s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] An application has been made by Ms Josephine Bassilios in the Fair Work Commission pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) alleging that she was dismissed from her employment by Multicultural Arts Victoria Inc (MAV) in a manner that contravened Part 3-1 of the Act. The application was filed in the Commission on 2 May 2025.
• [2] On 22 May 2025, MAV filed in the Commission a Form F8A Response to the application. The Response indicated that MAV objects to Ms Bassilios' application on the basis that it is alleged she was not dismissed. The Response alleges Ms Bassilios resigned from her employment.
• [3] While the Commission has power to attempt to assist the parties to resolve a dispute such as this one, I am not permitted to exercise that power without first resolving the question that has been raised as to whether Ms Bassilios was dismissed[1].
• [4] I conducted a hearing to determine this issue. The hearing was conducted on 17 June 2025 via video. In the lead up to this hearing both parties filed in the Commission and served upon each other an Outline of Submissions and Witness Statements in relation to the matter. Ms Mullings, the MAV CEO gave evidence, as did Ms Bassilios. I granted permission to MAV to be represented by a lawyer or a paid agent pursuant to s 596 of the Act, and Ms Noorzai appeared for MAV.
• [5] It is appropriate to note at this point that some of the evidence provided by Ms Bassilios related to things allegedly said by people who did not give evidence in this proceeding and in some cases were not named but rather described in her evidence as "my colleague". None of this evidence was of particular relevance to the question I must determine in this matter and in any event, I did not consider it reliable evidence. While the Commission is not bound by rules of evidence such as the rule against hearsay, it is required to act judicially[2] and in this matter, I consider it inappropriate to give such evidence any weight.

