s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - application dismissed

• [1] Ms Mirkhil was employed by Story House Early Learning (SHEL) as a Business Operations Manager (BOM) from 9 August 2021 until her employment ended by way of resignation on 30 May 2025. On 20 June 2025, Ms Mirkhil applied for the Fair Work Commission (FWC) to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (Cth) (the Act). SHEL objected to the application on the basis that Ms Mirkhil was not dismissed.

• [2] This matter involves a long and complex procedural history. It is not necessary to set out all the details other than to say that on 28 July 2025, Ms Mirkhil's representative McDonald Murholme notified the Commission that the parties had reached an in-principle agreement to resolve the matter. However, the matter did not settle because Ms Mirkhil refused to sign the settlement agreement alleging her representative had not acted in her best interest and denied that she had agreed to the proposed settlement terms.

• [3] On 25 November 2025, the matter was allocated to me for case management. On 27 November 2025, McDonald Murholme filed a Form 54 notice ceasing to act as the lawyers for Ms Mirkhil. The matter proceeded to a hearing before me on 19 December 2025.

• [4] At the conclusion of the hearing, I dismissed Ms Mirkhil's application. I informed the parties that I would provide written reasons for my decision. My reasons for dismissing Ms Mirkhil's application are set out below.

• [5] An application under section 365 can only be made by or on behalf of a person who has been dismissed. Section 386(1) provides that a person has been dismissed if their employment has been terminated at the initiative of the employer or they resigned but were forced to do so because of the employer's conduct. Relevantly the question to be determined in this matter is whether Ms Mirkhil was forced to resign because of some action taken on behalf of SHEL that had the probable result of bringing the employment relationship to an end.

• [6] Ms Mirkhil's submissions do not clearly identify which limb of s.386(1) she relies on. However, at the hearing Ms Mirkhil submitted the following;
  1. Ms Lloyd forced her to resign by requesting her resignation in writing,
  2. her resignation was done in the heat of the moment,
  3. SHEL ended Ms Mirkhil's employment by not agreeing to her request to extend the notice period, and
  4. she had no alternative other than to resign from her employment with SHEL because of a number of work-related events.
• [7] It is somewhat difficult to reconcile how Ms Mirkhil's employment could have come to an end at the initiative of her employer because her request to extend the notice period was refused, whilst claiming that she resigned in the heat of the moment, and at the same time claiming that she was forced to resign because she was asked to provide her resignation in writing. She then proceeds to claim she had no alternative but to resign because of past conduct of SHEL. Ms Mirkhil's application lacks merit and it appears Ms Mirkhil has taken a broad-brush approach to her claim. However, I deal with each of those matters below.

• [8] On 26 March 2025, Ms Mirkhil sent the following text message to Ms Lloyd (State Manager):

"Hi Amanda! Hope you are well. Just wondering if you time for a quick chat this afternoon. Nothing urgent x" (emphasis added)

• [9] Ms Lloyd responded inviting Ms Mirkhil to call her at any time other than during a meeting she had scheduled for 3pm that afternoon. The correspondence between Ms Mirkhil and Ms Lloyd was at all times friendly and courteous. During a subsequent discussion that occurred later that day, Ms Mirkhil informed Ms Lloyd that she was thinking of resigning for personal reasons. I accept Ms Lloyd's evidence that she inquired as to whether Ms Mirkhil had already made her decision or if she was just thinking about resigning and that they discussed the possibility of an alternative role if one became available. I accept that Ms Lloyd did not treat Ms Mirkhil's comments during the conversation as a formal resignation.

• [10] Ms Lloyd and Ms Mirkhil spoke again on the 27 March 2025, however their recollection of that discussion differs. Ms Mirkhil says that during the conversation Ms Lloyd requested that she send a resignation letter and this made her feel pressured to resign. Ms Lloyd denies that this occurred. Ms Lloyd says they discussed other work matters and she inquired about Ms Mirkhil's welfare and that during the discussion Ms Mirkhil stated that she had made the right decision to resign. Regardless Ms Mirkhil did act immediately to provide her resignation.

• [11] On 28 March 2025, Ms Mirkhil sent an email to Ms Lloyd resigning from her employment as a Business Operations Manager with her final day of employment being 30 May 2025. Ms Mirkhil's resignation was put in the following terms:

I hope this message finds you well. I apologise for the delay in providing my notice in writing, been busy few days!

