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[2026] FWC 547
General information, not legal advice.
Fair Work Commission
2026-02-23
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
Mcpherson Newspapers Pty Limited Trading AS Mcpherson Media Group
Application to deal with contraventions involving dismissal - Jurisdictional objection that applicant not dismissed - Resignation - Whether resignation forced by employer conduct or course of conduct - Applicant not dismissed - Jurisdictional objection upheld - Application dismissed
[1] On 7 September 2025, Ms Khadija Hadjab (the applicant) made an application under section 365 of the Fair Work Act 2009 (Cth) in which she says that she was dismissed from her employment as a cadet journalist with McPherson Newspapers Pty Limited trading as McPherson Media Group (the employer/respondent), and the dismissal was in breach of the general protections provisions of the Act.
[2] The Commission's role in such matters is to make reasonable attempts to resolve the dispute (other than by arbitration). The Commission usually does so by conducting a conciliation conference. If the matter cannot be resolved, the Commission issues a certificate under s 368 of the Act, and an applicant may then make an application to a Court for the Court to decide whether the dismissal was in breach of the general protections provisions of the Act. The Commission can also arbitrate the dispute, but only if both parties notify the Commission that they agree for it to arbitrate the dispute under s 369 of the Act.
[3] If there is a question around whether there was a dismissal, the Full Federal Court in Coles Supply Chain v Milford [2020] FCAFC 152 at [67] to [68] says the Commission must first determine that there is a dismissal before we may assist the parties to try to resolve a dispute about whether the dismissal was in breach of the general protections.
[4] McPherson Media Group says that it did not dismiss Ms Hadjab.
[5] On 20 August 2025, Ms Hadjab sent an email to Ms Marysia Bellamy, People and Culture Co-ordinator and Ms Christine Anderson, Director of Content and Audience and acting News Editor (who at that time was Ms Hadjab's direct supervisor). The email said
I'm writing to let you know that I am resigning from my role as cadet journalist effective immediately. I'm grateful for the opportunities I've had at Shepparton News and wish you and the team all the best moving forward.
[6] Ms Hadjab argues that she was forced to resign due to the conduct, or course of conduct engaged in by McPherson Media Group such that her resignation was a dismissal within the meaning of s 386(1)(b) of the Act.
[7] This decision deals only with the question of whether McPherson Media Group dismissed Ms Hadjab. I conclude that they did not. My reasons follow.
[8] The matter was initially allocated to Commissioner Lee and reallocated to me in November 2025. Commissioner Lee had issued directions for the filing of materials in this matter. It did not appear that Ms Hadjab had filed any material in accordance with those directions. After correspondence from my chambers, Ms Hadjab filed materials. The materials were extensive and appeared to relate to an earlier application for stop-bullying orders that had also been before Commissioner Lee (AB2024/943). As Ms Hadjab indicated that those materials were also to be considered in relation to this matter, I accepted them. The respondent also filed additional materials, being emails in June 2025 between it and Ms Hadjab's representative, Media Entertainment and Arts Alliance (MEAA) and Ms Hadjab's resignation email dated 20 August 2025.
[9] I conducted a determinative conference on Friday 14 November 2025. Ms Hadjab gave evidence on her own behalf. Ms Bellamy gave evidence on behalf of Mcpherson Media Group.
[10] Much of the material relied upon by Ms Hadjab related to the application for stop bullying orders. Ms Hadjab also referred to discussions that occurred during conferences conducted by the Commission and outcomes to resolve that application. I have had regard to those matters where they are relevant to this matter, but refer to them only generally in my reasons to ensure the maintenance of the confidentiality of those discussions.
[11] McPherson Media Group employed Ms Hadjab as a cadet journalist. Her employment started on 11 December 2023.
[12] Ms Hadjab has been diagnosed with Autism Spectrum Disorder and is under a treatment plan. The employer was made aware of this diagnosis during the Commission process relating to Ms Hadjab's application for stop-bullying orders. It is not clear if they were informed at an earlier stage.
