s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - whether employee was "dismissed" - applicant not dismissed - application dismissed.

• [1] Ms Box (the Applicant) has made an application under section 394 of the Fair Work Act 2009 (the Act) against her former employer, Region Operations Pty Ltd (the Respondent). The Application was made on 19 May 2025 and relates to what the Applicant described as a constructive dismissal taking effect on 2 May 2025.

• [2] The Respondent has objected to the application on the basis that the Applicant was not "dismissed" within the meaning of section 386 of the Act. Whilst I had initially proposed to address this issue together with the merits of the application, the Respondent sought revised directions to allow the matter to proceed to a distinct hearing on the question of whether there had been a dismissal. The Applicant ultimately did not oppose that course of action. This decision deals with that question, which has proved to be decisive of the application.

• [3] Any successful application under section 394 of the Act requires that a person has been "dismissed". The meaning of dismissed is dealt with in section 386 of the 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.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part." (emphasis in underline added)

• [4] Language akin to that underlined in both paragraphs (a) and (b) of the definition above has long been relevant to determining disputes concerning employment relationships that, in a formal sense or at face value were brought to an end by way of resignation. Disputes of this nature have commonly been encountered in proceedings in the unfair dismissal jurisdiction. The unfair dismissal jurisdiction has, since its inception, required that there be a termination of employment "at the initiative of the employer" as one of the essential elements. This is rooted in the historical constitutional underpinnings of Commonwealth laws providing for remedies in respect of unfair dismissal, yet the expression has remained a centrepiece of the scheme notwithstanding the shift to reliance on the corporations power and referral of State powers in recent decades. The expression "at the initiative of the employer" and its derivatives have been found to admit of some circumstances where the final act in bringing the employment to an end was an act of the employee claiming the remedy. In considering whether employment "has been terminated on the employer's initiative", a Full Bench of the Australian Industrial Relations Commission in O'Meara v. Stanley Works[1] held that there must be:

"...some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether 'the act of the employer [resulted] directly or consequentially in the termination of the employment.' Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution.... In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign."[2]

• [5] Express reference to a resignation brought about by employer conduct developed in the unfair dismissal provisions of successive Commonwealth workplace relations legislation over the last two decades. In considering whether a resignation has been "forced" in the manner currently dealt with in paragraph (b) of subsection 386(1), a Full Bench of the Commission in Bupa Aged Care Australia v. Tavassoli ('Bupa')[3] said:

"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." (emphasis in underline and bold added)

• [6] It should be noted that the immediate predecessor of paragraph (b) of subsection 386 (1), section 642(4) of the Workplace Relations Act 1996, referred to "forced" resignation but continued the legislative tradition of requiring such forced resignations to be characterised as a species of termination at the initiative of the employer in order to be actionable as an unfair dismissal. It relevantly provided as follows:

"For the purposes of this Division, the resignation of an employee is taken to constitute the termination of employment at initiative of the employer if the employee can prove that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer."

• [7] Section 642(4) of the Workplace Relations Act 1996 was considered by a Full Bench of the Australian Industrial Relations Commission in Australian Hearing v. L Peary[4] ('Australian Hearing') in circumstances where it was contended by the Appellant that it was an essential ingredient in satisfying that section that the employee prove that the resignation was an intended consequence of conduct or a course of conduct engaged in by the employer. In rejecting that submission, the Full Bench said:

"We cannot accept this construction of the section. The section specifies the matters that an employee who has resigned must prove in order to displace the legal effect of the resignation. The employee must prove that the employer engaged in conduct or a course of conduct which forced the employee to resign. There is no warrant for requiring the employee to prove an additional matter, that the employer intended to force the employee to resign. The plain words of the section deny such a requirement. Furthermore, the section is not directed at the state of mind of the employer, but at the state of mind of the employee. It is particularly difficult for an employee to prove an employer's intention. In that respect it is relevant to note that where the Act imposes a requirement related to the intention or motive of the employer a reverse onus is usually applied."[5]

• [8] In light of the decision in Bupa, it seems that it is no longer the case that the intention of the employer is necessarily irrelevant to determining whether a resignation is "forced" in the relevant sense, although it is not a requirement to show such intention in every case. In any event, there have been differing views to that expressed in Australian Hearing as to the role or relevance of employer intention even when the legislative scheme did require forced resignations to be characterised as "at the initiative of the employer". For example, in Rheinberger v. Huxley Marketing,[6] Moore J approached the issue this way:

"The issue that emerges from these facts is whether the applicant has demonstrated there has been a termination of her employment at the initiative of the Company. The applicant relied on several passages from a recent Judgement of a Full Court in Mohazab v. Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200. Particular reliance was placed on the following passage:

'It accords with the purpose of the Convention to treat the expression 'termination at the initiative of the employer' as a reference to a termination that is brought about by an employer and which is not agreed to by the employee...'

