s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection that Applicant not dismissed, but voluntarily resigned - no forced resignation found - application dismissed.

[1] On 9 May 2025, Ms Tiffany Louise Miegel (the Applicant) lodged a general protections application against Tronox Mining Australia Limited (the Respondent or Tronox) under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that on 6 February 2025 she was forced to resign from her employment with Tronox, ending her employment on the 18th of February 2025. She claims the reasons for her forced resignation constitute a dismissal within the meaning of the FW Act and that reasons for this dismissal included matters prohibited by the FW Act's general protections provisions.

[2] On 4 June 2024, the Respondent filed a Form F8A Response and raised jurisdictional objections that Ms Miegel had voluntarily resigned and was not dismissed by the Respondent, and that her application was not filed within the 21-day requirement.

• [3] As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objections before I can exercise powers under s.368 of the Act to deal with the dispute about whether the dismissal was in contravention of the general protections provisions.

[4] On 8th September 2025, I issued a decision granting Ms Miegel an extension of time for her application to be considered, being satisfied of the exceptional circumstances that led to her application being filed out of time. The Respondent presses its additional objection that Ms Miegel was not dismissed but voluntarily resigned from her employment.

[5] I am required to determine this objection. To this end, on 15th September 2025, I issued directions and advising the objection would be considered at a Video Hearing on the 13th of November. Information about the meaning of dismissal within the FW Act and the matters I am required to take into account in considering this matter were provided to the parties.

[6] Ms Miegel represented herself in proceedings and provided sworn evidence in support of her written submissions and material filed in accordance with my directions. Mr Charles Pym sought and was granted leave pursuant to s596 of the Act to represent the Respondent. The Respondent's case was supported by written submissions and material submitted in reply, in addition to the sworn evidence of Mr H Kruger and Ms H Brown.

[7] A digital court book was compiled from the material that was filed by both parties and distributed prior to the hearing. The court book was accepted by the parties into evidence. To the extent relevant, I rely on the court book as a record of the material filed by the parties with appropriate weight being given to all the material after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).

[8] 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.

[9] 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.

• [10] 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).

[11] What this means in the present case is if I am not satisfied Ms Miegel was dismissed within the meaning of FW Act, her application must be dismissed.

[12] It is not in dispute that on the 22nd of January 2025, Ms Miegel sent an email to the Respondent advising them relevantly as follows:

Last week a company approached me about a job opportunity at one of the largest onshore gas deposits in Australia. They offered the position to me yesterday (subject to medical clearance) and I have decided that I am going to accept the offer as the experience that I would gain would be invaluable and it is a position that is highly competitive and hard to come by. It is a 6 month contract position on a 2:1 roster.

Moving forward, there are a few different options that I would like to put to you for consideration.

Option 1 - I resign from my position...my last working day would be the 11th Feb 25 (last day of employment 18th Feb 25).

Option 2 - I work my next two panels as normal (up until the 11th Feb) and then continue to work for Tronox either from home or on site a couple of days a week during my week off. When the 6 month contract position has ended I would then resume my normal working roster with Tronox.

Option 3 - I work my next two panels as normal (up until the 11th Feb) and then take unpaid leave for 6 months. When the 6 month contract position has ended I would resume my normal working roster with Tronox.

I am happy to discuss further options and for the position to be advertised, however given the current job market (high demand for environmental advisors and competitive incentives), I predict that it will be difficult to find a replacement within 6 months. There will also be the usual additional advertising/resource costs involved in onboarding/training to consider."

[13] Ms Miegel accepts the Respondent advised her it was unable to accommodate options 2 or 3. Following this discussion, it is not in dispute she sent the following email to the Respondent:

As discussed, Tronox decided upon Option 1. My last day of employment will therefore be the 18th Feb 25."

[14] Ms Miegel's position is that she sent these emails and decided to accept another job because she had been subjected to a sustained period of bullying that had significantly impacted her health. She had complained about how she was being treated and identified serious safety issues and been ignored. On the 9th of January, she submits she was given a disciplinary letter warning her that her job was at risk without any foundation. As a result, she argues she felt like she had no other option but to resign because of the conduct, or course of conduct of her employer.

[15] The Respondent rejects this submission. Their position that Ms Miegel's resignation was clear and unambiguous. That it was not made in the heat of the moment and that it made no reference to the purported reasons Ms Miegel says she was forced to resign. Identifying rather the only reason presented was that Ms Miegel had accepted another job opportunity. On this basis, they submit the Commission lacks jurisdiction to consider her application.

[16] I have considered all the evidence and submissions in this matter. I have not been satisfied Ms Miegel was forced to resign and, therefore, was not dismissed within the meaning of the FW Act. Because of this finding, her application must be dismissed.

