s 365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection -- s 386(1)(a) - ostensible resignation ‑- jurisdictional objection dismissed

• [1] On 19 September 2025, Stacy Langdon (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant commenced employment with Tenowsue Holdings Pty Ltd (the First Respondent) on or around 7 July 2025, as a security guard, and asserts that his employment was terminated by the First Respondent on or around 2 September 2025.

• [2] The First Respondent has objected to the general protections application on the ground that the Applicant was not dismissed within the meaning of s 386 of the Act but voluntarily resigned.

• [3] The First Respondent's objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[1] Section 365 relevantly provides:

365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

• [4] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[2] Therefore, the discrete issue for determination is whether the Applicant was 'dismissed' from his employment within the meaning of s 386(1)(a) or/and (b) of the Act.

• [5] Given the factual dispute over whether the Applicant was or was not dismissed, the matter proceeded to hearing on 21 November 2025. The Second Respondent, Curtin University, did not wish to be heard in respect of the First Respondent's jurisdictional objection. Having considered the evidence of the parties and their submissions, I have found that the Applicant was dismissed by the First Respondent and therefore the matter will be programmed for conference.

• [7] In respect of the broader context leading to the cessation of the Applicant's employment, evidence was received from the Applicant and on behalf of the First Respondent, Susann Davey (Davey), Director and Manager of the First Respondent, and Owen Raymond Edmunds (Edmunds), Supervisor of the Applicant at the relevant time.

• [8] It is uncontroversial that whilst in the employ of the First Respondent, the Applicant was assigned to, and completed his regular duties at, the Kalgoorlie premises of Curtin University Residential College, Agricola.

• [9] The Applicant was a casual employee, and his usual work roster ordinarily required

• [10] On 26 August 2025, Davey received email correspondence from Christopher Hall (Hall), the Security Operations Coordinator for Agricola, notifying First Respondent that the Applicant was no longer permitted to work at any Curtin University sites in the future and his access to systems and buildings had been removed effective immediately. This action came following a series of allegations that had been made against the Applicant by Curtin University staff and students. At hearing, the Applicant vigorously contended that the allegations were unfounded.

• [11] Davey gave evidence that following the report from Hall she attempted to contact the Applicant via telephone and Facebook Messenger. Davey said that she notified the Applicant that a meeting with him was required and that he was no longer permitted at Agricola.

• [12] Whilst Davey arranged two meetings with the Applicant, one on 28 August 2025 and another on 29 August 2025, the Applicant did not present for the meetings. It was the Applicant's evidence that Davey had framed the invites as 'catch-ups' and therefore he was not aware that he was compelled to attend.

• [13] Davey stated that the Applicant requested a meeting on 2 September 2025, and that she communicated to the Applicant that she would not be available at this time due to medical appointments. Text messages passed between the Applicant and Davey on 2 September 2025, some of which follow:

Won't be free today so book in for sure tomorrow at 2pm I have changed stuff around so you get lunch with Diah as well

No I won't be there at that time either I will take another job this bullshit or whatever it is has already set me back $$$ 9 days off in a row for what?

"Is this how you're gonna play your game? Just ignore me now. I had an urgent appointment. I'm sorry, I'm so sick. Sorry I interfered with your life and got in your way." Message2Text

"I'd suggest you give me a ring. I'll let Dea know that you've quit if that's what you want me to do as well. Since you're not answering my calls, I'll explain it to her maybe. Ok, no worries, you better." Message2Text

You cancelled 3 appointments I made with youv [sic]

So far I'm in a critical condition for this surgery and doctors are panicking

And answer your phone as I just cancelled my appointment thanks to you

Why should I you have not done this to any other employee, so why victimise me you know I am struggling and now not to give me a shift and take a financial hit...

• [14] Davey and the Applicant agree that a meeting took place between the two of them in the evening on 2 September 2025. The meeting followed the aforementioned text messages. Davey asserts that in the latter part of the meeting when the Agricola complaint was discussed and a copy of the complaint was provided to him, the Applicant grew volatile, shouted, called Davey a 'bitch' and told Davey, who was accompanied by Edmunds at the meeting, 'you can stick our fucking job'. The Applicant denies shouting at Davey, denies calling Davey a 'bitch' and denies that he communicated a resignation.