I wanted to formally confirm my resignation from my position as Business Operations Manager at Story House Early Learning, as we discussed on Tuesday. This has not been an easy decision, but after careful consideration, I have decided to focus on spending more time with my young family.

Working at Story House has been an incredibly rewarding experience. I have truly appreciated the opportunity to collaborate with you both as a colleague and as a mentor. Your support has made my time here so positive, and I am grateful for everything I have learned and the relationships I have built along the way.

I wish the entire Story House team continued success and growth. I will miss working with everyone, both at the support office and in the centres.

I would like my final day of employment to be 30th May 2025. Since I have accumulated annual leave, I would prefer to use it during my notice period, meaning my last physical day at work would be 3rd of May 2025, with the remainder of the notice period covered by annual leave. I am happy to assist with the transition process to ensure a smooth handover.

I have not shared this news with anyone yet, and I would like to inform my team personally before any broader communication is made.

Thank you once again for everything. It has been a privilege to be part of the team, and I will always value my time with Story House.

• [12] The resignation letter states that from 3 May 2025, Ms Mirkhil intended on using her accrued annual leave rather than working out her notice period. Ms Lloyd accepted the terms of Ms Mirkhil's resignation and later notified Mr Tollenaere, SHEL Chief Operating Officer. Mr Tollenaere subsequently spoke to Ms Mirkhil and inquired as to whether she was sure she wanted to resign, and Ms Mirkhil confirmed her intention.

• [13] On 31 March 2025, Ms Mirkhil informed Ms Lloyd that she would be on personal until 1 April 2025 which was subsequently approved by Ms Lloyd. On 2 April 2025, Ms Mirkhil emailed Ms Lloyd requesting that she work through until the 30 May 2025 instead of utilising her accrued annual leave because amongst other things she had outstanding work to complete. The request was approved by Ms Lloyd.

• [14] On 7 May 2025, Ms Mirkhil emailed Ms Lloyd proposing that she take annual leave from 30 May 2025 and her notice period be extended to 30 June 2025. The primary reason for Ms Mirkhil's request to vary her notice period was because she had concerns that the lump sum payment of her accrued annual leave upon termination would place her in a higher tax bracket.

• [15] On 8 May 2025, Ms Lloyd informed Ms Mirkhil that her request to extend her notice period had been declined. Ms Mirkhil was clearly aggrieved by the decision and escalated her request to extend her notice period. In her correspondence to Ms Ludwig, Chief People Officer, Ms Mirkhil again stated she wanted to extended the notice period because she did not want her annual leave paid in a lump sum at the end of her employment. Her request was reviewed and Ms Ludwig declined to grant the request. Ms Mirkhil subsequently requested the matter be escalated stating:

"...I really wanted to wrap up the role in a positive manner and that is all I am requesting from SHEL to extend my last day of employment so that if can be paid my annual leave." (sic) (emphasis added)

• [16] On 9 May 2025, Ms Ludwig responded to the request declining to amend the decision and offered to consider "any other options that would be compliant". Mr Tollenaere and others were copied into the correspondence which Ms Ludwig says was "for reasons of full transparency". Ms Mirkhil responded later that day stating that she had contacted both the ATO and Fair Work Commission and had been informed that it was "fine practice to extend her last day of employment date".

• [17] Ms Mirkhil's assertion that SHEL had ended her employment at its own initiative because it did not accommodate her request to alter her final day of employment is misconceived. Ms Mirkhil resigned from her employment with notice, and her resignation was accepted by SHEL. Whilst it is acceptable for an employer to agree to change the notice period at the request of an employee, there is no obligation for it to do so. SHEL's decision to decline Ms Mirkhil's request was a discretionary decision it was entitled to make. Further, in the 8 May 2025 email to Ms Ludwig, Ms Mirkhil expresses sentiments that she cares about her role, wanted to remain loyal to the role and her organisation, opted to work her notice period to support her services and wants to finish in a positive manner. On an objective view it cannot be reasonably said that the sentiments expressed by Ms Mirkhil are analogous with someone who has been forced to resign due to the conduct of the Respondent.

