Fair Work Act 2009

s.365 - General protections

General protections dismissal dispute - jurisdictional objection alleging no dismissal - whether employee forced to resign - jurisdictional objection upheld - application dismissed.

• [1] Shane Glasencnik commenced full-time employment with Employers Mutual Management Pty Ltd (EML) on 28 January 2019 as a Case Manager. EML operates a large workers' compensation and personal injury claims management business. Mr Glasencnik became unfit for work on around 14 December 2023 due to an adjustment disorder with anxiety symptoms. Mr Glasencnik submitted a workers' compensation claim which was ultimately declined on around 24 October 2024. Mr Glasencnik was unfit for work throughout 2024. After some back and forth about whether Mr Glasencnik had been medically cleared to return to work, Mr Glasencnik returned to work for a period in late March and early April 2025. Further issues immediately arose. Mr Glasencnik ultimately resigned via email on 6 May 2025. Mr Glasencnik claims he was forced to resign due to conduct by EML and filed a general protections application on 27 May 2025.

• [2] I listed a hearing regarding whether Mr Glasencnik was forced to resign on 28 August 2025 via video. A schedule identifying the evidence relied on by the parties is attached at the end of this decision. I have considered all the evidence and submissions.

• [3] The definition of "dismissed" appears in s.386 of the Fair Work Act 2009 (FW Act) which states:

(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] Mr Glasencnik referred briefly in submissions to EML engaging in repudiatory conduct but did not develop an argument that he accepted the repudiation and hence that his employment ended at the initiative of EML within the meaning of s.386(1)(a) of the FW Act. In any event, there is no evidence of Mr Glasencnik communicating an acceptance of any repudiation of the contract by EML. For completeness, I find that Mr Glasencnik resigned from his employment with EML on 6 May 2025 and that his employment was not terminated at the initiative of EML.

• [5] Mr Glasencnik's primary argument is that he was forced to resign because of conduct, or a course of conduct, engaged in by EML and hence was "dismissed" within the meaning of s.386(1)(b) of the FW Act.

• [6] In Kylie Bruce v Fingal Glen Pty Ltd (in liq)[1](Fingal Glen), the Full Bench endorsed, with one point of clarification, an earlier summary of the principles applicable to assessing whether an employee was constructively dismissed. The Full Bench stated:

"The four authorities cited above were summarised by a Full Bench of the AIRC in O'Meara v Stanley Works Pty Ltd (O'Meara) as follows:

'In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.'

Subject to the comments below, we accept and adopt this as a summary of the principles applicable in determining whether an employee has been forced to resign because of the conduct of the employer within the meaning of s.386(1)(b) of the Act...

First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an "important feature" of constructive dismissal, it is not sufficient 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". There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The "limb" of the O'Meara test relating to resignation as a probable result of an employer's conduct should be read in this light."[2]

• [7] A Full Bench of the Australian Industrial Relations Commission in ABB Engineering Construction Pty Limited[3] stated the following regarding the "narrow line" between a forced resignation and a discretionary choice by an employee to resign:

"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."

• [8] Mr Glasencnik argued that the following conduct by EML forced him to resign from his employment on 6 May 2025:

1. EML did not allow Mr Glasencnik to return to work after he provided a medical clearance from Dr Myo Oo on 7 February 2025.

1. EML engaged in without prejudice discussions with Mr Glasencnik about an end to Mr Glasencnik's employment in late February 2025.

1. EML management communicated inappropriately with Mr Glasencnik.

1. EML underpaid Mr Glasencnik, EML did not deduct tax correctly, and EML claimed Mr Glasencnik owed money to EML.

• [9] I can understand Mr Glasencnik's frustration about not being allowed to return to work after Dr Oo provided a certificate on 7 February 2025 which stated Mr Glasencnik was "fit for work for routine duties without restrictions." However, the certificate must be viewed in the context of Mr Glasencnik having been absent from work with a mental health condition for over 12 months. It is not surprising that EML wanted more than a brief certificate from Dr Oo confirming that it was safe for Mr Glasencnik to return to work. That is particularly the case given the certificate from Dr Oo refers specifically to Mr Glasencnik wearing sunglasses at work. It was reasonable for EML to be concerned that the certificate was directed at Mr Glasencnik's eye condition, rather than his mental health condition.

• [10] EML then took active steps to gather more information about Mr Glasencnik's condition. This included exchanging various emails with Mr Glasencnik and ultimately agreeing to pay for a case conference with Dr Oo on 24 March 2025. EML also agreed to pay Mr Glasencnik a week of wages in late February 2025 even though Mr Glasencnik had not performed any work. After speaking with Dr Oo on 24 March 2025, EML agreed that Mr Glasencnik could resume working the next day.

• [11] I consider EML acted reasonably in relation to Mr Glasencnik's return to work in February and March 2025. Employers have strict legal obligations to provide a safe working environment for employees. It was appropriate for EML to seek further clarification from Dr Oo that Mr Glasencnik was fit to return to work after such a lengthy absence.