These observations had been preceded by a discussion by the Full Cout of the relationship between the Convention concerning Termination of Employment at the Initiative of the Employer, which is Sch 10 to the Act, and the importation into the Act of the meaning of expressions in it by operation of s. 170CB. The applicant further relied on a later passage in which the Full Court said:

'In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action that it did, the employee would have remained in the employment relationship.'

However, it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that employment will conclude. I am prepared to assume, for present purposes that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employers conduct."[7] (emphasis in underline and bold added)

• [9] To similar effect was the decision in Hastie v. Impress Australia[8], which, like Australian Hearing, considered section 642(4) of the Workplace Relations Act 1996 and in addition the particular significance of the then nascent addition of the adjective "forced", which is also now adopted in s. 386(1)(b):

"The employer's conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.

If this were not the case, then it would be difficult to distinguish between many instances of voluntary resignations which arise from a discretionary judgment of the employee, and resignations which are the result of the conduct of the employer. This is because, for all practical purposes, most decisions by an employee to resign their employment arise from the conduct of the employer, in some manner or form. That is, employer conduct is causally responsible at some level for most resignations.

But not all the species of the conduct of an employer have the probable result of the employee's resignation or make the resignation, on an objective view, a reasonable response to the employer's conduct. It is only a sub set of employer conduct that ought to attract the remedy against a harsh, unjust or unreasonable termination of employment based on a termination at the initiative of the employer.

If this is so, in what manner then has the amended statutory provisions affected this approach to determination whether an employee was terminated at the initiative of the employer or if the employee resigned voluntarily?

Putting aside the onus specified in the Act, the critical issue here is whether the inclusion of the adjective "forced" affects in any way of the above discussion of the authorities as they were before the introduction of the Workchoices legislation.

To describe the conduct of the employer as forcing an outcome suggest that the conduct in some manner or form compelled or mandated or obliged or necessitated the resignation of the employee. These seem to be the common dictionary meanings of "forced".

In a narrow sense, no resignation is ever forced unless there is some observable physical intervention by the employer. Consequently, all resignations are likely to be voluntary, in a narrow sense. Such was commented on by Dowsett J in his minority decision in Pawel v Advanced Precast Pty Ltd:

"As to 'compulsion', it is difficult to contemplate circumstances in which it can be said that an employee has been compelled to resign, but not dismissed, unless one accepts the somewhat bizarre reference in the course of argument to an employer holding a gun to the employee's head."

That said, to describe an employer's conduct as forcing a resignation does not demand a narrow reading such as this. Force may be applied in a physical sense, as Dowsett J describes it, or else it may be applied indirectly, by the conduct or the course of conduct by an employer which makes an outcome. Of course, many such examples of such conduct might be provided, and a person may be forced or compelled to adopt a course of action by a variety of actions taken by their employer.

Generally, the exercise of force may take many forms, and there is little point in exploring these in detail. But common manifestations of 'force' will always exhibit an outcome in which a person acts contrary to their desired intention, and because of the conduct of another person that was directed at or towards them.

I do not think the definition should be limited to cases in which an employee can demonstrate that the employer took positive action of some kind that was motivated to bring about the resignation, though many cases no doubt will fall into that category. The conduct of an employer, wilful or not, may nonetheless generate circumstances in which the resignation of an employee was the probable result.

It would appear to me, then, that on an ordinary or natural reading of the term "forced", an employee may be forced (or compelled) to resign for reason of the employer expressly demands the resignation (perhaps, though not necessarily, in conjunction with a threat of termination), or makes the conditions of work so oppressive or repugnant to the employee (and the employment relationship), and/or else, so bears down on the volition of the employee, that the resignation was a reasonable probable response to the circumstances the employee faced at the time.

In effect, therefore, it appears that the inclusion of the adjective "forced" in s.642(4) of the Act does not require a new or additional test as to whether a resignation was at the initiative of the employer to that which may have been alluded to by the Full Bench in O'Meara v Stanley Works Pty Ltd (under the pre-reform Act). Rather, it simply recasts descriptively and makes express the implied nature of a resignation by an employee that is taken to constitute a termination at the initiative of the employer, and it (s.642(4) of the Act) does so in juxtaposition to a "voluntary" resignation. The Explanatory Memorandum, as quoted above, does not invite a different reading.

Further, I note that in some instances in which members of the Commission have applied the test of "force" to a determination as to whether a resignation was termination at the initiative of the employer for purposes of s.642(4) of the Act, they have drawn on the availability of an "effective choice" in demonstration of that finding." (emphasis in underline and bold added, footnotes omitted)."[9]

• [10] The requirement for objectivity in the analysis of an employer's conduct and its probable effects means that the subjective response of the employee to such conduct is not to be conclusive of the question of whether or not a resignation is forced.[10] Job dissatisfaction, even to a very significant level, is not in itself determinative.[11] It has long been recognised that the line between a forced resignation and a voluntary resignation can be a fine one, but it must be "rigorously observed" to ensure that unfair dismissal remedies are not invoked where it is the employee's discretion, rather than the employer's, that has given rise to the termination of employment.[12] Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.[13]

• [11] In light of the above, in considering the current matter, I have adopted the following approach:

a) A resignation may be forced in the relevant sense either because it was the intended result of the employer's conduct or because the employer's conduct left the employee with no real or effective choice other than to resign. > > b) The inclusion of the word "forced" does not signify that the employee must be physically overborne or be expressly issued with an ultimatum. The focus is on the conduct of the employer and its intended and/or probable effects. > > c) In order to be considered forced, the resignation must be a reasonable and probable response to the employer's conduct. > > d) A decision to resign based on perceptions of or subjective responses to ambiguous conduct is unlikely to be considered forced in the relevant sense.

