Fair Work Act 2009

s.365 - General protections

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

[1] Mrs Samantha Joy (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 11 November 2025. The Applicant claims that adverse action was taken against her by Buildtuff Pty Ltd (the Respondent) in breach of part 3-1 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed under s.386 of the Act as the Applicant resigned from her employment. The Applicant contests the objection on the basis that she was constructively dismissed and forced to resign under s.386(1)(b) of the Act.

[3] Directions were issued and the matter was listed for hearing on 11 February 2026. The Applicant was self-represented, and the Respondent granted permission to be represented by Stephan Gifford of Gifford Legal.

[4] The Applicant commenced part-time employment with the Respondent as a Marketing Generalist from 19 August 2025.

[5] The Applicant submits that she was told she would work part-time, with a salary of $60,000, which she verbally confirmed with her manager when she accepted the role over a phone call on 15 August 2025.

[6] The Respondent asserts that the role was for 3 days a week, as that is what was conveyed to the Applicant during the interview.

[7] The Applicant asserted that she had agreed to work 2.5 days. When questioned on why she thought 2.5 days had been agreed, the Applicant said it was because she thought part-time referred, literally, to half of full-time. That is not what part-time means.

[8] On 18 August 2025, the Applicant wrote to the Ms Melissa Smrecnik, Marketing Manager, stating that the contract noted full-time hours, whereas the hours the Applicant stated had been agreed were Tuesdays, Thursdays and a half day on Friday.

[9] The Applicant commenced work with the Respondent on 19 August 2025.

[10] On 29 August 2025, an amended contract was issued for $55,000 for 20 hours per week. The Respondent submits that this contract was issued after the Applicant had requested a 2.5 working week. The Applicant referred to the contract as being a "unilateral reduction". The Applicant did not sign the second contract.

[11] On 1 September 2025, the Applicant replied to Ms Smrecnik requesting her hours be reduced to 2 days per week and a salary of $50,000. She stated:

I was so excited about this role and the opportunity to get started that I jumped in feet first without even ironing out the finer details. With everything moving so quickly, I genuinely thought 2.5 days was manageable, but I can see now I was a bit naïve about how much I could take on in a new structure.

Now that I've had a chance to settle in and see how it works in practice in the last couple of weeks, I'm realising I've well and truly overcommitted and have been having to work into the evenings and weekends to try to keep up with my own client work. With a busy family life on top, it's proving incredibly trying and unsustainable - I'd rather address it now than get to a point where I'm burnt out running on empty or have to pull back altogether.

Would it be possible to adjust my arrangement to 2 days a week at $50k, and then reassess in the new year? I completely understand if that's not ideal for the business, and you may prefer to have somebody in the office for 3 days. But that said, I am confident that I can deliver the same value in 2 days that most could in 3, if not more. In my first week, you mentioned I'd achieved a full-time workload in the time I was there, and I'd continue to work quickly/efficiently, focus on high-impact priorities, and make myself available for anything urgent outside those core days.

[12] The Applicant gave evidence that Ms Smrecnik "verbally accepted" the two-day work arrangement on 2 September 2025.

[13] The Applicant submits she did not receive her first payslip until 9 September 2025, despite it being due on 26 August 2025.

[14] Upon receipt of her payslip, the Applicant noted that only one of her two weeks wages owed were paid, and she alleged that the hourly rate was inconsistent with what she thought had been agreed.

[15] Further, the Applicant raises that she had been working 15.2 hours per week but was only being paid 15 hours per week.

[16] The Applicant submits that though a correction was processed on or around 16 September 2025, payroll appeared to be calculated using the wrong hourly rate.

[17] On 28 September 2025, the Applicant email Ms Smrecnik:

I just wanted to check something with you regarding my pay, as I noticed it doesn't quite align with what we agreed. My accountant pointed it out when we were reviewing the payslips while we were working out my tax last week, and I thought it best to raise it directly with you. Sorry for not bringing it to your attention sooner.

For the first week, I worked 2.5 days (about 23 hours) at the $55k rate as agreed. From then on, it should have been 2 days (15 hours) a week at $50k, as per my email, which I assumed was agreed since I didn't receive any pushback or further communication around salary, nor an amended contract.