[17] The reasons for this conclusion are below.

[18] From her perspective, Ms Miegel presents a compelling case on why she believes she was left with no other choice but to resign from her employment at Tronox. She submits there were numerous reasons why she was "forced" to make this decision. These reasons include that prior to commencement of 2025 she was subjected to sustained bullying and psychological harm by her managers. That she had made several complaints about unsafe work practices and being directed to perform unsafe work without being provided proper inductions and having appropriate safety measures in place. That she had been previously forced to resign in the heat of the moment and was only reengaged after considerable delay caused by a complete disregard of her managers for the circumstances she was confronted with. She also argues that after disclosing health challenges she was denied reasonable accommodations and discriminated against.

• [19] Ms Miegel's evidence is that her resignation was not genuine or voluntary. Rather, that it was the direct result of prolonged workplace abuse, adverse action and systemic failures by management to uphold their own policies, legal obligations, respond to her complaints or take them seriously. She argues that her employer's conduct over the course of her employment created such a hostile, unsafe and damaging work environment that by January 2025 its continuation was untenable. And that as result of her losing all trust and confidence in the employment relationship it was objectively unreasonable to expect her to continue working for the Respondent.[3]

[20] She submits that she reached this conclusion on the 9th of January 2025 after she was subjected to an unreasonable and unwarranted disciplinary meeting. Ms Miegel's evidence is she was intimidated and not listened to at this meeting by the very people she alleges were bullying her. Further, that her manager's concern about her performance were without foundation. She identifies the letter she received after this meeting made it clear she was being disciplined and could be subject to termination. Adding that she provided a detailed response to this letter by writing to Ms Brown on February 9th.

• [21] Ms Miegel was considerably upset by this meeting and the letter of expectation she received. Later the same day, she accepted she had a conversation with a friend who told her she should resign because things were just going to keep getting worse.[4]

[22] As a result, when Ms Miegel was offered another job not long after January 9th, she felt she had no choice but to accept it and did. She argues that she did not actively seek other work or want to end her employment. Later explaining to Ms Brown:

"I would also like to note that I did not apply for the job at the other company and that my decision to entertain and accept the job offer was based solely on the outcomings of the meeting and the content of the letter of expectation that was provided to me."

[23] In support of these submissions, Ms Miegel argues that the letter she sent to her employer on the 22nd of January clearly proposed options for her to remain employed by the Respondent. Further arguing that the resignation she sent on the 6th of February confirmed it was the Respondent who elected to choose option 1 - that she resigns; therefore, choosing to end her employment within the meaning of the Act.

[24] The Respondent's position is simply that Ms Miegel has clearly and unequivocally resigned from her employment. In support of this submission, they identify the test for the Commission to determine is whether Ms Miegel had no real choice but to resign because of the conduct or course of conduct of her employer.

[25] In this regard, the Respondent's evidence is supported by the sworn and unchallenged evidence of Mr Kruger and Ms Brown. Both these witnesses present a very different version of events of what happened over the course of her employment than Ms Miegel. Specifically, they do not accept Ms Miegel has been bullied at work, subjected to unsafe directions or injury because of how she has been treated by her managers or the Respondent. The Respondent does not dispute Ms Miegel raised concerns. Their submissions are that her concerns where investigated, treated seriously and addressed.

[26] In terms of the letter Ms Miegel was provided on the 9th of January, the Respondent argues this correspondence was explicitly a "letter of expectation". That its purpose was to set expectations and there is no basis for it be interpreted as a warning letter or providing an ultimatum that forced Ms Miegel to conclude she had no choice but the resign.

[27] The Respondent also identifies that at no stage in her letter on 22nd of January, or subsequently, does Ms Miegel indicate her intention is to do anything but resign. She does not seek to rescind her resignation or argue she has been forced to resign. Further identifying the inconsistency between her claims of being bullied and subjected to harm and requests to return to ongoing employment with Tronox.

[28] It is not in dispute that Ms Miegel articulated she was resigning from her employment on the 22nd of January, proposed options for ongoing employment that were not accepted and confirmed her employment would end on the 18th of February 2025. I accept this to be the case.

[29] I also accept that Ms Miegel clearly and unequivocally articulated this was her intention. There is no lack of clarity in the words she used. Nor is there any scope for her employer to misunderstand what she meant. Ms Miegel made it clear on January 22nd that she had "decided that I am going to accept the offer as the experience that I would gain would be invaluable and it is a position that is highly competitive and hard to come by."

[30] Ms Miegel does not dispute these were her words, and while there has been a significant body of material presented in this case that is in dispute, much is not relevant to the determination I am required to make.