• [12] There is no dispute that the Applicant's employment came to an end in a formal sense by her providing written notice of her resignation on 2 May 2025.[14] The Respondent provided pay in lieu of requiring the Applicant to work through her notice period, such that the employment ended on that day. There is some dispute as to the turn of events that preceded the resignation and substantial dispute as to the proper complexion to be ascribed to those events in characterising any particular course of conduct engaged in by the Respondent.

• [13] Before descending in the detail of these matters, I would observe that the essential concern of the Applicant appeared to be that, for close to half of the period she was employed by the Respondent (which commenced in October of 2022), there were fluctuations in her workload and scope of duties, together with uncertainty as to what the future might hold. The uncertainty arose because of a restructure of the area of the business in which the Applicant worked, a restructure which was progressed but not finalised for an inordinate period of time. For the Respondent's part, it acknowledged that there were peaks in the Applicant's workload and highlighted the steps that had been taken to address these, albeit the parties disagreed on how effective or enduring those steps were. The Respondent tended to characterise the Applicant's concern about ongoing role clarity in the shadow of the protracted restructure process as an aspect of an assertive pursuit for career progression. For my part, having had the benefit of observing the Applicant's evidence, I considered that she was honest and earnest in her account of her experiences in her employment with the Respondent and the impact these had on her state of mind and job satisfaction. She did not strike me as a vociferous single-minded advocate for career advancement.

• [14] In advancing its objection, the Respondent relied on witness statements of Ms Ogden[15] and Mr Fredersdorff.[16] Both statements contained a number of annexures. Mr Fredersdorff was initially, from around August of 2024, the Applicant's manager in respect of work the Design and Delivery work Applicant performed concerning the Respondent's properties in South Australia. In December of 2024, the Applicant commenced reporting to Mr Fredersdorff more generally. Mr Fredersdorff reported in turn to Ms Ogden. Mr Fredersdorff's statement was taken as read without his attendance. Ms Ogden was cross examined, minimally.

• [15] The Applicant relied upon her witness statements,[17] her contract of employment with the Respondent and a number of text messages and other documents relating to that employment. Given the Applicant's Outline of Argument also presented largely as a first person narrative, it was also adopted and marked as evidence.[18] The Applicant was not cross examined by the Respondent, but I did ask her a number of questions to assist me to identify how her evidentiary material related to the issues in the case.

• [16] Ms Box was initially employed in the role of Regional Design and Delivery Manager[19], and whilst there were some changes in her duties over the period of her employment, she was not appointed to a different position[20]. The Applicant's contract in any event afforded the employer a considerable degree of flexibility in the roles that the Applicant might be asked to perform and in the locations where work may be performed.[21] The Respondent's business is owning and managing shopping centres, and the Design and Delivery function is associated with the opening of new stores or refurbishing of existing stores within those shopping centres. It is not in dispute that, at the commencement of the Applicant's employment, she carried out the Design and Delivery Manager role with respect to properties in Victoria and Tasmania. From around July of 2024 the Applicant's role expanded to additional locations, and in March of 2024 the Applicant had become aware of an intent to restructure the Design and Delivery function of the Respondent that would involve some redundances.

• [17] The Respondent acknowledged that the Applicant's duties were extended to South Australia from around July of 2024. This particular change was not the subject of any comment in the Applicant's materials, and Ms Ogden's evidence was that this did not result in a significant amount of additional work for the Applicant.[22] The difficulties, from the Applicant's point of view, were associated with the extension of responsibilities to shopping centres in Western Australia.

