b. Raising her concerns around the "undermining and targeting" behaviour she perceived to be occurring with the Respondent; or

c. Requesting a mediation between all aggrieved parties to resolve the issues that they had.

An Applicant being dissatisfied with the options available to her, and in similar vein, ignorant of the options available to her, does not mean that she was left with no option but to resign.

Where an employee resigns with no objective basis to conclude the employment relationship had reached such a low point that they had no choice other than to resign, or where the conduct of the employer is ambiguous and the employee's response is based largely on their perceptions; in these circumstances, it is likely that the resignation is voluntary.

The Applicant alleges that the Respondent's conduct was "undermining, marginalising and targeting".

The Respondent refers to and relies upon the judgement of Blackham v Parker Ezi-Hose Pty Ltd[6] in which Commissioner Williams found the applicant had not been dismissed when he resigned citing bullying and harassment complaints. Commissioner Williams found that there was no doubt the Applicant was dissatisfied with his employment for a number of reasons. The applicant was critical of his seniors and managers, their actions and sometimes their alleged inaction. He was critical of other employees' behaviour towards him and critical of other employees However, it was held that being dissatisfied with your employer, even for good reason, would not usually equate to being forced to resign.

It is evident that the Applicant was critical of her employer given her complaints, however her dissatisfaction with her employer does not mean she was forced to resign.

Furthermore, an employee being dissatisfied with management action, does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign (Ashton v Consumer Action Law Centre[7]).

Forced resignation requires more than an unpleasant work environment. It requires that the Applicant was left with no real choice but to resign.

Therefore, the Applicant has failed to provide any evidence to support her claim that the conduct of the Respondent was so serious that she was left with no alternative but to resign. This means the Applicant has failed to satisfy the requirements of section 386(1)(b) of the Act."

[37] Under s.386(1) of the Act (as set out in the legislative provision above), there are two ways that a dismissal can occur. To satisfy the test for constructive dismissal requires a substantive and demonstratable course of conduct that is evident in the actions of the Employer, that the intended result of the conduct to bring about the Applicant's resignation; or that would be the probable result.

• [38] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli,[8] summarised this position 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 be 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 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 the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably 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."[9]

• [39] The determination of whether an employee resigned was clarified in the case of Koutalis v Pollett:[10]

"[43] The question whether a resignation did or did not occur does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis' business' premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances ..."[11]

[40] The Applicant submitted that this was a matter of dismissal, that took effect pursuant to s.386(1)(b) of the Act.

• [41] The approach of the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd (O'Meara)[12] in relation to the examination of the full context of the statements of both parties, needs to also assess the resultant actions, relevant to the consideration of s.386(1) of the Act. The Full Bench examined these issues in the following case:

"[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

'[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the Act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the Act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the Act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the Applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.' [13] (emphasis added).

[42] In relation to the assessment of whether a termination of employment occurred, in O'Meara it is further stated:

"[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment 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." [14] (footnotes omitted) (emphasis added).

• [43] In ABB Engineering Construction Pty Limited v Doumit,[15] in relation to whether the termination of employment can be categorised as a 'forced resignation', it was held that:

"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." (emphasis added)

[44] The Applicant submitted the following points relate to the conduct she alleged that had forced her resignation: retaliatory and clustered complaints; fabricated or retrospectively constructed as per the file note of 20 August 2025; failure to follow HR, procedural fairness and disciplinary process; personalisation, boundary crossings and irrelevant commentary; incorrect representations of notification, absence and personal leave; emergency contact and attempts to blame the Applicant for others' conduct; Teala and other administrative matters; irrelevant reliance on NDIS audits; the Applicant argued that there were material inconsistencies in the Respondent's evidence; and also relied on the WorkCover response that she stated contained a reference to an intention to terminate; "alternative options" and failure to acknowledge medical advice; and that post-resignation conduct reinforces that the employment relationship had already broken down. These submissions have all been taken into account, and the main points (as emphasised in the Determinative Conference) are considered below. This was summarised in the Applicant's conference statement as follows: "My [resignation] action was the culmination of months of being subject to inappropriate conduct of the Managing Director and exposed to concerning practices within the organisation. The conduct and behaviour, not just accepted but actually modelled at the highest level, made the workplace psychologically unsafe. This resulted in multiple resignations from critical team members within a short timeframe, adding further strain in my own role."

