s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - objection that applicant resigned from employment and was not dismissed within the meaning of s.386(1) - whether employment terminated on employer's initiative - whether resignation of applicant forced by conduct or course of conduct of respondent

• [1] Ms. Tayla Sim (Applicant), has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act) alleging that she was dismissed by Kearns Early Learning Pty Ltd (Respondent), in contravention of Part 3-1 of the Act. The Respondent has objected to the application on the basis that the Applicant was not dismissed by them but voluntarily resigned her employment on 3 March 2025.

• [2] The question as to whether an applicant under s.365 has been dismissed within the meaning of that term in s.365 is one that must be determined before the Fair Work Commission (Commission) is able to deal with dispute under s.368 of the Act.[1] The Applicant said that she had been dismissed by the Respondent when she was removed and blocked from the Respondent's app at 11.16am on 3 March 2025. Further and in the alternative, the Applicant accepted that her mother provided the Respondent with a written resignation on her behalf on the afternoon of 3 March 2025 but contended that she was forced to give that resignation because of the conduct or a course of conduct engaged in by the Respondent in the period leading up to the resignation. The Applicant contended that this constituted a dismissal under s.386(1)(b), and that she had been dismissed for the purposes of s.365 of the Act.

• [3] For the reasons that follow, I have concluded that the Applicant was not dismissed from her employment by the Respondent on 3 March 2025.

• [4] The facts of the matter can be briefly stated. The Applicant is 15 years of age. She was employed by the Respondent at the Respondent's childcare centre commencing on or about 4 February 2025. The Applicant claimed that shortly after she commenced working at the centre she had been subjected to bullying and degrading behaviour in the workplace. In particular, the Applicant said that she had been mistreated by one of her supervisors, Ms. Stephens, and was required to do an excessive amount of the cleaning tasks that were allocated to employees at the centre.

• [5] It appears that the Applicant raised these issues with her mother, Ms. Shannon. On 19 February 2025, Ms. Shannon called the centre's owner Mr. Urwin and had a conversation with him about the alleged mistreatment of the Applicant.

• [6] The Applicant contended that although a complaint had been raised on her behalf with Mr. Urwin, the bullying and mistreatment continued.

• [7] On Friday 28 February 2025 at 9.03am Ms. Shannon sent a text message to Mr. Urwin in the following terms:

I was wondering when you would be available to come speak with Tayla. Tayla wants me there too as she's never had to deal with this type of situation. It's in regards to the way that staff treat her. ESPECIALLY Jamie. And the way Jamie treats the kids.

• [8] The Applicant worked at the Respondent's premises on the day the above message was sent. Mr Urwin did not respond to the message on 28 February. He responded by text message on Monday 3 March 2025 at 6.27am. He said, "Hey I'll give you a call around 3pm this afternoon to go through it and set a time to talk to Tayla."

• [9] The Applicant was rostered to attend for work on 3 March 2025. She did not attend. At 10.15am on that day Mr. Urwin sent a message to Ms. Shannon which said "What's happening with Tayla today? She was supposed to start at 930. Jammie has been calling?"

• [10] At 3.41pm that afternoon Mr Urwin sent a message to Ms. Shannon saying that they had tried to contact the Applicant and Ms. Shannon multiple times throughout the day as the Applicant did not show up for her shift or let anyone know that she was not attending. The message continued "Could you please just inform me that you are both OK so I do not need to organise a welfare check. If Tayla no longer wants to work for us, please just let me know via call, text or email so that I can remove her from the roster. If there is anything I can do to assist either of you, please let me know."

• [11] At 4.04pm on the same day Ms. Shannon emailed Mr Urwin in reply. The message included the following:

I have not once but twice contacted you in regards to the way Tayla is being treated by Jammie. It took 3-1/2 days for you to respond back to my last message. Tayla understands completely there is cleaning involved in childcare but not to the extent she was made to clean... She was targeted and bullied by jammie....She speaks to Tayla rudely and degrades her in front of people...Tayla does not deserve this treatment she has received from the first day this has been happening...She has done absolutely nothing wrong and she definitely will not be back there. This is so wrong and I will make sure every Authority knows about what jammie the manager does and what happened to Tayla and the children."

• [12] Mr Urwin replied at 4.58pm. He said he had taken Ms. Shannon's comments seriously and was in the process of investigating the matter. Mr Urwin apologised for not responding to Ms. Shannon's email of 28 February over the weekend and said that he was away with family and did not have reception.

• [13] The Applicant provided evidence which she asserted supported the proposition that she had been dismissed by the Respondent at 11.16am on 3 March 2025 when she was removed from the Respondent's app. The evidence consisted of a screenshot showing that there had been an unsuccessful login attempt at 11.16am on that day.

