s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

[1] This decision concerns a jurisdictional objection raised by the Respondent to an application made by Mr Jacobs under s 365 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Respondent contends that the Commission has no jurisdiction to deal with the application because the Applicant was not dismissed within the meaning of s 386 of the Act.

[3] The Applicant contends that, although he communicated an intention to resign, his resignation was not voluntary but was the product of the Respondent's conduct and therefore constituted a constructive dismissal.

[4] The question for determination is confined. It is whether the Applicant's employment ended by dismissal within the meaning of s 386 of the Act. The merits of any alleged contravention of Part 3-1 of the Act do not arise for determination at this stage.

[5] The Applicant commenced employment with the Respondent as a Sales Representative on 1 October 2025. The Applicant identified the date he was told he was dismissed and the effective dismissal date as 2 October 2025.

[6] On 8 October 2025, the Applicant lodged a Form F8 application under s 365 of the Act.

The Respondent filed a Form F8A on 6 November 2025 objecting to the Commission's jurisdiction. The grounds for their objection were outlined as follows:

The Applicant's employment was not terminated on the Respondent's initiative. The Applicant resigned from the employment and was not forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[7] The Applicant thereafter filed written material described as an "Applicant's Rebuttal Submission, Affidavit and Evidence Bundle" dated 19 November 2025.

[8] The Respondent filed an Outline of Submissions dated 17 December 2025 and witness statements from Mr Kyran Colley, Ms Felicia Holloway and Ms Georgia Filandros.

[9] The matter was Heard over Microsoft Teams on 14 January 2026.

[10] The Applicant's application is made under s 365 of the Act, being a general protections application involving dismissal.

[11] The Applicant alleges that he was "constructively dismissed" due to his "mental disability (anxiety and depression)", and that the Respondent's failure to provide reasonable adjustments and the manner of training created a hostile environment which made continued employment impossible.

[12] The Respondent objects on the basis that:

(a) the Applicant's employment did not end by dismissal;

(b) the Applicant resigned of his own accord; and

(c) the Commission therefore has no jurisdiction under s 365, because s 365 only applies where a person was dismissed within the meaning of the Act.

[13] The Respondent submits, relevantly, that on the evidence (including the Applicant's own evidence), the Respondent's conduct was not such that the Applicant had "no effective or real choice but to resign", and that training was in its early stages and could have continued.

[14] The Respondent further identifies material differences between the Applicant's version and the Respondent's evidence, including that Day 1 was agreed to be "orientation/observation" in deference to his disclosed anxiety, that the Applicant was provided a checklist on Day 2, and that the Applicant stated he did not want to waste people's time when communicating his intention to resign.

[15] Section 365 of the Act permits a person who has been dismissed to apply to the Commission to deal with a dispute if the person alleges the dismissal involved a contravention of Part 3-1. It is well-established that the Commission's jurisdiction under s 365 is conditioned on there having been a dismissal, as defined by the Act.

[16] "Dismissed" is defined in s 386 of the Act. Relevantly, a person has been dismissed if:

(a) the person's employment has been terminated on the employer's initiative (s 386(1)(a)); or

(b) the person has resigned, but was forced to do so because of conduct, or a course of conduct, engaged in by the employer (s 386(1)(b)).

[17] If an employment relationship ends by a voluntary resignation which is not forced by the employer's conduct, the Commission will not have jurisdiction to deal with a general protections application involving dismissal under s 365.

[18] In determining whether a resignation was "forced" for the purposes of s 386(1)(b), the Commission considers whether the employer's conduct left the employee with no effective or real choice but to resign. That assessment is made having regard to the circumstances as a whole, including the nature of the employer's conduct, any choices available to the employee, and whether resignation was the probable or foreseeable consequence of the conduct.

[19] In his Statement, the Applicant notes he commenced work on 1 October 2025 as a Sales Representative.

[20] He states that during interviews with Ms Filandros and Ms Holloway he disclosed he suffers from anxiety and depression, and that he required structured and paced training.

[21] The Applicant's evidence is that Day 1 training was not structured, and he was paired with a senior consultant who was overloaded with calls. He says there was no training manual, written instruction, or induction on safety or policies.

[22] The Applicant's evidence is that on Day 2, after he missed some steps during a Google Meet check-in, Ms Holloway told him the job was highly stressful and she did not want him to burn out and then asked whether he wished to continue.

[23] The Applicant says that he indicated he would "probably leave" and that Ms Holloway immediately accepted his resignation.

[24] He states his resignation was not voluntary and was induced by the Respondent's conduct and failure to accommodate his mental health condition.

[25] Mr Colley is employed by the Respondent as a Senior Sales Representative and trains new sales staff.

[26] Mr Colley states that on Day 1 the Applicant was paired with him for an "observation-only day" and was told to ask questions at any time. He states the Applicant did not ask questions and appeared uninterested.

[27] Mr Colley's statement describes the training arrangements and the Respondent's processes on Day 2. Mr Colley relevantly included:

12. Training commenced with booking inspections, as this is considered one of the most straightforward tasks associated with the role. I provided a step-by-step verbal explanation and guided the Applicant through the process in detail. The session remained focused on this single task.

[28] Ms Holloway states that on Day 2 she joined a Google Meet with the Applicant at about 3 pm to continue training.

[29] Ms Holloway states she asked the Applicant how he was feeling and he said he was overwhelmed.

[30] She asserts that she told him the environment is fast-paced and that this would be covered in training over coming weeks, and that she did not want to cause him stress. She says she suggested they could stop training and resume the following day if he was happy to come back.

[31] Ms Holloway states that the Applicant said he did not feel the role was suitable for him, did not wish to waste anyone's time, and had decided not to continue employment.

