s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - whether the Applicant was dismissed - forced resignation - found employment relationship ended because of the conduct of the Respondent - jurisdictional objection dismissed - application to proceed.

• [1] Ms Tanya Humphrey (the Applicant) has made an application to deal with contraventions involving dismissal to the Fair Work Commission, pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to this application is Goodstart Early Learning Ltd.

• [2] A contravention of s.365 requires a dismissal to have occurred, as defined in s 386. The Respondent in its F8A Form has argued the Applicant does not meet this requirement as they were not dismissed but voluntarily resigned from their employment on 20 June 2025.

• [3] There is no dispute that on 21 June 2025, Ms Humphrey sent an email and letter to her employer resigning from her position effective 20 June 2025 because she says she felt compelled and pressured to because of the duress of her employer.

• [4] In its F8A response, the Respondent acknowledges Ms Humphrey's claims for duress as the reason for her resignation but indicated they had conducted an independent investigation into these allegations and were satisfied this was not the case. Furthermore, denying any representative of the Respondent made any statements to the Applicant which would have put her employment in an untenable position.

• [5] Ms Humphrey maintains she was in fact dismissed within the meaning of the FW Act by being forced resigned by the conduct, or course of conduct, engaged in by her employer.

• [6] The question of whether an Applicant under s.365 has or has not been dismissed goes to the validity of the application and must be determined in favour of an Applicant before the Commission can proceed to deal with the dispute under s.368 of the Act.[1]

• [7] Directions were issued for parties to file evidence and submissions on the jurisdictional issue to be heard on 18 September 2025. Only the Applicant filed written submissions and supporting material within time. Ms Humphrey represented herself at the hearing and provided sworn evidence subject to cross examination in proceedings.

• [8] The Respondent was represented by Mr Gavin Bartlett (Goodstart General Counsel). The Respondent filed brief written submissions in support of its position in advance of proceedings. Mr Bartlett also sought leave to introduce supporting material into proceedings at the hearing. After considering Ms Humphrey's objections, I granted leave for this material to be considered, subject to proceedings and relevant weight, as I considered it of assistance to the Commission's determination of the matter.

• [9] Section 365 of the Act provides as follows:

365 Application for the FWC to deal with a dismissal dispute

(a) A person has been dismissed; and

(b) The person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

• [10] Section 386 of the Act sets out when a person is taken to have been dismissed for the purposes of s.365. It relevantly provides:

(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.

• [11] It is clear from the above, in order for there to be a dismissal under this section and, therefore, a valid application under s.365, there must be a relationship of employment between the parties[2] and the employment must be brought to an end by one, or the other (or potentially both) in circumstances described by s 386 subsections (1)(a) or (b).

• [12] Ms Humphrey provided genuine and persuasive oral evidence to the Commission to the extent of her ability. Her evidence was consistent and considered throughout proceedings. Ms Humphrey accepts that she provided a clear and unequivocal written resignation from her position to her employer.

• [13] She argues she did so because her employer, through members of its management team in the form of its Assistant Director - Ms Calvert, made it clear to her that if she did not, she would be putting a risk to the ongoing engagement of her mother.

• [14] Ms Humphrey's mother works as a contractor providing services to Food Hygiene Australia as a food safety auditor. She has done this work since 2012 and has been contracted to perform her work at facilities of the Respondent on a routine basis. At the time Ms Humphrey was forced to resign her mother had been booked to commence an audit, including of the Respondent's premises, commencing in July 2025. From Ms Humphrey's perspective she considered her mother's work more significant and more important than her own.

• [15] Ms Humphrey started working for the Respondent in August 2024 as a cook. At the time she was employed she disclosed her mother's connection with the Respondent's business. No issues or conflicts of interest were identified, and Ms Humphrey was employed. She enjoyed her work and was eager to advance herself and become involved in providing care services. To this end, she undertook to gain her Certificate III and sought to make it known she was interested in carer positions. In May 2025, she expressed an interest in moving to an Educator's position.

• [16] In early June 2025, Ms Humphrey made a bullying complaint. On 17th June, she attended a meeting with management about this complaint. During this meeting, the Respondent's representatives identified a potential conflict of interest issue with Ms Humphrey's ongoing employment and the ongoing engagement of her mother to perform food safety audits for Food Hygiene Australia that included where Ms Humphrey was working. Ms Humphrey's evidence is the Respondent indicated they would seek further advice about this and come back to her.

• [17] The next day, Ms Humphrey says it was made clear to her that a conflict of interest existed and that if she continued in her role it would result in the termination of her mother's contract to provide ongoing services to the Respondent in the Gippsland area. She submits she understood this communication to mean either she resigned from her job, or her mother would lose work. Her evidence is that Ms Calvert made this clear to hear in a conversation they had on 19th of June.

• [18] On 20th June, Ms Humphrey delivered a letter of resignation to the Respondent's Centre Director, Ms Snell. She submits she explained to Ms Snell she was resigning because it was made clear to her it was her job or her mother's, and that she had no choice. The following morning, she followed this communication with an email to the Respondent's State Manager, Ms Walters, attaching her resignation letter and advising as follows:

Following the Teams meeting held on 17/06/2025, I feel compelled to document that I have been pressured - either by Divya or Julie - into resigning from my position. I consider this action to strengthen my concerns around workplace bullying and potential discrimination..."[3]

• [19] Ms Walters' reply to Ms Humphrey on 25 June is as follows:

I'm sorry to hear of your decision to resign. While I respect your choice and accept your

resignation, I want to acknowledge the concerns you've raised..."