[45] The Applicant provided the following letter of termination to the Employer on 14 September 2025:

This past week I attended a follow-up review with my GP in relation to my WorkCover claim and capacity for work. During the consultation she advised that she would never be comfortable certifying my return to HOP given the circumstances leading to my injury.

Following further discussions with WorkCover and my medical team, it has become clear that my continued employment with the organisation is untenable due to the nature of the injury sustained and would continue to hinder any prospect of recovery.

Accordingly, I resign from my role as Manager - Human Resources with immediate effect and will not be returning. My WorkCover claim remains active and will proceed in the normal manner, regardless of my employment status.

To support continuity, I have transitioned any outstanding items from my email and OneDrive to the HR Inbox or SharePoint as appropriate. As it was my normal practice to file and store to these locations, only minimal transfer was required and most is communications received since my absence.

I will make arrangements to return all HOP items by COB Friday, or advise if this becomes unfeasible. I respectfully request that no one attempt to pack my personal belongings and that they remain in place until I can collect them, as there is a mix of company and personal property in my office best sorted by myself to avoid misallocation. This feels particularly reasonable given some of my personal effects went missing when my desk was previously relocated in my absence. I also kindly ask that the folding table I lent to HOP for expos be made available for me to retrieve at that time.

I will advise once I am in a position to coordinate the collection and return of items. Please also ensure my system access is deactivated promptly.

[46] The Applicant provided a report from her doctor, which was derived from consultations with her regarding her assessment of her employment circumstances being linked to her medical incapacity. It was recorded that the Applicant was experiencing a severe adjustment disorder with anxiety and depression with no functional capacity for any type of work until 30 November 2025. The Applicant placed significant weight on the Employer's response to the WorkCover application, including in particular on the following extract:

"After considering all the issues she had created and although I thought we can move ahead the past, I CAME TO THE CONCLUSION THAT SHE IS NOT THE RIGHT FIT FOR THE ORGANISATION. I started the initial discussion with my HR consultants, although I DID NOT discuss this with her. Proof of the communication initiated on Friday 22nd August 2025 with our consultants is enclosed here with. Evidence 17. However, after that she abruptly stopped coming to office from Wednesday 27th August 2025."

• [47] The Applicant argued that this conduct of the Employer in seeking advice of her possible termination of employment was admissible as conduct that represented the Employer's intended course of conduct of bringing her contract to an end. The Applicant, relying on Tavassoli v Bupa Aged Care Australia Pty Ltd,[16] O'Meara v Stanley Works,[17] and Shaw v ANZ Banking Group Ltd,[18] stated that:

"Post-resignation conduct is relevant where it demonstrates:

"the employer's true attitude and confirms that trust and confidence had already ruptured before the resignation.""

[48] In response to the Respondent seeking advice on the Applicant's employment situation, the Employer is at liberty in assessing a developing situation to seek advice, particularly when the position or employee who would normally provide that advice is not available to provide it and is the subject in the situation for which the Employer required the advice. In considering this employment situation, it is prudent for an Employer to gather such information, particularly when the Applicant was in an integral senior position; seeking advice does not lock the Employer into a course of conduct to force the Applicant to resign.

[49] The Respondent is reasonably entitled to dispute the Applicant's perceptions and versions of events in response to the WorkCover claim. This is a right of an Employer, but not one whereby the only outcome is that they are forcing the Applicant to resign. The Applicant filed the review decision in relation to the WorkCover claim.