[13] In July 2024, an incident occurred in which Mr Geoff Adams, senior editor, touched Ms Hadjab without her consent. This incident was one of the matters that Ms Hadjab later complained about in her application to the Commission in December 2024 for stop bullying orders. In his response to the stop-bullying matter, Mr Adams accepted that he touched Ms Hadjab but did not agree that it was bullying or otherwise inappropriate behaviour. Following that incident, Ms Hadjab says there were other occasions when Mr Adams acted in an inappropriate way towards her. Mr Adams was not called as a witness in this matter, and nor was he required to respond to this application. However, I have considered the allegations to the degree that they are relevant to Ms Hadjab's arguments that she was forced to resign from McPherson Media Group. I observe that only the incident in July 2024 was included in the December 2024 application for stop bullying orders. The other incidents occurred after the July 2024 incident, but some may have occurred prior. That information is not clear on the facts but ultimately not determinative.
[14] Around November 2024, McPherson Media Group commenced a performance management process following complaints from other staff members and members of the public. The complaints related to Ms Hadjab's allegedly rude behaviour. This resulted in the imposition of a performance improvement plan.
[15] At the end of November 2024, Ms Hadjab raised a grievance about multiple employees.
[16] In December 2024, Ms Hadjab made an application to the Commission for stop bullying orders. Ms Hadjab said that Mr Adams and other employees bullied her. The Commission conducted multiple conferences in relation to that matter and issued statements in February and March 2025 reflecting what the parties had agreed to resolve the matter. Ms Hadjab discontinued her application for stop-bullying orders in May 2025.
[18] On 10 February 2025, Ms Bellamy emailed Ms Hadjab about the steps the employer was taking being:
[19] McPherson Media Group investigated Ms Hadjab's complaints in March 2025. Ms Bellamy sent Ms Hadjab an email with the outcome of the investigation:
I am writing to let you know that I have concluded my investigation and provided a report to Damian Trezise.
All claims related to the four areas of investigation were denied by the respondents. Given a lack of any witnesses or other corroborating evidence, I was unable to substantiate your complaint. This doesn't mean however that we don't take your concerns seriously.
It is important for you to know that some of your claims have caused respondents' distress. I tell you this in the interests of transparency as we have an obligation to support all of our people. I will explain to all parties, including yourself, that it is important to work professionally together despite the outcome of this investigation. If you believe this is not occurring, I encourage you to speak to your manager in the first instance, or me if you're not comfortable to do so. The same advice will also be given to the respondents.
[20] In April 2025, MEAA wrote to McPherson Media Group to note for the record that it and Ms Hadjab objected to the findings and lack of elaboration for the findings.
[21] Also in April 2025, Ms Hadjab's manager left McPherson Media Group and Ms Anderson became Ms Hadjab's new manager. Ms Anderson was one of the people whom Ms Hadjab had alleged bullied her. The manager who left McPherson Media Group was not.
[22] From mid-May 2025, McPherson Media Group corresponded with MEAA (Ms Hadjab's then representative) about making reasonable adjustments. Those discussions concluded in around mid-June 2025.
[23] Around this time, Mr Adams stepped into Ms Anderson's role while Ms Anderson was on leave. This meant that Ms Hadjab's manager was Mr Adams. Ms Hadjab says that she began to feel monitored, and that both Ms Anderson and Mr Adams began to regularly stop by her desk.
[24] On 22 May 2025, Ms Hadjab emailed Ms Bellamy. She said that she was "experiencing considerable distress caused by the level of face-to-face interaction with [Mr Adams] in [Ms Anderson's] absence. Ms Hadjab said that she was finding the "frequency and nature of [Mr Adams] interactions with [her] extremely stressful" and that he consistently approached her in person rather than using Slack or email. Ms Hadjab said, "Regardless of any internal findings, no employee who has experienced inappropriate physical contact from a colleague should be expected to maintain ongoing direct interaction with that person to the extent I currently am." Ms Hadjab asked that communication with Mr Adams be via Slack and email, and that "face-to-face interaction be kept to an absolute minimum while [Ms Anderson] is away."
