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[2026] FWC 1091
defendant. Jurisdictional objection upheld; application dismissed
The Fair Work Commission dismissed a general protections application because the employee had voluntarily resigned rather than being dismissed. The employee claimed he was forced to resign due to various issues including contact during leave, safety concerns, and workplace behaviour. The Commission found that while the employee subjectively felt pressured, objectively he had real choices available to him. He held a senior position, failed to use formal complaint procedures or escalate concerns to more senior management, and could have redirected work enquiries during his leave. The Commission emphasised that for a resignation to count as a dismissal, the employer's conduct must be such that the employee had no effective or real choice but to resign. Here, alternatives existed and the employee's decision to resign was voluntary.
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1 cited instrument linked from this judgment.
s 365 - General protections
Section 365; jurisdictional objection upheld; voluntary resignation; application dismissed
[1] On 18 December 2025, Stephen Graham Clarke (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 Quaker Oats Australia Pty Ltd (the Respondent) at its Forrestfield site in Western Australia on or around 14 March 2023, as an Environmental, Health and Safety Manager in a permanent capacity. On 14 November 2025, the Applicant gave notice of his resignation effective that same date. Whilst the Applicant acknowledges that he resigned from his position, he considers that he was dismissed.
[2] The 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.
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] 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 Respondent, Stephen Boyd (Boyd), Plant Manager, Forrestfield, and Arya Sreejesh (Sreejesh), Senior Human Resources Advisor, Forrestfield.
[8] It is uncontroversial that the Respondent is a producer and wholesale retailer of oat products, employing approximately 60 employees at the Forrestfield site.
[9] The Applicant was the only Environmental, Health and Safety (EHS) function at the Forrestfield site, although other managers held responsibilities under the sites' broader safety systems.
[10] The Applicant reported to Boyd albeit he had a dotted-line reporting relationship into 'Gapes', who had national ESH management responsibility within PepsiCo ANZ.
[11] From the Applicant's submissions, it is apparent that he contends that he was forced to resign because of a course of conduct engaged in by the Respondent. In particular, the Applicant contends that it was the Respondent's on-going conduct, in light of his many complaints, that left him with no effective or real choice but to resign.
[12] The Applicant gave evidence that his role carried statutory Work Health and Safety (WHS) responsibilities, including enforcing safety controls, managing risk, and ensuring compliance with legal obligations.
[13] The Applicant explained that from late 2024, the work environment began to deteriorate. The Applicant said he was subjected to inappropriate gossip and mocking about a rumoured relationship with a colleague. The Applicant notes that these comments were made openly, and on several occasions, managers laughed instead of intervening. According to the Applicant during this time, he was also asked personal questions by managers and frontline employees about the rumour. The Applicant noted that these boundary violations occurred despite his attempts to maintain professionalism.
[14] The Applicant further noted that during approved carer's leave and parental leave, and despite having selected no contact on his application form and completing a handover, he was repeatedly contacted for work matters. The Applicant said that these contacts occurred during his partner's hospital admission, during labour, immediately after the birth of his child, and throughout both periods of parental leave. According to the Applicant, he was pressured to provide passwords, evidence, and human rights audit support. The Applicant said that Human Resources (HR) imposed deadlines whilst he was in hospital. The Applicant described that on the evening of his child's birth, he left the hospital to complete audit work due to the pressure placed upon him by the Respondent.
[15] The Applicant expressed that whilst medically unfit for work due to stress, HR contacted him requesting system access and urgent assistance. This, said the Applicant, demonstrated that his medical restrictions were not respected.
[16] The Applicant stated that throughout 2025, he faced repeated aggression and hostility in the warehouse such as shouting, swearing, refusal to follow mandatory safety controls, challenges to his competence and a near-violent incident where an employee removed his shirt and attempted to fight.
[17] The Applicant gave evidence of having escalated these issues, but that management and HR took no meaningful action. It was the Applicant's evidence that HR later confirmed the aggressive employee had a history of similar behaviour, yet he was allowed to continue working.
