s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - section 386 - whether applicant dismissed - whether forced resignation

• [1] Mr. Ryan Cameron (Mr. Cameron or Applicant) was, from 2022 until March 2025, employed by the Special Broadcasting Service Corporation (SBS or Respondent) as a shuttle bus driver. The Applicant worked from the Respondent's premises in Artarmon.

• [2] On 10 March 2025 the Applicant tendered his resignation to SBS in writing. The resignation cited SBS's alleged failure to provide acknowledgement or support in relation to the mental health conditions experienced by the Applicant, a failure to provide reasonable adjustments to accommodate concerns that the Applicant had raised about his working environment and the negative impact of the workplace on his mental health. The Applicant said in his resignation email that he had unsuccessfully attempted to resolve the matter internally with SBS but that the concerns had not been adequately addressed and he was left feeling angry, dismissed and depressed. He concluded by saying he felt he had no choice but to terminate his employment effective immediately.

• [3] On the same day, SBS emailed the Applicant and asked him to call to discuss the matter and talk through the Applicant's concerns. Later that afternoon, an SBS representative emailed the Applicant again to say they were following up on the earlier email and that they had also texted the Applicant to ask to talk to him about his decision to resign. The email offered the Applicant access to an external support service and included the following:

"I want to make sure you are not making a rash decision, so please think about your decision overnight and let me know in the morning if you still want to resign."

• [4] On 11 March 2025, the Applicant emailed SBS to thank them for 'checking in' on him and 'pausing' his termination and went on to say that he was comfortable with his decision and that the decision had relieved a lot of anxiety. Mr. Cameron did not work for the Respondent again.

• [5] The Applicant contends that his resignation was not voluntary. He says that he was forced to resign from his employment because of the conduct or a course of conduct engaged in by his employer.[1] The Applicant maintains that his dismissal was unfair. He seeks a remedy for his unfair dismissal under Part 3-2 of the Fair Work Act 2009 (Cth) (Act).

• [6] Section 385 of the Act provides that a person has been unfairly dismissed if the Fair Work Commission is satisfied that, amongst other things, the person was "dismissed". Section 386 sets out the meaning of the term "dismissed" for the purpose of Part 3-2. The Respondent contends that the Applicant was not "dismissed" within the meaning of s.386 of the Act and that as a consequence no remedy is available to the Applicant.

• [7] I determined that it was appropriate to deal with the issue of whether there had been a dismissal as a preliminary matter. For the reasons that follow, I have concluded that the Applicant was not dismissed by the Respondent and that the application can proceed no further.

• [8] Mr. Cameron has been diagnosed with major depression disorder and attention deficit hyperactivity disorder (ADHD). The Applicant was diagnosed with major depression in 2010 and his ADHD diagnosis was made in 2023. He is under the care of a treating psychiatrist and psychologist and takes medication for his condition.

• [9] On 12 December 2024 the Applicant disclosed his diagnosis of depression to SBS by email correspondence. In the email he also sought 'reasonable workplace adjustments.' The Applicant sought an assessment of his 'workstation' to address concerns about physical discomfort and pain he had experienced which he considered may have been caused by driving the shuttle bus. He raised safety concerns about the shuttle bus pick-up point in the car park at the SBS premises and suggested an alternative pick-up point on the main road outside the building. The Applicant also raised concerns about driver and pedestrian safety on the bus route and asked that a dash-cam be installed to protect himself if an accident occurred.

• [10] SBS responded to the Applicant's concerns. The Respondent's Head of Health and Wellbeing, Ms. Pitt, assessed the shuttle bus shortly after the concerns were raised and expressed a view that the vehicle, which was a relatively late model (2019), appeared to be in good working order with a well-designed cabin and adjustable seat and steering. Ms. Pitt offered to meet with the Applicant to assess him in position and assist with any adjustments. The Applicant was advised that the Respondent was happy to purchase a camera for the vehicle. The Applicant was advised that the Respondent was discussing other options for parking and pick up, but the Respondent's options were limited because of parking restrictions on the public roads and the need for an undercover area to take into account inclement weather.

• [11] The Respondent also referred to the medical conditions that the Applicant had raised and asked that he attend his general practitioner to obtain a clearance that he was fit to operate a commercial passenger vehicle. The Respondent offered to cover the Applicant's out of pocket expenses for the consultation and later offered to provide access to an early intervention programme to assist with treatment such as physiotherapy. The Applicant's medical practitioner certified on 16 December 2024 that the Applicant's mental health condition was 'well controlled' and that he met regulatory requirements to hold a commercial and private driver's licence.

• [12] On the same day as the Applicant's initial correspondence, SBS commenced a risk assessment in relation to the safety concerns raised in relation to the pick-up point.