The events leading to the end of Ms Bassilios' employment

• [6] Ms Bassilios worked at MAV from 24 October 2023 until when her employment ended, effective 11 April 2025. The chain of events which led to the end of Ms Bassilios' employment with MAV began on 13 January 2025 and I was not referred to any matter arising before that date.
• [7] On 13 January 2025, Ms Bassilios had an exchange with another MAV employee, Ms Abud, in an MS Teams meeting in which she thought Ms Abud had been dismissive and condescending towards her.
• [8] The interaction related to the organisation of an event known as the "Block Party". The Block Party was a mini festival described as a celebration of multicultural communities, creative expression and art, involving live performances, workshops, podcasts, exhibitions, film screenings and food. It was a major event for MAV and its entire team worked on the project. Ms Bassilios was involved in sourcing infrastructure, building relationships to ensure good turnout, she was involved in the curation of a "marketplace" or "artisan market", she organised food trucks and also provided assistance with volunteer recruitment.
• [9] The MAV CEO, Ms Mullings, returned from holiday leave on 15 January 2025. On 17 January 2025 Ms Mullings had a meeting with Ms Bassilios during which Ms Bassilios formed the view that Ms Mullings had decided to remove her from the Block Party project. Ms Mullings' evidence was that she did not "remove" her from the project, but did ask her to focus on another project in relation to which she had a greater leadership than that which she had for the Block Party project.
• [10] On 19 January 2025, Ms Bassilios sent Ms Mullings a rather cryptic text message which said, "when I go to work tomorrow, I need to wake up", followed by "I need you to wake up, I can't do this I've dropped enough hints".
• [11] When Ms Mullings queried this text with Ms Bassilios the next day, she discovered Ms Bassilios was still harbouring a complaint over the incident with Ms Abud which had occurred on 13 January 2025.
• [12] Upon hearing of the incident, Ms Mullings investigated it and had a conversation with Ms Abud about her "tone" during meetings.
• [13] However, from this point on, the relationship between Ms Bassilios and Ms Mullings deteriorated. Ms Bassilios formed a view that Ms Abud had negatively influenced Ms Mulling's perception of her work performance and her role in relation to the Block Party project and began to resent Ms Mullings accordingly.
• [14] I do consider the evidence supports the proposition that the frequency of managerial contact between Ms Mullings and Ms Bassilios' increased from around this time, compared with what it may have been in the past. Ms Mullings said that she wanted to support Ms Bassilios. Ms Bassilios appears to have disliked the additional scrutiny, particularly because she believed it had arisen from things Ms Abud had said to Ms Mullings. Indeed, Ms Bassilios formed the view that Ms Abud had lodged some kind of grievance or complaint against her, which Ms Mullings denied was the case.
• [15] Ms Bassilios believes she was "reinstated" to work on the Block Party project on 22 January 2025 during a meeting she had with Ms Mullings on that day. I consider this supports the notion advanced by Ms Mullings - that Ms Bassilios had never been "removed" from the Block Party project but rather had been asked to focus on other duties.
• [16] In the evidence before me there was a particular focus on the proposition that Ms Bassilios had not been appropriately supported by her employer to lodge a grievance against Ms Abud. Ms Bassilios said that she told Ms Mullings on 28 January 2025 she wanted to lodge a formal grievance complaint against Ms Abud for "false and vexatious claims" that she believed Ms Abud made about her. In relation to this matter:
  1. There is no evidence before me that Ms Abud made claims against Ms Bassilios to Ms Mullings and Ms Mullings said she did not.
  2. Ms Mullings said she thought Ms Bassilios had access to the grievance "form" to use to lodge a grievance.
  3. Ms Mullings claimed Ms Bassilios had some familiarity with the Employee Manual, presumably inferring she should have been able to access it to understand the grievance process outlined in it. Ms Bassilios denied having much familiarity with the Manual.
  4. Ms Mullings did distribute the Employee Manual to all staff including Ms Bassillios on 30 January 2025.
  5. Ms Mullings asserts that she on several occasions pointed Ms Bassilios to the grievance procedure and asked her whether she wanted to lodge a formal grievance.
  6. On 26 February 2025 Ms Mullings gave Ms Bassilios a copy of the grievance "form".
  7. I consider that at any stage Ms Bassilios had the ability and capacity to "formalise" her complaint against Ms Abud by sending an email outlining her grievance, but did not do so.
  8. At no stage has Ms Bassilios lodged a formal grievance against Ms Abud.
• [17] As events continued to evolve into February 2025, several things occurred. Ms Bassilios' agitation with what she considered to be "micro management" by Ms Mullings intensified arising in particular from several meetings based around "task lists". She also took some time off due to unfitness for work.
• [18] As part of her role, Ms Bassilios had access to Ms Mullings' email inbox. Ms Mullings explained that during mid-February 2025 it was necessary to have some software upgrades installed on all of the MAV team members' laptop computers. The plan was to have team members leave their computers at the office after the Block Party so this could occur - but this plan was later aborted when Ms Mullings herself forgot to do so. Unfortunately, Ms Bassilios formed the view that this process was somehow targeted at her. When, on 26 February 2025, she was unable to access Ms Mullings' email she thought her IT access had been deliberately "locked out" as part of this process.
• [19] In a meeting held later that day, Ms Mullings described Ms Bassilios as very agitated. In her evidence, Ms Bassilios described what happened in this meeting in the following way: "I tell her I'll give her what she wants and leave MAV. I hand over my laptop and pass and leave around midday". During the hearing, Ms Bassilios described this as a "verbal resignation", which is consistent with how Ms Mullings appeared to have taken it.
• [20] This was the last day Ms Bassilios was in the office. The next day Ms Mullings sent Ms Bassilios a text message asking her whether she was open to a "wellbeing call" and a phone conversation then took place. A dispute exists as to precisely what was said during this call. Ms Bassilios said that Ms Mullings asked her to provide a written resignation, which Ms Mullings denies. Ms Mullings said she asked Ms Bassillios what her long term plans were. Ms Mullings said Ms Bassilios said "you're calling to fuck with my head you bitch" and hung up. Ms Bassilios denies having said these words but does say "I end the call".
• [21] Ms Bassilios described her ensuing absence from work as sick leave. A medical certificate was provided in evidence dated 18 March 2025 stating unfitness for work from 24 February 2025 to 28 March 2025 inclusive. Ms Bassilios could not recall precisely when she provided this certificate to MAV. An email referencing this medical certificate was sent by Ms Mullings to Ms Bassilios on 21 March 2025. As I describe further below, later, Ms Mullings advised Ms Bassilios that her absence at this time was "unauthorised and unapproved". I consider that:
  1. When Ms Bassilios took sick leave, between 26 February 2025 and 18 March 2025, she did not at that time provide a medical certificate covering the absence.
  2. Sometime between 18 March 2025 and 21 March 2025 Ms Bassilios provided MAV with a medical certificate dated 18 March 2025 indicating her unfitness for work during the period 24 February 2025 to 28 March 2025.
• [22] On 13 March 2025 Ms Bassilios was still on what she described as sick leave. On this day Ms Mullings sent Ms Bassilios an email which said:

