Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional question - whether applicant forced to resign - whether applicant resigned in the heat of the moment - applicant found not to have been forced to resign - employer entitled to rely on resignation - applicant not dismissed - application dismissed

• [1] Rebecca Burgess was employed by Country Bumpkins NSW Pty Ltd, which trades as the Country Bumpkins Early Learning Centre, as an educator. She was employed on a part-time basis from 12 March 2025, having previously worked with the business as a casual employee for a short period. Her employment came to an end on 3 June 2025.
• [2] On 15 June 2025, Ms Burgess filed an application in the Commission under section 365 of the Fair Work Act 2009[1] ("Application"). She alleged that she had been subjected to adverse action by Country Bumpkins as a result of exercising workplace rights, due to a physical or mental disability, and/or due to a temporary absence from work due to illness or injury.
• [3] In its response to the Application, Country Bumpkins denied taking adverse action against Ms Burgess. In addition, it raised a jurisdictional objection to the Application, namely that Ms Burgess was not dismissed, but had resigned from her employment.
• [4] Section 365 relevantly provides that if a person "has been dismissed" and they allege that the dismissal contravened Part 3-1 of the Fair Work Act, they may apply to the Commission to deal with the dispute. Given the language of the section, a person must have been dismissed for it to apply. If a respondent asserts that there has been no dismissal, it gives rise to a dispute as to whether the applicant is entitled to make the application. That dispute must be resolved before the Commission can exercise any of the powers the Act confers on it.[2]

• [5] This decision deals with the jurisdictional objection.

• [6] I have determined to uphold Country Bumpkins' objection. I find that Ms Burgess was not dismissed. My reasons follow.

• [7] On 7 May 2025, Ms Burgess sent a text message to Melissa Walsh, a Director of Country Bumpkins. The text message referred to interpersonal tension in the workplace between two individuals, Hayley Crossingham and Josie Cusack, and the steps that Ms Burgess had taken to address it. In a reply text later that evening, Ms Walsh thanked Ms Burgess for bringing the matter to her attention and observed that she would have to pay closer attention to "reading the rooms".

• [8] On 16 May 2025, Ms Burgess spoke to Ms Walsh, and conveyed her concerns that Ms Crossingham's conduct was affecting staff and children at the Centre. Ms Walsh said that she would speak to the staff the following Monday, 19 May 2025.

• [9] As foreshadowed, Ms Walsh met with staff members, including Ms Burgess, on 19 May 2025. In her meeting with Ms Walsh that day, Ms Burgess further discussed her concerns regarding Ms Crossingham. Ms Walsh provided suggestions as to how Ms Burgess could manage the situation.

• [10] On 26 May 2025, Ms Burgess had a disagreement at work with Ms Crossingham. In brief, Ms Burgess had proposed sitting with a child until she had finished eating her lunch, in response to concerns that child's parent had raised. However, Ms Crossingham insisted that the child go out to play. Ms Crossingham also required Ms Burgess to take photos of Ms Crossingham with the child to show the child's parents.

• [11] At 12.19pm on 27 May 2025, Ms Burgess sent a text to Ms Walsh in these terms:

I just wanted to be honest with you. I've been feeling really anxious lately and unsure about continuing at Country Bumpkins. I've brought up concerns in the past, especially around Hayley, but I've often ended up feeling like I'm the one in the wrong.

Yesterday morning, things between Hayley and me were fine, we were getting along well. But in the afternoon, that changed. I was treated like a minion again, and there were a few arguments about what was best for a child. I did what you told me to do and I confronted her at the time about it but I just got demanded at to take photos. I left feeling disrespected, deflated, and frankly, like I can't keep doing this.

The situation is impacting my mental health and my family, and I'm seriously considering resigning. I wanted to let you know where I'm at before making a final decision."

• [12] Later that day, Ms Walsh sent a text to Ms Burgess in reply, in these terms (verbatim):

Sorry at the hospital with my daughter and the receptionist is really bad. I prefer to talk In person about anything work related so I'm happy to chat tomorrow.