[25] McPherson Media Group did not provide a direct response to Ms Hadjab in relation to her email of 22 May 2025. It appears that they were discussing this matter as part of the discussion around working from home. During this time, Ms Hadjab was attending the office but also occasionally working from home.
[26] On 17 June 2025, Ms Hadjab emailed Ms Bellamy to follow up on her email of 22 May 2025. Ms Hadjab said that the employer's continued requirement for her to interact with Mr Adams was causing her considerable distress. Ms Hadjab said that she would begin working from home for 2 days per week, which was the arrangement that was under discussion between the employer and Ms Hadjab's union representative. Ms Hadjab asked for formal acknowledgement of the arrangement and said that she would lodge a further application with the Commission if she did not receive a response.
[27] On 18 June 2025, Ms Bellamy replied to Ms Hadjab. Ms Bellamy said that the discussions around Ms Hadjab working from home were not finalised and were "subject to agreement supported by a performance improvement plan." Ms Bellamy said that the employer's preparedness to not have Mr Adams "involved in the formal performance measures" that they were seeking to put into place,
should not be interpreted as an admission that he has done anything wrong. We investigated a previous complaint you had made about [Mr Adams] and were not able to find any example of workplace bullying. Although we recognise that you have continued to talk about concerns around working with [Mr Adams]. These have not been associated with any reasonable evidence or explanation. It would seem that your concerns are related to your perception of events or intentions, but this does not allow for [McPherson Media Group] to do anything.
[28] Ms Bellamy also said in that email that Ms Hadjab's demand to work from home commencing the following day was without agreement and the employer would view it as "an act of insubordination."
Can I strongly advise you to speak with [Ms Hadjab's union representative] about everything outlined in this email. We are still willing to consider an arrangement that includes work from home, but this will come after I have been able to speak to [the employer's representative] and a meeting is held ... to confirm what has been agreed. We respectfully point out that our suggestion is not something we have to do, and if an arrangement is established, we will not be making any admission that the workplace is unsafe for you.
[30] The discussions around Ms Hadjab working from home, as reflected in an email from MEAA to McPherson Media Group, appeared to be that Ms Hadjab agreed with the employer's proposal for her to work from home 2 days per week and that there would be regular meetings to support Ms Hadjab in meeting the employer's performance expectations but that there would be no formal performance improvement plan. However, there was no set start time for the arrangement, and it did not commence. Ms Hadjab said that she did not accept the reasonable adjustments offered by the employer as she was of the view that the employer was using her medical condition and psychiatrist's recommendations as a tool to put in place performance reviews.
[31] Also throughout June 2025, Ms Hadjab discovered that a job she had booked had been cancelled. The job appeared to have been modified by an account under Ms Hadjab's name. Ms Hadjab provided emails she exchanged with MEAA about the issue. It is not clear that the issue was brought to the employer's attention.
[32] Ms Hadjab then commenced a period of sick leave. Ms Hadjab made an application for WorkCover on 2 July 2025. The application referred to further incidents between her and Mr Adams, including an allegation of sexual harassment. McPherson Media Group say that the first time they were aware of these further incidents and allegations of sexual harassment was when they received the WorkCover application.
[33] On 20 August 2025, Ms Hadjab sent the resignation email referred to in paragraph [5].
[34] Ms Hadjab also relied upon a medical examiner's report dated 1 September 2025, which was written following an examination on 1 August 2025. That report recommended that she not work with Ms Anderson or Mr Adams.
[35] The term dismissed is defined in s 12 of the Act, which refers to s 386. Section 386 relevantly says:
(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.
[36] Section 386(2) deals with fixed term contracts and s 386(3) deals with demotions. Neither subsection is relevant to this matter.