• [18] Mr Fredersdorff's evidence was that, initially, the Applicant was asked in or about August of 2024 to provide assistance to the Design and Delivery Manager otherwise responsible for Western Australia, Mr Dunstan, in advance of a period of leave that Mr Dunstan was taking. Mr Fredersdorff says that he communicated his expectation to the Applicant that she only attend to the most urgent tasks in the Western Australia portfolio, as the remainder could be dealt with by Mr Dunstan following his return from leave.[23] Whilst it is unclear whether Mr Dunstan did in fact return from leave at any point, he left the organisation in early October of 2024.[24] The Applicant says she assisted on a temporary basis during Mr Dunstan's leave but was assigned Western Australia projects permanently less than a week after that temporary period concluded.[25] It was not contentious that the assignment to the Applicant of this work added to her workload. For its part, the Respondent says it discussed with the Applicant in September of 2024 the engagement of a contractor to assist in the duties pertaining to Western Australia, with a contractor (referred to in the materials only as 'Emma') commencing the following month.[26] The Applicant does not dispute that this occurred, but notes that Emma was not provided with access to IT systems of the Respondent, with the result that the Applicant was required to attend to the administrative tasks on those systems that Emma could not.[27] Mr Fredersdorff did not dispute this sequence of events, but says that when he discussed the Applicant's concerns about the administrative workload in late October of 2024, he requested that the relevant system access be provided to Emma and that 'subsequently' such access was provided.[28] Ms Ogden's recollection of these events was consistent with this.[29] Neither of Mr Fredersdorff or Ms Ogden contradicted the Applicant's evidence that Emma ceased performing this work after 2 months, only had the relevant access for around her last two weeks of work, and was replaced with another contractor (Karen), who was not provided with the same access.[30] The Applicant says that this left her with needing to once again assume the role of attending to the administrative workload pertaining to the Western Australia projects the contractor could not, and that she made the IT department aware of this as well as raising her workload concerns with both Ms Ogden and Mr Fredersdorff.[31] This was not contradicted, although Mr Fredersdorff was of the view that the replacement of Emma with Karen did not take place until February of 2025.[32]

• [19] Aside from the increased workload associated with Western Australia projects, the Applicant has complaints about the conduct of another of the Respondent's employees, Mr McQueen, who was based in Respondent's Perth office and with whom she interacted when performing those duties. The core compliant is essentially that Mr McQueen would harass the Applicant with constant phone calls, conduct that the Applicant said Emma was also subjected to, while also excluding her from particular information[33]. The Applicant said that she was exposed to this behaviour from when she commenced duties on the Western Australia projects and that it did not stop. The Applicant said that Ms Ogden had referred to Mr McQueen as "the stalker". Ms Ogden agreed in her Statement that she has referred to him in this way, but clarified that this was intended as a humorous reference to his communication style and tendency to frequently convey the urgency of his requests (including via telephone calls, e-mail and text messages) in a manner many others found irritating.[34] It was not suggested by anyone that Mr McQueen had engaged in behaviour with the intention of causing harm or fear of harm. Both Ms Ogden and Mr Fredersdorff acknowledged that the Applicant had raised her concerns about Mr McQueen's behaviour with them.[35] Mr Fredersdorff said that he took steps to address those concerns. Specifically, he said that he arranged for a workshop in the Perth office (attended by the Applicant, Mr McQueen and others) to address how the leasing and the design and delivery teams could work more productively together. This was followed up by an instruction from Mr Fredersdorff, reflecting the discussion at the workshop, that among other things required "tenancy/landlord works investigations" to be approved by Mr Fredersdorff.[36] Mr Fredersdorff was of the view that this intervention had "addressed" the Applicant's concerns with Mr McQueen, and that the Applicant was content with his response.[37] The Applicant however gave evidence that after that instruction was given, Mr McQueen "...would go around Jeremy [Mr Fredershorff] as well and continued to harass us".[38]

• [20] The Applicant attempted to link her concerns regarding Mr McQueen's behaviour and the lack of an adequate response to it, to another group of concerns concerning a former manager who the Applicant believed had a drinking problem. The essential allegation was that the Respondent's workplace culture was poor. I am not in a position to make any findings about the circumstances of the former manager. It may well be the Applicant was, reasonably, not fully informed of how the Respondent was approaching that matter. The Applicant also made complaints about workplace culture in the days leading up to her resignation, citing in particular Mr McQueen having been promoted into a role that Mr Fredersdorff considered him unsuitable for, hearing a colleague described in a meeting as a "fuckwit" (an assessment with which the Applicant did not agree), and being criticised by a colleague for being unwilling to send them a document via e-mail while also driving.[39] I do not consider that a case has been established of an oppressive workplace culture on the strength of this material, but I accept that Mr McQueen exhibited challenging behaviours which negatively affected the Applicant's experience at work. Whilst it might be the case that at other times the Applicant could have been less impacted by these behaviours, the prevailing circumstance of a peak in workload likely made these interactions more disturbing.

• [21] The evolving workload situation extended in February of 2025 to the Applicant assuming additional responsibilities for projects in Tasmania and in Pakenham in Victoria, following the departure of another staff member. There is a disagreement in the evidence as to how this came about. The Applicant's view is that she was instructed by Ms Ogden to take on this work, Ms Ogden's evidence is that the Applicant volunteered to take it on until a replacement for the departing employee could be found.[40]