• [15] Davey said that she attempted to calm the Applicant down and that she offered him various roles at other sites. At hearing, the Applicant conceded that in the meeting, Davey had offered him alternative sites for reassignment, one of which was the cash room at the racecourse. The Applicant stated that he agreed to be reassigned and further conceded that there was a clear avenue to allow his employment with the First Respondent to continue. In contrast, Davey stated that during the meeting, the Applicant refused to be reassigned.

• [16] As to why the Applicant's employment came to an end, the Applicant considered that it was because he raised a workplace right, which Davey was not expecting, and therefore he was not offered any other shifts with Davey after that. The Applicant referred to emails that subsequently passed between the parties.

• [17] By email dated 3 September 2025, the Applicant communicated, amongst other matters, the following to Davey:

Following legal consultation regarding the recent allegation reported at Curtin University (Agricola site), I am writing to formally dispute the process and decisions taken in relation to my employment, and to respectfully request procedural fairness in accordance with Curtin University's Code of Conduct and Core Values, and the principles of natural justice under Australian law.

1. A full copy of the original complaint and all associated evidence;
2. Confirmation of who made the decision to end my placement and on what basis;
3. Immediate clarification of why I was excluded from the investigation or decision-making process;
4. The opportunity to formally respond and have the matter reviewed through a fair and impartial process.

Pending this, I reserve all legal rights including the right to pursue unfair dismissal, breach of contract, reputational harm, or other relevant actions should this matter not be resolved equitably.

Please acknowledge receipt of this notice and advise next steps.

• [18] By email dated 4 September 2025, the Applicant asked Davey for confirmation that she had received the email dated 3 September 2025, regarding the 'Alleged incident at Curtin University'.

• [19] By email dated 8 September 2025, the Applicant emailed Davey referring to his emails dated 3 September and 4 September 2025, noting that Davey had not provided a substantive response addressing the matter (presumedly raised in those emails).

• [20] By email dated 8 September 2025, Davey replied:

I only received it late on the 4/9/2025 I did how ever explain to you I was violently ill at the time, also then was not working on the 5" as totally bed ridden, then there was the weekend when the office is closed only open for emergencies.

It will be sent to you today after my medical issues are cleared, you also had 2 days to get back to me also by the Friday as per our conversation and did not I had no calls, txts or messages so I have excepted your resignation, please wash iron and get your uniforms returned with in the next 5 days.

Please also make a convenient time to return the uniforms as you are aware I have a huge surgery next week and have a huge range of pre appointments prior due to the severity of my issues. I also have been checking into some other issues and have some very disturbing written reports from other staff members, you also was asked not to go down to the site but you did meet up with a guard at around 9pm of the Friday the 5th September 2025, informing him you where dismissed which is totally untrue you resigned I have the messages to this.

• [21] The Applicant asserts that his text message to Davey on 2 September 2025, did not convey a resignation and to the extent that it did, it was given at a time when the Applicant was in a state of emotional distress due to his removal from his only worksite absent any explanation. Furthermore, the Applicant denies having communicated a resignation in the meeting with Davey on 2 September 2025. In contrast, Davey considers that the Applicant's text message constituted notification of his resignation, and, in addition, Davey gave evidence that during the meeting on the evening of 2 September 2025, the Applicant again communicated his resignation. Edmunds, who was also present in the meeting on 2 September 2025, gave evidence that the Applicant was 'clear that he was quitting'.

• [22] Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section is relevant for present purposes given the acceptance by the Federal Circuit Court[3] and Federal Court[4] that the definition of the word 'dismissed' in s 386(1) is equally relevant to the meaning of the term as used in s 365 of the Act. The word 'dismissed' as defined in ss 12 and 386 of the Act reads:

(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.

• [23] There are exceptions under s 386(2) regarding when a person has been dismissed; however, those exceptions are not relevant to this case.

• [24] The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration.

• [25] The first element traverses 'termination on the employer's initiative' and the second, 'resignation in circumstances where the person was forced to do so because of conduct, or a course of conduct'. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli ('Bupa'),[5] and in Lipa Pharmaceuticals Ltd v Jarouche where the Full Bench endorsed the principles established in Bupa in respect of s 386(1)(b) of the Act. [6] In Bupa it was said:

"[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(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."[7]

• [26] While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan considered the operation of s 386(1):

"[10] It seems clear...that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).