[50] The review decision to the WorkCover claim, filed by the Applicant, provided an assessment of the two cases; including the Applicant's psychological injury, (the reasons for it), and the Employer's management of such. Whilst there was a finding in the WorkCover review decision that the Applicant had developed a psychological injury, it is not within the Commission's jurisdiction to confirm a workplace injury or otherwise. The Commission is not bound by the review decision of that separate tribunal that is subject to separate legislative tests. The review decision and a consideration of whether a dismissal occurred pursuant to s.386 of the Act are considered under different statutory schemes. The review of a WorkCover decision in relation to the status of any injury does not provide evidence of the necessary tests in relation to whether a constructive dismissal occurred. Limited reasoning is provided for the review decision or the original decision and it must be strongly emphasised, that these are separate applicable tests (in s.386(1)(b) to those under the WorkCover legislation which are applied to the consideration of WorkCover applications).

[51] In the current assessment of the Fair Work Commission's jurisdiction, the test is whether the Applicant was forced to resign, because of conduct or a course of conduct engaged in by the Respondent.

[52] The Applicant's evidence of the resignations of three other employees and in particular, the trigger effect she stated of the resignation of Mr K was also raised. She stated that she considered that Mr K's resignation, being accepted by the Employer within half an hour of its receipt, was a resignation given in the heat of the moment. The Applicant stated she had worked closely with Mr K and she was concerned at his loss from the organisation. She stated she encouraged the Respondent to confirm with Mr K, whether he wanted to rescind his resignation. Mr K declined the offer of re-employment. The Applicant stated that this event had a real impact on her. The Applicant had stated she had worked closely with Mr K for the 12 weeks or so that he had been with the organisation. The Applicant described her working relationship with Mr K and she relied on his resignation, as part of the Respondent's conduct that lead to her forced resignation, as follows:

"It is important to explain my working relationship with Mr K in context of the issues raised as part of my submission.

We bonded quickly after he joined in May as described above - we both have ADHD, think similarly, and had complimentary strengths. We travelled interstate together twice for urgent operational issues, working exceptionally well as a high-performing team and receiving a significant amount of positive feedback, including Mr Paul taking us both to lunch to thank us for the positive impact we had made during our initial trip. These trips built a strong professional relationship and trust between the Operational service delivery area and HR as a supporting function - something the organisation desperately needed at that time.

During this period, I was also navigating difficulties in and subsequent breakdown of my marriage. Mr K picked up on my distress and expressed concern during our first trip, checking in ... regularly when we returned. I disclosed that I was leaving ... and he supported me through the process. His support was purely platonic and appropriate, and very much appreciated as one of the few friends I had who had no link to my ex-husband. Our closeness stemmed from supporting each other through an extremely stressful period, shared neurodivergence, and our complementary working styles, teamwork and trust, not any form of inappropriate or intimate relationship. This positive relationship extended to a personal level but did not breach any professional boundaries."

Alleged Comments of Managing Director and Divergence in HR Opinions

[53] The Respondent argued that a predominate part of the case that led the Applicant to resign was her perception of her interactions with Mr Paul. In this regard, the Applicant set out in her Witness Statement; as follows that she had been engaged to the work in the senior executive leadership team role of Manager - Human Resources on 28 April 2025. The Applicant stated that:

"Shortly after joining the organisation, I separated from my husband after a long ... marriage. I had two children... I disclose this because it is relevant both to the support I needed and to the harm that later occurred.

Initial Work Environment and Immediate Concerns

When I joined HOP, I noticed there was already a strong pre-existing group dynamic among many of the existing employees, particularly those who had been engaged through personal or informal connections to Mr Paul. While everyone was polite, there was a clear sense of an "inner circle" and it took time for me to feel accepted. Two other new starters began on the same day as me, both in more junior roles, and I observed they were integrated more quickly into that existing dynamic. I worked hard to build relationships across the organisation and to demonstrate that I was approachable, collaborative and committed to the team. Although the senior leadership team (Mr Paul and Ms N) were welcoming, I still felt somewhat on the outside of the broader cultural and relational networks within the organisation for some time.

