s.365 - General protections

Application to deal with contraventions involving dismissal - forced resignation - jurisdictional objection - no dismissal - jurisdictional objection upheld - application dismissed.

[1] Mrs Nakaya Tompkins (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 9 October 2025. The Applicant claims that adverse action was taken against her by the Cairns Regional Domestic Violence Service Inc (the Respondent) in breach of part 3-1 the Fair Work Act 2009 (Cth) (the Act).

[2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed under s.386 of the Act as the Applicant resigned from her employment on 11 September 2025. The Applicant contests the objection on the basis that she was constructively dismissed and forced to resign under s.386(1)(b) of the Act.

[3] Directions were issued and the matter was listed for hearing on 13 February 2026. The Applicant was represented by her friend, Mr Elliot Davidson. Ms Sandra Keogh, Chief Executive Officer, appeared for the Respondent and was represented by Ms Melinda Foley from Parisi Foley Law.

[4] The Applicant commenced full-time employment with the Respondent as a Domestic Violence Worker on 11 November 2024.

[5] On 16 June 2025, the Applicant raised a written complaint to the Respondent on the conduct of her supervisor.

[6] On 29 July 2025, the Respondent advised that the investigation into the Applicant's supervisor had concluded. As a result of the investigation, the Applicant's supervisor would change and would no longer be working at the Mossman office with the Applicant.

[7] On 1 August 2025, an alleged incident occurred. The Applicant said she was dealing with a high-risk, walk-in client. The Applicant said she was unable to obtain guidance from her supervisor, Ms Kathryn Thomas. The Applicant later disclosed that she had a conflict of interest as she personally knew the persons involved. She felt there was no alternative arrangement put in place. Ms Thomas gave evidence that she was in meetings that day but that she had instructed her administrative assistant to interrupt if anything urgent came up. The Applicant had not interrupted any of the meetings. Ms Thomas spoke to the Applicant later that day and began talking about managing conflicts of interest.

[8] On 7 August 2025, the Applicant commenced a period of leave.

[9] On 8 August 2025, the Applicant texted Ms Thomas and advised she was struggling and would not be at work that day. Ms Thomas replied advising that she would cancel what was in the Applicant's calendar that day. Ms Thomas advised the Applicant to take care.

[10] On 21 August 2025, the Applicant emailed the Respondent requesting a copy of the investigation report, the findings made and the "evidentiary standard applied", the latest annual report and the full names and contact details of the Board of Directors.

[11] The Applicant sent a follow up email on 27 August 2025.

[12] On 28 August 2025, Ms Keogh responded and advised that the workplace report was subject to privilege and would not be provided. Ms Keogh provided details regarding the annual report and other details. Ms Keogh said she would like to meet with the Applicant to understand her concerns.

[13] The Applicant emailed on 2 September 2025 raising a number of issues, including:

• Requesting an "appeal" of the investigation;
• Requesting further particulars regarding the investigation;
• Alleging that the Applicant has been routinely required to undertake duties beyond the scope of her role; and
• The Applicant raised concerns regarding "solo staffing", "chronic understaffing", the office opening hours and a lack of supervision

[14] The Applicant said that she would consider making a constructive dismissal application if an adequate response was not provided by 8 September 2025.

[15] The Respondent responded to the Applicant's concerns on 5 September 2025:

In relation to your workplace concerns, I provide a brief response below. I am conscious however that you remain on sick leave and as such consider a full discussion of these issues should be deferred until you return to work, when you are sufficiently well.

1. There is no expectation for you to undertake duties beyond the scope of your role, and we are not aware that this has been happening. On your return we are happy to discuss this concern with you and review your Position Description with you to identify any duties that you consider to be outside of scope.

1. Solo staffing/ workplace isolation: we have systems in place regarding solo staffing, particularly:

1. If an employee is on their own at the office premises they are to lock the doors, not admit clients and provide phone support only; and
2. The employee is able to call the Program Manager, a Senior Practitioner or myself, if they have any questions, require assistance in managing a situation or wish to escalate an issue.

1. Increased workload: there is no expectation for you to undertake any additional workload in excess of your position requirements. Should you consider your workload to be too high, then this issue can be discussed on your return and workloads reviewed. We do regularly monitor office statistics regarding workloads and your current counselling hours are relatively low. If you are feeling overwhelmed with respect to your workload, we can undertake a review of the tasks you are undertaking and consider any productivity measures.

1. Responsible for the office being open: there is no expectation that you are responsible for the office being open. Should you be unable to attend due to a medical matter or personal emergency, Kathryn and I will make appropriate arrangements.

