s.365 - General protections

Application to deal with general protections dispute involving dismissal - whether dismissed - whether forced to resign

[1] Ms Nicole Levey-Wilson was employed as Practice Manager/Receptionist by the Trustee for Attivita Group Unit Trust trading as Footprints Podiatry (Footprints Podiatry) from 17 August 2020 until 5 December 2025. On 7 December 2025, Ms Levey-Wilson applied to the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (Cth) (the Act), having previously filed and withdrawn a substantially similar claim before the alleged dismissal took effect.

[2] It is not in dispute that Ms Levey-Wilson resigned from her employment with 4 weeks' notice on 7 November 2025 and that her employment ended at the conclusion of the notice period on 5 December 2025. Ms Levey-Wilson submits that she was forced to resign because of conduct, or a course of conduct, engaged in by Footprints Podiatry. This is disputed by Footprints Podiatry.

[3] The question is whether Ms Levey-Wilson has been dismissed for the purposes of s.386(1)(b) of the Act. The answer is 'No' for the reasons below.

[4] Footprints Podiatry objects to the application on the basis that it was filed outside of the 21-day filing period in s.366 of the Act. The objection must fail because it rests on a misunderstanding of the statutory scheme. The standard filing period ends '21 days after the dismissal took effect'. In this case, Ms Levey-Wilson resigned on 7 November 2025, but her resignation took effect on 5 December 2025 at the conclusion of the notice period. The application was made 2 days later, on 7 December 2025 and was in time.

[5] Between 19 August 2025 and 23 October 2025, Ms Levey-Wilson took 90.6 hours leave (calculated by Footprints Podiatry as 35% of her contracted hours). Over this time, in addition to work, she was dealing with a range of personal issues involving her children and their school arrangements, her health (including a day medical procedure), and the purchase of a floristry business.

[6] On 12 September 2025, Ms Levey-Wilson responded to an advertisement for the sale of a business, Harvani & Me. She received a response to her enquiry on 17 October 2025, and between 17 and 20 October 2025, corresponded with the vendor about potential terms of sale. Over the same period (17 to 20 October 2025), Ms Levey-Wilson took personal leave in connection with a day procedure on 18 October 2025.

[7] On 20 October 2025, Ms Levey-Wilson had been approved to start work late as her children were starting a new school and she wanted to be there to help them settle in. As things transpired, Ms Levey-Wilson does not appear to have worked on that day as she was on leave.

[8] On 21 October 2025, Ms Levey-Wilson resumed work. She had a telephone conversation with Mr Rory Chapman, Director, about prioritising tasks within her role to help catch up. Ms Levey-Wilson explained to Mr Chapman that she was feeling overwhelmed. After they had a good discussion, Mr Chapman wrote to Ms Levey-Wilson to say that she only needed to come to 'the bay' once each month and this would give her more time at home to answer phones and catch up on work, as well as to be closer to her children's school for pickups and drop offs. Ms Levey-Wilson responded, 'Yeah sounds good.'

[9] On 23 October 2025, there was a further message exchange and then discussion between Ms Levey-Wilson and Mr Chapman about how she was feeling, about managing her workload and personal commitments and prioritising tasks. Later that day, there was a message exchange between Mr Graham and Ms Levey-Wilson, again enquiring how she was. Mr Graham suggested that they catch up to discuss her hours. Ms Levey-Wilson responded that she was good but really busy trying to catch up on things, that she had been feeling quite overwhelmed, but had been able to get a 'heap of stuff' done that day at home.

[10] On 3 November 2025, Ms Levey-Wilson advised of her plans to take leave later in November 2025 while indicating that she may need to drop a day or two of leave to accommodate a scheduled meeting. She asked how far in advance leave requests could be made.

[11] On 5 November 2025, Ms Levey-Wilson made an offer to purchase the business of Harvani & Me and the offer was accepted by the vendor. Ms Levey-Wilson attended her doctor and obtained a medical certificate that she was 'unfit for work/usual duties' until 14 November 2025. In the context of leave taken over the previous 10 weeks and presumably also discussions held between the parties in late October 2025, this made Footprints Podiatry uncertain about when Ms Levey-Wilson would be back.

[12] On 6 November 2025, the parties had been scheduled to meet in person. The meeting did not go ahead due to Ms Levey-Wilson's leave. Ms Levey-Wilson discovered that her work phone extension line had been disconnected. Also on 6 November 2025, Ms Levey-Wilson embarked on a process of contract negotiation, sorting out finances, due diligence and settlement of the purchase of the Havarni & Me business. This process continued until 28 November 2025.