When Mr K joined a short time later, we connected quickly. We discovered we both had ADHD, similar energy, working styles, and together brought a fresh, positive dynamic that lifted the office. Interestingly, as a "pair" we were welcomed far more warmly than I had been on my own. The office felt noticeably more engaged when Mr K and I were together, but not necessarily when either of us was there alone. Over time I realised that although people were friendly on the surface, both Mr K and I, and the team members we subsequently hired, were still somewhat separate from the long-standing inner group.

Later, when rumours and insinuations began circulating about us - none of which were true - it became clear that the closeness we developed as colleagues was being misinterpreted and used against us by this "inner circle", and later by members of the Darwin Branch following our second visit. It was hurtful, unprofessional, and entirely inconsistent with the actual nature of our working relationship.

Very soon after I started, I quickly realised the organisation was significantly behind on compliance obligations. I also immediately identified issues with policy version control, HRIS inconsistencies, missing documents, and other risks.

However, my initial priority was completing the ELMO HRIS system setup already in progress upon my commencement and other projects required by Mr Paul to be completed before 30 June, which I was instructed to focus on - including development and roll-out of an Annual Review process and a Casual to Full Time conversion for several of our SIL houses. I followed these instructions, although it meant delaying the strategic and compliance work I knew needed attention.

I did express to Mr Paul at several points that there were multiple compliance issues requiring priority attention upon the delivery of the projects he had instructed to focus on, including that the organisation was currently not compliant with legal obligations, and my concern and worry about these gaps not being addressed sooner.

In July, with Mr Paul's knowledge, I created a comprehensive HR Strategic Plan intended to address these systemic issues. Mr Paul responded with a thumbs-up emoji in the SLT Teams chat, and the plan was placed on an agenda to be discussed in SLT meetings. However, those meetings were repeatedly postponed, derailed, or overtaken by other issues and the plan was never formally approved.

One example was a meeting where the SLT spent nearly two hours discussing an incentive program Mr Paul wanted to implement. Both Mr K and I explained, including with diagrams and calculations on the whiteboard, that the proposed percentages would cause the business to run at a loss. Despite our best efforts, neither Mr Paul nor Ms N appeared to understand the fundamental maths behind our explanation. Eventually, the proposal was dropped without acknowledgment.

Although I remained professional throughout, I left that meeting deeply concerned about decision-making competency, the organisational resistance to accurate advice and unwillingness to engage with subject matter experts early in developing intiatives. As Mr K and I had recently been made aware of the organisation's tenuous financial position, we both expressed concern with implementing an incentive program to apply to the July - September 2025 quarter."

[54] The Applicant in further arguing her case, made a series of statements that attributed improper conduct to the Managing Director regarding his alleged comments about the Applicant's relationship with the Operations Manager (Mr K) and the breakdown in her marriage. She concluded that as a result of these alleged statements by the Managing Director, that this created doubt about her professionalism and/or integrity. She was not clear as to the audience, that received these statements. Whilst the statements complained of are not condoned; the Applicant's own evidence referred to the particular workplace friendship with Mr K forming quickly and fairly intensely but on a collegial basis.

[55] The Applicant was very critical of the statements and treatment by the Managing Director, of her friendship with Mr K, equally however the Applicant emphasised her strong bond with Mr K, at the workplace. There was her reference to quickly relying on the Operations Manager after the breakdown of her marriage. She also stated, she had referred to his help outside of work.

[56] The Applicant in her submissions also made specific reference to her marital relationship, in referencing what she alleged were improper remarks from the Managing Director, regarding her romantic or personal life.

[57] Whilst the Applicant is not held to account for these remarks; they do support her sharing details of her personal life with the Managing Director. She opened the door to such discussions of her personal circumstances, with the Managing Director. These details were not required to be shared by her with the Managing Director. In her statement in these proceedings she offered further details of her personal life. She wrote: "He still appears fixated on my romantic interests - which to be clear, after ... 14 years of ... marriage ... were, until very recently, absolutely zero on my behalf, Irish men and former colleagues included."