1. Supervision arrangements: General supervision arrangements are in place through Kathryn's supervision. On your return, Kathryn will be able to discuss arrangements for your supervision meetings going forward. You are also able to access senior assistance at any time through direct contact with the Program Manager, Senior Practitioners or myself. These senior personnel are available for you to ask any questions, to provide assistance in managing a situation or to escalate an issue. You have previously accessed this assistance and we encourage you to continue to do so. By way of general comment, we note that this position is a level 5 role and has significant independence. Whilst the position is subject to general direction, a level 5 employee is required to set priorities and plan and organise their own work. These requirements are consistent with the PD for this position.

1. Your email references your letter of 4 June. This letter was a specific request for temporary measures relating to the preparation of your complaint and social work support during the investigation. All requests were agreed to, with up to 6 social work sessions to be covered. We note however, that these requests were specific to the investigation time period. No further requests have been received. Should you wish us to consider any further workplace supports, please provide relevant details and the reasons for your request. We will reasonably consider all requests received.

With respect to return to work planning, we advise:

1. That upon your return to work, Kathryn will meet with you to discuss your concerns regarding workload and seek to manage this with you. Supervision meetings can also be scheduled; and
2. Should you require any specific workplace adjustments, please advise and provide any relevant supporting evidence, and these matters will be considered.

[16] On 11 September 2025, the Applicant sent the following Resignation email:

I am writing to resign from my position as Full Time Domestic Violence Worker from Cairns Regional Domestic Violence Services (CRDVS). Following this, I will provide an Exit Interview via email correspondence with my concerns of my experience of working at CRDVS.

I provide one week's notice of my resignation with my final date being Thursday 18/09/25. advise that I will not return to the office, and I will provide a medical certificate from Tuesday 09/09/25 to Thursday 18/09/25.

I will return the following items via registered post:

I would like the following personal items to be returned to me via registered post or I will arrange for a colleague to collect my items and provide to me:

• All my CHILLI DV files are up to date and complete

• Any documentation that needs to be scanned up is in my filing cabinet

[17] The Applicant filed a statement from her general practitioner prior to the hearing. The Applicant requested that her medical evidence be treated confidentially and I will respect that request. However, I consider it is necessary as part of my reasoning to refer to the general effect of the Applicant's doctor's evidence. The Applicant's doctor gave evidence that he advised the Applicant in August 2025 that resignation may be necessary to protect her health.

Was the Applicant forced to resign under s.386(1)(b) of the Act?

[18] Section 386(1) of the Act relevantly provides that a person has been dismissed if:

(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.[1]

• [19] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee to be terminated at the initiative of the employer.[2] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[3]

• [20] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[4] It is sufficient that the employer's conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[5]

• [21] All the circumstances - including the conduct of both the employer and employee - must be examined.[6] In other words, it must be shown that "the act of the employer results directly or consequentially 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."[7]

[22] The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) said, in relation to determining whether the ending of an employment relationship is a voluntary or forced resignation:

"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination.

The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively.

The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."[8][9]

• [23] Furthermore, in Pawel v Australian Industrial Relations Commission,[10] the Full Bench noted:

"Mere "causation" or "motivation" will not satisfy the requirement that the termination be at the initiative of the employer."

[24] Forced resignation has been interpreted by the Commission in the following ways:

• • the actual conduct of the employer forced to do so, such that there was an element of compulsion present;[11]
• • a 'critical action' or 'critical actions' of the employer which was intended to bring the employment relationship to an end;[12]
• • as a result of some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect;[13] and
• • the employer's conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.[14]

[25] The Applicant asserted that a resignation tendered as a result of medical advice cannot be considered voluntary. As a general proposition, I do not accept that. Constructive dismissal is focussed on the conduct of the employer, not matters entirely outside the employer's knowledge. The Respondent was aware that the Applicant had reported that she was struggling, but was not aware of the advice of the Applicant's doctor.

[26] The Applicant submitted, broadly that the actions and omissions of senior staff created an environment in which the Applicant felt that "psychosocial risks" had not been addressed. The Applicant pointed to the following alleged psychosocial risks:

• Failing to provide the particulars of the investigation report
• Isolation
• Lack of supervision
• Understaffing at the Mossman office
• Expanded duties
• Lack of support

[27] The suggestion of a denial of procedural fairness is misconceived - there was no threatened disciplinary action against the Applicant and no allegations for the Applicant to respond to.

[28] In any event, the Applicant's suggestion of a denial of procedural fairness does not substantiate a claim of forced resignation. The Respondent acted appropriately in investigating the complaint and took steps to reallocate the Applicant's supervisor so that she would now be supervised by Ms Thomas.

[29] The evidence provided by Ms Keogh, which I accept, demonstrates 4 occasions between 23 June and 7 August 2025 in which the Applicant was in the Mossman office alone. On two of those occasions, it was only for a part of a day, meaning there were only two occasions in which she was alone in the office all day. Ms Keogh gave evidence that the Respondent's policy is that on days where someone is a lone worker, they are to lock the office door and only take phone appointments.