"I hope everything is ok! No problems. I'll talk to you tomorrow about it."

• [14] Later that day, at about 4.30pm, Ms Burgess received a call from a co-worker, Deanne Fowler, telling her that Ms Walsh had spoken to Ms Crossingham's mother; that Ms Crossingham's mother had threatened to go to Ms Burgess's house the previous night; and that Ms Walsh was "not happy" with Ms Burgess.

• [15] At 5.26pm that day, Ms Burgess sent a text to Ms Walsh in these terms:

"I won't be in tomorrow. I will send my resignation. I've thought about it and I am unable to continue."

• [16] The following day, 28 May 2025, Ms Burgess saw that Country Bumpkins had posted a job advertisement on Seek. She took that to be an advertisement to replace her. She sent a text to Ms Burgess in these terms:

"Are you already advertising my job? What has there been no response?"

• [17] A short while later that day, Ms Walsh sent a text to Ms Burgess in reply, in these terms:

Still at the hospital with my daughter. I will be at work on Friday. Happy to have a conversation then.

• [18] Later that day, Ms Fowler told Ms Burgess that Ms Walsh's son had informed staff that Ms Burgess had resigned and that the staff were gossiping about her. This prompted Ms Burgess to send the following text to Ms Walsh in the evening of 28 May 2025:

"I am actually disgusted how this has been handled. I can empathise that your daughter is in hospital but everyone at work has been gossiping. Someone told everyone I am resigning. I find this absolutely appalling. You're the manager, I don't like how I've been treated. Hayley is not innocent and I am really actually disappointed."

• [19] The following day, 29 May 2025, was a Thursday. Ms Burgess did not work on Thursdays. That day, however, Ms Burgess sent an email to Ms Walsh in these terms:

I'm writing to formally follow up on the message I sent recently regarding my concerns about the workplace environment and my emotional well being.

As mentioned, I've been feeling extremely overwhelmed and distressed due to an unresolved conflict with another staff member. I have raised this issue multiple times, and I am concerned that nothing has been done to address it. I've also noticed that communication with me has become a limited, and I haven't received any follow up from you as previously discussed.

I'd like to clarify that, while I did express that I was struggling to continue, I have not submitted a formal resignation at this point. I was surprised to see that my position was advertised before we had a proper discussion about the situation, and this has left me feeling even more excluded and unsupported.

I'd appreciate a written response or the opportunity to speak with you directly, so we can have clarity on where things stand."

• [20] At the hearing, Ms Walsh stated that she had been working all day on 29 May 2025 as the Centre was understaffed. As a result, she was unable to respond to Ms Burgess's email. She said that she expected to speak to Ms Burgess the following day. However, in the early evening of 29 May 2025, Ms Burgess sent a text to Ms Walsh saying that she was unwell and would not be in the next day.

• [21] On 30 May 2025, Ms Walsh sent an email to Ms Burgess in these terms:

Country Bumpkins Early Learning Centre (ELC) is following up on your message that was sent at 5:26PM on Tuesday 27 May 2025, regarding your resignation text and inability to continue with Country Bumpkins (ELC).

In the attached screenshot, it states you will formally send your resignation letter, Country Bumpkins (ELC) is yet to receive the resignation letter, however we would like to confirm we have accepted the attached screenshot as your resignation. Your last day of employment is Tuesday 03 June 2025. You will not be required to work the notice period and you will be paid in lieu of notice."

• [22] The Act defines "dismissed" in section 386(1). That section contemplates two scenarios.