(a) HR presented anonymous complaints at a meeting after telling the Applicant that there were none;
(b) he was instructed to apologise for a bird deterrent installation in which he had no involvement;
(c) a mocking handwritten comment about his competence was left on the Learning Board and not removed; and
(d) contradictory feedback was given despite HR witnessing the original discussions.
[19] The Applicant said that his workload increased significantly due to decisions outside of his control despite raising concerns multiple times. Examples included:
(a) unplanned budget changes;
(b) responsibilities outside of his role;
(c) covering another site during parental leave;
(d) business continuity modelling assigned without training;
(e) loss of regional EHS support; and
(f) support provided to another site withheld from Forrestfield.
2.1.6 Critical incidents (August - October 2025)
[20] The Applicant stated that in August 2025, a warehouse employee aggressively advanced toward a site electrician, removed his shirt, and attempted to start a fight. The Applicant said that he intervened and recommended that the employee be stood down. The Applicant gave evidence that management refused, stating that, 'we don't have enough staff', and allowed the violent employee to continue working.
[21] The Applicant noted he was excluded from ORS traffic management planning meetings despite his statutory responsibility for vehicle interaction risks, and high risk decisions were made without EHS input, including approving double road trains to reverse into the oat system.
[22] Regarding safety conversations with operators, with HR present, the Applicant said whilst he conducted such conversations, his manager later claimed that the warehouse were not happy and raised concerns about the same issues operators had confirmed were resolved.
[23] The Applicant reported having been certified unfit for work due to work-related stress as of 8 October 2025, and despite this, management and HR continued to contact him for work matters.
2.1.7 Late October - early November - the final straw events
[24] The Applicant said that after his GP certified him unfit, certain conduct continued which included: (a) ongoing contact during medical leave; (b) requests for system access; (c) pressure for assistance; (d) no action on aggression, bullying, or unsafe behaviour; (e) no support for his statutory WHS duties; and (f) continued exclusion and undermining.
[25] The Applicant gave evidence that he resigned by email dated 14 November 2025 due to the Respondent's conduct having made it impossible for him to safely perform his role. After he resigned, the Applicant said the Respondent claimed not to have received the resignation email, accused the Applicant of abandonment, pressured him to provide a hand over despite medical restrictions, delayed his final pay, withheld his contract despite requests for it, and ignored his contract entitlement queries.
[26] Boyd gave evidence that he had held the role of Plant Manager at the Respondent's Forrestfield site since about May 2017.
[27] Boyd said the Applicant reported directly to him and he held a fortnightly general catch up with the Applicant during his employment. Boyd further noted that the Applicant sat at a desk very close to him in the office, so there was daily opportunity for ordinary work discussion and for the Applicant to raise any concerns with him.
[28] Boyd noted that at no time during his employment did the Applicant raise with Boyd that he was being bullied, humiliated or improperly treated at work. The Applicant did not raise with Boyd any concern that he was being driven out of the business, excluded from safety processes, or subjected to contradictory or unreasonable management directions.
[29] Boyd further noted that he was unaware of rumours in the workplace regarding the Applicant albeit he was aware that the Applicant was having some personal difficulties relating to a separation from his wife, but that this information had been gleaned from a discussion that Boyd had had on the topic with the Applicant.
[30] Boyd gave evidence that he was unaware that the Applicant had alleged that he was subject to workplace bullying, unreasonable work demands outside his job description, and a hostile and unsafe working environment. Boyd notes that the Applicant did not make these allegations to him during his employment.
[31] Boyd stated that he did not accept that management refused to enforce workplace health and safety controls. He was of the view that the business sought to do what was reasonably practicable to meet its WHS obligations.
[32] Boyd said he was not aware that the Applicant had been excluded from safety critical processes. In particular, he noted that he was unaware of any exclusion of the Applicant from ORS traffic planning or similar work - noting, that those particular matters formed part of the Applicant's role.