[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression "termination at the initiative of the employer" was:

". . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, 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. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ''termination of employment.''" (references omitted)[8]

• [27] The critical questions in this case are whether the Applicant's communication to Davey on 2 September 2025 conveyed a resignation and if it did, whether that resignation was legally effective, and whether the act of the First Respondent in accepting the resignation by email dated 8 September 2025, was the principal contributing factor, resulting directly or consequentially in the termination of the Applicant's employment.

• [28] The starting point is the consideration of whether the Applicant's communication to the First Respondent over the course of 2 September to 8 September 2025 conveyed a real and unequivocal resignation. Such communication cannot be viewed in isolation. The surrounding circumstances known to the parties factor into the decision of what a reasonable person in the position of the parties would have understood was the objective position of the parties on and from 2 September 2025.

• [29] The approach to be adopted when considering the effect of a resignation was explained at length in Koutalis v Pollett ('Koutalis'),[9] a judgment of the Federal Court, which was followed by the Full Bench of this Commission in Canberra Urology Pty Ltd v Lancaster.[10]

• [30] In Koutalis, at issue was whether a Mr Pollett resigned or was constructively dismissed.

The question whether a resignation did or did not occur does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis' business' premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:

This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) [2004] HCA 35; 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461-462 [22]].

In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee's employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116, namely:

In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.[11]

• [31] On balance, I find that in his text message of 2 September 2025, the Applicant conveyed to Davey that he was not going to present for a meeting and that he would take another job. The communication passing between the parties evinces a level of frustration between Davey and the Applicant, to the extent that when considered in isolation, I am not persuaded that the text message conveyed a legally effective resignation. It is evident that the Applicant was in a heightened state when sending the text message. This finding is reinforced by the subsequent conduct of Davey, who, whilst considering that the Applicant had resigned, nevertheless met with the Applicant on that same day and offered him alternative placements, including one at the racecourse.

• [32] That is not to say that I am sceptical of the account that Davey has provided in these proceedings. Davey's evidence was, in my opinion, more believable than that of the Applicant. The Applicant obfuscated at times such that he did not always provide answers that were responsive to what had been asked. While the Applicant made appropriate concessions at hearing in respect of Davey having offered him alternative work, I do not consider he has provided a credible account, when he stated that he did not advise Davey that he was 'quitting' or that Davey could 'stick our fucking job'.

• [33] The Applicant's communication in the meeting on 2 September 2025 was, however, provided in circumstances where he was described by Davey as 'agitated', 'rambling', 'volatile', 'yelling and shouting' and that he 'refused to sit down and was getting more and more worked up'. Davy stated that she encouraged the Applicant to seek professional help for his mental health. Edmunds similarly described that the Applicant was 'aggressive', was 'cursing at Sue' and 'slamming his first on the desk'. Edmunds reports that the Applicant was 'yelling and screaming things along the line of "I don't know what's real and fake in my head"'. In the circumstances, the resignation conveyed to the First Respondent on 2 September 2025 was given in the heat of the moment and was of no legal effect. The appropriate course for the First Respondent to have taken following the interaction was for the First Respondent to check whether the Applicant intended to resign when a reasonable period had passed.

• [34] It is established that there may exist 'special circumstances' which render an apparent indication of resignation on the part of the employee ineffective unless the employer obtains confirmation of the employee's intention to resign after a reasonable period.

• [35] In Bupa[12] the Full Bench gave detailed consideration to the judgment of the Industrial Relations Court of Australia in Minato v Palmer Corporation Ltd ('Minato').[13] In Minato, the employer purported to accept a resignation of the employee even though it knew that when the employee uttered the words taken as a resignation that she was under personal pressure, not in a 'sensible state', and did not intend to resign.[14] In those circumstances, the acceptance of the resignation was characterised as constituting a termination of employment at the initiative of the employer.[15] The Court in Minato referred to Sovereign House Security Services Ltd v Savage, observing that it set out the legal position in respect of ascertaining whether there was a real resignation. [16]

• [36] Regard is, in addition, to be had to the conduct of the Applicant after conveying to Davey and Edmunds that they could 'stick our fucking job'. The Applicant emailed Davey on 3 September and 4 September 2025 in respect of the incident at Agricola. Those emails did not convey to the First Respondent that the Applicant considered that he had resigned. Whilst the First Respondent drew attention to the Applicant having stated that he reserved 'all legal rights including the right to pursue unfair dismissal, breach of contract, reputational harm, or other relevant actions', he did so in the context of also stating 'should this matter not be resolved equitably'. That the Applicant reserved his rights regarding 'unfair dismissal' does not implicitly communicate a resignation in these circumstances.