• [22] The Respondent's evidence is that it continued to support the Applicant to address the evolving workload concerns. This culminated in decisions in February of 2025 to engage an external contractor to assist the Applicant address a peak in the number of tenancy condition reports,[41] and in March of 2025 to re-allocate the Applicant's responsibilities for projects in South Australia and Tasmania to employees based in NSW.[42] The Applicant's evidence is that the handover of the South Australian and Tasmanian work had not completed by the time she resigned and that Mr Fredersdorff was aware of the difficulties she was facing in attempting to engage with the intended recipients of that work.[43] Certainly on 16 April 2025, very shortly before the Applicant resigned, Mr Fredersdorff acknowledged that the Applicant's workload remained elevated when he said to her "..the thing I'd like you to focus on as an interim solution is, you know, you'll have my support, as I've said, to you in trying to reduce your workload gap back down to being with consistent with what is actually stipulated in your job description".[44]

• [23] Importantly, whilst Mr Fredersdorff and Ms Ogden acknowledged workload peaks in their evidence, they were not of the view that the Applicant's workload was excessive or unreasonable or that her workload "got on top of her".[45]

• [24] In the latter part of her employment, the Applicant's concerns regarding her workload became intertwined with her concerns regarding her future in the Respondent's business.

• [25] The Applicant's evidence is that she met with Ms Ogden and Ms Higgins in Mach of 2024 and was informed by Ms Higgins that a restructure of the Design and Delivery team was underway and that there would be some redundancies.[46] Ms Ogden did not refer to that alleged meeting in her witness statement, but rather indicated that the decision to review the Design and Delivery function was made by her and other leaders in the Respondent's business in or about November 2024.[47] When cross examined specifically about the discussion in March of 2024, Ms Ogden neither confirmed or denied that it occurred and merely said "I recall that we were looking at once we lost the National leader that we were looking at what the structure looks like for the team going forward from that time".[48] It thus seems that the future structure of the Design and Development team was "on the radar" for a period prior to the formal review decision being taken in November of 2024. I am prepared to accept, in the absence of any contradiction, that the discussion of March 2024 occurred. I am also prepared to accept that the Applicant may have viewed that as both a potential threat and a potential opportunity to her career with the Respondent and would be understandably interested in the progress and outcome of any review.

• [26] Ms Ogden's evidence on the issue of the restructure was not instructive as to anything that occurred prior to November 2024. Her evidence was that a meeting was held on 27 November 2024 that she attended with the Applicant and members of the Respondent's management team, which was facilitated by a consulting firm. The meeting was described as a fact-finding and consultative workshop "for the purposes of identifying the current ways of working in the Design and Delivery team". Ms Ogden accepted that, as a result of the Applicant's participation in that meeting, the Applicant would have been aware that a review was underway and that there would be changes to the design and delivery process. Ms Ogden says that, for confidentiality reasons, she did not keep the Applicant informed of the progress of the review.[49] This lack of information appears to have been at odds with initial indications given to the Applicant and others that the review would be undertaken in a consultative fashion.[50]

• [27] Notwithstanding the lack of information about the review being passed on by Ms Ogden, Ms Ogden said that the Applicant was "agitating for a leadership role" in the new structure on numerous occasions.[51] Mr Fredersdorff said he had multiple discussions with the Applicant concerning her desire for a promotion between late 2024 and early 2025, and also discussed the issue with Ms Ogden.[52] The Applicant does not agree with the characterisation that she was "agitating for a promotion".[53] Rather, the Applicant says that "The only instance where I expressed interested in advancement was in January 2024"[54] and that "any further discussions about role changes or progression were initiated by Region Group, not me".[55] I don't regard as particularly material who instigated discussions about role changes or progression. As shall be seen, the discussions occurred. It seems plain enough, and reasonable, that the Applicant was interested in how a restructure would affect her role and sought to have some influence in decision making around that. The legitimacy of employee's interests around such matters are reflected in the modern award safety net and its predecessors, the requirements for consultation terms in enterprise agreements, and in the consultation requirements that must be satisfied in order for a termination of employment to be characterised as a "genuine redundancy" for the purposes of the unfair dismissal provisions in Part 3-2 of the Act.

• [28] The Applicant has made some inconsistent representations about a particular discussion concerning a new role. The Applicant said that she was told to write a Position Description for a role to be known as "Head of Design and Placemaking", and she provided this to Ms Ogden on 6 February 2025.[56] Ms Ogden says the genesis of the discussion that led to the Applicant drafting the proposed position description was that the Applicant was "...becoming increasingly agitated in discussions with me because we could not give her certainty around the result of the review and restructure, or the potential new role".[57] Ms Ogden's evidence is that the offer to the Applicant to draft a position description was a result of Ms Ogden's advocacy with others in the business directed to trying to give the Applicant some assurance that there would be a role for her following the review. She said that once she was provided with the position description the Applicant had drafted, she followed up with others in the business during February and March as to whether it had been reviewed.[58] Whilst the Applicant was seemingly of the view that the position description had been "approved with only a few adjustments",[59] Ms Ogden says that to her knowledge nobody in the business approved it. Rather, Ms Ogden said that she passed on to the Applicant advice she had received that the position description "looked good" but that that there would be "a few tweaks". Ms Ogden is categorical that she made no promises to the Applicant in relation to that new role.[60] Under questioning from me, the Applicant agreed that a settled position had not been reached on that position description.[61] Taking this evidence into consideration, it is not open to argue that the new position was offered and accepted then retreated from unilaterally by the employer. Had such an argument been available, it may have provided an alternative basis upon which to find that a dismissal had occurred.