• [13] On 16 December 2024, the Applicant was advised by the Respondent that the alternative pick-up point he had suggested was unsuitable because of parking/stopping restrictions in the street, potential step hazards and the need for passengers to be protected from the elements. The Applicant was also advised that if he observed unsafe behaviours they should be reported to security so that CCTV footage could be obtained and the issue addressed. He was also told that SBS was in the process of purchasing a camera for installation on the vehicle and asked to contact Ms. Pitt if further assistance was required.

• [14] On 19 December 2024 the Applicant was told by the Respondent that an occupational therapist had been arranged to attend the following day to address his concerns about the ergonomics of his vehicle and that he was to meet with that person the following day. A written report was provided to SBS by the therapist and a series of recommendations were made to address the issue.

• [15] By 13 February 2025 a reverse warning system had been installed on the shuttle bus driven by the Applicant.

• [16] The Applicant raised further concerns about the pick-up point in writing on 13 February 2025. He suggested an alternative pick-up point in the loading zone in front of a café on a public street. Ms Pitt responded on 17 February 2025. She indicated it was accepted that some pedestrians were still walking through a no access area and that a chain would be put in place to address the issue. Ms. Pitt said that the area could not be closed off immediately because of the need for emergency egress. Ms Pitt indicated that staff were being advised of the issue and asked to cease the practice of walking through the no access area. She said some people had already been told not to take that route and that security cameras would continue to monitor the area. Ms. Pitt said that the old bus spot would be painted yellow and would become a designated waiting area which would allow direct access to the bus. Further Ms. Pitt said that the loading zone area had been assessed and discounted as an option for a range of reasons.

• [17] On 20 February 2025 an updated employer vehicle policy was circulated by the Respondent's manager, Workplace and Property Services, Mr. Chapman. The Applicant was included in the distribution list. It was advised that the new pick-up location would be in a disabled parking bay close to the previous pick-up point. The new location would permit drivers to reverse into the parking space without the need to reverse across a pedestrian walkway. The recipients were told there would be new floor markings and that signage and chains were in place to stop pedestrians walking through the car park to the reception area. They were also told that once the work was complete, email alerts would be sent to staff advising of the changes.

• [18] Just prior to the hearing, the Applicant provided a medical report from his treating psychiatrist, Dr. Lim. The report described the Applicant's account of his workplace experience and the Applicant's assessment of the Respondent's conduct. The report concludes that in the practitioner's opinion the Respondent did not provide that Applicant with a safe workplace and did not provide reasonable adjustments which contributed to a deterioration in the Applicant's mental health and contributed to the termination of the Applicant's employment.

• [19] The Applicant submitted that the Respondent had, after he had disclosed his mental health conditions, failed to acknowledge his disabilities, provide support or recognise the challenges he faced in his work role. The Applicant said there had been no meaningful consultation with him as to his requested reasonable adjustments that would ease his mental health symptoms or improve his safety in the workplace. He said changes were implemented unilaterally and were focussed on general workplace safety rather than accommodating him specifically. He submitted that he was not consulted about the risk assessment process and that the assessment did not take into account relevant considerations such as psychological trauma. The Applicant said that the medical report had focussed on his fitness to drive and not the specific workplace stressors at the pick-up point that had exacerbated his mental health condition and that SBS had conveniently relied on this certificate to avoid meaningful consultation and the adoption of reasonable adjustments. The Applicant relied on the medical report of his psychiatrist who expressed a view that the Respondents failures contributed to a deterioration in his mental health and his decision to resign. He said that the Respondent's failures left him with no real effective choice but to resign and that the resignation was a direct and desperate response to an unbearable situation and not a voluntary choice. The Applicant submitted that the resignation was a direct and foreseeable consequence of the Respondent's failure to meet its legal and moral obligations.

• [20] The Respondent submitted that the Applicant resigned from his employment voluntarily on 10 March 2025. The Respondent said that they were concerned that the Applicant's resignation was a potential "heat of the moment resignation" and provided the Applicant time to reconsider his decision but ultimately accepted the resignation when the Applicant confirmed his intention on 11 March 2025.

• [21] The Respondent submitted that prior to the Applicant's resignation, the Respondent made genuine and extensive attempts to resolve the Applicant's concerns including by:

(a) undertaking a detailed safety risk assessment of the physical parking lot and arrangements to pick up and drop off passengers, in response to the Applicant raising concerns;

(b) subsequently making adjustments by relocating the bus parking zone, as communicated to the Applicant. This was a significant undertaking requiring the reconfiguring of the SBS visitor and accessible parking areas, re-routing of pedestrian traffic and new paint work and signage. This also included installing a reverse warning system to the Applicant's work vehicle;

(c) undertaking an ergonomic assessment of the Applicant's driver's seat and the vehicle itself, and offering to make adjustments accordingly;

(d) asking the Applicant to seek the advice of their treating doctor in order to assess fitness for their duties as a shuttle bus driver and offering to cover any gap costs for the Applicant's doctor's visit. The Applicant's treating doctor confirmed fitness for duty and did not suggest any adjustments beyond the Applicant using sick leave for breaks; and

(e) engaging an occupational therapist to further assess the Applicant's individual work circumstances, with the recommendations implemented to the extent that was possible.