[37] The Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47] said:
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] Ms Hadjab's submissions relate to the second limb of the definition of dismissal in section 386(1). Ms Hadjab says that it was not a single event that led to her resignation but that, while she kept asking for help, she could not count on HR to take her complaints seriously or do anything to help her. Ms Hadjab says that she faced retaliation after she made her application for stop bullying orders, and that there were other matters such as misattribution of her work and modification of her work without her consent. As a result, she could not return to the "very place that had broke" her.
[39] I am required to consider what conduct the employer engaged in (which can include omissions, that is conduct the employer did not engage in) and whether the conduct or omissions were engaged in with the intention of bringing Ms Hadjab's employment to an end, or from which termination of employment was the probable result. The employer had investigated Ms Hadjab's complaints, as agreed following conferences before the Commission. Ms Hadjab did not agree with the outcome (that her bullying complaints were not substantiated). Ms Hadjab also disagreed that the employer could undertake any performance management of her. But Ms Hadjab, through her union representative, was negotiating reasonable adjustments to address Ms Hadjab's concerns as well as the employer's concerns about her performance. The emails that are in evidence before me in this matter shows that the employer was trying to resolve Ms Hadjab's issues through the process of negotiating work from home arrangements, while not admitting that there had been conduct that amounted to bullying, sexual harassment or other inappropriate behaviour.
[40] Ms Hadjab made a decision - which may well be the right decision for her - that she could no longer work for the employer, that she did not trust it to look after her welfare nor take her concerns seriously. She may be right about that but it misses an essential element of something the employer has done (or not done) that is intended to end the employment relationship.
[41] The employer had investigated the complaints it was made aware of; Ms Hadjab did not agree that the outcome was correct. This was the basis of its inaction; not inaction with the intent to end the employment. Ms Hadjab did not make the employer aware of further issues, particularly the serious incident of alleged sexual harassment. Again, the employer's inaction in this regard cannot have been with an intent to bring about the end of the employment relationship or that the end of employment was a probable cause of its inaction.
[42] In relation to the employer requiring Ms Hadjab to work with Ms Anderson and Mr Adams, the employer attempted to address Ms Hadjab's concerns by putting in place reasonable adjustments that included work from home arrangements. It is also not clear whether the employer had received a copy of the psychiatrist report prior to this matter. The employer wanted to address concerns it had with Ms Hadjab's performance; it was entitled to do so, and nothing in the outcomes from Ms Hadjab's application for stop bullying orders prevented it from doing so, other than that it had to not continue with a performance improvement plan relating to incidents in November 2024. Both those matters (negotiation of reasonable adjustments and desire to monitor Ms Hadjab's performance) demonstrate that the employer did wish for the employment to continue. The negotiations had not yet concluded, and it appears that Ms Hadjab withdrew from them.
[43] The employer says (and I accept) that it did not further engage with Ms Hadjab nor her representative after she made her WorkCover application on 2 July 2025 until her resignation email on 20 August 2025.
[44] Ms Hadjab was also aware of options other than resigning, including that she could have made a further application to the Commission. She did not do so.
[45] I am not satisfied that the employer engaged in conduct (including by failing to act) that left Ms Hadjab with no real or effective choice but to resign, and so the employer did not dismiss Ms Hadjab within the meaning of s 386 of the Act.
[46] As I have found that the employer did not dismiss Ms Hadjab, it follows that her application must be dismissed. This means only that Ms Hadjab cannot make an application to the Court where she argues that she was dismissed because of a workplace right. Nothing prevents Ms Hadjab from alleging that adverse action that falls short of dismissal was a breach of the general protections provisions under the Act.
[47] I order that the application for the Commission to deal with a general protections' contravention dispute involving dismissal under matter number C2025/8997 filed by Ms Khadija Hadjab on 7 September 2025 be dismissed.
Mr H McPherson, of Broad Reach Employee Relations with permission, on behalf of the Respondent.
Printed by authority of the Commonwealth Government Printer
Ms Khadija Hadjab
Mcpherson Newspapers Pty Limited Trading AS Mcpherson Media Group [2026] FWC 547