[30] I reject the Applicant's allegation that she was forced to resign as a result of "workplace isolation".

[31] I start by observing that under the Applicant's position description, one of the competencies expected is the ability to work independently.

[32] I accept the evidence of Ms Keogh and Ms Thomas that the Applicant could have contacted them urgently with an issue. Ms Keogh consistently replied to the Applicant's concerns and provided accommodations where required. When the Applicant raised the issue of supervision, Ms Keogh confirmed that Ms Thomas would meet with the Applicant to discuss supervision arrangements. On 23 July 2025, a meeting was held between Ms Thomas and the Applicant. The notes for that meeting confirm that supervision was discussed, and an action item confirms that they would have regular scheduled catch ups outside of formal supervision.

[33] The Applicant stated that she felt she barely received any supervision. However, she also gave evidence that when Ms Thomas asked if she wanted to have an "informal catchup" on 1 August 2025, the day on which the Applicant she faced an issue with a conflict of interest, the Applicant said no and decided to write her notes instead.

[34] I do not accept that the Applicant was forced to resign as a result of a lack of supervision.

[35] The Respondent gave evidence that the Mossman office had a low level of clients and that the hours the Applicant worked were low. The Applicant suggested during the hearing that despite there being a lower level of appointments, she was still undertaking high risk work and that she did not record all her hours "due to being overworked". However, I accept the Respondent's submission that even if some hours had not been recorded, the Applicant still had less direct service hours than other staff.

[36] I do not accept that the Respondent was chronically understaffed as alleged. Two staff members had been on leave since June 2025 until the Applicant resigned. Another position remained vacant, but the duties associated with that role (appearing in court) only equated to about 2 hours a week.

[37] As to the suggestion that the Applicant was undertaken additional duties, this was something Ms Keogh had addressed with her in an email of 5 September 2025. Ms Keogh wrote in that email:

There is no expectation for you to undertake duties beyond the scope of your role, and we are not aware that this has been happening. On your return we are happy to discuss this concern with you and review your Position Description with you to identify any duties that you consider to be outside of scope.

... Increased workload: there is no expectation for you to undertake any additional workload in excess of your position requirements. Should you consider your workload to be too high, then this issue can be discussed on your return and workloads reviewed. We do regularly monitor office statistics regarding workloads and your current counselling hours are relatively low. If you are feeling overwhelmed with respect to your workload, we can undertake a review of the tasks you are undertaking and consider any productivity measures.

[38] Despite the Applicant clearly being given an opportunity to engage in a review to address her workload concerns, she did not do so and instead resigned on 11 September 2025.

[39] It must be remembered that the Applicant has chosen to work in a field in which she must deal with difficult and confronting situations. The Respondent is not responsible for that choice.

[40] I find that the Respondent did not fail to support the Applicant. To the contrary, the Respondent went above and beyond to provide support to the Applicant, including through:

• Agreeing to provide paid time for the Applicant to write a submission for the investigation into her complaint
• Funding 6 paid therapy sessions with the Applicant's social worker of choice
• Reassigning the manager the Applicant had complained about
• Cancelling the Applicant's appointments at short notice to allow the applicant to take leave when she said she was struggling at work

[41] I do not accept that the Respondent acted in such a way as to force the Applicant to resign through creating an unsafe working environment. The Respondent was supportive of the Applicant. Ms Keogh, in particular, addressed the Applicant's concerns in a timely and comprehensive manner. There is reason to believe that Ms Keogh would not have continued to engage with the Applicant had the Applicant chosen to have a constructive discussion with her instead of resigning. I do not accept that the Applicant had no choice but to resign.

[42] As to the Applicant's doctor's evidence, this is of limited assistance. As I noted above, constructive dismissal focusses on the actions of the employer. I find that the Respondent did provide support to the Applicant, including by funding therapy sessions with a provider of the Applicant's choice, which most employers would not do.

[43] As a result, I do not find the Applicant's resignation to meet the threshold of a forced resignation per s.386(1)(b) of the Act. Therefore, the Applicant is not eligible to lodge an application under s.365 of the Act. The jurisdictional objection is upheld, and the Application is dismissed.

[1] Fair Work Act 2009 (Cth) s 386(1)(b).

[2] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

[4] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200.

[5] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [31].

[6] Whirisky v DivaT Home Care [2021] FWC 650 at [77].

[7] Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [28].

[10] (1999) FCA 1660 at 58.

[11] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.

[12] Boulic v Robot Building Supplies [2010] FWA 6905, [16].

[13] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [1995] IRCA 625; (1995) 62 IR 200, 205-206.

[14] Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].

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