[58] The Applicant, if offended by the Employer's remarks held herself out to have elevated HR experience, with the experience to model proper workplace behaviours. That is, given her HR knowledge, she had the ability to remark to the Managing Director that she considered that the behaviour was unprofessional and not appropriate for the workplace. The Applicant raised one example, where she stated that the Managing Director had told her an anecdote about one of his friends who "used to be gay" and she stated, that he had said that (to her with respect to her friendship with Mr K) there is "still hope". She inferred this statement was about herself and Mr K; she stated that after this that she was "speechless at this comment and the implication behind it. I laughed uncomfortably". She did not redirect the Owner regarding his comments. In addition, she stated that her fondness for the Operations Manager, as a colleague and friend was apparent from the Applicant's evidence: she stated that they had "become close quite quickly and considered each other platonic soul mates". This does not permit the Managing Director to make the alleged comments about the Applicant and the Operations Manager. However, the Applicant also made it very clear to the Managing Director that she considered the experience, ability, and talents of the Operations Manager and herself were superior to the Managing Director. Her disdain for the Managing Director was acutely apparent from her evidence and her interactions with him.

[59] The Applicant submitted that Mr Paul adopted a disciplinary outcome in relation to one of the employees, Mr A, contrary to the Applicant's preferred recommendation to be adopted. This different management, however is not commensurate with action equivalent to forcing the employee to resign. The Applicant had recommended her preferred outcome which was in that scenario to terminate the employee's employment. However after the Respondent had undertaken a separate investigation into the associated alleged behaviour, a different outcome was adopted by the Managing Director, after investigating and on the basis that he did not consider the behaviour warranted dismissal. This alternative was communicated to the Applicant. The taking of a separate business decision by the Respondent as communicated to the Applicant does not amount to a situation where the Applicant was being forced to resign. It simply provided a contrary assessment of the facts of a situation that the Applicant was required to manage in her position.

[60] The Applicant was frustrated that her recommended course of action was not followed. She considered that her view was appropriate and provided an advantage to the business. The Applicant in explaining her frustration with the Employer (and he not accepting her recommendation on the disciplinary course with Mr A) was quite derogatory about the Employer's ability to comprehend aspects of HR, management and business operations. She determined; that she and Mr K as a result of their prior experience with other organisations, generally held superior knowledge to the Employer. It was clear that the Applicant considered that she should be given complete independence in terms of decision making on operations and her plans should not be fettered by the Employer given his lesser understanding. It was clear that tensions had emerged between the parties. However, the resulting position did not amount to circumstances whereby the Employer was forcing the Applicant to resign.

[61] In relation to the events from the 25 to 28 August 2025 (the final week), the Applicant confirmed in her evidence that she disagreed with decisions being made by the Managing Director. On the evening of 26 August 2025, the Applicant stated that she suffered acute psychological distress including panic attacks, suicidal ideation, shaking, nausea, blurred vision, and considered she experienced an emotional breakdown. She stated this provided an inability for her to attend to work on 27 August 2025, and that she notified the Respondent on 28 August 2025 of this.

[62] The following set of emails indicate the exchanges between the parties relevant to the communication of the Applicant's ill health, which she directly attributed to the conduct she argued Mr Paul had directed towards her:

From the Applicant to Mr Paul at 8:30am on 28 August 2025:

I am writing to let you know that I am currently unwell and experiencing significant mental distress, which has affected my capacity to attend work and notify you sooner. With support from a friend, I've been able to arrange a Telehealth appointment this afternoon and will provide further details and the medical certificate once I receive it.

From Mr Paul to the Applicant at 2:31pm on 28 August 2025:

Thank you for your correspondence. I hope you are doing well.

Please let me know if there is anything I can do to support you.

