s.394 - Application for unfair dismissal remedy

Commonwealth of Australia as represented by Services Australia

Application for an unfair dismissal remedy - whether the applicant dismissed - forced resignation - conduct engaged by Respondent - applicant not dismissed

• [1] An application has been made to the Commission by Mr Omar Salih under s. 394 of the Fair Work Act 2009 (the Act) to remedy an unfair dismissal relating to his employment as a Services Officer performing telephone services for the Commonwealth of Australia as represented by Services Australia (Services Australia).

• [2] A jurisdictional objection was raised by Services Australia on the basis that Mr Salih was not dismissed, but instead resigned from his employment.

• [3] Mr Salih says that his resignation was forced, that he had no choice other than to resign due to continuous and escalating pressure and accordingly, that he has been dismissed.

• [4] In order for the Commission to deal with the application under s. 394 of the Act, I must first determine whether Mr Salih was dismissed.1

• [5] For the reasons given below, I find that Mr Salih was not dismissed from his employment with Services Australia.

• [6] Section 386 of the Act defines 'dismissed' as,

(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.

• [7] The exemptions in s. 386 (2) of the Act are not relevant based on the facts before the Commission in this matter.

• [8] Mr Salih has made it clear that he relies on s. 386 (1) (b) in establishing that he was dismissed by Services Australia.

• [9] Accordingly, the appropriate test to be applied 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.'[1]

• [10] During his employment with Services Australia, Mr Salih's Managers were Ms Anna Semola, Ms Laura Tucker and, for a brief period due to leave, Ms Katty Urbano.

• [11] The conduct that Mr Salih says led to his resignation relates only to Ms Tucker.

• [12] Services Australia called on Ms Tucker, Team Leader, South Australia Smart Centre, and Ms Gabryszak, Team Leader, South Australia Smart Centre, to provide evidence to the Commission on its behalf.

• [13] The course of conduct that Mr Salih says Services Australia engaged in with the intention of bringing the employment to an end can be summarised as:
  • Criticism of performance in a manner that was subjective and unfair;
  • Unequal treatment compared to other team members;
  • Denial of bereavement leave on an arbitrary basis; and
  • Hostile conduct.

• [14] It is not possible on the materials before me to make a finding that the criticism of Mr Salih's performance was subjective or unfair.

• [15] When asked about what criticism of his performance Mr Salih found to be unfair or subjective, the example provided related to criticism of the empathy shown by him on calls.

• [16] I accept that criticism to be of a subjective nature, however, that was only one minor aspect of Mr Salih's performance that was raised by Services Australia. The materials show that this particular concern was not raised by Ms Tucker.[2]

• [17] The extensive documentation provided by Services Australia details the performance concerns they had with Mr Salih during his employment, which included concerns such as compliance with internal processes and phone procedures.[3]

The documentation provided shows that Services Australia's conduct in addressing those performance concerns centred around providing additional assistance, training and support to Mr Salih to improve in the identified areas.[4]

• [18] Mr Salih contends that his actions were subjected to more scrutiny by Ms Tucker than his colleagues.[5]

• [19] It is difficult to determine whether Mr Salih was treated in a manner that was different to his colleagues because of the limited evidence before the Commission relating to other employees' performance.

• [20] What is clear from the information before the Commission is that Services Australia had legitimate concerns regarding Mr Salih's performance, much of which Mr Salih accepted during his evidence.[6]

• [21] In addressing those concerns, through each of his Managers, Services Australia held meetings with Mr Salih to engage in discussions.

• [22] These were followed up by emails which summarised the meetings, clearly articulated the concerns raised in the meeting, including the feedback provided by Mr Salih, detailed the agreed outcomes from the meeting to improve performance and a further meeting date to discuss progress. It is clear that an improvement to Mr Salih's performance and retaining him in his role was the desired outcome of this process.

• [23] This conduct described cannot be said to have been intended to terminate his employment, nor did it have the probable result of leaving him with no real effective choice but to resign.

• [24] The decision not to grant bereavement leave was made by Ms Tucker after she made enquiries of Mr Salih, considered the information provided and made a determination having regard to the Services Australia Enterprise Agreement 2024-2027. I do not consider this to be an arbitrary decision.

• [25] There was not sufficient evidence to establish that any hostile conduct was engaged in by Ms Tucker. Mr Salih's own evidence was that in her dealings with him, she was not aggressive and did not shout.[7]

• [26] Mr Salih has not established that Services Australia engaged in a course of conduct that had the probable result of leaving him with no real or effective choice but to resign.

• [27] On 14 May 2025, in a meeting with Ms Tucker, Mr Salih requested a period of 3 months of unpaid leave.[8] At the time he had paid leave accruals of approximately a week, which Mr Salih felt was not enough leave.[9]

• [28] This request was made for time off due to the state of Mr Salih's mental health at the time and the difficulties he had addressing those issues at the same time as maintaining his employment.[10]

• [29] I accept Mr Salih's evidence regarding his mental health at the time, despite the absence of supporting medical documentation. Consideration of the materials before me support his assertions and his evidence was convincing.

• [30] A clear articulation of the reason for the leave request and supporting documentation was not provided to Services Australia at the time.[11] This is not a criticism. I respect and understand Mr Salih's decision not to provide more information and documentation supporting the leave request to Ms Gabryszak and Ms Tucker.

• [31] However, Ms Gabryszak and Ms Tucker were left to consider the leave request with the little information made available to them about the basis of the request. They foreshadow recommendations based on the information provided by Mr Salih.

• [32] Neither Ms Gabryszak nor Ms Tucker had the delegated authority to approve a period of 3 months of unpaid leave. However, they indicated that they would not support such a request based on the information that was provided to them.[12]

• [33] Upon understanding that the request for 3 months unpaid leave was not likely to be approved, Mr Salih resigned. It was clear in hearing from Mr Salih that this was the reason for his resignation.[13]

• [34] The leave request was not submitted to the National Manager for approval and because Mr Salih resigned before that process occurred.[14] Accordingly, the leave request was not actually denied.

• [35] Even if the leave request had been denied, the context and factual circumstances in this matter make it difficult to conclude that such conduct was intended to end the employment relationship or that it had the probable result of leaving Mr Salih with no real choice but to resign.

• [36] Having found that Mr Salih was not forced to resign as a result of conduct, or a course of conduct, engaged in by Services Australia. I find that Mr Salih was not dismissed from his employment.

• [37] Mr Salih was not dismissed from his employment. Therefore, the jurisdictional objection of the Respondent is upheld.

• [38] The application is dismissed. An order giving effect to this decision will be issued in conjunction with its publication.[15]

M Battagello and N King with permission on behalf of M Bogeski and G McIntyre for the Respondent.

[1] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941 at [47].

[2] Mr Moyle DHB at p 285 and by Ms Urbano as a result of Mr Moyle's observations DHB at p 289-291.

[3] DHB at p 239-248, 262, 267, 352-353, 362, 364-365.

[4] DHB at p 222, 231, 240, 243-245, 262, 264-267, 271-272, 337, 341.

[5] Audio recording of Hearing at 19:18-20:20.

[9] Audio recording of Hearing at 54:02-54.15.

[11] DHB at p 46-50, 207-211 and Audio recording of Hearing at 28:12-29:13, 52:11-52:34.

[13] Audio recording of Hearing at 26:07-27:36, 1:00:25-1:01:06.

[15] PR791499.

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