I am writing to you via email as I understand you would prefer not to be contacted via phone or text. I am writing to follow up on a conversation that we had in late February.

As you had left work early one day and have not returned to work since, we would like to know how you were wanting to proceed regarding your employment. Will you be returning to work? If so, please provide us with a date on when you will be returning to work.

Please confirm you decision with us by 5pm Friday 14 March 2025. If we do not hear back from you, we may need to commence an abandonment process.

Please let me know if you have any further questions."

• [23] Over the next few days, Ms Bassilios and Ms Mullings exchanged emails in which Ms Bassilios advised that she did intend to return to work, but asked to take some leave. Ms Mullings advised that she would need to provide a medical certificate when she returned to work, and provided information as to Ms Bassilios annual leave balance. Ms Bassilios asked that annual leave be approved for the period of her absence from 26 February 2025 to 25 March 2025, on the basis she would return to work on 26 March 2025. Ms Mullings advised that she wanted to meet with Ms Bassilios in the morning, on 26 March 2025 when she returned to work, about some "concerns".
• [24] On 21 March 2025, Ms Mullings sent an email to Ms Bassilios in which she advised as follows:

"The dates that you were absent from 26 February 2025 to 25 March 2025 are considered unauthorised and unapproved. Unfortunately, the appropriate notification and evidence at the time was not provided for annual or personal leave in line with the Company's Personal and Annual Leave policies. As such, we are unable to approve the absence as annual leave and it will be considered unpaid.

We would like to discuss the matter further upon your return to work.

Please let me know if you have any further questions?"

• [25] Thereafter, Ms Mullings and Ms Bassilios exchanged further emails in which Ms Bassilios advised her doctor considered her unfit for work until 28 March 2025 and Ms Mullings appeared to confirm on this basis she was considered to be on personal leave. Ms Mullings also reiterated that a meeting would be held on the day Ms Bassilios returned to work.
• [26] On each occasion Ms Mullings advised that she wanted to meet with Ms Bassilios on her return to work, Ms Bassilios asked that an agenda or list of "concerns" be provided beforehand so she could consider them. This request was made by Ms Bassilios several times but at no stage did Ms Mullings address it or provide such an agenda or list of concerns.
• [27] In the end, based on her medical certificates, Ms Bassilios was to return to work on 31 March 2025. On Thursday 27 March 2025 and then again on Sunday 30 March 2025 Ms Mullings sent Ms Bassilios emails confirming again that a meeting would be held at 9:00AM on the day she returned to work.
• [28] On Monday 31 March 2025, just after 9:00AM, Ms Bassilios sent Ms Mullings an email which said:

It's disappointing you are unable to provide an agenda for the meeting you are requesting.

I am formally submitting my two weeks' notice of resignation, effective immediately.

This decision is not voluntary but is a direct result of your mistreatment of me, your misconduct, and your mishandling of my concerns and grievances regarding a colleague. Given these circumstances, I do not believe the situation will improve, leaving me with no choice but to tender a forced resignation.

Additionally, I remain unfit for work and will provide a medical certificate as required."