[33] Boyd stated that in the early part of 2025, plastic strip curtains were installed across a doorway to a warehouse area, which was holding rejected barley product as a pest control measure. Concerns were said to have been raised by warehouse operators about whether the curtains were safe. Boyd said that the Applicant was tasked to carry out a risk assessment in relation to that issue. From Boyd's recollection, the Applicant considered the curtains posed an acceptable level of risk, but the warehouse operators continued to press their concerns.
[34] It was Boyd's evidence that on 29 April 2025, he met with the Applicant, the site Quality Manager, the S&D Supervisor, and decided to remove the curtains. The plan was that the warehouse team would keep the door closed when not moving through it, and that another door further inside area would be repaired so it could act as the relevant barrier. According to Boyd, the Applicant was not directed to apologise to the warehouse team. What was discussed was that the Applicant and the S&D Supervisor were the appropriate people to communicate the outcome of the discussion back to the team.
[35] Boyd recalled that there was an incident that had been reported to him by the Maintenance Frontline Manager who had gone with the Applicant to look at proposed changes in a warehouse area. Boyd said that it was his understanding that words were exchanged with a forklift operator and a maintenance electrician. However, Boyd said he was unable to recall exactly what was said but was not aware of any physical altercation between them. Boyd noted that he had referred the matter to Sreejesh so that proper HR processes could be followed.
[36] According to Boyd, if an issue of workplace aggression arose, he would have expected it to be dealt with through the ordinary investigation and disciplinary processes. Boyd noted that he did not accept that any employee would be kept on site simply because of operational reasons.
2.2.3 PepsiCo Global Business Solutions (GBS)
[37] Boyd said that in April 2025, he had a discussion with the Applicant about EHS resourcing in connection with a broader business change and the possibility of using PepsiCo GBS.
[38] PepsiCo Global utilises a support function based in Hyderabad called Hyderabad Business Solutions or 'HBS'. According to Boyd, HBS can undertake data entry for sites within PepsiCo Global, but it is necessary for data validation to be undertaken by a second process to ensure data integrity.
[39] PepsiCo Global had an internal resource that undertook this function. According to Boyd, when that person left the business, the decision was made to disperse the responsibilities to the different sites to undertake. Boyd said that this affected the EHS Managers at each of the sites.
[40] Boyd gave evidence that the impact on the Applicant was minimal because the number of EHS reporting incidents per month at the Forrestfield site were very few due in large part to the work undertaken by the Applicant. The Applicant was required to undertake the data validation exercise once per month.
[41] Boyd said that it was his understanding that the other sites could potentially use the GBS model, but Forrestfield could not readily do so because of the way the site operations were structured, and he had explained this to the Applicant. It was Boyd's evidence that he understood that the Applicant had accepted his position in relation to GBS and noted that he was surprised that it had been raised again in the application. Boyd clarified that the Applicant had not been denied appropriate EHS resourcing.
[42] Boyd gave evidence that the Applicant raised concerns with him in or around May 2025 about budget and resourcing. Boyd said his discussions with the Applicant were that the site had an agreed annual plan and, like any business, it might adjust spending priorities during the year. Boyd gave one example concerning the purchase of ladders, which the business regarded as a high risk safety item. Boyd said that the Applicant was concerned that the additional expenditure for ladders had not been included in his original budget plan. Boyd said he discussed with the Applicant that the business could look at lower priority expenditure that could be deferred or removed so that higher priority items could be funded. Boyd said that this was ordinary budget management and was discussed with the Applicant in their regular catch ups. It was Boyd's view that at the time, the Applicant had accepted his rationale regarding expenditure priorities.
[43] According to Boyd, PepsiCo Global undertakes human rights audits of its operations from time to time, including PepsiCo ANZ. These audits are, said Boyd, loosely scheduled, and the site is not aware of the specific dates on which the auditors may attend to conduct the audit.