• [18] I am not persuaded that Ms Mirkhil resigned from her employment with SHEL in the heat of the moment. Ordinarily, in circumstances where an employee who is forced to resign from their employment because of the course of conduct of the employer, the employee will resign either immediately or act on the decision to resign with a sense of urgency because the relationship is no longer sustainable. Ms Mirkhil's text message on 26 March 2025 conveyed that there was no urgency to the discussion during which she expressed her intention to resign and there was no immediate action taken by Ms Mirkhil after the phone discussion with Ms Lloyd. Ms Mirkhil did not submit her resignation until two days later. Ms Mirkhil's conduct prior to submitting her resignation does not support the assertion that she resigned in the heat of the moment. Further, the correspondence between Ms Mirkhil and SHEL that post-dates the resignation discloses that Ms Mirkhil made no attempts to rescind her resignation during the notice period or express that she had not intended on resigning. The only action taken by Ms Mirkhil was an attempt to change the date her employment would come to an end to suit her own financial arrangements. I find that Ms Mirkhil's conduct immediately prior to and after submitting her resignation does not support her contention that she resigned in the heat of the moment.

• [19] On the issue of whether Ms Mirkhil was forced to resign because on 27 March 2025 Ms Lloyd allegedly asked her for a written resignation, the evidence does not support a finding in favour of Ms Mirkhil's contention. Ms Mirkhil carefully considered her decision to resign and notified Ms Lloyd of her intention to do so. If I was to accept Ms Mirkhil's submission that Ms Lloyd had requested a resignation be provided in writing, it was open to Ms Lloyd to make such a request and I am not persuaded that the request resulted in a forced resignation. My observation is that Ms Mirkhil did not act immediately, she instead provided her resignation two days after she had already notified Ms Lloyd she intended on resigning. Ms Mirkhil did not act in haste or with any urgency and the two days she took to consider her decision before providing Ms Lloyd with a written resignation is objectively inconsistent with Ms Mirkhil's contention that she was forced to resign.

• [20] Ms Mirkhil listed a number of events that occurred between January and May 2024 that she says left her with no alternative but to resign from her position. Those events include allegations that Ms Lloyd "micro-managed" her and a grievance about being allocated an additional service to her portfolio. I do not intend on repeating each of the allegations, submissions or evidence pertaining to each of those events in full. I have considered Ms Mirkhil's submissions and documentary evidence pertaining to the events that occurred whilst also taking into account SHEL's objections as to how I should treat that evidence. I have formed the view that those events relied on by Ms Mirkhil lack the necessary causal connection to support her contention that she had no alternative other than to resign nearly 12 months later, however, for completeness, I make the following observations about each of the events.

• [21] As to Ms Mirkhil's allegations of "micro-management" by Ms Lloyd. The correspondence between Ms Mirkhil and Ms Lloyd was on balance, professional and courteous. In my view the inquiries made by Ms Lloyd in her managerial role were open to her to do so as the manager. Ms Lloyd was entitled to make the work inquiries she made and seek responses to those work inquires. In my view, Ms Lloyd's actions and inquiries were reasonable management actions conducted in a reasonable manner. The events and the correspondence relied on by Ms Mirkhil disclose nothing that a reasonable person would consider to be out of the ordinary when considered in the context in which they occurred.

• [22] Ms Mirkhil was allocated an additional service in March 2024 without being consulted and the matter was subsequently resolved. Ms Mirkhil complained about not being properly consulted and Ms Lloyd apologised and gave an undertaking to improve her communication. The service was eventually reallocated in June 2024. I make no criticism of Ms Lloyd's correspondence or the actions she took to address Ms Mirkhil's concerns pertaining to the allocation of an additional service. Further, Ms Mirkhil has not established to my satisfaction a causal connection between this allegation and her contention that she had no choice but to resign from her employment with SHEL 12 months later.

• [23] Ms Mirkhil also contends that she was subject to deliberate humiliation and undermining by Ms Lloyd. Ms Mirkhil outlined four specific events that occurred in 2024 and provided evidence of correspondence which she says support her contention that she had no alternative but to resign. Again, those events relied on by Ms Mirkhil lack the necessary casual connection to support her contention that she had no alternative other than to resign. Whilst I do not intend on setting out each of the events relied on by Ms Mirkhil in full, for completeness I make the following observations about each of those events.