• [29] As mentioned above, Ms Bassilios had access to Ms Mullings email inbox. This access had been granted early in Ms Bassilios' employment when she performed personal assistant duties for Ms Mullings but continued as Ms Bassilios' role in the organisation evolved, allowing her, in particular, to reply to emails on Ms Mullings' behalf, on instruction. Through this access, Ms Bassilios discovered an email Ms Mullings sent to herself, containing a draft letter addressed to Ms Bassilios outlining an invitation to a "disciplinary meeting" relating to the abandonment of duties, the use of alleged unreasonable language and unauthorised absence. The letter was dated 28 March 2025. This letter was never sent to Ms Bassilios by Ms Mullings and appears to have been a draft. In her evidence, Ms Mullings said she considered sending this letter but decided not to.
• [30] Later the same day, Ms Mullings sent Ms Bassilios an email in which she said:

"I would also like to invite you for an informal meeting once you are able to return to work, in which we can discuss any concerns you may have and provde you with the opportunity to withdraw your resignation ...

We would like to offer you the opportunity to withdraw your resignation. If it is not your intention to withdraw your resignation and work with us to address the concerns you have raised please confirm this in writing by close of business on Wednesday 2 April 2025 ..."

• [31] This letter also once again urged Ms Bassilios to formalise any grievance she had and again provided her with a form to allow her to do so.
• [32] On 8 April 2025 Ms Mullings sent an email to Ms Bassilios which said she confirmed "an acknowledgement of your resignation" and identified her last working day as 11 April 2025 (noting at the time, Ms Bassilios continued to be absent from work on leave).
• [33] Ms Bassilios submitted that later, on 19 May 2025, Ms Mullings altered her electronic calendar by removing meetings that had appeared between her and Ms Bassilios and provided evidence apparently to this effect. I understood this submission was that Ms Bassilios alleges Ms Mullings was attempting to reduce the appearance of "micro management" during this period by altering what may have been evidence of such. Ms Bassilios had access to this material because, for some reason even in May 2025 (well after the end of her employment) she still had access to Ms Mullings' email and calendar.
• [34] I did not consider this evidence assisted Ms Bassilios because, as I observe below, I do not consider Ms Mullings frequency of contact with Ms Bassilios in January and February 2025 to be inappropriate in any event.
• [35] Ms Bassilios also submitted, based on material she had obtained from Ms Mullings email inbox, that she had attempted to recruit a person to fill her role in February 2025, presumably inferring that this conduct evidences Ms Mullings' intent to either terminate her employment or push her to resign. Ms Mullings provided what I considered to be a logical explanation this conduct - that she was not attempting to "replace" Ms Bassilios but rather was hoping to secure, from another organisation, a person to provide some short-term assistance for her team.

• [36] Whether a person has been "dismissed" for the purposes of s 365 of the Act is to be determined by reference to s 386 of the FW Act[3]. Section 386(1) provides that a person has been dismissed if:
  1. the person's employment with his or her employer has been terminated on the employer's initiative; or
  2. 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.
• [37] A Full Bench of the Commission considered this section of the Act in Bupa Aged Care Australia Pty Ltd v Tavassoli[4]. After considering in detail the case law associated with expression "terminated on the employer's initiative" including notions of constructive dismissal and forced resignation, the Full Bench said at [47]:

"[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."