• [20] The Respondent's position is that Ms Humphrey resigned from her employment in clear and unequivocal terms and that on this basis the Commission lacks jurisdiction to consider her application.

• [21] In support of this position, the Respondent asserts it does not employ Ms Humphrey's mother and has no power to terminate her contract or services. Furthermore, that the Respondent has conducted an independent investigation into Ms Humphrey's assertions that she was forced to resign and found this was not the case. The Respondent also denies any member of its management team made it clear or suggested to Ms Humphrey that if she resigned the Respondent would continue to engage her mother's services.

• [22] In proceedings, the Respondent relevantly further identifies that the evidence does not substantiate its representatives took anything other than routine procedural steps to report the potential conflict between Ms Humphrey and her mother. That this action was best practice and suggested nothing more than Food Hygiene Australia investigate a potential conflict and perhaps allocate a different auditor to Ms Humphrey's place of work. That Ms Humphrey did not resign in the heat of the moment and continued to work and engage with the Respondent after resigning, making no attempt to withdraw her resignation. And finally, that it was not the case that Ms Humphrey was without options and left with no other choice but to resign.

• [23] For Ms Humphrey's application to proceed, I must be satisfied that she has been either terminated at the initiative of her employer or been forced to resign because of conduct, or a course of conduct, engaged in by her employer relevant to the meaning of dismissal set out in s.386.

• [24] I have considered all the evidence and submissions presented by the parties in relation to this application. I accept Ms Humphrey's evidence is an accurate version of events from her perspective and what she understood was being put to her.

• [25] While the Respondent denies any member of its management team indicated to Ms Humphrey she needed to resign to save her mother's job, the Respondent has not produced any evidence to support this assertion. Nor has it produced a copy of the investigation it says it conducted into Ms Humphrey's allegations that she was pressured to resign or oral evidence from the person who conducted the investigation. In proceedings, Mr Bartlett who presented the Respondent's position accepted he had only very recently been made aware of its position.

• [26] What is clear from the Respondent's submissions is Ms Humphrey attended a meeting on 17th June in response to her bullying complaint. What followed from this meeting is that the Respondent's representatives sought clarification about a potential conflict of interest involving Ms Humphrey and her mother. This sequence is consistent with Ms Humphrey's version of events.

• [27] Ms Humphrey's evidence to the Commission is what followed is she was given an ultimatum to resign, or her mother would lose work. She resigned because she felt she was left with no other choice. She submits she only did so because of the understanding she had formed based on what she had been told by the Respondent, particularly Ms Calvert. The Respondent present's no evidence to challenge Ms Humphrey's version of events.

• [28] I am satisfied Ms Humphrey's evidence is an accurate version of what in fact occurred. I am satisfied this evidence clearly establishes she only resigned because of the conduct, or course of conduct of her employer in leaving her to understand she had to decide between her job or her mother's. I accept this was an untenable position and that the Respondent's communication that it was either her job, or her mother's work, left her with no real or effective choice but to resign.

• [29] The Respondent's own material does not dispute that Ms Humphrey believes she was forced to resign. The contemporaneous resignation email she sent to Ms Walters also makes this clear. Ms Walters did not attempt to disavow Ms Humphrey of her understanding. Nor does the Respondent suggest any other members of its management team attempted to do so.

• [30] Previous decisions of the Commission have considered what is required for an employee to establish they have been forced to resign. In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Bupa)[4] a Full Bench of the Commission examined the relevant authorities at great length and summarised the definition of dismissed under s.386(1) 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 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 period of 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 her is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was a probable result of the employer's conduct such that the employee had no effective choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element."

• [31] This question was further considered by the Full Court of the Industrial Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd[5] where it said:

"a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship."

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 and important feature is the act of the employer results directly or consequently 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 it did, the employee would have remained in the employment relationship."

• [32] In O'Meara v Stanley Works Pty Ltd,[6] the Full Bench of the Australian Industrial Relations Commission expanded on Mohazab, and stated:

"In our view the full statement of the reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of the Full Benches of this Commission in Pawel and ABB Engineering require that there be some action on the part of the employer which is either intended to bring the employment relationship 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 as they may not give full weight to the decision in Mohazab.

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." (emphasis added)

• [33] I have considered the competing submissions and evidence from Ms Humphrey in this case in light of these authorities.

• [34] I am persuaded that this evidence establishes she resigned because of the conduct of the Respondent in leaving her an understanding she had no choice but to resign to save her mother's work. I am satisfied this ultimatum left her no real or effective choice but to resign.

• [35] Considering all the evidence before me, I conclude Ms Humphrey was dismissed within the meaning of s.386 and that the FWC has jurisdiction to consider her application further. The Respondent's jurisdictional objection is dismissed.

• [36] This application will now be programmed for a s.368 Conference by my Chambers in due course.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591.

[2] See for example Grass v Chinese Tennis Association Inc [2021] FWCFB 3443 at [11].

[3] Applicant's Material, Court Book p.10.

[4] [2017] FWCFB 3941.

[5] [1995] IRCA 625; (1995) 62 IR 200.

[6] PR973462.

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