s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - application dismissed.

• [1] Rebecca Olle has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The respondent, Warramunda Village, objects to the application on the basis that it did not dismiss Ms Olle.

• [2] On 30 January 2023, Ms Olle was engaged by the respondent as a casual Registered Nurse, and from 28 August 2023 as a full time Clinical Care Manager. On 13 May 2025, the respondent provided Ms Olle with a letter of allegations, relating to an investigation concerning the payment of non-approved overtime. In connection with this issue, Ms Olle was directed to attend a meeting with the respondent on 15 May 2025 and provide a response to the allegations. Ms Olle provided detailed responses to the allegations, including in writing, on 15 May and 20 May 2025, which the respondent was considering. On 28 May 2025, while the investigation was ongoing, Ms Olle tendered her resignation in writing. The resignation letter relevantly stated as follows:

I am writing to resign from my position at Warramunda with my final working day to be Tuesday 10th June, 2025. This decision has been made due to ongoing treatment in the workplace that has had significant effect and impact on my health, wellbeing and safety. The workplace has become untenable and has left me unable to safely continue my employment as Clinical Care Manager.

• [3] Ms Olle was paid two weeks' pay in lieu of working out her notice period.

• [4] Ms Olle contends, in summary, that the allegations were unsubstantiated and were intended to force her resignation. Ms Olle further says that the respondent established an unsafe work environment which included inadequate workplace training, incomplete support from management, a failure to comply with the right to disconnect, changes to working hours without notice, victimisation and workplace bullying and a failure to pay wages correctly. Ms Olle submits that she had no choice for the sake of her registration, career and family but to hand in a 'forced resignation' to preserve her psychological wellbeing and safety.

• [5] The evidence demonstrates that at the time Ms Olle tendered her resignation on 28 May 2025, the respondent was in the process of conducting an investigation into allegations of misconduct by Ms Olle. The investigation had commenced with the letter of allegations, which set out the respondent's concerns in considerable detail, the potential outcomes if the allegations were determined to be substantiated and invited Ms Olle (and her support person) to attend an interview for the purposes of obtaining her response. The respondent was entitled to commence this process in light of its concerns and I consider that the respondent's approach in the letter was procedurally fair.

• [6] Ms Olle provided a response to the allegations, including in writing, on 15 May and 20 May 2025. I accept the evidence of the respondent's Director of Human Resources, Ms Jayasingthe, that the respondent was considering Ms Olle's response and had not made a decision regarding the investigation outcome.

• [7] Ms Olle contends that the investigation timeline was unreasonably lengthy, and this was prejudicial to her. I disagree. Ms Olle produced in excess of 40 pages of material in response to a detailed letter of allegations on 20 May 2025, only seven days after the 13 May 2025 letter of allegations was issued. The respondent advised Ms Olle that it would take up to 10 business days to consider the material, which I do not consider to be an unreasonable timeframe in the circumstances (regardless of whether it was 10 business days from 22 May 2025 as the respondent submits, or 10 business days from 26 May 2025 as Ms Olle contends). Ms Olle elected to tender her resignation before the expiration of either timeframe.

• [8] The terms of Ms Olle's resignation letter, which are set out earlier in this decision, are brief but communicate her resignation in unambiguous terms. At no stage has Ms Olle sought to withdraw it. There is no evidence to support a conclusion that the resignation was forced because of the conduct or a course of conduct engaged in by the respondent (see s 386(1)(b) of the Act). Rather, the evidence points to a contrary conclusion. The respondent had commenced a fair process to elicit a response from Ms Olle to the allegations, which it was in the process of considering. I reject Ms Olle's contention that by sending the letter of allegations to Ms Olle, about matters about which it held concerns, the respondent was intending to force her resignation.

• [9] In relation to Ms Olle's other contentions, including that the respondent established an unsafe work environment and failed to pay wages correctly, I accept Ms Jayasingthe's evidence that she informed Ms Olle that if she wished to raise concerns or complaints in relation to such matters she could do so, but that would be a separate process to the respondent's investigation concerning the payment of non-approved overtime. However, there is no evidence that Ms Olle raised a formal grievance with the respondent in relation to these issues. I am not persuaded that the respondent engaged in any such conduct with the intention of bringing the employment to an end, leaving Ms Olle with no effective or real choice but to resign.[1]

• [10] I find that Ms Olle's resignation on 28 May 2025 was voluntary and legally effective. She was not forced to resign. Ms Olle's resignation was at her election, on a timeframe of her choosing, while the respondent's investigation remained on foot and before it had come to a conclusion. The time taken by the respondent to consider Ms Olle's response to the allegations was not unreasonable. I am satisfied, on the evidence, that Ms Olle was not dismissed.

• [11] As Ms Olle was not dismissed, she was not eligible to make an application under s 365 of the Act, and the application must be dismissed on this basis.

S. Hooper, Australian Industry Group, for the respondent.

[1] See Bupa Aged Care Australia Pty Ltd T/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941; 271 IR 245 at [47]

Printed by authority of the Commonwealth Government Printer