[13] On 7 November 2025, Footprints Podiatry sent an email to Ms Levey-Wilson acknowledging that she was on sick leave but asking her to help with 'some essential business actions' to 'ensure the smooth operation of the business' in her absence. The first was to assign access to a CCTV camera to one of the Directors, Mr Piers Graham, as Ms Levey-Wilson had sole access to the camera. Alternatively, the business advised that it would disconnect and re‑engage a secondary camera. The second request was for Ms Levey-Wilson to ensure that both Directors had access to all third-party billing sites along with any passwords or codes. In the email, the business explained the suspension of Ms Levey-Wilson's extension phone line as a cost-saving measure and separately noted her decision not to attend the Christmas party.

[14] Two hours later, Ms Levey-Wilson accessed Footprints Podiatry's work systems and discovered that the CCTV camera had been removed by Mr Chapman. At 4.19pm on 7 November 2025, Ms Levey-Wilson submitted her resignation. On the same day, she made a psychosocial hazard report to SafeWork NSW about Footprints Podiatry.

[15] On 12 November 2025, Footprints Podiatry asked Ms Levey-Wilson for an email password as the one she had provided was incorrect. Ms Levey-Wilson cooperated with efforts to obtain access to the email account. She also attended her doctor and obtained a further medical certificate for the period from 12 November 2025 to 5 December 2025, coinciding with the end of her notice period. The medical certificate contained a note from Ms Levey-Wilson's doctor:

'Given Nicole's ongoing and likely prolonged medical condition, I would appreciate your consideration that Nicole be released from her mandatory 4 week notice period for resignation from work, on the grounds that she is not medically fit to continue working at this time.'

[16] At approximately 8.00pm on 12 November 2025, Ms Levey-Wilson forwarded the medical certificate to Footprints Podiatry requesting that her accrued sick leave be applied to her notice period, with any remaining balance to be treated as leave without pay. She also asked not to be contacted any further unless strictly necessary for payroll processing. Footprints Podiatry cooperated with this request and Ms Levey-Wilson did not return to work.

[17] On 13 November 2025, SafeWork NSW contacted Ms Levey-Wilson to advise that an investigation into her report would proceed. On 14 November 2025, Footprints Podiatry was notified of an anonymous report to SafeWork NSW in relation to its business.

[18] On 14 November 2025, Ms Levey-Wilson deleted her account on the work-issued laptop and set up a new work account in its place. Whether intentional or not, the result was to effectively 'wipe' the computer by removing all company software and information. The laptop was returned to Footprints Podiatry on 17 November 2025.

[19] On 23 November 2025, Ms Levey-Wilson registered an Australian Business Number for herself trading as 'Havarni and Me'.

[20] On 5 December 2025, Ms Levey-Wilson's employment with Footprints Podiatry came to an end. She posted promotional material on social media announcing her involvement in the new business, including a post describing Ms Levey-Wilson as the 'new owner of Havarni & Me'. A separate post announced that the business had been 'SOLD'. The business purchase was finalised on 8 December 2025.

[21] Ms Levey-Wilson submits that she was forced to resign by adverse action taken by Footprints Podiatry against her because she exercised workplace rights in taking personal leave, making complaints about safety and workload, seeking support, and cooperating with SafeWork NSW. Ms Levey-Wilson also alleges undue pressure and coercion contrary to s.343 of the Act. Specifically, the application alleges that:

1. She exercised a workplace right to take sick leave due to a medically certified psychological injury that resulted directly from work-related stress, unreasonable workload and unsafe managerial conduct, during which she had a lawful right not to engage in work and to recover without pressure.
2. During this period of certified leave, Footprints Podiatry repeatedly contacted her demanding passwords and administrative actions, despite knowing she was unwell. This was adverse action because it interfered with her right to take personal leave (referring to s.341(1)(c)(ii), which contains the definition of 'workplace right').
3. She made complaints about unreasonable workloads, and psychosocial hazards, including reporting concerns that resulted in SafeWork NSW issuing an Improvement Notice to the employer and that the complaints and inquiries about her employment were protected workplace rights under s.341(1)(c).
4. After raising her concerns and while recovering from work-related psychological injury, management's conduct intensified, including unreasonable pressure to perform tasks, dismissive responses to her health boundaries, and hostile communications, creating a workplace environment that became untenable and unsafe.
5. The repeated pressure, failure to respect medical certificates, and Footprints Podiatry's conduct following her protected complaints contributed directly to her forced resignation. The resignation was not a genuine choice. Ms Levey-Wilson felt she had no reasonable alternative due to the actions of Footprints Podiatry, resulting in a constructive dismissal and adverse action in breach of ss 340 (workplace rights) and 343 (coercion).