[31] For example, Ms Miegel identifies significant issues and concerns with how she has been treated by her managers and how this has impacted her in difficult circumstances. I have no reason to doubt this is the case. And while I accept the Respondent's submissions that nothing other than professionalism and diligence have been shown to the Applicant, this does nothing to discount her subjective perception.

[32] While these matters are perhaps reason for reflection, many are not relevant to the considerations I am required to make to determine the question before the Commission. What this requires is a determination of whether Ms Miegel was left with no real or effective choice but to resign because of the conduct, or course of conduct of her employer.

[33] I have assessed and considered all the evidence and submissions of the parties in this matter to the extent relevant and necessary in this regard. My assessment of Ms Miegel's evidence is that she presents a version of the facts from her perspective that are of little assistance.

[34] What Ms Miegel subjectively believed she was being forced to do is not what I am required to determine. What is required is an objective assessment of the facts, considering all the circumstances of the case and the material before me.

[35] In this regard, I prefer the Respondent's evidence to that of the Applicant. The Respondent's witnesses and their version of events were unchallenged in proceedings by Ms Miegel.

[36] Under cross examination, Ms Miegel accepted that it was her former co-worker Mr Parker who in fact told her she should resign. She also accepted that at no stage, despite the seriousness of her concerns about safety, bullying and non-compliance, did she make an external complaint to the appropriate authorities or otherwise seek the assistance of the FWC, which she was aware existed.

[37] She also accepted she has not presented any evidence to the Commission that it was not until the 9th of February that she responded to the meeting she submits forced her to conclude she had no choice but to resign. I accept Ms Miegel's argument that she had concerns about retaliation may have some weight. I do not, however, accept it is plausible she waited until February 9th before she responded to what occurred on January 9th unless her real intention was to already have resigned. Such a conclusion is inconsistent with my assessment of Ms Miegel, her evidence and the overall approach she has taken in this case.

• [38] The fact that the correspondence Ms Miegel eventually sent to Ms Brown about the meeting on January 9 does not make clear or even allege she has been forced to resign because she was being bullied, harassed or otherwise, supports this conclusion.[5] As does the fact Ms Miegel ends this correspondence making it clear it was her decision to entertain and accept the job offer.[6]

• [39] Previous decisions of the Commission have considered what is required for an employee to have been dismissed within the meaning of the FW Act. In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Bupa),[7] 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 here 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."

• [40] This question was further considered by the Full Court of the Industrial Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd,[8] 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."

• [41] In Sawyer v Wards Accounting Group Pty Ltd,[9] the Full Bench of recently considered the significance of the words used and what may be taken to constitute a resignation within the meaning of the FW Act. Noting relevantly that:

"[61] The usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment. Implicit in that approach is a recognition that it is a necessary incident of the employment relationship that the other party must be notified in clear and unambiguous terms if a right to bring the contract to an end is being exercised. Consistent with that principle, an employee will not be found to have resigned unless the employee has clearly communicated an intention to do so to the employer."

[42] I have considered the competing submissions and evidence from the Applicant in this case in light of these authorities.

[43] The evidence in this case is that Ms Miegel unambiguously resigned from her employment because this is a decision she made. It was not something she was forced to do.

[44] There is no lack of clarity in the words used. They are used in a way that could not reasonably be interpreted to convey anything other than Ms Miegel had decided to accept another job and resign. The fact all three options Ms Miegel presents do not contemplate her not commencing work with another employer make this clear.

• [45] Nor am I persuaded that Ms Miegel was left with no real or effective choice but to resign. While I accept Ms Miegel has been significantly impacted by her experience working at Tronox, I do not accept she was without options to remain employed. She could have not accepted the role with the other company. She could have sought to reach out to Ms Brown about what happened on the 9th of January sooner, before she decided to accept the other job. She could have also sought other external support or advice, including making a separate application to the FWC. In proceedings, Ms Miegel herself accepted there was more she could have done.[10]

[46] Ms Miegel makes the case she had determined it was time for her employment relationship with the Respondent to end. I am not persuaded she was forced to reach this conclusion because of any conduct or course of conduct of the Respondent. The evidence does not support this to be the case.

[47] Accordingly, it cannot be reasonably deduced that Ms Miegel was dismissed within the meaning of s.386 of the Act.

[48] Therefore, this application is dismissed for want of jurisdiction.

[1] [2020] FCAFC 152.

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

[3] See Transcript of Proceedings on 13 November 2025 at PN165.

[7] [2017] FWCFB 3941 at [47].

[8] [1995] IRCA 625; (1995) 62 IR 200.

[9] [2025] FWCFB 167.

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