In the interim, we kindly request that you provide medical evidence when it becomes available, as well as an indication of your anticipated return-to-work date once you have more information.

Additionally, please note that a medical clearance will be required prior to your return to work to confirm that you are fit to resume your duties safely.

If you have any questions or need further clarification, please don't hesitate to reach out.

From Mr Paul to the Applicant at 11:30am, 4 days later, on 1 September 2025:

We refer to your failure to attend your rostered shifts since 29 August 2025 onwards.

We note that you are not on a period of approved leave, nor have you contacted the organization to notify that you require a period of leave and did not notify or indicate when you are expected to return.

Further you didn't call and notify as per our notification policy in employee handbook and also didn't provided any medical certificates for your absence since 27 August onwards.

We are concerned for your welfare and would like to assist you in any way reasonably possible.

We require you to contact us immediately to notify us of the reason for your absence from work and indicate when you are expecting to come along with a medical certificate or statutory declaration as evidence of proofs.

Please let me know if you have any further questions.

From the Applicant to Mr Paul at 11:16pm on 1 September 2025:

Please refer to the attached emails from 28 August in which I notified you in writing of both my inability to attend work and notify earlier due to my mental health, and advised that I was seeking medical care with support. Your response the same day confirmed receipt and stated that I would require medical clearance prior to any return to work. Your direction on that point is why I have not provided a return to work date. The characterisation of my absence as being without notification or evidence is inaccurate.

At my GP appointment, I was advised they would submit all documentation directly on my behalf due to the severe level of concern, and I provided your contact details for this purpose. I have therefore not personally received a copy of the capacity certificate, and also have not been well enough to follow up to ensure this has reached you directly.

However, WorkCover has today confirmed HOP have been notified of my claim, which has been provisionally accepted, and that you are able to access the capacity certificate, which contains the information you have requested, through the employer portal. If you have not received a copy or are unable to access the portal, please contact WorkCover directly.

To be absolutely clear, my absence is medically certified in line with the capacity certificate from 28 August and covered by a WorkCover claim from that date. Moving forward, WorkCover is the best point of contact regarding my absence and capacity for work, as I am not in a position to manage further enquiries directly, which will be clear upon review of the documentation.

From Mr Paul to the Applicant at 09:57am on 2 September 2025:

We acknowledge receipt of your notification that a Certificate of Capacity (COC) has been lodged for Work Cover, and we will be in contact with the insurer to follow up. In the meantime, we wish you well in your recovery.

Please also note that you have access to our Employee Assistance Program (EAP) should you require additional support. You can contact them on [redacted] or via email at [redacted] to arrange a booking. They are available to support employees in QLD through telephone or Zoom.

Could you please confirm whether you would like to take leave without pay or use your annual leave once your personal leave has been fully utilised?

These entitlements will be re-credited once the Work Cover claim has been finalised and are advised to do so.

Should you have any questions, please do not hesitate to reach out to me on [redacted].

[63] It is noted that in the absence of the Employer directly receiving the required medical certificate, to coincide with the Applicant being away on personal leave; that the Employer's correspondence is suitable in the circumstances.

[64] The Applicant specifically took issue with the Employer's email that Mr Paul sent to her on 28 August, part of which notified her that a medical clearance will be required prior to her return to work, to confirm that she was fit to resume her duties safely.

[65] The Applicant also took issue with the email Mr Paul sent to her at 11:30am on 1 September, which she characterised as him initiating an abandonment of employment process. The further email sent by the Applicant at 11:16pm on 1 September 2025 to Mr Paul referred to the earlier email of Mr Paul. The Employer's communication cannot be considered as an abandonment of employment process. The Applicant stated that the characterisation that her absence had been without evidence is inaccurate. She referred to an instruction that her general practitioner had provided to her that all documentation would be submitted directly on her behalf to WorkCover and to the Employer. That email confirms that if the Employer had not received the capacity certificate from 28 August 2025, they were able to access it through the WorkCover employer portal.

