Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - Employment ended by resignation - Whether forced resignation - Whether applicant dismissed - Not a dismissal under s 386(1)(b) - Application dismissed.

• [1] Section 365 of the Fair Work Act 2009 (Cth) provides that a person who has been dismissed may apply to the Fair Work Commission to deal with the dispute. When a person (an applicant) applies to the Commission under s 365, the Commission's role is to try to resolve the matter, and it usually does so by holding a conference. However, if a respondent denies that they dismissed the applicant, then the Commission must first determine whether the applicant has been dismissed, before we may exercise our jurisdiction to deal with the dispute.[1]

• [2] On 2 January 2025, Ms Steph Silver (the applicant) applied under s 365 of the Act for the Commission to deal with a general protections dispute involving dismissal. She says that she was dismissed by the Trustee for Larmiska Family Trust trading as Halls Gap Zoo (the respondent).

• [3] The respondent objects to the application on the grounds that it had not dismissed Ms Silver but that she resigned voluntarily. Ms Silver argues that her resignation was not voluntary but the result of a hostile and untenable work environment due to a sustained pattern of workplace bullying, intimidation and coercion.

• [4] I held a hearing for this matter on 13 May 2025. The applicant did not attend the hearing due to her new employment and asked that the matter be determined based on her filed materials. Ms Silver did not file a witness statement, but she did file a significant amount of evidentiary material as well as arguments in reply to the respondent's jurisdictional objection.

• [5] The respondent attended the hearing, and the following witnesses confirmed their written witness statements:

• Ms Lisa Treweek, Co-owner of Halls Gap Zoo
• Mr Mark Treweek, Co-owner of Halls Gap Zoo
• Ms Sharmila Al-Tayie, Manager; and
• Mr Glen Holland, Management Assistant

• [6] Section 365 of the Act sets out when the Commission can deal with a general protections application involving dismissal as follows:

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.

• [7] Dismissed is defined in s 12 of the Act, which refers to s 386:

(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.

• [8] Only section 386(1)(b) is relevant to this matter. In ascertaining whether a resignation is a dismissal within the meaning of s 386(1)(b), a Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli[2] said:

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.

• [9] Ms Silver started employment with Halls Gap Zoo on 7 November 2022. At that time, the Zoo was owned by Mr Treweek's parents. Mr and Ms Treweek took over the Zoo as co-owners on 1 July 2023 and issued a contract of employment to Ms Silver for a role as Animal Attendant on a permanent part-time basis.

• [10] Ms Silver resigned from her employment on 16 December 2024, by email to Mr Treweek. The subject of the email was "the letter you've been waiting for" and it said:

I am writing to formally resign from my position at Halls Gap Zoo, effective two weeks from today, with my final day of work being the 1st of January 2025 in line with the current roster.

It is disappointing that I find myself in a position where I'm forced to leave a job that I hoped would be my "forever job." This is not how I envisioned my future here, and I'm leaving with a heavy heart.

While my time at Halls Gap Zoo has been rewarding in many ways, the circumstances that have led to this decision have left me disheartened. Nevertheless, I will continue to fulfil my duties professionally during my remaining time and will assist where needed to ensure a smooth transition.

Thank you for the opportunities I've had here, and I wish the zoo and its animals the best moving forward.

• [11] Ms Silver says she never received a reply to her resignation email. She says that the following were examples illustrating the working environment that led to her resignation:

1. In February 2024, Ms Al-Tayie persuaded Ms Silver not to resign from her employment at Halls Gap Zoo but then informed Mr Holland, Mr Treweek and Ms Treweek of Ms Silver's resignation.

1. On 17 July 2024, Mr Holland verbally berated Ms Silver after she said she was sad about the death of her pet bird.

1. On 21 August 2024, Mr Holland locked Ms Silver into a room, stood over her and screamed at her, leaving her in tears.

1. On 14 September 2024, after Ms Silver reported to Ms Al-Tayie bullying of her by another employee, that other employee confronted Ms Silver.

1. On 18 September 2024, Ms Silver overheard Ms Al-Tayie say that she was going to set Ms Silver up to make a mistake so that she would be terminated from her employment.

1. On 30 October 2024, Mr Treweek, Mr Holland and Ms Al-Tayie met with Ms Silver. Ms Silver says that the meeting was a performance review, and she was told to look for another job due to the complaints she had made about workplace bullying. There is a file note of this meeting.