• [14] Mr. Urwin gave evidence to the effect that he had not removed or blocked the Applicant from the app and was unaware of any staff members having done so. He said he and others had previously had problems with logging in to the app. I note that the screenshot itself is undated and is inconclusive as to the date on which the recorded event occurred. Even accepting the Applicant's evidence that the screenshot is a record of what occurred on 3 March 2025, I cannot be satisfied that the document shows the Applicant was removed from the app by the Respondent. Mr. Urwin's evidence makes it equally likely that there was simply a failed login attempt by the Applicant. Further, the text message from the Respondent at 3.41pm that afternoon does not support a conclusion that the Respondent had already taken steps to remove the Applicant from the app. The Respondent asked whether the Applicant and Ms. Shannon were OK and sought confirmation as to whether the Applicant wanted to continue her employment. Mr Urwin said if the Applicant did not wish to continue, he would remove her from the roster. I am not satisfied on the evidence that the Applicant was removed or blocked from the app at 11.16am on 3 March 2025.

• [15] The Applicant's further contention was that the text message from Ms. Shannon at 4.04pm on 3 March 2025 was a "forced resignation" brought about by the bullying behaviour she had experienced in the workplace and the Respondent's failure to take positive measures to address that situation. The Applicant said that she could not be expected to attend work given the circumstances and had no other option but to resign because the Respondent had failed to respond to the second written complaint about bullying behaviour on 28 February 2025.

• [16] The Respondent provided some documentary evidence in support of the submission that although the Applicant was required to perform cleaning duties, the Applicant was performing other work and other staff members also performed some cleaning duties. The limited evidence provided indicated that the Applicant performed more of the cleaning duties than other staff members. Mr. Urwin said in his evidence that this was to be expected given that the Applicant was the most junior staff member.

• [17] I accept the evidence of the Applicant that she felt she was being bullied and treated unfairly in the workplace. The first complaint by Ms. Shannon supports that view. The Respondent did not call any evidence to dispute what the Applicant said about the way she was being treated and spoken to, particularly by the centre manager. I also accept that the Applicant was being required to do a substantial amount of the cleaning work at the centre. However, I do not believe that these matters resulted in a forced resignation by the Applicant on 3 March 2025.

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

365 Application for the FWC to deal with a dismissal dispute

(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.

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

(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.

• [20] I have found above that there is insufficient evidence to conclude that the Applicant was removed by the Respondent from the workplace app on the morning of 3 March 2025. I therefore reject the argument that the Respondent terminated the Applicant's employment on the Respondent's initiative at that time. Section 386(1)(a) does not apply here. I turn then to consider whether the resignation on the afternoon of 3 March 2025 was a forced resignation for the purposes of 386(1)(b).

• [21] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v. Tavassoli[2] the Full Bench described the test to be applied under s.386(1)(b) as follows:

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. Unlike the situation in (1), the requisite employer conduct is the essential element.[3]

• [22] I am not of the view that the employer engaged in conduct with the intention of bringing the Applicant's employment to an end. The Respondent apparently did not resolve the Applicant's concerns to the Applicant's satisfaction after the first complaint, but there is nothing to support the view that the Respondent's response to the complaints was designed or intended to bring the employment relationship to an end. Ms. Shannon's message on 28 February sought a further discussion. It did not indicate that the Applicant regarded the situation as so bad that a resignation was imminent. The Respondent responded to the message from the Applicant's mother on 28 February, albeit not until after the weekend and early on the morning of Monday 3 March. The Respondent indicated that Mr. Urwin would contact Ms. Shannon later that day and arrange to speak with the Applicant about her concerns. This does not indicate that the employer was seeking to ignore a complaint with a view to bringing the relationship to an end.

• [23] I also do not think that termination of the employment was the probable result of the employer's conduct such that the Applicant had no real or effective choice but to resign. The offer to discuss the matter was made well before the commencement of the Applicant's shift on 3 March. It was open to the Applicant to respond to the message and arrange a further meeting. She elected not to do that. The Applicant said she had concerns for her well-being and that was the reason for her non-attendance. I accept that to be so. The Applicant could have advised the Respondent that she was unable to attend for work on 3 March for that reason. The Applicant or Ms. Shannon could have attempted to contact Mr. Urwin to explain the seriousness of the situation and request a more urgent discussion. The Applicant could have responded by indicating she was unable or unwilling to attend at work until a further discussion had taken place. The Applicant did not respond to the messages on the morning of 3 March and did not contact the Respondent to explain her absence. The Applicant considered her position over the course of the day and came to the view that the best option was to resign rather than continue in employment and arrange another discussion and attempt to find a resolution. The Applicant was not forced to resign by the conduct or a course of conduct engaged in by her employer. The Applicant was not dismissed within the meaning of s.386(1)(b) and the prerequisite to a valid application under s.365 has not been established.

• [24] The Respondent's jurisdictional objection is upheld and the application is dismissed.

By video using Microsoft Teams at 10:00am AEST on Wednesday, 21 May 2025.

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

[2] [2017] FWCFB 3941.

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