• [29] Whilst no settled position was reached on the role that the Applicant had put forward, an alternative position was put to her in April of 2025, being a role of National Retail Design Manager. The Applicant says that this proposition came only "After a lot of follow-up" and that the role was misaligned with her expertise and career goals.[62] Whilst the Applicant's statement said this was provided in April, she also relied on an e-mail dated 1 April 2025 in which she referred to the position description being provided to her the night before. Ms Ogden's evidence confirms this. Both Ms Ogden and the Applicant agree that the proposed position description was discussed between them in a meeting also involving Ms Kaczmarek and Ms Higgins. Both also agree that the position description that was being offered was substantially different from that which the Applicant had put forward earlier that year. Ms Ogden gave evidence that the Applicant seemed "taken aback" by the changes that had been made and offered feedback and comments, which Ms Higgins said would be considered on the basis that the business was still working through the restructure and the position description was a work in progress.[63] Ms Ogden said that she did not have oversight of further processes concerning that position description. Material provided by the Applicant suggests that, from her perspective at least, there wasn't much scope for further processes in relation to that position description. In particular, on 1 April 2025 the Applicant sent an e-mail to Ms Ogden referring to the position description and the meeting that had occurred that day concerning it, which provided her thoughts and further commentary. It concluded with the following comments:

"Given this, I would only consider the current National Retail Design Manager (PD) role as an external contractor. This would allow me the flexibility to engage in other projects that are both more challenging and inspiring. If the attached (PD) is the only opportunity or solution being offered, I would appreciate your guidance on negotiating a redundancy package and an appropriate timeline for transition."[64]

• [30] Although Ms Ogden did not give evidence about any immediate response to this e-mail, she did give evidence of a meeting that occurred on 11 April 2025, preceded by a request from the Applicant to discuss matters including the position descriptions and the restructure. Ms Ogden provided notes taken during the meeting that are consistent with her acknowledging that the Applicant and others in the business would be feeling unsettled, that she wasn't in a position to commit to what the structure would be or that there wouldn't be more change, and that she was "happy to push" the National Design Manager role if it was to exist in the new structure and the Applicant was interested in it.[65] It is not in dispute that the Applicant then disclosed to Ms Ogden in that meeting a role in another business (although Ms Ogden says that the Applicant said she had been "contacted" about the role[66]). The Applicant's evidence is that she noted the role as an illustration of the level of responsibility she was looking for. Ms Ogden said that the Applicant asked her what she should do and that Ms Ogden told her that she could not answer that but said words to the effect that if the Applicant though there was a better opportunity she should consider it. The Applicant casts a slightly different light on this:

"Anna suggested I consider 'other opportunities', which I interpreted as an indication that my position was being phased out."[67]

Notwithstanding Ms Ogden's contemporaneous notes of that meeting stating that she would "..take your confidential updates offline and manage through keeping it confidential to the best of my ability - you know I will not betray your trust",[68] her witness statement said that she then told Mr Fredersdorff that the Applicant had been contacted about the other role.[69] The Applicant's notes of the same meeting indicate that she told Ms Ogden that she had "passed on other opportunities & have been loyal in demonstrating my loyalty with transparency to work here but that [the external role] is the type of role I am interested in".[70] The Applicant said that she applied for an external role over the weekend that followed that Friday meeting.

• [31] The Applicant said that she thereafter requested a meeting with Mr Fredersdorff, which she covertly recorded. Both parties relied on the record of that meeting. The Applicant says that she recorded the meeting "..because I was experiencing constant mixed messages, gaslighting and lack of transparency about my role".[71] For my part, the messaging at that time appeared not to be mixed or lacking transparency, it seemed to simply be the case that the restructure of the team was not finalised so the desired certainty could not be provided. The concern regarding a lack of transparency rather reflects a view on the Applicant's part that when she was being told this, she didn't believe it. In any event, the meeting took place on 17 April and the two key matters of relevance arising from it, for present purposes, were as follows.