[32] Ms Filandros is the Respondent's Human Resources Generalist Manager. She states that during recruitment the Applicant disclosed anxiety and indicated it was well-managed and under control, and that he did not foresee issues with training or work capacity.

[33] Ms Filandros states that, to support a gentle introduction into the role, it was agreed the Applicant's first day would be observation-only, and he was placed with Mr Colley.

[34] Ms Filandros states that on 2 October 2025, she saw the Applicant in her office at 9 am, and he requested training occur in her office. She states that new starters ordinarily complete training via Google Meets with Ms Holloway and are paired with an on-site team member, but Ms Holloway was unavailable that morning and Mr Colley conducted training in her office.

[35] Ms Filandros states that following lunch the Applicant and Mr Colley moved to the main floor, with Ms Holloway then available to take over training via Google Meets.

[36] Ms Filandros states that at approximately 4:00 pm on 2 October 2025, the Applicant attended her office and said he had resigned, and that he told her he wanted to resign straight away. She states the Applicant said he did not think the training was good enough and was unhappy that Ms Holloway did not ask him to take back the resignation, and then said he did not wish to waste anyone's time and believed it would be best to resign.

[37] Ms Filandros states it seemed to her the Applicant had made up his mind to resign, and she completed steps so he would receive final pay. She states the Applicant left the premises at about 4:30 pm.

[38] Section 365 of the Act permits a person who has been dismissed to apply to the Commission to deal with a dispute if the person alleges the dismissal involved a contravention of Part 3-1. It is well-established that the Commission's jurisdiction under s 365 is conditioned on there having been a dismissal, as defined by the Act.

[39] "Dismissed" is defined in s 386 of the Act, which relevantly provides:

(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.

[40] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Tavassoli), the Full Bench of the Commission conducted a detailed analysis of authorities relating to whether particular resignations constituted dismissal in accordance with either of the aforementioned limbs. After that analysis, the Full Bench provided the following distillation:

[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 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.

[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.

[41] The Applicant was specifically directed to the two forms of dismissal outlined in Tavassoli, and he identified that he alleged the dismissal was a resignation that was "forced" by conduct or a course of conduct on the part of the employer within the second limb of the definition in s.386(1)(b). The Applicant identified the conduct with the intention of bringing the employment to an end consisted of the Respondent setting two conditions that he could not meet, being:

(1) His performance being "up to scratch" within two weeks; and

(2) By Christmas, the Applicant conducting 30 more processes.

[42] The Applicant's evidence is that during a discussion with Ms Holloway on Day 2, he indicated he would "probably leave", and Ms Holloway "immediately accepted" the resignation. The Respondent's evidence, that was not challenged by reply evidence from the Applicant, is that the Applicant said he felt overwhelmed and that he did not believe the role was suitable for him, and that he had decided not to continue employment.

[43] In circumstances where the Applicant's own evidence accepts that he communicated an intention to leave, and where the Respondent's evidence consistently records the Applicant communicating that he had decided not to continue, I am satisfied that the Applicant made a statement, or otherwise conveyed an intention, that he was resigning or not continuing employment on 2 October 2025.

[44] The Applicant's contention is that the resignation was forced by the Respondent's conduct or course of conduct, thereby enlivening s 386(1)(b). It is necessary to consider whether the Respondent engaged in the relevant conduct with the intention of bringing the employment to an end, or whether termination was the probable result of the conduct such that the Applicant had no effective or real choice but to resign.

[45] In addition to the two conditions that he could not meet, the Applicant relies upon matters said to have occurred during Day 1 and Day 2 of training, including that training was chaotic, unstructured and unsupported, and that Ms Holloway's comments caused him to feel pressured and unable to continue.

[46] The Respondent disputes that characterisation. It contends that Day 1 was arranged as an observation-only day in light of the Applicant's disclosed anxiety, and that the Applicant was offered ongoing training over following weeks.

[47] The Respondent's evidence is that when the Applicant said he felt overwhelmed, Ms Holloway offered to stop training and resume the next day if he was happy to come back, and that the Applicant responded that he did not feel the role was suitable and had decided not to continue.

[48] I do not accept that there is evidence that the Respondent engaged in any conduct with the intention of bringing the Applicant's employment to an end. The Respondent's evidence, which I accept, is that it sought to accommodate the Applicant's disclosed anxiety by adopting a gradual training approach, beginning with observation-only training.

[49] The Respondent's evidence is also that Ms Holloway contemplated that training would continue over the following weeks and expressly offered the Applicant the option to stop training and resume the following day if he was happy to return.

[50] Such conduct is inconsistent with an intention to end employment. Rather, it is consistent with an intention to continue employment and manage the Applicant's conditions in a practical way. It is fanciful to suggest that after less than two days of a two-week training period that the Respondent would be putting in place conditions with an aim to elicit a resignation.

[51] I accept that the Applicant may have found the training environment challenging, particularly in light of his anxiety and depression. However, for the purposes of s 386(1)(b), the question is whether the Respondent's conduct objectively left him with no effective or real choice but to resign.

[52] The Respondent's evidence is that Ms Holloway offered an alternative to resignation, she offered to pause training and resume the next day if the Applicant was happy to return. That evidence demonstrates that resignation was not the only available option and undermines any conclusion that the Respondent's conduct made resignation the probable result.

[53] I am therefore not satisfied that the Respondent intended to bring the employment to an end.

[54] I am satisfied that the Applicant resigned on 2 October 2025.

[55] I am not satisfied that the resignation was forced by the Respondent's conduct.

[56] It follows that the Applicant was not dismissed within the meaning of s 386(1), and the Commission has no jurisdiction under s 365 to deal with the Application. The Application must be dismissed.

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