s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

[1] On 30 September 2025, Ms Carly Peat (the Applicant) lodged an application under s.365 of the Fair Work Act 2009 (the FW Act) alleging that her employment was terminated on 17 September 2025 by Open Door Pub Co. Pty Limited (the Respondent) in contravention of the general protections provisions of the FW Act. Ms Clare Lodge, Venue Manager, was also named as a Respondent to the application.

[2] In its Form F8A - Response to a general protections dismissal application, the Respondent raised a jurisdictional objection on the grounds that the Applicant was not dismissed within the meaning of s.386 of the FW Act, rather, she resigned voluntarily on 17 September 2025.

[3] The Applicant claims that she was forced to resign and was, therefore, constructively dismissed by the Respondent.

[4] I conducted a Jurisdictional Hearing via Microsoft Teams on 22 December 2025.

[5] This decision determines the jurisdictional objection of the Respondent.

[6] The meaning of 'dismissed' is provided at s.386 of the FW Act 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."

• [7] The leading decision setting out the principles relating to section 386(1) of the FW Act is the Full Bench decision of Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli (Bupa).[1]

[8] Having considered the key cases, the Full Bench in Bupa summarised the position under the FW Act as follows:

"(1) There may be a dismissal within the first limb of the definition in section 386(1)(a) where, although the employee has given 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, the 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 of section 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."[2]

[9] It is not in dispute that the Applicant suffers from ADHD, or that she failed to disclose this existing medical condition to the Respondent prior to being employed and appointed to the position of 'Bar Supervisor' on 16 January 2024. The Applicant was promoted to the position of 'Functions and Events Manager' in April 2025. It would appear that the increase in stress and responsibility of this new role exacerbated the Applicant's ADHD symptoms, resulting in her being frequently late for work and the need to undertake administrative tasks after hours, in order to complete the essential requirements of her role. I have taken this into account.

[10] The Applicant disclosed her diagnosis to the Respondent on 23 June 2025. The Respondent offered access to their EAP services and provided support, including time off. When the Applicant was late again on 9 July, the Applicant conceded that she had not yet contacted the EAP. The Applicant finally attended the EAP service on 11 July. I have taken this into account.

[11] The Applicant claims that she continued to ask for more assistance to perform her role as her embarrassment increased at her inability to attend for work on time and the amount of out of hours work to complete her tasks intensified. I have taken this into account.

[12] On 25 August 2025, the Applicant wrote to the Respondent's Human Resources Department to raise a workplace complaint, titled: "Formal Complaint - Disability Discrimination Based on ADHD". The Applicant and Respondent exchanged correspondence in relation to this complaint, between 25 August 2025 and 17 September 2025.

[13] As part of this email exchange, the Respondent advised that it had undertaken an investigation in relation to the complaint and the processes available to support the Applicant. However, the Respondent noted to the Applicant in correspondence dated 17 September 2025:

"At the end of the day, we need you to show up to work on time - this is an inherent requirement of your role. We have tried to collaboratively make accommodations with you and it remains our priority to support you throughout your employment. Ultimately though, the position that you are required to attend work on time remains unchanged as it is essential to the effective operation of the business.

Above all else, we remain committed to finding solutions that encourage a way forward for both parties."

[14] In response to this correspondence from the Respondent, the Applicant resigned on 17 September, claiming that it was not safe for her to be at work due to the 'adverse treatment and punitive conduct' that she was subjected to by the Respondent:

Thank you for your email and the outcome provided. After careful consideration, I have decided to resign from my position with AVC at Henley's Bar and Kitchen, effective immediately.

I cannot continue to work for a company that refuses to acknowledge the lack of meaningful support provided when I disclosed my disability and requested assistance. I entered this process in good faith, seeking reasonable adjustments, but the handling of my disclosure and subsequent treatment has left me with no confidence in the company's commitment to genuine inclusion or support.

I request that my remaining annual leave entitlement be paid out to me in accordance with my employment entitlements. Please confirm the finalisation of my employment and outstanding payments in writing.

[15] The Respondent replied to the Applicant on 18 September 2025 at 10am to accept the Applicant's resignation, and to confirm that all outstanding entitlements would be paid to her in the next pay run.

[16] I also note that the Applicant was offered a transfer to a different venue but at a lower grade of responsibility. The Applicant rejected this offer on the basis that she had worked hard for her promotion and did not want to walk away from her success. I have taken this into account.

[17] It is obvious that the Applicant's medical condition was inflamed and exacerbated by the significant increase in her responsibilities when she was promoted to the role of Functions and Events Manager. This deterioration resulted in the Applicant becoming 'unreliable' in relation to timekeeping. Put simply, if the Applicant was rostered to open up the venue, then there was a real likelihood that she would be late. I acknowledge that the Applicant was sincerely embarrassed by her inability to meet her scheduled hours, in part due to the poor example that it showed her colleagues. However, the Respondent has a right to expect that their venue will be opened and staffed in accordance with their schedule and roster. I have taken this into account.

[18] I am not convinced that the Respondent's behaviour in this matter was intended to bring the Applicant's employment to a conclusion. The Respondent's correspondence immediately before the Applicant resigned clearly states that it was the Respondent's priority to continue to support the Applicant. The Respondent even offered to keep employing the Applicant at a different venue and in a role that the Applicant had performed very successfully in the past. It is unfortunate that the Applicant did not avail herself of this opportunity.

[19] One of the inherent requirements of the Applicant's role was to turn up on time and open the venue. The Applicant's inability to commit to this requirement, coupled with her inability to perform the necessary admin functions of her role within her normal hours, leads me to the conclusion that the Applicant resigned her employment of her own free will because the Applicant simply could not satisfactorily undertake the role.

[20] Following the decision in Bupa above, I am satisfied and find that there was no constructive dismissal of the Applicant and that the Applicant resigned from her employment voluntarily.

[21] As a result, Ms Peat's application is dismissed.

[1] [2017] FWCFB 3941.

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