[44] Boyd said that a human rights audit was expected in or around June 2025, but the exact date was not known in advance. The Applicant was scheduled to take parental leave between 6 and 20 June 2025. Because of that, Boyd said he expected that the necessary audit materials would be prepared by the Applicant and handed over before he went on leave. When the audit took place, the Applicant was on parental leave.
[45] Boyd noted that they were unable to locate a significant amount of site specific EHS material that the auditor wanted. According to Boyd, a failed audit would have broader implications. It was in those circumstances that Boyd contacted the Applicant by text during his parental leave period to ask whether he could help identify where the information was stored. Boyd said that his recollection was that the contact was limited to seeking assistance to locate information required for the audit. Boyd said the Applicant was cooperative in assisting. Boyd gave evidence that the Applicant was not required to perform new work in relation to the audit.
[46] As to whether the Applicant agreed to be contacted during his parental leave, it was Boyd's evidence that on the Applicant's application form for parental leave, he indicated that he could be contacted but preferred to initiate contact
[47] The Applicant took a further period of parental leave between 15 October 2025 and 15 November 2025. Boyd said that he disagreed that the Applicant identified that he was not to be contacted during his parental leave.
[48] Boyd explained that as part of the Applicant's safety reporting responsibilities, the Applicant set up a QR dash code incident reporting process which directed an employee to an online form to report safety incidents. Safety incidents reported by the form were kept within an area secured by a password. The Applicant had control over that system and was the only person who had the password details necessary to access it.
[49] Boyd said that in early October 2025, he was advised by Sreejesh that she had become aware that a safety incident had been reported online but she was unable to access the reports because the password that the Applicant had previously provided her no longer worked. Boyd said that Sreejesh advised him that she had attempted to contact the Applicant to obtain the current password details without success.
[50] Boyd described having contacted the Applicant via text message to see if he could access the reports. Boyd noted that at that time he was unaware that the Applicant was on work related stress leave or that he was medically unfit to be contacted. Boyd's recollection is that at that time he was aware that the Applicant was absent only for a medical reason.
[51] As to the Applicant's resignation, Boyd said that he only became aware on 17 November 2025 that the Applicant had resigned. Boyd said that Sreejesh advised him that the Applicant had not returned to work on the day that he had completed his personal leave. Boyd further said that Sreejesh had advised him that she had contacted the Applicant to check that he was okay, and he advised her at that time that he had resigned on 14 November 2025. Boyd noted that for some reason he had not received that email. According to Boyd, the Applicant re-sent his resignation email to Boyd on 17 November 2025.
[52] Boyd explained that he saw from the resignation email that the Applicant intended for his resignation to take effect immediately. Boyd said that he responded to the Applicant accepting his resignation but also referring to his contractual notice period, which was required for an appropriate handover of work. Boyd described there having been an email exchange between the two and that during that exchange the Applicant provided a medical certificate for the period 17 November 2025 to 12 December 2025. It was accepted, said Boyd, that the Appicant's resignation would be effective from 12 December 2025.
[53] In response to the Applicant being forced to resign, Boyd stated that the Applicant had not brought the allegations to him in either a formal or informal context. Boyd further referred to the channels by which the Applicant could have raised concerns with HR, his dotted-line EHS reporting relationship, or with more senior management, such as the PepsiCo ANZ Manufacturing Director.
[54] Sreejesh had been employed in the position of Senior Human Resources Advisor at the Forrestfield site since 2022. She acknowledged that she was the only HR resource on site.
[55] Sreejesh gave evidence that she was not aware of any rumours concerning the Applicant's relationship with another person. Sreejesh explained that before the Applicant applied for parental leave, she knew that he was going through a divorce but did not know any details about his personal relationship or family circumstances.
[56] Sreejesh stated that she first became aware that the Applicant had a baby with a former employee only after Boyd asked her to arrange flowers and a gift for the Applicant and that person after the birth. According to Sreejesh, nobody raised any concern with her about any relationship involving the Applicant.