1. On 7 November 2024, she "received formal notice that while [she] was not being terminated, [she] was no longer wanted at Halls Gap Zoo and should actively seek employment elsewhere." The "formal notice" was a copy of the notes from the meeting on 30 October 2024.

1. She was rostered for only 2 days in late November / December 2024 and otherwise required her to use her annual leave. Ms Silver says this was pressuring her to resign as it deprived her of stable income. Mr Treweek provided a copy of an annual leave request for the 5 days from 5 - 9 December 2025.

1. On 12 December 2024, Mr Treweek publicly blamed Ms Silver for another employee departing, and for visits by RSPCA and WorkSafe. Mr Holland says that a month later, that employee returned to work for Halls Gap Zoo. I do not have direct evidence from that employee.

• [12] Ms Silver also referred to alleged bullying of other former employees and their departures from Halls Gap Zoo.

• [13] The respondents gave evidence about the events referred to by Ms Silver, and in much greater detail. While the events themselves occurred, there were differing perspectives about them. Ms Treweek's evidence is that Ms Silver was often the instigator of events and had a direct communication style. Ms Treweek said that Ms Silver was difficult to manage but that was what the employer was attempting to do. Mr Treweek said that visitors to the zoo had complained about Ms Silver's behaviour.

• [14] In relation to events between Ms Silver and other employees, such as Mr Holland and the employee whom Ms Silver alleged bullied her, the respondent's evidence was that there were interpersonal conflicts. Ms Treweek gave evidence that she spoke with Ms Silver and Mr Holland about their interactions in July and August 2024, including that there would be no further 1-on-1 meetings between them.

• [15] Ms Al-Tayie provided an email that she had sent to Mr Holland, Mr Treweek and Ms Treweek on 13 April 2024. The email subject was "Steph" and it detailed events earlier in the day in which Ms Al-Tayie had spoken with Ms Silver about her communications over the radio. The email concluded with:

Obviously Steph is a vital team member, but I think it needed to be said and if it ends with her getting upset and choosing to leave - I think that's the better alternative to making the rest of the team on edge and constantly worried about not meeting her standards.

I think she heard me, and if her behaviour improves I don't think we need to take it further.

• [16] Mr Holland provided a file note of a meeting on 17 July 2024 attended by Ms Silver, Mr Holland and Ms Al-Tayie. The note said:

Steph does a great job at animal husbandry, training animals and media but our concern with the points below has reached the point that we can no longer ignore the challenges with her performance over the negatives impacts highlighted below.

• Moods and rudeness to other people around her;
• Complaints from visitors;
• Fault-finding and nitpicking with others
• Blowing things out of proportion.

• [18] The meeting concluded with a request to Ms Silver to consider some questions:

• Do I want to work here?
• What will make me happy?
• How can management support me?

• [19] In September 2024, Mr Treweek and Ms Treweek had an informal conversation with Ms Silver in relation to her behaviour in the workplace, and that her attitude made communicating with her difficult.

• [20] In October 2024, Mr Treweek met with Ms Silver. Mr Holland and Ms Al-Tayie were also in this meeting. Mr Treweek said that the meeting was to have a conversation with Ms Silver about her behaviour, and its impact on staff morale. Mr Treweek said that he said that they were not terminating Ms Silver's employment, but they "had come to a point where [they] had had enough." Ms Al-Tayie says that Mr Treweek told Ms Silver that "if she was not happy at Halls Gap Zoo that she could start finding alternative work." Mr Treweek says that he made clear to Ms Silver that her behaviour and attitude had to improve.

• [21] The file note of this meeting includes:

Mark is not terminating Steph but no longer wants her as part of the HGZ team and has requested that she look for another job

- We'll catch up every 2 weeks to see how Steph is going with her job search

- If further issues arise before she finds another job, then we will have to act on these.

- Steph if you have anything you want to discuss, please organise a meeting with the Management team

• [22] The evidence is clear that Ms Silver resigned by email on 16 December 2025. Ms Silver's email is unambiguous. The employer is entitled to treat the email as an effective resignation.[3]

• [23] Ms Silver did not submit that the resignation was in the heat of the moment. There is no evidence to suggest that it may of that, nor attempts by Ms Silver to retract the resignation. As such, I am of the view that I do not need to consider whether the resignation falls within the first limb of s 386(1), that is whether she was terminated on the employer's initiative.