Looking at my payslip, the hourly rate is showing as $52.88/hr, which annualises to around $41k for 2 days per week. At $50k per annum for 2 days, the hourly rate should actually be closer to $64.10/hr. Could you please confirm I've understood this correctly, and that payroll can adjust and back-pay the difference, as it is quite significant? I completely understand this likely won't be fixed in time for this week's pay run, but I'd expect it could be sorted for the following one.

Given the role was advertised in the $40-$60k range, and 3 days was set at $60k, I felt $50k for 2 days was both fair and reflective of what I bring to our team. After being at BuildTuff for 5 weeks now, the progress I've been able to deliver both in quantity and quality, at pace, reflects the value I bring, and I'm confident my contribution is in line with - if not beyond - that level.

I'm sure it's just a small mix-up, but I'd really appreciate your help in getting it sorted. Thanks again for your support :) I'm really enjoying working with you and feel we're achieving a lot together already. I hate all of this stuff, as you know, but I also need everything to be black and white.

[18] After the Applicant raised these issues with Ms Smrecnik, Ms Smrecnik stated she would speak to Mr Mayer Jung, General Manager of the Respondent.

[19] On 30 September 2025, the Applicant stated Ms Smrecnik verbally confirmed that Mr Jung agreed to a $50,000 salary for a 16-hour work week, and that conversations about her employment and the team structure would commence in the new year with a possibility of the Applicant needing to work three days a week.

[20] On 14 October 2025, the Applicant was provided with a third contract with a salary $50,000 for a 16-hour work week. The Applicant did not sign this contract.

[21] The Applicant requested her third contract be backdated to her actual start date.

[22] On 29 October 2025, Mr Jung provided the following response:

I've been chatting with Melissa in regards to this ongoing contract issue and we will have this sorted tomorrow. Apologies it was not sorted this week, this is on me. I have updated it now though and this will be rectified in next weeks pay. We will back pay to when this last contract was put forwards but unfortunately we can't back pay to the start of the employment period. I understand there was some confusion around hours and the subsequent pay however we have already made quite a few accommodations with hours and now an hourly pay rise too. The hourly rate is now much higher than what we had originally budgeted for and is at a rate of an executive marketing manager. Again apologies for the delay in getting the pay updated however this will 100% be sorted on the next pay run. We do love having you on board and love the work you do!

[23] The Applicant sent the following response on 31 October 2025:

Firstly, I need to address your comment about my rate being "at a rate of an executive marketing manager." I found that remark surprising, probably unnecessary, and to be honest, quite disheartening. You didn't hire a marketing assistant, you hired someone with 20 years of digital marketing experience who could hit the ground running, manage complex strategy and execution across multiple digital channels simultaneously, and bring immediate value to the business. That's exactly what I've done over the past 12 weeks.

The rate of $50,000 per year (pro-rata for two days per week) - equivalent to $125,000 FTE - is not at all out of step with the market for a digital marketing professional at my level. According to SalaryExpert, the average salary for a Digital Marketing Manager in Australia is AUD $123,774, and up to $158,301 for senior-level professionals. This is the space my experience and capabilities fall into. To suggest that the rate is excessive or somehow beyond budget undermines the professionalism and expertise that I bring, which, ironically, are the very reasons you hired me.

On that note, I also want to clarify your comment that "the hourly rate is much higher than originally budgeted." The role I first accepted was for $55,000 over 2.5 days per week (originally offered at $60,000 for 3 days). At $50,000 for two days, the total cost to the business is actually lower, not higher. You're not paying for hours: you're paying for experience. I've always believed in working smarter, not harder, and I've spent years building the strategies and processes that make that possible. I bring those efficiencies and that experience into everything I do, and I would hope the quality and breadth of work I've delivered in my two days each week reflect that.

I understand that you'd ideally like someone who can commit to more days in the future, and I've already said I understand that and support that direction. But ultimately, BuildTuff agreed to two days, and from week 2 of my employment, that's exactly what I've worked. Before starting my second week, I sent an email confirming the rate of $50,000 at the same time as confirming two days, and at no point was I advised otherwise. No new contract was ever issued reflecting a different rate, nor was any change communicated. The rate I was actually paid - around $41,500 pro-rata - was never discussed or agreed to.