• [22] The Respondent said that Applicant not agreeing with the decisions made, or the outcome of consultation, is not evidence of a lack of consultation, which does not confer a right of veto.[2]

• [23] The Respondent submitted that they did not engage in any action with the intention of bringing the Applicant's employment to an end, or engage in any action, the probable result of which was that the Applicant had no effective or real choice but to resign.[3] Further, it was said that the Applicant had several reasonable alternatives to resignation including seeking the assistance of a health and safety representative, or a Comcare/SafeWork inspector, lodging a request for adjustments under the Respondent's Reasonable Adjustment Policy or using the dispute resolution procedure in the SBS Enterprise Agreement 2022/23. The Respondent pointed out that none of these avenues were pursued by the Applicant.

• [24] Section 386 sets out the circumstances in which an employee is taken to have been dismissed for the purposes of Part 3-2 of the Act. It provides, relevantly, as follows:

(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.

• [25] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v. Tavassoli[4] (Bupa) the Full Bench described the test to be applied under s.386(1)(b) as follows:

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 probably (sic) 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.[5]

• [26] On the basis of the evidence described above, most of which was uncontentious, I am not satisfied that the employer engaged in conduct with the intention of bringing the Applicant's employment to an end. There was nothing to suggest that the Respondent had set in motion a course of events designed to bring the Applicant's employment to an end. The Respondent engaged meaningfully with the Applicant's concerns from the outset. It acted quickly on the concerns and devoted resources to dealing with the concerns in a reasonable way. Although the Applicant was dissatisfied with the level of consultation, the Respondent communicated with the Applicant about the matters he had raised. The Respondent accepted that there was substance to the Applicant's key concern in relation to the pick-up point and changed the location of the pick-up point. It may not have accepted the alternatives proposed by the Applicant, but that was a decision for the Respondent and it had reasons for not doing so. It is highly unlikely that the Respondent would have taken these steps had it been intent on seeing the relationship brought to an end.

• [27] There was nothing to indicate that the relationship had broken down so that the Respondent might be motivated to try to bring the Applicant's employment to an end through a forced resignation.

• [28] In my view the psychiatrist's report is of very limited assistance to the Applicant's case and should be accorded only very limited weight. The practitioner who provided the report did not give evidence and could not be cross-examined as to the content of his report. The report is for the most part little more than a recount of the Applicant's version of events at the workplace and expresses an opinion that the Respondent did not consider the Applicant's safety or the safety of those he was transporting. The basis for that opinion is not explained. It is a view that is inconsistent with the evidence provided by the Respondent and the Applicant himself. The report also says that the Respondent failed to provide reasonable adjustments without referring to any of the steps taken by the Respondent in response to the Applicant's concerns.

• [29] Even at the point of resignation the Respondent was trying to make contact with the Applicant to discuss the resignation. They provided the Applicant with additional time to think about the decision because of a concern that he had acted in the heat of the moment. Had the Applicant contended that the resignation was a 'heat of the moment' resignation as described in Bupa, I would have rejected that argument. The conduct of the Respondent, objectively considered in all of the circumstances,[6] does not disclose an intention to bring the employment to an end.

• [30] I also do not think that termination of the employment was the probable result of the employer's conduct such that the Applicant had no real or effective choice but to resign. I accept that there were other options available to the Applicant as described by the Respondent. When the Applicant was advised of the steps that were being proposed, including moving the pick-up point, and the reasons for the action, he did not provide a further response or request further adjustments. He did not provide any further medical evidence as to his condition beyond what had been provided in December 2024, and which described the conditions as 'well controlled.' The Respondent did not foreclose the Applicant's options. For example, the Respondent referred the Applicant to the Respondent's Reasonable Adjustments Policy by the Respondent as late as February 2025 and encouraged to discuss any adjustment required, including by reference to his diagnosis. The Respondent attempted to contact the Applicant to discuss the resignation that was tendered on 10 March 2025. When considered objectively, the Respondent's conduct did not deprive the Applicant of alternatives to resignation.

• [31] I conclude that the Applicant was not dismissed for the purposes of Part 3-2 of the Act.

In-person at the Fair Work Commission, Sydney commencing at 10am AEST on Friday, 25 July 2025.

[1] Section 386(1)(b).

[2] CFMEU v Mt Arthur Coal Pty Ltd (2021) FWCFB 6059 at [108].

[3] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47].

[4] [2017] FWCFB 3941.

[6] See Koutalis v Pollett [2015] FCA 1165 at [43] referred to in Bupa at [45]. See also Hill v. Pilbara Iron Company (Services) Pty Ltd [2023] FWCFB 140.

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