• [37] Whilst appreciative of the First Respondent's contentions that the Applicant was offered work at alternative sites and refused that work in the meeting of 2 September 2025, and that the Applicant did not, before 8 September 2025, accept the work that was offered, it was ultimately the First Respondent who terminated the employment of the Applicant.

• [38] The First Respondent was evidently aggrieved by the Applicant's conduct in the meeting on 2 September 2024. Furthermore, as observed, the First Respondent received no confirmation from the Applicant at the meeting on 2 September 2025 that he would accept alternative work, and the Applicant did not, by 8 September 2025, communicate to the First Respondent acceptance of work placements offered. Instead, the Applicant sent correspondence to the First Respondent about the Agricola incident and the investigation of the same - in circumstances where the First Respondent considered itself bound to accept the decision of the Second Respondent. However, the First Respondent's 'acceptance' of the Applicant's ostensible resignation of 2 September 2025, a resignation which had no legal effect, gives rise to the conclusion that the Applicant's employment was terminated at the initiative of the First Respondent as contemplated by s 386(1)(a) of the Act. In my view it was incumbent on the First Respondent to not simply treat the ostensible resignation as terminating the employment relationship but to clarify with the Applicant after a reasonable time that the Applicant genuinely intended to resign.

• [39] Having determined that the Applicant was dismissed, he is entitled to apply under s 365 of the Act for the Commission to deal with his dismissal dispute. The First Respondent's jurisdictional objection that the Commission is absent jurisdiction to deal with the application, is dismissed.

• [40] It is worth outlining s 370 of the Act, which, in setting out the pre-requisites for the making of a general protections court application, provides an overview of the next steps for the conduct of the Applicant's application:

A person who is entitled to apply under s 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b) the general protections court application includes an application for an interim injunction.

• [41] The precursor to the issuing of the required certificate under s 368(3)(a) is that the Commission must deal with the dispute by conducting a conference[17] and reach a level of satisfaction 'that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful'.[18] Hence for present purposes and as a result of my determination, this matter will now be listed for conference in order to explore the possibility of resolution. A notice of listing will be issued shortly.

• [42] Finally, while I have determined the Applicant was dismissed by the First Respondent and is therefore entitled to apply under s 365 of the Act for the Commission to deal with his dismissal dispute, it should be noted that the Full Court in Milford made observations of the following nature regarding s 370 of the Act and the making of a general protections court application:

a) the Act establishes multiple alternate pathways for an applicant and prospective litigants;

b) s 370 of the Act is to be interpreted against the background that while the Commission may determine the question of a person's entitlement to make an application to it, this may not be conclusive; and

• c) this is because a Court may ultimately decline to recognise an 'application' or resulting certificate granted by the Commission as valid, if called upon by a respondent to determine a subsequent objection to the competency of a general protections court application under s 370 of the Act. [19]

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591, 603 [54] ('Milford'), special leave to appeal declined in [2021] HCASL 37.

[3] Morris v Allied Express Transport Pty Ltd [2016] FCCA 1589, [117].

[5] [2017] FWCFB 3941 ('Bupa').

[6] [2023] FWCFB 101, [18].

[8] [2018] FWCFB 5, [10]-[11].

[9] [2015] FCA 1165; (2015) 235 FCR 370 ('Koutalis').

[10] [2021] FWCFB 1704, [28]-[33].

[11] Koutalis (n 9) 379-80 [43]-[44] (emphasis omitted).

[12] [2017] FWCFB 3941, [37]-[45].

[13] (1995) 63 IR 357 ('Minato').

[16] [1989] IRLR 115, 116 cited in Minato (n 13) 361-2.

[17] Fair Work Act 2009 (Cth) s 368(1)-(2).

[18] Ibid s 368(3).

[19] Milford (n 1) 607 [74]-[75].

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