Fair Work Act 2009

s.365 - General protections

Commonwealth of Australia as represented by the Department of Employment and Workplace Relations

Application to deal with contraventions involving dismissal - whether Applicant was dismissed - no dismissal.

• [1] Ms Sara Davidson (Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 for the Commission to deal with general protections contraventions involving dismissal. She claims that she was forced to resign from her employment with the Commonwealth of Australia as represented by the Department of Employment and Workplace Relations (Respondent) because she exercised workplace rights.

• [2] The Respondent raised a jurisdictional objection on the ground that the Applicant voluntarily resigned and was therefore not dismissed within the meaning of s386 of the Act.

• [3] Section 386 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.

• [4] A dismissal is a fundamental prerequisite that must be established before the Commission can exercise powers under s.368 of the Act to deal with a dispute about whether a dismissal was in contravention of the general protections provisions.[1]

• [5] The application was heard on 2 September 2025. The Applicant was self-represented and Ms E Knezevic-Kovac appeared for the Respondent.

• [6] For the reasons outlined below, I find that the Applicant was not dismissed within the meaning of the Act.

• [7] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[2] (Bupa), a Full Bench of the Commission examined the relevant authorities as to what constitutes 'dismissed' under s.386(1) which included the following:

(1) 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.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here 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. Unlike the situation in (1), the requisite employer conduct is the essential element.

• [8] In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park[3] Deputy President Sams noted the following when considering whether the applicant in that matter was dismissed:

1. Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. 'Initiative' is relevantly defined in the New Shorter Oxford Dictionary as: "the action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act."

• b. This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd[4] (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, '... a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.'

'In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is 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.'

• d. A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd[5] said, '... to constitute termination at the initiative of the employer the termination must be the direct or consequential 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 ...' [Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].

• [9] Finally, it is the case that "considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer's conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign".[6]

• [10] The Applicant was employed in the Australian Public Service from 2003 until she resigned on 6 June 2025.

• [11] She took a period of study leave for around 18 months which ended in November 2024, during which she completed a Diploma of Project Management. On her return to work, she was placed in the Strategic Project Management Team which consisted of 3 people, the others being her direct manager (Ms S Murray) and another employee more senior than the Applicant (Ms K Hines).

• [12] In January 2025 she accepted a six-month temporary transfer to the Compliance Team, however she said the role "did not align with my expectations", and so she returned to her role in the Strategic Project Management Team in April 2025.

• [13] On 28 March 2025 the Applicant sent an email to the Respondent proposing the following options at the end of her temporary transfer to the Compliance Team:

1. She be granted miscellaneous leave without pay for 2 to 3 years to study a Bachelor of Emergency Management on a full time basis,
2. She be given a voluntary redundancy; or
3. She be allowed to work on a part time basis to enable her to complete the degree within 6 years.

• [14] On 16 April 2025 Ms N Ryan (Assistant Secretary of the Employment Procurement Branch) advised the Applicant that those requests were denied and explained the reasons for doing so. This email included advising the Applicant that the decision to deny her request to work part time was a reviewable decision under the Respondent's Review of Actions Policy, however the Applicant did not seek any review.

• [15] In late April, the Applicant's manager sent her an email assigning her work drafting Post Implementation Reviews (PIRs) for two projects.

• [16] The Applicant said she submitted a draft to her manager for one of the PIRs on 2 May 2025, who made some "minor editorial changes", and the document was then sent to Ms Hines for "comment".

• [17] On 15 May 2025, a "shout out" was given in the Respondent's internal newsletter which credited Ms Hines with "working behind the scenes" to draft both PIRs.

• [18] The Applicant said she searched the shared drive to look for any PIRs authored by Ms Hines and did not find any. She said this eroded her trust in her manager and Ms Hines and left her feeling undermined and deceived.

• [19] On 18 May 2025 the Applicant emailed the Assistant Secretary, Ms Ryan, raising concerns about misattribution of her PIR work to her colleague, and about the refusal of her request for a further period of study leave to undertake a Bachelor of Emergency Management on a full-time basis. The Applicant's email included that she felt the incident in which Ms Hines was commended for drafting the review, without acknowledging the Applicant's contribution, raised significant concerns for the Applicant. In her email she also stated that it was difficult for her to understand why her request for leave without pay to study full time was rejected.

• [20] Ms Ryan replied the following day in which she apologised that the Applicant felt her contribution had not been recognised and explained there may have been some confusion as to the status of the work in question. Ms Ryan said that "the project planning is still very much under development, no documents have yet been workshopped at Section Heads nor cleared by me as FINAL. That is, neither your work nor [Ms Hines] has been progressed ...".