[22] Footprints Podiatry submits that it has always supported Ms Levey-Wilson over her employment, including on a range of personal matters involving her family, health, and children. This included reduced workload, increased work-from-home arrangements, accommodating her children at the workplace when needed, additional leave, and rostering adjustments including increasing the hours of other staff members to cover her duties, and making a company vehicle available to her for personal use after she was involved in a car crash. It submits that Ms Levey-Wilson left the business 'suddenly and without prior notice' and that its contact with her after that time was limited to reasonable requests for business information that it needed to operate essential business functions.

[23] I deal with each of the issues raised in Ms Levey-Wilson's application in turn below.

[24] It can be accepted that Ms Levey-Wilson exercised a workplace right to take sick leave due to a medically certified illness or injury on 5 November 2025. The nature of the injury was not disclosed to Footprints Podiatry at the time, although it appears to have related to Ms Levey-Wilson's mental health and specifically, 'burnout'. The cause of illness or injury is not established on the evidence. It was most likely a combination of stress from work and her personal and professional life outside of work for Footprints Podiatry. I accept that Ms Levey-Wilson felt overwhelmed at work in early November 2025, but I do not accept on the evidence that this was due to an unreasonable workload imposed upon her.

[25] There is no evidence of unsafe managerial conduct. A key source of stress appears to have been Ms Levey-Wilson's role in answering phones for clinics across the business. Ms Levey-Wilson understood that when Mr Chapman told her to prioritise the phones, she was expected to answer all of the phone calls to the exclusion of other receptionist staff. On the evidence, this was a misunderstanding and not what she had been asked to do. As Practice Manager, it was part of Ms Levey-Wilson's role to answer the phone, but also within her remit to allocate tasks across others in the receptionist group. Answering the phones was also an important part of their role. Although she did not do so, it was open to Ms Levey-Wilson to delegate phone answering duties to others.

[26] The actions of Footprints Podiatry in contacting Ms Levey-Wilson for information about access codes and passwords after she commenced leave on 6 November 2025 were reasonable in the circumstances. Only Ms Levey-Wilson had this information, and it was essential for the effective operation of the business. It is hyperbole to describe these actions as repeated and demanding. A single request was made for the information and when there was a follow up, it was only because one of the passwords provided was incorrect. The reference to s.341(1)(c)(ii)) in relation to this issue appears to have come from an artificial intelligence tool and does not make sense in context.

[27] The business denies any complaints being made by Ms Levey-Wilson in the period preceding her resignation. It points to a performance review in February 2025 that recorded her satisfaction with the role and work environment, and the various supportive measures it had in place for Ms Levey-Wilson over the period of employment. Multiple witnesses for Footprints Podiatry provided statements about their positive relationship with Ms Levey-Wilson, and how she was a valued member of the team. They were aware of her difficult personal circumstances and many expressed surprise at Ms Levey-Wilson's resignation and the reasons given for it.

[28] It is not clear on the evidence that discussions about Ms Levey-Wilson's workload with Mr Chapman and Mr Graham were in the nature of complaints. They resulted in changes to Ms Levey-Wilson's working arrangements to assist her with managing her workload and competing responsibilities. The report to SafeWork NSW prompted an Improvement Notice, but only in relation to consultation - otherwise, SafeWork NSW was satisfied that Footprints Podiatry had adequate systems in place to identify and manage psychosocial hazards. The report to SafeWork NSW was made on the same day that Ms Levey-Wilson resigned. Footprints Podiatry did not know about it until 7 days later. The report could not have contributed to any retaliatory conduct on the part of Footprints Podiatry if it did not know about it at the time Ms Levey-Wilson resigned.