That's not just a miscommunication; it's unprofessional. For several weeks, I worked under the assumption that everything had been set up correctly, particularly because my payslips showed a $55,000 annual base. I only realised otherwise after my accountant raised it. When I pointed it out on 28 September, I expected it to be fixed quickly, not still unresolved a month later. The contract you issued on 7 October simply formalised what had already been agreed back in August. This was not a new negotiation; it was a correction of an existing arrangement.

For that reason, I believe it's only fair that the pay be back-dated to week 2 of my employment. That's when the agreed rate took effect, and I've honoured that arrangement in full from day one.

I want to be really clear, Mayer, this isn't about creating tension. I've genuinely enjoyed the work, I value the team, and Melissa and I work extremely well together. But this situation has left me feeling undervalued and, frankly, disappointed. After all the good work and collaboration over the past few months, this didn't need to become complicated. I'm simply asking for what is fair and what was agreed.

I'd appreciate it if this could be reviewed and corrected in the next pay run so we can move forward with clarity and mutual respect.

[24] The Applicant submits she never received a reply to that email.

[25] The Applicant submits that on her payslip on 4 November 2025 was incorrect and included a backpay amount of $504 without any explanation.

[26] The Applicant then commenced a two-week period of personal leave allegedly due to work-related stress and anxiety, which she informed the Respondent of on 5 November 2025:

Weeks 1-2: 40 hours × $7.85 difference = $314.00 gross

Weeks 3-12: 150 hours × $11.22 difference = $1,683.00 gross

Less $504.81 partial payment received = $1,492.19 gross still outstanding.

In addition, my understanding is that pay is issued one week in arrears. Therefore, I want to ensure that the hours worked this week (3-7 November) are also corrected to the correct $64.10/hour rate, rather than the incorrect $52.88/hour.

Given that this issue has been ongoing for over three months, I am formally requesting that the remaining $1,492.19 gross be paid, and that all future pay - including this week's - be processed at the correct rate of $64.10/hour ($50,000 p.a. for 15 hours/week). Please confirm in writing that this will be rectified in the next payroll on Tuesday, 11 November 2025.

If I do not receive written confirmation and payment by that date, I will be lodging a formal Request for Assistance with the Fair Work Ombudsman. Following my discussion with them, they confirmed that I have a strong case and that my pay has not been compliant with Fair Work standards or proper contractual variation.

It's disappointing that it's come to this - having to chase what's fair and reasonable. I've always tried to approach this in good faith, trusting that the right thing would be done. I've accepted responsibility for requesting to reduce my hours from 20 to 15 after two weeks at the company, but that agreement was mutual; the pay adjustment that followed was not.

I've worked hard, delivered results, and contributed far beyond the hours I'm paid for. It's disheartening to realise that rather than acknowledging that, I've been left to fight for what should have been straightforward. I appreciate Melissa's support through this, but it's clear that beyond her, there hasn't been the same level of respect or care. It's not just disappointing - it's sad that it's come down to this over such a small amount to the business, but a significant amount to the individual.

This ongoing situation has had a significant impact on my well-being. Following medical advice, I have been certified unfit to perform my duties in this role due to work-related stress arising from the ongoing pay dispute. I will be taking personal leave effective immediately and have provided my medical certificate (attached) to confirm this. I had genuinely hoped this could have been resolved internally and amicably; it is very disappointing that it has reached this point. I look forward to written confirmation that the correct back pay and rate adjustment will be made by Tuesday 11th.

[27] The Applicant attached a medical certificate certifying her as unfit for work until 14 November 2025.

[28] Mr Jung sent the following email on 5 November 2025:

Thank you for your detailed email and for outlining your concerns. We acknowledge the stress this situation has caused and appreciate your patience while the matter is reviewed. We also acknowledge receipt of your medical certificate and note your advice regarding personal leave.

We wish to clarify that the role was always offered and contracted as a part-time, 3-days-perweek position. While we understand you may have had a different personal expectation regarding hours, it was always made clear the 3-days-per-week position was offered as a means of potentially stepping up into a full time role in 2026. We never intended or wanted the role to be less hours, regardless of ones perceived abilities. The business is not responsible for any misunderstanding arising from not reviewing or seeking clarification on the written contractual terms.