• [23] First, a person will have been dismissed if their employment was terminated on the employer's initiative: section 386(1)(a). A termination will be "on the employer's initiative" if it is brought about by the employer without the employee's agreement. The question is whether an action on the part of the employer was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment.[4]

• [24] Second, a person will have been dismissed where they resigned from their employment, but were forced to do so because of conduct, or a course of conduct, engaged in by their employer: section 386(1)(b). This reflects the common law concept of constructive dismissal.[5] The test to be applied 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 probable result of the employer's conduct such that the employee had no effective or real choice but to resign.[6] The second limb of that test makes it clear that it is not necessary to show that the employer engaged in the relevant conduct with the subjective intention of forcing the employee to resign.[7]

• [25] Country Bumpkins argued that the text that Ms Burgess sent to Ms Walsh at 5.26pm on 27 May 2025 was an effective resignation, voluntarily given, that had the effect of bringing the employment relationship to an end. It denies that its conduct forced Ms Burgess to resign.

• [26] In her written evidence and submissions, Ms Burgess did not dispute that the text constituted a resignation. In fact, her arguments were premised on that being the case. Her case can be distilled to two propositions.

• [27] First, she was compelled to resign due to the circumstances leading up to 27 May 2025. Country Bumpkins had engaged in a course of conduct that undermined trust and confidence, amounting to a constructive dismissal. This rendered the resignation a dismissal within the meaning of section 386(1)(b).

• [28] Second, the resignation was "a heat-of-the-moment reaction", and Country Bumpkins should have given her an opportunity to "cool off or reconfirm her intentions" before acting on the resignation.[8] In that way, the termination was at Country Bumpkins' initiative, within the meaning of section 386(1)(a).

"13. The Respondent's conduct on and before 27 May 2025 (breaches of confidentiality, failure to address ongoing workplace conflicts, advertising the role, and refusal to discuss the situation) constituted a breach of the Respondent's duty of care to provide a safe working environment.

14. A reasonable employee, confronted with threats to personal safety and an employer unwilling to address interpersonal conflict in their workplace or show concern for their employee's mental health would feel compelled to resign.

• [30] The evidence on which Ms Burgess relied does not support those submissions. I will address her contentions in turn.

• [31] The only evidence which might suggest a "breach of confidentiality" was the conversation that Ms Walsh is said to have had with Ms Crossingham's mother. Ms Burgess stated:[10]

"Ms Walsh's decision to discuss my situation with that parent was the final catalyst. The breach of confidentiality confirmed that our professional relationship had irretrievably broken down."

• [32] The evidence of that conversation is limited to what Ms Burgess says Ms Fowler told her about it. There is no evidence that Ms Fowler was involved in the conversation or how she came by her knowledge. Ms Fowler did not provide a statement in these proceedings. Ms Walsh was not cross-examined about that conversation. It follows that the evidence as to what was discussed between Ms Walsh and Ms Crossingham's mother is scant at best.

• [33] Ms Burgess took exception to Ms Walsh speaking with Ms Crossingham's mother, and described it during the hearing as unprofessional. I cannot see that the fact of the conversation itself was exceptional. Whether there was anything untoward in the conversation would depend on what was said. The evidence does not allow me to reach such a view, or to assess whether Ms Burgess could properly have formed the view that as a result of the conversation the employment relationship had irretrievably broken down. But importantly, even taken at its highest, the evidence does not reveal that Ms Walsh disclosed confidential information to Ms Crossingham's mother.

• [34] There is also limited evidence regarding "ongoing work conflicts", and nothing to support the contention that Country Bumpkins failed to address them. The evidence of conflict was limited to the following:

(1) Ms Burgess informing Ms Walsh of interpersonal tension between Ms Crossingham and Ms Cusack on 7 May 2025. On the terms of Ms Burgess's text to Ms Walsh, she had resolved the situation. Ms Walsh's response expressed both gratitude for the actions Ms Burgess had taken and a statement to the effect that she would keep a closer eye on things.

(2) Ms Burgess raising concerns with Ms Walsh about Ms Crossingham on 16 May 2025. This resulted in Ms Walsh speaking with the staff, including Ms Burgess, on 19 May 2025. She provided Ms Burgess with guidance as to how to manage the situation with Ms Crossingham. These actions are not reflective of a failure to address workplace conflict.