[66] Mr Paul's evidence was that the medical capacity certificate had not been received by the Respondent until approximately 14 September 2025. Further, Mr Paul's evidence was that it was wrong for the Applicant to construe the emails as endeavouring to bring pressure to bear on the Applicant to resign or that the emails in any way resembled, an official abandonment of employment process. The Respondent's correspondence merely reflected that it was necessary and reasonable for the Employer to receive directly from the Applicant appropriate timely documentation, and in terms of medical evidence normally certificates, regarding the Applicant's absence from the workplace.

[67] In these circumstances, the Employer simply queried the provision of the regularly required medical certificates for the Applicant's absence from the workplace. The Employer had been in receipt of the message from the Applicant that she was "experiencing significant mental distress" and stating that she would provide them with a medical certificate. In response, the Respondent showed support in the correspondence and only rightfully requested the medical certificate. The Employer then followed this up with a reasonable inquiry for that information, given they had not had a response to their prior communication. The Applicant in response erroneously referred to the Employer commencing an abandonment of employment action against her. The Applicant had previously emphasised that she was an experienced HR officer and therefore would have been aware that this inquiry for a medical certificate from the Employer, was not in any way commensurate with an abandonment of employment action. It should not have been necessary for the Employer to seek the provision of the medical certificate. The Applicant would have been aware that this is the very basic HR advice for this documentation, that she would have provided to any employee in the same circumstances. There is an obligation at the early stage to provide the medical certificates associated with their absence.

[68] The Applicant's reliance on her assumption that her GP was to have provided the medical certificates to the Employer, is not acceptable in the circumstances where she is the senior HR executive and the information she had conveyed to the Employer regarding her condition, would give her rise to a concern that they may have to cover a somewhat lengthy absence with her HR knowledge from her employment. The Applicant with her HR knowledge would have clearly been aware that those were disingenuous accusations of an abandonment of employment process. These were reasonable requirements by the Employer.

[69] Ms Harnett was critical of the Employer as to whether they appropriately took into account her incapacity after she sent the email referring to her significant mental distress (dated 28 August 2025). To be clear, whilst Ms Harnett's evidence was that she was of the understanding that her general practitioner was to send through a relevant medical certificate to the Employer, she took no steps to confirm that her Employer had received the required medical evidence for her absence from the workplace. The evidence was that the Employer had not received the certificate until around 14 September 2025 (after the WorkCover application had been lodged). It was reasonable for the Employer to provide the emails seeking the relevant documentation to set out the status of the situation.

[70] The Applicant should have confirmed that the necessary documentation supporting the absence had been directly sent to the Employer at the appropriate time. Nothing can be concluded from the Employer's email responses seeking confirmation of the situation of her absence and stating the normal course that a medical clearance would be required prior to the return to work. These actions by the Employer cannot be argued to be a course of conduct to bring about the end of the employment contract with the Applicant.

[71] The Respondent's 2 September 2025 email confirmed receipt of her notification that a certificate of capacity had been lodged with WorkCover and that they would be in contact with the insurer to follow that up. Again, the Respondent wished the Applicant well in her recovery and raised with her that she could access their Employee Assistance Program if she required additional support. The Employer should not have been put in the situation of having to follow up the documentation for the Applicant's absence, with the insurer. The certificate should have been sent by the Applicant directly to the Employer at the time of accessing the leave. The situation provided some frustration for the Employer in terms of the lack of required documentation and lack of clarity regarding the Applicant's absence. In addition, prior to the Applicant proceeding on personal leave, it is clear on the evidence that tension was developing between the Applicant and the Employer.

[72] The Applicant in her evidence agreed that she was an experienced HR officer and accordingly confirmed that as a consequence, she recognised the due process and legal obligations to be managed in the situation of her leave and then her resignation.