• [24] Ms Silver is required to establish that she has been dismissed within the meaning of the Act.[4] I am not persuaded by Ms Silver's arguments that her resignation was forced by conduct of the employer's. I am not satisfied that the conduct complained of by Ms Silver was engaged in with the intent of bringing the employment to an end or the end of employment was a probable result of that conduct. Nor am I satisfied that she had no effective or real choice but to resign.

• [25] I have considered the conduct complained of by Ms Silver objectively but note that Ms Silver did not attend the determinative conference to give evidence or make oral submissions.

• [26] First, it is difficult to discern the causal connection between the events Ms Silver complains of from February 2024 and her resignation, such that the resignation was forced. The complaints are various and relate to the conduct of multiple individuals, who are management of the respondent, but only Mr Treweek and Ms Treweek appear to have the authority to dismiss Ms Silver. Where complaints relate to the conduct of members of management (Mr Holland) and other employees, the respondent gives cogent evidence that they took steps to address that conduct.

• [27] Second, the clearest example of conduct that may have forced Ms Silver to resign occurred in the meeting of 30 October 2024. There is no doubt that Mr Treweek informed Ms Silver that she should look for alternative work. His own evidence is that they (being management) "had come to a point where [they] had had enough." Notes from the meeting are clear that Mr Treweek informed Ms Silver to look for alternative work, and Mr Treweek says that he told Ms Silver that they would have catch-ups every 2 weeks to see how she was going (meaning to see whether she had found alternative employment.) However, Mr Treweek stopped short of terminating Ms Silver's employment; her employment continued after this meeting for another month and a half before Ms Silver's resignation. Other than 2 incidents, which I deal with below, Ms Silver does not complain of further conduct that prompts her resignation.

• [28] Third, I do not characterise Mr Treweek's comment as an ultimatum that gave Ms Silver a choice of resigning or being dismissed. The meeting notes include - "if further issues arise before [Ms Silver] finds another job, then we will have to act on these" but despite the meeting being about how management can no longer tolerate Ms Silver's behaviour, there is no imminent or proposed sanction nor performance improvement plan. It is clear enough that Mr Treweek would have welcomed Ms Silver's resignation, but too, Mr Treweek acknowledged her "knowledge, skills and work ethic."

• [29] Fourth, I do not agree with Ms Silver's characterisation of the further 2 incidents - requiring her to take annual leave in December and publicly blaming her on 12 December. I am satisfied that the evidence of Mr Treweek demonstrates that he did not require her to take annual leave, but that it was leave she had earlier requested. In relation to the incident on 12 December, there is no compelling evidence that it occurred in the way that Ms Silver says that it did.

• [30] Fifth, Ms Silver was not forced to resign; she had the choice to continue in employment until she found another job or something else occurred that might have led to termination of her employment by the respondent. The file note of 30 October 2024 is clear about this, including that she can continue to raise issues with management. If she had further concerns, she could have raised them. The respondent did not know (and does not appear to have tried to seek advice about) what further steps it could take to improve Ms Silver's behaviour and performance, and so it chose to do nothing. While an omission can be conduct that forces an employee to resign, I do not consider that the respondent's conduct is more than a hope that Ms Silver will leave. Ultimately, it was Ms Silver who chose to leave.

• [31] Last, Ms Silver's communications, as supplied by her and by the respondent, appear to support the respondent's concerns about Ms Silver's behaviour at work, rather than Ms Silver's submissions that the respondent's conduct was such as to force her to resign.

• [32] As I have found that the respondent did not dismiss Ms Silver, it follows that her application must be dismissed.

• [33] I order that the application for the Commission to deal with a general protections' contravention dispute involving dismissal under matter number C2025/19 filed by Ms Steph Silver on 2 January 2025 be dismissed.

Ms M Noorzai, of Irwell Law with permission for the Respondent

[1] See Coles Supply Chain v Milford [2020] FCAFC 152 at [67] to [68]

[2] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941 at [47]

[3] Bupa v Tavassoli, above at [35]; see also Ridge v Yates [2025] FWCFB 42 at [38]

[4] Munoz v Metro Tasmania Pty Ltd [2025] FWC 1919 at [29]

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