There was no intent on the Respondent's part that the Applicant should resign

• [32] Mr Fredersdorff evidently shared the Applicant's frustration that the restructure had not been concluded, observing that "...I think it still all feels like its going in the right direction its just been slower than we would have liked, but hopefully we'll get more clarity in the next couple of months because I'm sick of it floating around".[72] The delays as Mr Fredersdorff understood them related to the ultimate decision maker ("Anthony") continuing to ask for additional information and alternatives. However, Mr Fredersdorff attempted to make plain that the Respondent wished to retain the services of the Applicant. He asked the Applicant to explain to him they type of role she would be interested in.[73] He gave her assurances that she was valued:

"I look at our business and, you know your role within the business, you know, its pretty obvious to everybody that you're a leader in that space and I think, you know, provided you can continue to be a little bit more patient until the structure is resolved, then I'm highly confident that, you know, we'll get you a role that you're going to be really comfortable with, on a team that I think you'd get along with well, and that you like, and I reckon there's going to be, you know, additional remuneration that will come with that."[74]

"...I've been very clear in saying to you and I don't think you could argue this point that I don't want to lose you and that I really value you as somebody to work with and I enjoy working with you and it would be very disruptive and everything else if you were to go."[75]

• [33] Mr Fredersdorff also sought to address what he considered to be the Applicant's misunderstanding of the commentary from Ms Ogden about the Applicant looking for other opportunities, which the Applicant said caused her to doubt her job security.[76] In an apparent effort to reassure the Applicant, Mr Fredersdorff said:

"Yeah so I actually think that you two are probably not aligned on what all that was. I think Anna's view was that you were sort of saying you know I need to get a result on this because essentially I'm aware of other roles and it was you know I do have other opportunities. And I think Anna's response was essentially to say I'm bound until I've got this resolved with Anthony and can't really give you any more information about what's on offer until I've got that resolved. So, if she was saying look at it, it was probably only to say I can't bring anything else to the table at the moment, we want you to be patient and to keep working with us. But if you've got better things you can't say no to, then we understand. It wasn't encouraging you to go. I guarantee you."[77]

• [34] The discussion between the Applicant and Mr Fredersdorff at this meeting was highly circular, with the Applicant consistently seeking certainty as to her future role and Mr Fredersdorff repeatedly explaining that this could not be provided until such time as the restructure had been completed. Mr Fredersdorff gave as much reassurance to the Applicant as he could in that discussion. Whilst it evidently was not enough for the Applicant, there was absolutely no evidence that there was a positive intent to force the Applicant to resign. Had there been such an intent, the conversation would have proceeded very differently.

The Applicant was clearly considering resigning at the time of the 17 April meeting

• [35] The Applicant made her position clear in the meeting that she had put up with additional workloads on the understanding that a different role would be allocated to her. At the time of that meeting, it was the lack of certainty as to the future role that was the key consideration in making a decision about whether she would remain with the Respondent or resign. Two comments of the Applicant in particular bear this out unambiguously:

"....the business actually came to me over a year ago and started having discussions with me about a promotion. And it has just been so ongoing and all the information that's been provided to me, I keep getting conflicting information. I have taken on additional workloads because of the information that has been shared with me at that time. It is just - nothing has been fulfilled and then to have a conversation with Anna last week who then sort of encouraged me to seek further opportunities. So I feel like I have been very loyal to the company and also have been really patient with all the commitments that have been provided to me but to then be encouraged to seek further opportunities really discourages any trust that I have with the company or with anybody that I work with. So its just and it making me not want to be here because of that lack of - once I lose trust you lose me sort of thing."[78]

"I'm not in a rush to move into it [a new role with the Respondent] but I am just coming with queries because this is all the information that's been presented to me. So I would like clarity on it and understand what is the roadblocks or what. If its only just to do design review for the whole company, then I need to move on."[79]

• [36] Whilst on my view of the evidence there were no guarantees given to the Applicant at any time as at what her future role might be, she clearly felt her expectations were not being met. She made little mention of her workload in the course of that meeting other than as identified in the first quote above and to observe that she was "Playing catch up...lucky it is quiet" and that she thought she was "getting there slowly".[80]

• [37] The Applicant provided a number of text message communications she had (over different platforms) with a former colleague at the Respondent, whom I have chosen not to identify in this decision other than as Person 2. The messages were provided to illustrate "the culture of fear and potential retaliation within the workplace".[81] Certainly such a culture was not evident from the multiple interactions between the Applicant, Mr Fredersdorff and Ms Ogden that were the subject of evidence in this matter.

• [38] The text messages between the Applicant and Person 2 for the most part provide a contemporaneous account of the personal impacts upon the Applicant of the lack of certainty being provided to her about her future and her reaction to what she perceived (or presented in those messages) as encouragement by Ms Ogden to look for another job. I accept their evidentiary value on that issue.

• [39] The messages also demonstrate that Person 2 and the Applicant were sufficiently close personally to share their grievances concerning their employment and the individuals they worked with. The messages further show the Applicant requesting that Person 2 provide a witness statement in these proceedings and Person 2 declining that request. Thereafter, they show the breakdown in the relationship between the Applicant and Person 2 after the Applicant provided some message exchanges between herself and Person 2 to the Respondent, without Person 2 providing consent for this to occur. Person 2 specifically requests that no further exchanges between them be shared, a request that self-evidently the Applicant chose not to abide by. The messages confirm that Person 2 left the employment of the Respondent in connection with the disclosure of some of these messages to the Respondent. It is unclear from the messages what the terms of the separation were, although counsel for the Respondent submitted that Person 2 resigned.[82] Insofar as the messages address those issues, I do not consider them to be informative on the issues I need to determine in order to make a ruling as to whether the Applicant was dismissed.