• [38] There appears to be no question that Ms Bassilios resigned her employment with MAV. She sent an email, on 31 March 2025 "formally submitting" her resignation.
• [39] Upon receipt of that resignation, Ms Bassilios was urged by Ms Mullings to withdraw it but at no stage did so.
• [40] In her resignation letter, Ms Bassilios described this situation as a "forced resignation". I accept that Ms Bassilios was devoted to her job, enjoyed her job and it was not her preferred outcome that it end. But a "forced resignation" is one where the employer's conduct, judged objectively, was engaged in with the intention the employee would resign, or this was the probable result, such that there was no effective or real choice but to resign[5]. Thus, Ms Bassilios must point to some conduct engaged in by MAV which, viewed objectively, was taken with the intention that she resign, or where her resignation was the probable result because she effectively had no other choice[6].
• [41] In this regard, it is important to distinguish between what Ms Bassilios felt - no doubt genuinely - perhaps a sense of hopelessness or cynicism - and what MAV actually did.
• [42] The effort to have Ms Bassilios withdraw her resignation is inconsistent with the proposition that Ms Mullings intended by her conduct that Ms Bassilios resign. It is more consistent with the idea that Ms Mullings did not want her to resign.
• [43] To this end, I do not think Ms Bassilios' reliance on a draft letter she discovered in Ms Mullings' inbox relating to a "disciplinary meeting" assists her. This letter was never sent. This appeared to be an act of restraint - more consistent with an effort by Ms Mullings not to pressure Ms Bassilios to resign, despite her concerns about her conduct.
• [44] During the relevant period, Ms Mullings was engaged in managing the MAV operation as its CEO. Providing additional contact time and support to an employee who she thought may be struggling, attempting to assist Ms Bassilios to stay on task, and managing the allocation of resources to various projects is entirely consistent with Ms Mullings' role as the CEO. Some of this conduct may have been challenging for Ms Bassilios. But what she appears to have perceived as "micro management" was not conduct engaged in with the intention of forcing her to resign - it was Ms Mullings' job[7].
• [45] I do not consider the manner in which MAV dealt with Ms Bassilios' concerns about Ms Abud was conduct engaged in with the intention that Ms Bassilios resign, or that resignation was the probable result of the way it handled this situation. When the initial issue was raised with Ms Mullings, she dealt with it swiftly. Unfortunately, this did not placate Ms Bassilios. This situation and Ms Bassilios' own conduct in relation to it was likely a difficult matter for MAV to deal with, particularly because there was no basis for Ms Bassilios' concerns that Ms Abud had made allegations or lodged grievances against her. Ms Bassilios was consistently urged to lodge a formal grievance about the matter if she wanted to take it further. Ms Bassilios clearly had the capacity to do this, if she wished, regardless of any failure (if there was one) to provide her with a form, or reference to a policy.
• [46] I do accept that by the time she resigned, Ms Bassilios was under stress. I also consider that several aspects of MAV's conduct likely contributed to that stress. In particular, an email was sent to Ms Bassilios on 21 March 2025 in which her request for leave to be approved (which she had made to some extent, retrospectively), was rejected. This decision was perhaps, considering the totality of the circumstances, an unduly strict application of leave process, resulting in a somewhat harsh decision. At around this time, Ms Mullings' emails also contained rather pointed references to a meeting to be held on Ms Bassilios' return to work about "concerns". One of these emails was even sent to Ms Bassilios on the Sunday before the return to work day. The probable result of the persistent references made to this meeting was that Ms Bassilios' stress would increase - especially when the "concerns" were not articulated (despite requests that they be outlined). In my view, MAV should reflect on whether its conduct in these last few days was appropriately sensitive to Ms Bassilios' likely state of mind at the time.
• [47] However, a distinction may be drawn between conduct that lacked, to some degree, in sensitivity, and conduct intended or which had the probable result of resignation such that Ms Bassilios had no other choice[8]. MAV's conduct was engaged in after Ms Bassilios had left the workplace abruptly, apparently tendering her "verbal resignation". It was aimed at dealing with the managerial situation that ensued. It was not contrived conduct, with an ulterior motive. Ultimately, Ms Bassilios had a choice about whether to return to the workplace or not. The choice to resign was her own.
• [48] On this basis, I consider Ms Bassilios resigned her employment and was not dismissed within the meaning of s 386 of the Act, having particular regard to s 386(1)(b).
• [49] On this basis the application is dismissed. An Order[9] to this effect will issue separately.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; see also Marie Vic Dawson v Centre for Digestive Diseases Pty Ltd [2025] FWCFB 50

[2] Meiyn Xu v Serco Australia Pty Limited [2025] FWCFB 75

[4] [2017] FWCFB 3941

[6] See O'Meara v Stanley Works Pty Ltd [PR973462] Giudice P, Watson VP, Cribb C, 11 August 2006

[7] See for example Jayde Paranihi v Roy Hill Holdings Pty Ltd [2021] FWC 1493 [157]

[8] See for example Thomas Kann v St Vincent De Paul Society Queensland [2021] FWC 2849 [74]

[9] PR788387

Printed by authority of the Commonwealth Government Printer