• [21] The Applicant gave evidence that she considered Ms Ryan's response undermined the Applicant's credibility and invalidated her legitimate concerns. She said that in the absence of a meaningful explanation from Ms Ryan, she felt isolated and disregarded, and as a result she became anxious and was unable to function in the workplace. She took personal leave from 19 May 2025.

• [22] On 6 June 2025 the Applicant sent an email to Ms Ryan in which she said she did not feel that her concerns had been adequately addressed or acknowledged. She stated that the decision to deny her request for leave without pay to undertake full time study was deeply disheartening. She also said that she understood the drafting of the two PIRs had been allocated solely to her and it was deeply disappointing that Ms Hines was publicly commended in the Branch newsletter for drafting the review. The Applicant said that the suggestion her work was simply one part of a collaborative process did not reflect the way the task was assigned or delivered, and the lack of transparency and recognition had significantly impacted her trust in the leadership of the Branch. She then said:

"It is with reluctance that I have made the decision to resign from my permanent position within the Department of Employment and Workplace Relations. This has not been an easy decision. I have valued the opportunity to contribute meaningfully to the department's work over the years, and I had hoped to continue building my capability and career within the public service - particularly through further study that aligns with emerging national priorities. However, in the absence of support for my professional development, and given the unresolved concerns around transparency and recognition of my contributions, I feel I have no other option. Please accept this email as formal notice of my resignation. My final day with the department will be Tuesday, 15 July 2025. Thank you again for the opportunities I have had during my time with the department. I wish the team all the best in the important work ahead."

• [23] Ms Ryan accepted the Applicant's resignation the same day and apologised that she felt her concerns had not been adequately addressed or acknowledged. She gave evidence that she considered the Applicant's resignation to be a considered one, made to enable her to pursue her studies given the interest she had repeatedly expressed in doing so.

• [24] The Applicant then made a formal complaint on 17 June 2025 which she said was acknowledged but never actioned.

• [25] The Applicant's resignation took effect on 15 July 2025 and she was on personal and miscellaneous leave with pay during her notice period.

• [26] She submitted that her resignation was not voluntary and was instead a result of the cumulative effect of the Respondent's conduct which involved: "misattribution of significant work, refusal to investigate, dismissive handling of her complaints, earlier refusals for study leave, redundancy, and part-time work, and the immediate acceptance of her resignation without discussion. The Applicant's mental health deteriorated as a result of these events, leading to certified personal leave from 19 May 2025 (medical certificate held)".

• [27] The only matter the Commission is required to determine is whether the Applicant was dismissed within the meaning of s.386. The onus is on the Applicant to prove that she had no real or effective choice in the circumstances but to resign because of the Respondent's conduct.

• [28] For the reasons given below, I am satisfied on the evidence that the Applicant was not dismissed.

• [29] First, even if the Respondent did misattribute authorship of a PIR in an internal newsletter, this is by no means a sufficient level of seriousness to support a finding that the Applicant had no choice but to resign.

• [30] In terms of the Respondent's refusal to grant a period of 2 to 3 years leave without pay, or make the Applicant redundant, or approve a period of 6 years part time work, these were reasonable management decisions, particularly in circumstances where the Applicant had only recently returned from 18 months study leave. Clearly, the Respondent could not make her position redundant if it was not genuinely redundant, and it explained the basis on which part time work was refused.

• [31] The Applicant gave a long period of notice, and there is no suggestion that she, at any stage, changed her mind or sought to rescind her resignation. She corresponded with the Respondent during her notice period in which she requested paid miscellaneous leave as she had exhausted her personal leave, which was granted.

• [32] These matters, whether considered individually or collectively, cannot reasonably be said to give rise to a finding that the Respondent intended to bring about the end of the Applicant's employment, such that she had no real or effective choice but to resign.

• [33] To the extent the Applicant also made complaints about events after her resignation, those events could not have been factors in her decision to resign and I have not considered those matters in coming to this decision.

• [34] In summary, the evidence does not demonstrate conduct of the Respondent that would support a finding that the Applicant was dismissed.

• [35] The Applicant has not discharged her onus to demonstrate that she had no real, effective or meaningful option but to resign in these circumstances. As a result, I am not satisfied that she was dismissed within the meaning of the Act and this application is dismissed.

E Knezevic-Kovac for Commonwealth of Australia as represented by the Department of Employment and Workplace Relations.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

[2] [2017] FWCFB 3941.

[3] [2012] FWA 2473.

[6] Sathananthan v BT Financial Group Pty Ltd [2019] FWC 5583.

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