At this stage, we do not agree with the assertion that a revised salary or hourly rate was accepted or operative based on conduct. Any change to remuneration requires formal written agreement and approval, and for all parties to execute, which has not happened.

We will review your full summary and the documents provided. We will respond once our internal review is complete. While we acknowledge your perspective, we do not accept the characterisation that the business has failed to meet its contractual obligations. We will assess all matters objectively and communicate any required adjustments promptly.

We note your comments regarding communication. Melissa has been your primary point of contact and this has been to ensure that operational matters are addressed efficiently. We appreciate your recognition of her efforts. At the end of the day Melissa is your manager. It is standard practice for your direct manager to take care of these matters.

1. We will conduct a review of your pay history, contract, and correspondence.

2. A written response outlining our findings will be provided.

3. If any adjustments are required, they will be processed in line with applicable workplace obligations.

We expect to provide an update shortly. If further time is required to ensure accuracy, we will advise accordingly.

[29] The Applicant submits that shortly after the Respondent's email, her access to the company's Meta advertising account and YouTube channel was revoked.

[30] On 6 November 2025, the Respondent emailed the Applicant:

Following our internal review of your pay history, contract, and related correspondence, we acknowledge that there have been differing expectations regarding hours and pay rate. In the spirit of resolving this matter constructively and moving forward, we will include a payment of $1,492.19 in your upcoming salary scheduled for 11 November 2025.

Attached is a revised employment contract, effective from 18 November 2025. This updated agreement is designed to provide clarity for all parties and reflects a part-time arrangement of two days per week, totalling 15.2 hours (based on a standard 7.6-hour workday), with an annual salary of $50,000. Once signed, this will be reflected in Employment Hero.

Regarding your current leave status, your personal leave balance is currently 6.35 hours. We will process this accordingly, applying 6.35 hours of personal leave and 23.65 hours of leave without pay for your absence.

[31] After a brief email exchange where the Applicant responded noting the contract was not attached and requested contact details for Human Resources representatives, the Respondent provided an updated contract on 10 November 2025. This contract noted that the hours of work were 15.2 hours per week, worked between 8am and 5pm on Tuesdays and Thursdays. The pay rate was specified as $50,000.00 (gross) per annum. The Applicant submits that her request for the Human Resources contact details was not provided.

[32] On 11 November 2025, the Applicant submitted the following email:

I'm writing to formally resign from my position with BuildTuff Pty Ltd, effective immediately.

This has been a difficult decision and not one I expected to have to make. However, the ongoing challenges around my employment arrangements and the impact they've had on my wellbeing have made it clear that I'm unable to continue in this role.

I've genuinely valued working with you Melissa, and I'm proud of what we achieved together. I've learned a lot and appreciate the opportunities I've had to contribute to BuildTuff's marketing and growth.

I'll make myself available to provide any notes or files needed to ensure a smooth transition.

Thank you both for the opportunity and for the experiences I've gained during my time at BuildTuff. I wish the team and the business all the best moving forward.

[33] On 18 November 2025, the Applicant was paid her final wages, but noted her payslip on 19 November 2025 did not include the 7.6 hours of ordinary time pay for 4 November 2025 and referred to a lower base rate than what she believed had been agreed.

[34] The Applicant sent a subsequent email on 19 November 2025, alleging that was still owed $704.94 and that her outstanding wages and entitlements were not paid after her employment ended. The Applicant submits that on 25 November 2025, her final wages were correctly paid, but in the process, she had discovered her superannuation was allegedly underpaid.

[35] The Respondent submits that the dismissal occurred at the initiative of the Applicant, and the Respondent's actions in resolving the pay dispute and issuing a new contract demonstrated their "willingness to consult with the Applicant", and "resolve any misunderstandings", even following the Applicant's end of employment.

[36] The Respondent further states that they had attempted to respond within a timely manner and sought to investigate the alleged underpayment of wages. They deny that the Applicant was underpaid.

Was the Applicant forced to resign under s.386(1)(b) of the Act?

