s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - not dismissed - Applicant dismissed within the meaning of section 386(1)(a) - Application within jurisdiction - Matter to be listed for conference.

• [1] On 21 April 2025, Ms Nim Ian Cheang (Ms Cheang / the Applicant) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondent in the matter was named as Tzu-Chia Brenda Wei Wei (the Respondent).

• [2] The Respondent raised a jurisdictional objection that the Applicant resigned and was not dismissed.

• [3] On 20 May 2025, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. A jurisdictional hearing was held on 16 June 2025.

• [4] Ms Mariam Noorzai, a Solicitor at Irwell Law was granted leave under s.596(2)(a) to appear on behalf of the Respondent, and Ms Cheang, appeared on her own behalf. Ms Cheang was assisted by Mr Ken Takagi, her partner who was not a lawyer or a paid agent.

• [5] An interpreter was present at the hearing. The Commission was advised that the parties were content to proceed on the basis that the assistance of the interpreter would be called upon when needed.

• [6] Ms Brenda Wei, the Director of Blissful Ways Wellness Services, provided a witness statement[1] dated 27 May 2025 in support of the jurisdictional objection. Ms Cheang provided a witness statement dated 2 June 2025.[2]

• [7] Ms Cheang commenced work for the Respondent on 9 August 2024 as a Social Worker.

• [8] On 11 February 2025, the Respondent emailed Ms Cheang a 6-month performance review questionnaire to be completed prior to the meeting scheduled for the following day.

• [9] On 19 February 2025, the Applicant responded to the performance review prompts and Ms Wei said Ms Cheang advised her of a clear intent to resign from her employment on 1 May 2025. Ms Cheang said this should not have been misconstrued by the Respondent as a definitive resignation given her unsettled state of mind while answering the prompts in the review. Ms Cheang said the Respondent did not attempt to formalise what the Respondent believed to be a resignation with her.

• [10] On 13 March 2025, the Respondent emailed the Applicant an amended version of correspondence from the previous day, which outlined concerns with recent performance and client attendance rates.

• [11] On 20 March 2025, the Respondent emailed the Applicant regarding 'strong emotions' the Applicant had been experiencing the prior day, and outlined a summary of discussion, including performance concerns and action items.

• [12] At 8:32pm on Wednesday 9 April 2025, the Respondent issued a notice of termination to the Applicant related to performance, noting that her final day would be 16 April 2025.

• [13] The Applicant worked as normal on Thursday 10 April 2025 and was not scheduled to work on Friday 11 April 2025.

• [14] At 12:17am on Saturday 12 April 2025, the Respondent attempted to rescind the termination and indicated that the Applicant was expected to continue employment.

• [15] On 12 April 2025, the Applicant attended a doctor to document her symptoms of anxiety and stress from receiving the termination and rescindment.

• [16] In the morning of Monday 14 April 2025, the Applicant emailed Ms Wei saying she was unwell, and did not wish to discuss the contents of Ms Wei's email at that time.

• [17] At 4:31pm on Monday 14 April 2025, the Applicant purported to resign from her employment effective 21 April 2025. With this, she included a medical certificate stating she was unable to work up to and including 21 April 2025.

• [18] At 10:00pm on Monday 14 April 2025, the Respondent responded, confirming acceptance of the purported resignation.

• [19] The Applicant alleges she was dismissed within the meaning of s.386(1)(b). Section 386 reads as follows:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."

• [20] The question for determination by the Commission is whether the employment relationship was ended by a termination of employment at the initiative of the Respondent, or by the resignation of the Applicant. There is no dispute that in February 2025 the Applicant foreshadowed an intention to resign from May 2025, however for the purposes of the determination of this jurisdictional question, it is of no relevance given the sequence of events before May 2025.

• [21] Ms Wei gave evidence to the effect that during the initial period of her employment, Ms Cheang performed well, however after the February 2025 meeting and leading up to April 2025, there was a significant decline in her performance. Ms Wei said the decision to terminate Ms Cheang was a direct response to documented performance concerns, however she also claimed the decision could be considered "heat of the moment", driven by mounting frustration. A termination of employment at the initiative of the Respondent was communicated in writing in unambiguous terms to Ms Cheang at 8:32pm on 9 April 2025 to have effect from 16 April 2025.

• [22] Ms Wei said she did not see Ms Cheang on Thursday 10 April 2025. Ms Wei said there would have been email communications, but nothing related to this. Ms Wei said she worked on the Friday 11 April 2025 however Ms Cheang did not work on that day.

• [23] Ms Wei said after 9 April 2025, she spent a lot of time thinking about what happened, and she wanted to ensure she was not missing anything. Ms Wei said she started to think maybe there was something she missed, and she didn't just want to give up quickly and maybe there was something she could work out. Ms Wei said, recognising the distress caused by the termination, and wishing to find a swift and amicable resolution, on 12 April 2025, Ms Wei attempted to rescind the termination letter and sincerely apologised for the way the termination was communicated. The attempt to rescind the termination was communicated by an email sent at 12:17am on Saturday 12 April 2025. The email included that the Applicant was expected to continue employment.

• [24] Ms Wei confirmed there was no oral conversation with Ms Cheang on 12 April 2025 and gave evidence that she received the email from Ms Cheang in the morning of 14 April 2025, saying she was unwell, and did not wish to discuss the contents of Ms Wei's attempt to rescind the termination of employment.