[29] The evidence does not bear out the allegation that 'management's conduct intensified' against Ms Levey-Wilson after she raised concerns and was recovering from her work-related psychological injury. All Footprints Podiatry did after Ms Levey-Wilson took leave on 6 November 2025 was to ask for information she held to allow it to operate its business. It made adjustments to assist Ms Levey-Wilson to catch up on work and find a better work/life balance and had proposed a further discussion about her hours of work. There is no evidence of any 'dismissive response' to her health boundaries or of any hostile communication from Footprints Podiatry.

[30] The submission is that Footprints Podiatry's repeated pressure placed on Ms Levey-Wilson as well as its failure to respect medical certifications and its conduct after she made complaints about her workload and mental health. The submission glosses over the other stressors in her life at the time, including her purchase of a business and all that this activity entailed. I accept that the workplace was busy at the time and that Ms Levey-Wilson felt overwhelmed. I do not accept that this was the result of any repeated or unreasonable pressure from Footprints Podiatry. It was entitled to expect that Ms Levey-Wilson would perform the duties of her role. She had done so successfully for many years. It made adjustments to assist Ms Levey-Wilson to catch up on work after having been absent for more than was usual. Far from not respecting her medical certificates, the business afforded Ms Levey-Wilson her entitlements to personal leave and acceded to her requests both to limit its communication with her (except for the purpose of obtaining her access codes and passwords) and to not to work the balance of her notice period and instead to take a mixture of paid leave and unpaid leave once her accrual was exhausted.

[31] Ms Levey-Wilson further submits that despite raising concerns with management in October 2025 about feeling overwhelmed with her workload and struggling to keep up with competing demands across multiple clinics, her workload was not reduced and, in some respects, increased. The submission does not fairly acknowledge the adjustments made to support her by allowing additional work from home and identifying priority tasks. Ms Levey-Wilson submits that it was over the last three weeks of her employment that her condition worsened. Until then, work had always 'been good'. Ms Levey-Wilson associates her deterioration with directions to manage phone communications for multiple clinic locations, coinciding with the opening of another clinic. The submission does not account for what I described above as a misunderstanding about the request to prioritize phone calls. It also overlooks the additional work Ms Levey-Wilson was doing to 'catch up' as well as behind the scenes to negotiate and finalise the purchase of a new business at the same time as her children were moving school in difficult circumstances.

[32] In short, Ms Levey-Wilson had a lot going on at the time of her resignation, with a busy job as Practice Manager and in her personal life, including with the purchase of a new business. The compounding effect was likely unsustainable, and it appears that her doctor told her so. Even so, the evidence does not establish any conduct, or course of conduct, by Footprints Podiatry that had the intention or effect of bringing the employment to an end. The evidence is to the contrary. Footprints Podiatry was supportive of Ms Levey-Wilson and generally responsive to her needs. The resignation came as a surprise to the business, 4 days after she had indicated an intention to take leave later that month. Discussions with the directors about feeling overwhelmed occurred in the context of Ms Levey-Wilson having fallen behind due to circumstances beyond her control, and the businesses' attempts to assist her to catch up while maintaining its operations.

[33] In the circumstances, a finding could not fairly be made that the termination of Ms Levey-Wilson's employment was the probable result of any conduct of Footprints Podiatry up to and including 7 November 2025. The conduct of Footprints Podiatry was aimed at both supporting Ms Levey-Wilson's continued employment and maintaining business functionality. To the extent that the events after 7 November 2025 are relied upon by Ms Levey-Wilson as factors in her forced resignation, the submission is misconceived. Those events cannot have contributed to a decision that had already been made and communicated.

[34] Ms Levey-Wilson's decision to resign on 7 November 2025 cannot be said to have been made in circumstances that gave her no real or effective choice in the matter. Having worked successfully in the business, including as its Practice Manager, for more than 5 years, Ms Levey-Wilson had good relationships with its directors. She had good reason, based on past experience, to believe that she had their support. There was a pending opportunity to discuss her options in a meeting scheduled for 6 November 2025, which did not go ahead because Ms Levey-Wilson had taken leave. The options available to Ms Levey-Wilson included asking for changes in her role, duties or hours, or changing her approach to the allocation of work among receptionists. She could have made a formal complaint using the procedures she had helped introduce for that purpose. She could have applied for additional leave or worker's compensation to allow time and space to seek the necessary medical treatment. In the end, Ms Levey-Wilson chose to resign from Footprints Podiatry and start her own business. She did this on her own initiative rather than in response to any conduct, or course of conduct, engaged in by Footprints Podiatry.

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