[73] The evidence of the Applicant clearly set out that she held a diminished view of the Employer's ability and capacity to participate in proper HR discussions with her. For example, in relation to the discussions on 'the incentive program', the Applicant was very critical of the Employer's grasp of the detail of that intended program. She stated she had endeavoured to explain to the Employer that the program would not deliver the proposed results and would have significant cost associated with it. She concluded that the Employer did not understand the difficulties with the program. In addition, the Applicant elevated her assessment of the company's requirements and performance, above the Owner's comprehension of the management of employees and the Employer's understanding of the operations of his business.

[74] On the Applicant's evidence, the resignation of Mr K had a considerable impact on her view of her ongoing employment with the Respondent. She had significantly valued Mr K's collegiate attitude. She considered they had built a very good team. Her strong view of their dedication to developing a passionate team is overstated given their relatively short period of shared employment of approximately three to four months.

[75] The Applicant was clearly disappointed in continuing employment without having the collaboration with Mr K available to her, in moving forward in her employment. As referred to at the Applicant's instigation, the Employer had endeavoured to have Mr K overturn his resignation, but for his own reasons Mr K maintained his resignation. On the Applicant's evidence, Mr K had provided real support to her at a time when her marriage had broken down and as she stated in her newly found situation as a single mother with two children. The Applicant in explaining the context of her situation at the time of these events (around the absence from the workplace), referred to a range of difficulties she was experiencing. The Applicant's personal difficulties are acknowledged and have been taken into account, in terms of the Commission's consideration as to whether the course of conduct by the Employer was aimed at intending to cause her to resign, the information provided does not meet the test in s.386(1)(b) of the Act.

[76] The evidence did not support an unambiguous notice of termination was provided to the Applicant or that conduct had occurred intended to bring the Applicant's employment relationship to an end. The Respondent's conduct did not force or compel or coerce the Applicant to resign. The evidence did not demonstrate that the Respondent due to the Applicant's disagreement with the Employer's business decisions, was set on a course to remove the Applicant from her employment.

[77] It is recognised that the Applicant took issue with the Managing Director's responses to matters. In relation to sharing her 'platonic soul mate' friendship with Mr K and her personal circumstances she confided to the Managing Director, that she disagreed with his responses. The Respondent's representative stated that the Applicant disclosed personal circumstances to the Managing Director. The Respondent denied that the discussions resulted in discrimination or harassment but that the Applicant exercised a real choice to resign rather than responding to any compulsory directive or responding to conduct that forced the Applicant to resign.

[78] The Applicant recounted in her submissions a range of events that occurred in the course of the parties HR and business management. However, there was no evidence that the Respondent forced or required her resignation, or engage in conduct or a course of conduct with the intended result of forcing her resignation or conveying to the Applicant, that it intended to terminate her employment. The Applicant's submissions and evidence reflect that differing responses or views were emerging between the parties in terms of the business management. The Applicant had a relatively short period of employment with the Employer and differences of evaluation of operations were rapidly evolving between the parties. The Applicant could not sustain an argument that she had no effective or real choice but to resign.

[79] All of the submissions and evidence of the parties have been taken into account. For all of the circumstances and reasons set out above, I am satisfied that the Applicant was not forced to resign because of conduct, or a course of conduct, engaged in by the Respondent, (in line with s.386(1)(b) of the Act). The Applicant was not dismissed within the meaning of s.386(1) of the Act. Accordingly, the Respondent's jurisdictional objection is upheld, and the Applicant's s.365 application is dismissed.

[1] [2020] FCAFC 152.

[2] This response to WorkCover was sent after the Applicant had sent her resignation letter.

[3] [2017] FWCFB 3941.

[5] [2010] FCA 1385.

[6] [2018] FWC 2727.

[7] [2010] FWA 9356 at [59].

[8] [2017] FWCFB 3941.

[10] [2015] FCA 1165.

[12] [2006] AIRC 496 (PR973462).

[14] [2006] AIRC 496 (PR973462) at [23].

[16] [2017] FWCFB 3941.

[18] [2010] FCA 1385.

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