[37] Section 386(1) of the Act relevantly provides that a person has been dismissed if:

(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.[1]

• [38] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee to be terminated at the initiative of the employer.[2] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[3]

• [39] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[4] It is sufficient that the employer's conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[5]

• [40] All the circumstances - including the conduct of both the employer and employee - must be examined.[6] In other words, it must be shown that "the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."[7]

[41] The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) said, in relation to determining whether the ending of an employment relationship is a voluntary or forced resignation:

"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."[8]

• [42] Furthermore, in Pawel v Australian Industrial Relations Commission,[9] the Full Bench noted:

"Mere "causation" or "motivation" will not satisfy the requirement that the termination be at the initiative of the employer."

[43] Forced resignation has been interpreted by the Commission in the following ways:

• • the actual conduct of the employer forced to do so, such that there was an element of compulsion present;[10]
• • a 'critical action' or 'critical actions' of the employer which was intended to bring the employment relationship to an end;[11]
• • as a result of some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect;[12] and
• • the employer's conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.[13]

[44] The Applicant submitted that the Respondent engaged in the following conduct which forced her to resign:

1. Repeated underpayment of wages, from commencement through to final pay, including unpaid initial wages, ongoing underpayment, incorrect calculations, failure to pay all hours worked, and ongoing errors despite repeated escalation;

1. Issuing incorrect and back-dated contracts, including contracts that did not reflect agreed terms, reduced remuneration without agreement, or altered commencement dates in circumstances where back-pay was outstanding;

1. Failure to provide access to HR or appropriate support, despite repeated requests and despite the Respondent later asserting that HR support existed;

1. Dismissive and hostile conduct by the General Manager, particularly after the Applicant raised underpayment concerns and indicated she would seek assistance from the Fair Work Commission;

1. Removal of access to core work systems (Meta and YouTube) while the Applicant was on medically certified leave due to work-related stress, without warning or explanation, immediately after she raised Fair Work involvement; and

1. Ongoing payroll errors even after resignation, including incorrect final pay, failure to pay all hours worked, incorrect leave calculations, and underpayment of superannuation.

[45] I note that the underpayment claim arose out of what was essentially a misunderstanding. Much of the matters in dispute could have been avoided if there had been a letter of offer specifying an hourly rate of pay. It is unfortunate that the terms of the offer of employment were not communicated more clearly to the Applicant, but I acknowledge that the Respondent did not have dedicated HR advice at the time.

[46] The suggestion that there was an agreement to 2.5 days is based on the Applicant's mistaken belief that part-time means half of full-time. This was not in fact agreed as at the commencement of the first contract. I find there was no common understanding that the role would be for 2.5 days (that is not what part-time means). The Applicant said it is "irrelevant, whether it was advertised or intended to be 3 days." It is not irrelevant, as a matter of contract law. The whole argument of a "unilateral reduction" in pay stems from the Applicant's mistaken belief that 2.5 days per week had been agreed initially when it had not. By reducing the hours to 2.5 days per week, the Applicant was in fact proposing an amendment to the contract. It was reasonable for the Respondent to counter with a reduction in the annual salary.

[47] The Applicant then proposed 2 days per week which she says varied the agreed contract and that this amendment was "accepted" by conduct by the Respondent rostering her for 15 hours per week. I do not accept that the higher hourly rate of pay proposed by the Applicant was accepted simply because the Respondent rostered the Applicant for 15 hours per week, at her request. There is not enough evidence to support the assertion that the variation was agreed by conduct. The Respondent's conduct was equally consistent with continuing under the old contract while allowing for temporary reduction in hours.

[48] In any event, on 6 November 2025, her issues in this regard had been resolved. Mr Jung agreed, "the spirit of resolving this matter constructively and moving forward" to back pay $1,492.19, which is exactly what the Applicant had requested be paid to her. A further contract was also issued reflecting the terms the Applicant had asked for.

[49] I do not consider that the Applicant was forced to resign as a result of the alleged underpayment and contractual issues. Those issues arose from the Applicant's mistaken understanding that 2.5 days per week had been agreed. Further, Ms Smrecnik was consistently responsive to the Applicant's concerns and sought to have the issues resolved. Additionally, the Respondent agreed to back pay the amount the Applicant said she was owed on 6 November 2025. There was no basis for the Applicant, on 11 November 2025, to resign effect immediately as a result of "ongoing challenges around my employment arrangements".

"Failure to provide access to HR or appropriate support"

[50] Mr Jung gave evidence that the Respondent had no HR support until 6 November 2025.