• [12] It is clear from the evidence that Mr Glasencnik voluntarily agreed to participate in without prejudice discussions with James Sneddon (Senior Manager, Claims Operations) in late February 2025. Mr Glasencnik requested to have a representative present in the discussions and Mr Sneddon agreed to the request. The mere fact that EML negotiated with Mr Glasencnik about an agreed exit arrangement does not mean that EML had decided Mr Glasencnik's employment had to end one way or another. An agreed position was not ultimately reached and EML allowed Mr Glasencnik to return to work on 25 March 2025.

• [13] I do not consider EML acted unreasonably or inappropriately in relation to the without prejudice negotiations with Mr Glasencnik.

• [14] Mr Glasencnik used various labels to describe communications from EML in his resignation letter. Mr Glasencnik referred to a response from a human resource contact as "concerning" and stated his ability to engage with the department was "effectively compromised." Mr Glasencnik referred to EML misinterpreting its duty of care into "a form of malicious compliance" and "misappropriating the intention behind words."

• [15] I have reviewed the emails Mr Glasencnik exchanged with various EML representatives in 2025. I do not consider any EML representative acted unreasonably or inappropriately in any of the communications with Mr Glasencnik.

• [16] It is not necessary or appropriate for me to determine whether Mr Glasencnik was underpaid in determining whether he was forced to resign. It is clear Mr Glasencnik was able to raise any payment issues with EML while he remained employed. Mr Glasencnik sent an email on 1 May 2025 claiming he had been underpaid by around $4,000. EML conducted an audit in response and identified an underpayment of $27.57. EML also identified that Mr Glasencnik had been overpaid by $746.16 for 8, 9, and 10 April 2025 because Mr Glasencnik did not work on these dates. EML was entitled to raise this type of issue with Mr Glasencnik. EML ultimately decided not to pursue this amount after Mr Glasencnik resigned.

• [17] I do not consider EML acted unreasonably or inappropriately in relation to the payment issues raised by Mr Glasencnik or in seeking to recover an alleged overpayment.

• [18] I do not consider Mr Glasencnik's complaints about the conduct of EML establish that EML intended to force Mr Glasencnik to resign. To the contrary, I consider EML took several steps to try and allow Mr Glasencnik's employment to continue. This included not taking disciplinary action against Mr Glasencnik in April 2025 when he was repeatedly failing to attend the office to perform work. The mere fact that Mr Glasencnik's resignation was discussed by Mr Sneddon in without prejudice discussions does not establish that EML intended to force Mr Glasencnik to resign. It is clear EML was prepared to negotiate an agreed end to Mr Glasencnik's employment. However, when an agreement was not reached, EML pivoted to focusing on Mr Glasencnik's return to work. This conduct does not demonstrate EML was intending to force Mr Glasencnik to resign.

• [19] I also do not consider that resignation was the probable result of EML's conduct based on an objective assessment. I do not consider EML acted unreasonably or inappropriately towards Mr Glasencnik for the reasons identified above. Mr Glasencnik simply stopped attending work in mid-April 2025 and then resigned via email on 6 May 2025 due to pressing financial and domestic necessity. Daniel Snape (Manager 1) attempted to meet with Mr Glasencnik to resolve any outstanding issues on 23 April 2025. Mr Glasencnik did not attend the meeting. Mr Glasencnik made a voluntary decision to resign and he communicated it in a way that was specifically designed to ensure he would receive pro rata long service leave payments. Mr Glasencnik's resignation was not the probable result of any conduct engaged in by EML.

• [20] I find that Mr Glasencnik was not forced to resign due to conduct, or a course of conduct, engaged in by EML. I find Mr Glasencnik was not "dismissed" within the meaning of s.386(1)(b) of the FW Act.

• [21] I uphold EML's jurisdictional objection. Mr Glasencnik's application is dismissed.

Ms R Gall of counsel instructed by Hillard and Berry Solicitors representing EML.

A1 Various documents filed by Mr Glasencnik including medical reports, payslips, emails, calculation tables, submissions, and workers' compensation documentation. Mr Glasencnik was not required for cross-examination.

R1 Witness statement of Cameron Walker (Team Leader) dated 7 August 2025 and attached documents. Mr Walker was not required for cross-examination.

R2 Witness statement of Daniel Snape (Manager 1) dated 7 August 2025 and attached documents. Mr Snape was not required for cross-examination.

R3 Witness statement of Shasta Selden (Senior HR Business Partner) dated 7 August 2025 and attached documents. Ms Selden was cross-examined on her evidence.

R4 Witness statement of James Sneddon (Senior Manager, Claims Operations) dated 8 August 2025 and attached documents. Mr Sneddon was cross-examined on his evidence.

R5 Witness statement of Kristy O'Loughlin (Program Manager - Project Solutions) dated 8 August 2025 and attached documents. Ms O'Loughlin was cross-examined on her evidence.

R6 Medical certificate from Dr Myo Oo concerning Mr Glasencnik dated 24 March 2025.

R7 Certificate of capacity from Dr Oo concerning Mr Glasencnik dated 26 February 2025.

[1] [2013] FWCFB 5279.

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