reduction for contingencies has also been commonly applied to take into account likely changes in circumstances that may impact ongoing employment. This approach is subject to the overarching requirement to ensure that the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.

• [87] Some speculation is required in determining what Mr Wilson would have earned had he not been dismissed. Mr Wilson had made a workers' compensation claim. The claim was refused. His doctor considered that he would be incapacitated due to his illness for between 8 to 12 weeks from 4 March 2025. I conclude that had he remained in employment he would not have earned anything up until the end of April 2025. As to how long he would have worked after that I was not taken to any concerns about Mr Wilson's performance. The evidence was that when he was well he was a valued employee. I consider that, if his health permitted, he would have continued to work for the agency for some years. The exercise here is not open ended however and for the purposes of calculating compensation I find that Mr Wilson would have remained in employment with Services Australia for at least two years. Mr Wilson has mitigated his loss by finding another job, but he has also suffered a loss in pay of $28,140.00 per year. While it involves some speculation, I consider that would be an ongoing loss. Mr Wilson says he enjoys his new role and is content to remain working in it. Mr Wilson's loss in wages is therefore 2 x $28,140.00 or $56,280.00.

• [88] Applying the next step, and coming to a final figure, involves making various adjustments for matters that include the impact on the business, monies earned since dismissal, any reduction on account of misconduct and a possible reduction for contingencies which may take into account likely changes in circumstances that may impact ongoing employment. I note Services Australia is a large employer, and its viability will not be affected by any order made. I do not see the need to make any adjustments to the amount of earnings lost. Mr Wilson's earnings in the new job have already been taken into account in the difference between the two salaries. Another factor is whether I should make an adjustment to the compensation for misconduct. There was misconduct on Mr Wilson's part. I consider his treatment of the officers he dealt with in February to March was misconduct, albeit that it was not the reason for the dismissal and did not in the circumstances justify dismissal. His conduct is explained by his poor mental state. The state was exacerbated by Services Australia's failure to properly manage Mr Wilson. He was unwell and I do not propose to make a deduction for that conduct. No evidence or submissions were made in relation to contingencies.

• [89] My assessment of the loss is $56,280.00. That amount exceeds the earnings made in the 6 months prior to dismissal. Mr Wilson's salary was $78,824.00. This amounts to $1,515.85 per week. He was not paid 4 weeks' salary from 17 February to 17 March 2025, and I calculate his earnings for that six month period as 22 x $1515.85 or $33,348.62. I am therefore required to apply the compensation cap in s 392(5).

• [90] Consequently, I will order that compensation be paid of $33,348.62. The final step is to consider whether the sum arrived at is appropriate in all of the circumstances of the case. I consider it to be an appropriate sum. Taxation will need to be deducted from that amount. Mr Wilson would also be entitled to superannuation payments as part of his remuneration. An order that Services Australia pay Mr Wilson $33,348.62 less taxation and that it make the required superannuation contribution on that sum will issue separately.

a) I decide to exercise the discretion in s. 586(b) of the Act to waive the irregularity arising from Mr Wilson filing his application for an unfair dismissal remedy prior to the dismissal taking effect. > > b) I find that Mr Wilson was dismissed within the meaning of s 386 of the Act. > > c) I am satisfied that Mr Wilson was unfairly dismissed. > > d) I will by separate order require Services Australia to pay Mr Wilson an amount of $33,348.62 less tax and to make a superannuation contribution arising from this payment as if it were a payment of wages.

Ms P Willoughby of Counsel instructed by Ms A Parry for the Respondent

[1] See Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 at [42]

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