[51] I note it was suggested in the hearing that the Respondent is part of a larger corporate group. However, I do not have evidence on that point. Even if other HR resources existed, the failure to provide "access" to HR does not point to a course of conduct which forced the Applicant to resign. Ms Smrecnik consistently replied to the Applicant's payroll concerns in a supportive manner.

[52] The Respondent noted, and I accept, that the Applicant stated in her emails that she felt Ms Smrecnik was a support to her. On 1 September 2025, the Applicant mailed Ms Smrecnik with:

Thanks so much for your understanding and support. I really appreciate it.

[53] In the Applicant's resignation email, she stated:

I've genuinely valued working with you Melissa, and I'm proud of what we achieved together.

"Dismissive and hostile conduct by the General Manager"

[54] The Applicant said Mr Jung failed to make eye contact with her, even though he was friendly with other staff. I consider it inappropriate for me to read into any alleged failure to make eye contact - there are many reasons why someone may not make eye contact, and it does not necessarily indicate a lack of respect.

[55] The Applicant said she was uncomfortable being the only woman in the office, which was frequently the case after 3 pm. However, she did not say why. She simply says that Mr Jung and Mr Mitchell Wright's presence in the office was "uncomfortable and intimidating". I consider it spurious and unfair for the Applicant to imply that Mr Jung's and Mr Wright's presence was intimidating when they were not alleged to have done anything improper.

[56] As to Mr Jung's tone in emails, I do not consider he was dismissive or hostile. In the email of 30 October 2025, he stated that the higher rate the Applicant had requested was much higher than what had been budgeted for and that the rate was now akin to that of an Executive Marketing Manager. I consider this to be a fair comment. The Applicant is, of course, entitled to value her work as she pleases but it is also fair for the Respondent to comment that her offer of $50,000 for 15 hours work a week means she would be receiving a higher hourly rate than what the Respondent envisaged.

[57] On 5 November 2025, Mr Wright, Project Manager for the Respondent, heard that the Applicant was taking mental health leave. He proceeded to remove the Applicant's systems access including her access to email and social media accounts.

[58] The Applicant argued in her submissions:

The removal of my Meta and YouTube access immediately after I raised Fair Work involvement made it obvious that I was no longer trusted or wanted in the business and that my ability to perform my role had been intentionally undermined. I received no communication about this being part of a standard procedure, nor was I aware of that procedure or had seen it applied to any other members of the team. This appeared retaliatory.

[59] The issue with this submission is, firstly, that there was no requirement for the Applicant to perform her role while on leave. Secondly, when asked during the hearing whether he did not trust the Applicant, Mr Wright replied that he did not trust anyone. He said he was acting solely for data protection purposes. Mr Wright stated that had the Applicant returned, he could have reinstated her access in a short period of time. I found Mr Wright to be a forthright witness and I accept his evidence. I do not accept that disabling the Applicant's system access was retaliatory.

[60] As a matter of logic, conduct by the employer after a resignation is tendered effective immediately cannot, in my view, be conduct which forced the employee to resign. I would also note that Mr Jung's email of 6 November 2025 demonstrated a willingness to address payroll concerns. I do not accept that the Applicant was forced to resign as a result of alleged payroll errors.

[61] I do not accept that the Respondent engaged in a course of conduct which, when considered objectively, forced the Applicant to resign. To the contrary, I consider the Respondent demonstrated a willingness to continue the employment relationship even after the Applicant changed terms of employment resulting in a higher hourly rate.

[62] As a result, I do not find the Applicant's resignation to meet the threshold of a forced resignation per s.386(1)(b) of the Act. Therefore, the Applicant is not eligible to lodge an application under s.365 of the Act. The jurisdictional objection is upheld, and the Application is dismissed.

[1] Fair Work Act 2009 (Cth) s 386(1)(b).

[2] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

[4] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200.

[5] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [31].

[6] Whirisky v DivaT Home Care [2021] FWC 650 at [77].

[7] Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [28].

[9] (1999) FCA 1660 at 58.

[10] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.

[11] Boulic v Robot Building Supplies [2010] FWA 6905, [16].

[12] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [1995] IRCA 625; (1995) 62 IR 200, 205-206.

[13] Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].

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