(3) The interaction between Ms Burgess and Ms Crossingham on 26 May 2025, as Ms Burgess reported to Ms Walsh in her text of 12.19pm on 27 May 2025. (I am mindful that the text refers to Ms Burgess having "brought up concerns in the past, especially around Hayley", but there was no evidence of those matters.) To the extent that the events of 26 May 2025 evidence "ongoing work conflicts", Ms Walsh proposed speaking with Ms Burgess on 28 May 2025. She could not speak to her immediately on 27 May 2025 as she was at hospital with her daughter (as she was again the next day). Again, this is not indicative of a "failure" by Ms Walsh to address workplace issues.

• [35] Those observations also address Ms Burgess's contentions that Country Bumpkins, in the person of Ms Walsh, refused to discuss "the situation" with Ms Burgess and showed no concern for her mental health. Ms Walsh may not have responded as fully or immediately to the texts of 27 May 2025 as Ms Burgess would have liked, but she was at the time at the hospital with her daughter. There is no reason to suspect that the discussion that Ms Walsh proposed would not have occurred once she was able to attend.

• [36] Ms Burgess' evidence that Country Bumpkins advertised for an educator does not assist her, for two reasons. First, she only became aware of the advertisement the day after she resigned. This was consistent with Ms Walsh's evidence that the advertisement was placed on 28 May 2025. The advertisement could not have influenced Ms Burgess's decision to resign. Second, Ms Burgess incorrectly assumed that the advertisement was for her position. Ms Walsh gave the following uncontroverted evidence:[11]

"On Wednesday I had placed an advertisement for another Educator, however this was decided prior to the Applicant's messages. This was not an advertisement for the Applicant's position or intended as a replacement for the Applicant; I placed the advertisement as we were increasing our capacity for childcare positions and another staff member was needed to meet the national regulations."

• [37] Finally, the only suggestion of a threat to Ms Burgess's personal safety was the comment made to her by Ms Fowler that Ms Crossingham's mother had threatened to go to Ms Burgess's house on the evening of 26 May 2025. Even assuming that such a statement had been made, there is no evidence that this was something for which Country Bumpkins was responsible. There is in particular no suggestion that Country Bumpkins encouraged Ms Crossingham's mother to attend Ms Burgess's home, or facilitated her doing so. (The conversation between Ms Walsh and Ms Crossingham's mother took place the day after the latter allegedly threatened to attend Ms Burgess's home.)

• [38] Country Bumpkins submitted:[12]

"The Applicant's resignation was not given in circumstances where she had no other choice but to resign; the Applicant had many choices other than resignation, including waiting until she could discuss the matter with Melissa as had been agreed."

• [39] For the reasons set out above, I accept those submissions. I am not persuaded that Ms Burgess was forced to resign because of conduct, or a course of conduct, engaged in by Country Bumpkins. It follows that the resignation was not a dismissal within the meaning of section 386(1)(b) of the Act.

Was the resignation effective to bring the employment to an end?

• [40] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[13] ("Bupa Aged Care") the Full Bench observed:

"[35] Additional but not unrelated to the concept of 'forced' resignation is a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee's initiative. Where the resignation is ineffective, purported acceptance of the resignation by the employer forthwith, without clarifying with the employee whether resignation was truly intended, will constitute a termination of employment at the initiative of the employer. The usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment. However an expression of resignation which cannot reasonably be regarded as voluntary may not operate as an effective resignation capable of acceptance by the employer. ..."

• [41] The Full Bench went on to consider a number of authorities that had examined circumstances in which a purported resignation might be regarded as a termination on the employer's initiative.[14] Relevantly for present purposes, the Full Bench concluded:[15]

"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."

• [42] An employee seeking to establish that their employer should not have accepted[16] their resignation will need to demonstrate two things: first, that there were circumstances that would cause a reasonable person in the employer's position to question whether the employee was conveying a real intention to resign; and second, their employer was or ought to have been aware of those circumstances. In the absence of such considerations, where an employee resigns in clear and unambiguous terms, the Commission cannot and should not intervene.[17]

• [43] In the present case, Ms Burgess had sent a text to Ms Walsh at 12.19pm on 27 May 2025 stating that she was "seriously considering resigning" and that she wanted to let Ms Walsh know her position "before making a final decision". Five hours later, she wrote to Ms Walsh to say: "I won't be in tomorrow. I will send my resignation. I've thought about it and I am unable to continue."