• [24] There is nothing in the correspondence between Ms Lloyd and Ms Mirkhil pertaining to the flooding event that occurred in May 2024 that supports Ms Mirkhil's contention that Ms Lloyd deliberately failed to recognise her contribution. Ms Lloyd sent an email after the event in which she thanked "the team" for their contribution to attending to the flooding event. In response Ms Mirkhil sent an email to Ms Lloyd outlining her contribution. Ms Lloyd replied to Ms Mirkhil's email apologising that she hadn't specifically acknowledged Ms Mirkhil's contribution explaining that in her reference to thanking "the team" she meant everyone including Ms Mirkhil. Ms Lloyd explained it had been a long day for all and thanked Ms Mirkhil for her support. I make no criticism of Ms Lloyd's correspondence and on a plain reading the evidence does not support Ms Mirkhil's portrayal of the event over a year later. I am not persuaded the event, when considered either on its own or in connection to the other events was sufficiently detrimental to Ms Mirkhil's employment status that it could weigh in favour of a finding that Ms Mirkhil had no other option but to resign from her employment a year later.

• [25] Ms Mirkhil's submits that Ms Lloyd assumed she required assistance reviewing the wage tools in May 2024, and that this assumption undermined her professional competence. I am not persuaded that Ms Mirkhil's perception of the events is truly reflective of what had occurred. The material relied on by Ms Mirkhil does not support her allegations against Ms Lloyd. Ms Lloyd clearly states in her communication that she held the view that Ms Mirkhil was more than capable and will do well in performing the task and set out her expectations. Ms Lloyd offered her support if it was needed. Even if I am wrong on this, I do not consider the event when considered either on its own or in connection to the other events holds sufficient gravitas when considered in proximity to the resignation that it could be relied on to support Ms Mirkhil's contention that she had no alternative but to resign.

• [26] Ms Mirkhil submits that Ms Lloyd reprimanded her publicly in an email pertaining to an event that occurred in August 2024. I have considered the correspondence relied on by Ms Mirkhil as evidence to support her contention and it is my view that Ms Mirkhil's perception does not align with the content contained within the email. There is nothing in the wording of the email correspondence from Ms Lloyd that would reasonably persuade me that Ms Lloyd was reprimanding Ms Mirkhil. To the contrary, Ms Lloyd commences her correspondence with concern for Ms Mirkhil situation and simply makes an observation whilst acknowledging her actions. There is no content within the email that could reasonably be considered a reprimand. I do not agree with Ms Mirkhil's interpretation of the correspondence sent by Ms Lloyd. I am not persuaded that the evidence relied on supports Ms Mirkhil's contention.

• [27] Ms Mirkhil alleges Ms Lloyd reprimanded her in relation to an incident that occurred in September 2024 involving a reportable incident of a service provider mishandling a child. Again, I have considered the evidence relied on by Ms Mirkhil and I have formed the view that Ms Lloyd as the manager made reasonable inquiries about the event as she was entitled to do so. My view is that Ms Mirkhil has misrepresented Ms Lloyd's correspondence in her submissions. Regardless, I do not consider the event to be anything out of the ordinary course of what would be expected in the circumstances. Ms Mirkhil has not sufficiently explained why this event, either when considered in isolation or in conjunction with the other events she relied on, left her with no other alternative but to resign from her employment 6 months later.
• [28] I make my final observations about the events relied on by Ms Mirkhil that occurred in 2024, in my view the majority of the evidence relied on reflects reasonable management action taken by Ms Lloyd in the course of her duties. I have formed the view that Ms Mirkhil in her submissions has attempted to re-write the narrative in an attempt to make out her case. The correspondence between Ms Mirkhil and Ms Lloyd at all times reads as professionally courteous and without malice. I do not consider the above events when considered either on their own or in connection to the other events were detrimental to Ms Mirkhil's employment and when considered in proximity to the resignation they do not support Ms Mirkhil's contention that she had no alternative but to resign. Ms Mirkhil at all times had the option of raising any concerns she had about those events with senior management or human resources in an attempt to have those concerns addressed and resolved, resigning from her employment was not her only option.