• [40] Interestingly, the messages shared include what appears to be a screenshot of an "AI Overview", which one might commonly find when using the Google search engine. This includes the unhelpful advice that "A forced resignation, also known as constructive dismissal, occurs when an employee feels compelled to resign..." (emphasis added).[83]

• [41] As noted above, written notice of resignation was provided on 2 May 2025.[84] This cited "unmet commitments regarding progression and promotion, a consistently increasing workload and working within teams where respect and collaboration have often been lacking" which were said to have significantly impacted the Applicant's wellbeing, leading to a loss of "trust in the organisation's direction and alignment with its stated values". This followed an e-mail from the previous day notifying of a "difficult decision to move on" and waking up "with a physical stress reaction (hives)", which foreshadowed a plan to "formalise" resignation the following day.

• [42] Having had regard to the evidence in the proceeding and the submissions made, I am unable to make a finding that the Applicant's resignation was forced. It is pellucidly clear that the Applicant was very unsatisfied with her employment by this point. The evidence discloses that while there were workload peaks during the employment, they had receded to a point where at the 17 April meeting the Applicant seemed to be finding the workload more manageable. That meeting reveals that at that time, shortly before the resignation, the Applicant was consumed by the lack of certainty as to her future role, and appeared to have lost faith that the answers she was continually being given - to the effect that she would need to wait until the restructure was concluded to know what lay ahead - were answers that were being given truthfully. I have no basis to find that those answers were not truthful.

• [43] I have already found that the employer did not intend that the Applicant resign. The evidence also supports a finding that the employer's conduct was not of character that left the Applicant with no real or effective choice other than to resign. Employers are entitled to restructure their operations. The Applicant had the option of waiting for the restructure process to conclude. It is doubtless the case that being left hanging in such a situation is uncomfortable, but it had been made clear to the Applicant that there were senior people in the business who were willing to work with her to try and find a position that would suit and interest her in the new structure, and she had ongoing employment in her existing role until that process came to its end. Mr Fredersdorff had demonstrated his willingness to take steps to address the impacts on the Applicant of other employees' behaviour where the Applicant had sought this, so if that had remained a concern - and the evidence is inconclusive as to whether it still was by this point - the Applicant could also have sought some further interventions.

• [44] The Applicant made an informed and rational decision about how long she was prepared to put up with the lack of certainty concerning her future role. The Applicant was not forced to resign.

• [45] Because I have found that the Applicant was not dismissed, her unfair dismissal application cannot proceed.

• [46] A separate order will be published to give effect to this decision.[85]

[1] [2006] AIRC 496.

[3] [2017] FWCFB 3941. See also City of Sydney RSL & Community Club Limited v. Balgowan [2018] FWCFB 5 at [10]- [13].

[4] [2009] AIRCFB 680.

[6] (1996) 67 IR 154.

[8] [2008] AIRC 102.

[9] Hastie v. Impress Australia [2008] AIRC 102 [48]-[51], [54]-[62].

[10] Polydores v. University of Sydney [2025] FWC 1936 at [27].

[11] Ashton v. Consumer Action Law Centre [2010] FWA 9356 at [59].

[12] ABB Engineering Construction Pty Ltd v Doumit (Print N6999, 9 December 1996) at [35].

[21] Exhibit A14 at clause 2 and clause 1.1 of the "Terms Sheet" attached thereto.

[26] Exhibit R2 at [44], Exhibit R1 at [30]-[34].

[35] Exhibit R2 at [57], Exhibit R1 at [44]-[45].

[42] Exhibit R2 at [80], PN 168-174, Exhibit R1 at [62]-[68].

[44] Annexure JF-6 to Exhibit R1 (Hearing Book page 255).

[45] Exhibit R1 at [71], R2 at [79].

[50] Annexure JF-6 to Exhibit R1, (Hearing Book p251).

[56] Exhibit A16, Exhibit A13 (Hearing Book p97-99).

[65] Annexure A0-7 to Exhibit R2 (Hearing Book p209).

[68] Annexure A0-7 to Exhibit R2 (Hearing Book p209).

[72] Annexure JF-6 to Exhibit R2 (Hearing Book p256).

[73] Annexure JF-6 to Exhibit R2 (Hearing Book p248-249).

[74] Annexure JF-6 to Exhibit R2 (Hearing Book p254).

[75] Annexure JF-6 to Exhibit R2 (Hearing Book p253).

[76] Annexure JF-6 to Exhibit R2 (Hearing Book p252-253).

[77] Annexure JF-6 to Exhibit R2 (Hearing Book p254).

[78] Annexure JF-6 to Exhibit R2 (Hearing Book p248).

[79] Annexure JF-6 to Exhibit R2 (Hearing Book p251).

[80] Annexure JF-6 to Exhibit R2 (Hearing Book p246-247).

[83] Exhibit A1 (Hearing Book page 49-51).

[85] PR795296.

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