• [25] Ms Cheang said on reading the termination rescindment email she experienced acute stress reactions presenting as physiological manifestations. On the 12 April 2025, Ms Cheang attended a doctor to document her symptoms of anxiety and stress from receiving the termination and subsequent attempt to rescind the termination. She said her symptoms included panic attacks, facial twitching, persistent nausea and dry retching.

• [26] Ms Cheang gave evidence that she understood that a termination initiated by Ms Wei could significantly damage her future employment opportunities and said she was left with no choice but to resign on her initiative to prevent Ms Wei harming her prospective employment opportunities, in conjunction with the acute stress reactions she was experiencing. On Monday 14 April 2025, the Applicant purported to give notice of her resignation effective from 21 April 2025. With this, she included a medical certificate stating she was unable to work up to and including 21 April 2025.

• [27] Ms Cheang said she spoke to the Fair Work Ombudsman, but she felt they did not understand the situation. Ms Cheang agreed she did not file another kind of application in the Fair Work Commission but filed this unfair dismissal application. Ms Cheang agreed she attempted to pursue a workers compensation claim however it was not accepted.

• [28] It was put to Ms Cheang that whilst she was on sick leave and did not have capacity to attend work, she was attempting to archive confidential information of the Respondent. Ms Cheang rejected that allegation.

• [29] The Respondent submitted the Applicant had other avenues to resigning, including seeking an order to stop bullying or filing a dispute. I raised with the Respondent's representative that it did not appear from the evidence that Ms Cheang ever consented to the Respondent's attempt to rescind the termination. The Respondent submitted Ms Cheang resigned after the Respondent sent its correspondence seeking to rescind the termination on 12 April 2025, and Ms Cheang acknowledged this email on the morning of 14 April 2025. The Respondent referred to paragraph 23 of the statement of Ms Cheang where she said as follows:

"23) On Monday 14 April 2025 I was left no other choice but to resign on my initiative to prevent Mrs. Wei from potentially harming my prospective employment opportunities, in conjunction with acute stress reactions I was experiencing at the time."

• [30] The resignation letter was accompanied by a Medical Certificate stating she was unfit for work between 14 April 2025 and 21 April 2025. Ms Cheang submitted that had Ms Wei not issued the termination notice and subsequent reinstatement of employment, she would not have submitted the resignation.

• [31] I do not accept that the decision of Ms Wei to terminate the employment of Ms Cheang that was communicated to Ms Cheang on the evening of 9 April 2025, was taken in the heat of the moment. To the contrary, the evidence of Ms Wei was that Ms Cheang's performance had been a source of concern that had been building over some time. The email communicating the decision is clear in its reasons. The fact that Ms Wei began to reconsider her decision over the following two days and ultimately decided to seek to rescind the decision in the early morning of Saturday 12 April 2025, does not amount to a decision taken in the heat of the moment.

• [32] It is apparent from the evidence that Ms Cheang was unwell on 14 April 2025 and suffered an adverse physiological reaction to the attempt of the Respondent to rescind its 9 April 2025 decision to terminate her employment.

• [33] English is not Ms Cheang's first language. It appears reasonably clear from the evidence that Ms Cheang did not understand that once a valid notice to terminate her employment had been communicated to her, that generally an employer cannot unilaterally rescind its decision, and it requires the consent of the employee for it to be withdrawn.

• [34] The Respondent's case on this point as I understand it, is that the Commission should infer from Ms Cheang's attempt to tender a resignation on 14 April 2025 that she consented to the Respondent withdrawing its earlier decision to terminate her employment. The Respondent submitted that Ms Cheang had a medical certificate and could have just allowed the employment to be terminated on the Respondent's initiative on 16 April 2024.

• [35] I do not accept that inference should be drawn. The evidence points more to Ms Cheang becoming unwell in response to the attempt to withdraw the earlier advice of her termination. The evidence supports the conclusion that the reason Ms Cheang submitted the resignation was because she held a subjective belief that she needed to resign to protect her own health, and that she did not understand that her employment would end at the Respondent's initiative on 16 April 2025, unless she consented to the Respondent's proposed rescission of its earlier decision to terminate her employment.

• [36] Ms Cheang's evidence that she was forced to resign to protect her future career prospects appears more to be directed to her belief that the Respondent had terminated her employment, and then unilaterally withdrawn that decision, and from her perspective she would again be exposed to what she described as the unreasonable and unpredictable conduct of Ms Wei, making it impossible for her to continue employment.

• [37] To be clear, the conclusions I have reached above from the evidence pertain to Ms Cheang's subjective state of mind at the relevant time and are not an objective assessment on the evidence that Ms Cheang was forced to resign within the meaning of s.386(1)(b).

• [38] However, based on the evidence, I am satisfied that for the reasons set out above, Ms Cheang never actually consented to the withdrawal of the Respondent's decision to terminate her employment. As Ms Cheang never consented to the withdrawal, her dismissal came into effect in accordance with the dismissal notice, on 16 April 2025. This was a termination of employment within the meaning of s.386(1)(a). As Ms Cheang was dismissed by the Respondent with effect from 16 April 2025, her purported attempt to give notice that she intended to resign from 21 April 2025, had no effect.

As I have found the Applicant was dismissed within the meaning of s.386(1)(a), the application is within the jurisdiction of the Commission and will be listed for a conference.

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