• [29] In January 2025, SHEL made the decision to alter the work portfolios of its employees in response to feedback from each of the BOMs. SHEL submits that the adjustments to the seven BOM's portfolios were amongst other things, as a consequence of new services opening up, to ensure that the BOM's were allocated no more than eight services each and to enable services to be grouped to achieve reduced travel time between services. Ms Mirkhil attended a consultation meeting to discuss the changes to the work portfolios in November 2024. Ms Mirkhil retained three of her existing services and was allocated four new services that were geographically closer together and closer to her place of residence. Whilst Ms Mirkhil was on leave she was invited to attend a meeting to discuss the implementation of the new portfolio's, the invitation to attend the meeting was optional and she was not forced to attend the meeting. Ms Mirkhil responded to the invitation thanking Ms Lloyd for keeping her in the loop and that she was happy to catch up. Ms Mirkhil was allocated some lower performing centres which replaced some average and high performing centres from her pre-existing portfolio. Ms Mirkhil also retained some of her higher performing centres. Ms Lloyd also met with Ms Mirkhil at one of the new services on 4 February 2025, during which they discussed her new portfolio. Ms Lloyd's evidence that Ms Mirkhil did not raise any concerns about the new portfolio during this meeting remained undisturbed.

• [30] Ms Mirkhil had a proven performance record of improving underperforming services. Ms Mirkhil appears to be aggrieved about having her portfolio amended at a time when she had returned to work after having to take leave for personal reasons. However, Ms Mirkhil was consulted about the changes, and the changes affected all BOM's not just Ms Mirkhil. Whilst Ms Mirkhil says she complained to the centre managers about her portfolio there is no evidentiary material that would persuade me that she raised any concerns she had regarding her portfolio with Ms Lloyd or Mr Tollenaere prior to submitting her resignation from her employment with SHEL, even though she had the opportunity to do so during the February 2025 meeting with Ms Lloyd. If I am wrong on this, there is nothing in the material or evidence filed to suggest a causal link between Ms Mirkhil's portfolio and her later decision to resign. Whilst Ms Mirkhil was dissatisfied with her work allocation, resignation was not the only available option that was open to Ms Mirkhil. It was open to her to escalate her concerns as she had in the past or alternatively raise her concerns with the Chief People Officer. The evidence before me does not support a finding that Ms Mirkhil was forced to resign because of any conduct engaged in by the Respondent.

• [31] From 18 to 20 March 2025, the leadership team attended a collaborative leadership meeting. On 21 March 2025, all the BOMs attended KPI meetings with the Chief Financial Officer, State Manager and the Chief Operating Officer. During her KPI meeting Ms Mirkhil was questioned about amongst other things, her budget and some non-compliances with one of her services. Ms Mirkhil says that after speaking to her colleagues she felt targeted and belittled because her meeting didn't go well. In her submissions, Ms Mirkhil merely complains about the tone of the meeting and that her meeting didn't go as well as her colleagues who were subject to the same reporting measures. Regardless of whether or not Ms Mirkhil felt her meeting did or didn't go well, the meeting did not lead to any disciplinary or performance matters being raised with Ms Mirkhil. She does not adequately explain why the KPI meeting left her with no other reason but to resign from her employment. If Ms Mirkhil was aggrieved about either the process or outcome of the KPI meeting, I am no persuaded that she had no other alternative but to resign. Furthermore, the proximity of the event to her resignation does not support a finding that her resignation was done in the heat of the moment.

• [32] It is evident that Ms Mirkhil's resignation was not tendered in the heat of the moment. Ms Mirkhil provided a well written and considered resignation letter on 28 March 2025. Ms Mirkhil became aggrieved when she sought to extend her notice period to 30 June 2025, and her request was declined by the Respondent. At no time during the notice period did she take any steps to withdraw her resignation although she had the opportunity to do so.

• [33] For the reasons set out above I am not persuaded that Ms Mirkhil has presented a clear, consistent legal or factual basis to support her argument that she was dismissed for the purposes of section 386(1)(b) of the Act. I acknowledge that Ms Mirkhil was dissatisfied with her employment and had been experiencing some difficulties including caring for a husband with a serious illness, however, the evidence does not support finding that Ms Mirkhil was forced to resign because of conduct or a course of conduct engaged in by the employer. I find that Ms Mirkhil resigned voluntarily and she was not forced to resign. Further, I am not persuaded that Ms Mirkhil had no other alternative but to resign and the evidence does not support a finding that Ms Mirkhil resigned in the heat of the moment.

• [34] An order[1] to that effect will be published separately to this decision.

[1] PR795780.

Printed by authority of the Commonwealth Government Printer