• [44] As I have observed, Ms Burgess did not suggest in her written material that the second text was not a resignation. At the hearing, she submitted that the text conveyed an intention to resign "in the future". To the extent that this was an attempt to suggest that the text did not amount to a resignation, I do not accept the submission.

• [45] As I have noted above, Ms Burgess gave evidence that on 27 May 2025 she had concluded that her professional relationship with Ms Walsh "had irretrievably broken down". This reads more as a considered view than one formed in the heat of the moment. It is also reflected in the language and tenor of the text messages from Ms Burgess to Ms Walsh on 28 and 29 May 2025.

• [46] Further, in her submissions at the hearing, Ms Burgess described the workplace at Country Bumpkins as "extremely toxic". She said that she had considered her position after receiving the phone call from Ms Fowler on 27 May 2025. She stated:

"I thought about it for an hour and was like, 'I can't do this any more.' The 'unable to continue' is 'I can't do this any more. I can't continue to work in a toxic workplace.'"

• [47] On the evidence, I am satisfied that the text was intended to convey a resignation. I am also satisfied that, in the context of the first text of 27 May 2025, the second text used "unambiguous words of resignation" (to adopt the language of Bupa Aged Care). The reference to Ms Burgess "sending her resignation" was a formality. She had flagged in the first text that she was considering resigning, and in the subsequent text stated that she had thought about it, was unable to continue and would not be in the next day

• [48] The question which arises is whether Country Bumpkins was entitled to treat the text as an effective resignation which operated to terminate the employment.

• [49] As I have stated, Ms Burgess contended that she sent her resignation as a "heat-of-the-moment reaction". She said she did so at a time when she was "under significant emotional distress, fearing that Ms Crossingham's mother might come to [her] home".[18] She submitted that at the time she was "distressed and fearful".[19]

• [50] However, Ms Burgess did not demonstrate that Ms Walsh was aware of anything at the time of receiving the resignation that would cause her to question whether Ms Burgess was conveying a real intention to resign. As I have observed, the details of Ms Walsh's conversation with Ms Crossingham's mother are limited. Even were I to accept that Ms Crossingham's mother threatened to go to Ms Burgess's house, there is no evidence that Ms Walsh was aware of that or that the threat had been conveyed to Ms Burgess.

• [51] At the hearing, Ms Burgess submitted that she has attention deficit hyperactivity disorder ("ADHD"), which results in "impulsive behaviours" when she is "emotional". However, she did not lead any evidence to support a finding that the decision to submit her resignation was affected by her having ADHD, or that Ms Walsh ought to have been aware that the resignation may have been so affected.

• [52] Ms Burgess relied on a "Letter of Support" from Dr Mampitiya Arachchige Iranthi De Silva dated 31 May 2025. It describes the symptoms that Ms Burgess reported to Dr De Silva following a recent "significant life event". The letter does not greatly assist. It does not describe the "significant life event" and makes no express reference to Ms Burgess's employment with Country Bumpkins. The letter also does not directly provide evidence as to her state of mind on 27 May 2025.

• [53] Importantly, in the texts that passed between Ms Burgess and Ms Walsh on 28 and 29 May 2025, Ms Burgess did not claim that she had not intended to resign, that the resignation had been sent in the heat of the moment or at a time when she was under emotional distress, or that it was an impulsive action brought about by ADHD. She also did not expressly seek to withdraw the resignation. Instead, she queried whether her position was already being advertised, and expressed her disapproval (in intemperate terms) that people at work had been told that she had resigned and were gossiping.

• [54] I am mindful that in her email to Ms Walsh on 29 May 2025, Ms Burgess stated that she "had not submitted a formal resignation at this point". However, on my reading, that email was a disingenuous attempt to reinvent the language of her resignation and, indirectly, to recast the resignation as something else. Again, however, she did not directly seek to withdraw the resignation.

• [55] Finally, Ms Burgess contended that Ms Walsh owed her a "duty of care" to ask whether she had intended to resign. She also suggested that she should have been given a "cooling off period". Those submissions are inconsistent with the principles outlined in Bupa Aged Care, to which I have referred. In addition, the following observations in Jack Lipari v YPA Estate Agents Pty Ltd[20] (after referring to Bupa Aged Care) are apposite:

"...the mere fact that a person resigns in circumstances of heightened tensions or strong emotions will not turn a rash or imprudent decision made by an employee into a dismissal at the initiative of the employer. Rather, if, applying the objective test referred to by the Full Bench, it can be said that the employee could not reasonably be considered to have conveyed a real intention to resign, then there may be a termination on the employer's initiative if the employer treats the resignation as effective. The conclusion must be that objectively no such intention was evident, not simply that it is fair to allow the employee an opportunity to rethink the matter. There is no statutory 'cooling off' period for resignations. It is for the Parliament to create any such rule. The Commission cannot fashion one." (My emphasis)

• [56] There is some uncertainty as to precisely when Country Bumpkins accepted the resignation. This was not a matter canvassed by the parties. Obviously, from the terms of Ms Walsh's email to Ms Burgess of 30 May 2025, the resignation had been accepted on or by that date.

• [57] I am not persuaded that in the period from 27 to 30 May 2025 there were circumstances of which Country Bumpkins was, or ought to have been, aware that would have caused a reasonable person in its position to question whether the second text of 27 May 2025 conveyed a real intention to resign. It follows that the termination of the employment was not on the initiative of Country Bumpkins within the meaning of section 386(1)(a) of the Act.

• [58] Based on the conclusions I have reached above, I find that Ms Burgess was not dismissed within the meaning of section 386(1) of the Act. Consequently, she was not entitled to make the application under section 365. The only appropriate order is that the proceedings be dismissed.

• [59] I order that the Application be dismissed.

[1] In this decision, all references to legislative provisions are to provisions of the Fair Work Act

[2] Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [67]. See also Lipa Pharmaceuticals Ltd v Mariam Jarouche (2023) 324 IR 375; [2023] FWCFB 101 at [4].

[3] This chronology is largely drawn from an undated Statement of Melissa Walsh on which Country Bumpkins relied, and a Statement of Rebecca Burgess dated 25 July 2025

[4] Saeid Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75], citing Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200

[5] Explanatory Memorandum for the Fair Work Bill at par 1530; City of Sydney RSL & Community Club Limited v Roxana Balgowan [2018] FWCFB 5 at [9] and [13]

[6] Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245; [2017] FWCFB 3941 at [47]

[7] Kylie Bruce v Fingal Glen Pty Ltd [2013] FWCFB 5279 at [23]

[8] Applicant's Outline of Submissions, par 15

[10] Statement of Rebecca Burgess, par 16

[11] Statement of Melissa Walsh, par 12

[12] Respondent's Submissions on Jurisdictional Objection, par 12

[13] (2017) 271 IR 245; [2017] FWCFB 3941

[14] (2017) 271 IR 245; [2017] FWCFB 3941 at [35]- [46]

[15] (2017) 271 IR 245; [2017] FWCFB 3941 at [47(1)]

[16] I am mindful that a resignation is a unilateral act, the exercise of which does not depend on it being accepted by the employer: Birrell v Australian National Airlines Commission [1984] FCA 378; (1984) 9 IR 101 at 109. I use the term "accepted" in part for consistency with other decisions of the Commission and in part for convenience

[17] Kane Davy v O'Connor Engine Services Pty Ltd [2021] FWC 6697 at [29]

[18] Statement of Rebecca Burgess, par 16

[19] Applicant's Outline of Submissions, par 10(a)

[20] [2019] FWC 3546 at [30]

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