[57] Sreejesh noted that the Applicant brought to her attention one warehouse incident in 2025 where a warehouse employee became aggressive in the course of an interaction involving a maintenance team member, with the Applicant and the frontline Maintenance Manager present. Sreejesh stated that the behaviour and tone used by the employee were not acceptable and the incident was addressed by the Respondent issuing a written warning to the employee.
[58] The Respondent held a 'Coffee Catch-up' monthly site-wide town hall style meeting. At those meetings, team members were able to raise questions or provide feedback anonymously through a QR code. Sreejesh explained that in one session, she received anonymous feedback that there were safety concerns that had not been addressed. Sreejesh gave evidence that she informed the group that the anonymous feedback did not contain enough specific information to be actioned and, that, if there were concerns, more detail would need to be provided so that management could respond. It was Sreejesh's recollection that this occurred closed to late 2024 than mid-2025.
[59] Sreejesh gave evidence that before the audit, she informed relevant site leadership, including the Applicant, of the audit requirements, provided the checklist of documents expected, and created a Teams folder for business records to be uploaded in preparation for the audit. Sreejesh stated that on 16 April 2025, she emailed relevant stakeholders, including the Applicant, confirming the audit window and attaching the tentative agenda and document checklist. The requested records were to be uploaded before the audit.
[60] Sreejesh said the audit took place in June 2025 at a time when the Applicant was on parental leave. During the audit, the auditor was said to have asked for site-specific EHS documents, including documents relating to fire safety training, environmental matters, water usage and chemical management. Sreejesh stated that when she checked the folders prepared for the audit, she could not locate much of the site-specific material needed and could only locate a standard policy document and not the site records sought by the auditor. Whilst she sought assistance from other personnel, including the Applicant's dotted-line EHS Manager and other EHS contacts, they could not provide the information within the audit timeframe. Sreejesh reports having contacted the Application twice on 5 June 2025 by text message seeking assistance to access information required and once on 6 June 2024. Sreejesh noted that in the latter text message, she included that the site faced non-conformance if records were not produced.
[61] Sreejesh thereafter contacted the Applicant on 13 June 2025 seeking access to the QR-code site safety incident reporting form, which had been established such that only the Applicant had access to it. The Applicant restored access to Sreejesh, who later confirmed to the Applicant that the access was working.
[62] Sreejesh noted that the Aplicant took personal leave from 6 October 2025 to 14 October 2025 and that after the Applicant went on leave, a warehouse incident was reported through the QR process. When attempting to access the reporting platform, Sreejesh found that she no longer had access therefore necessitating a text to the Applicant on 14 October 2025 asking for access due to the incident. Sreejesh stated that she did not receive a response from the Applicant to the text message and that she had to later arrange for the QR-code reporting process to be recreated so that multiple site personnel would have access going forward. Sreejesh said that she was unaware that the leave was stress related.
[63] Sreejesh gave evidence that the Applicant took parental leave from 15 October 2025 until 14 November 2025.
[64] The Applicant asserts that he was forced to resign because of a course of conduct engaged in by the Respondent therefore rendering his resignation involuntary. In particular, he draws support for his contention based upon the following purported conduct by the Respondent:
(a) breaches of protected leave, to the extent that during carer's leave and parental leave, the Respondent made contact with the Applicant and placed pressure upon him to provide passwords, evidence, and human rights audit support;
(b) breach of personal leave (medically unfit for work due to stress) when the Respondent contacted him to obtain system access and urgent assistance;
(c) the Respondent's failure to respond to the Applicant's reports of repeated aggression and hostility in the warehouse such as shouting, swearing, refusal to follow mandatory safety controls, challenges to his competence and a near-violent incident where an employee removed his shirt and attempted to fight;
(d) undermining and humiliating the Applicant;
(e) workload sabotage and withholding support; and
(f) exclusion from meetings.
[65] The Applicant submits that the conduct in cumulation with his deteriorating health condition left him with no choice but to resign.
[66] For the following reasons, I am unpersuaded that the Applicant was dismissed. However, before traversing those reasons, it is necessary to consider the relevant legislation and applicable principles of law.
(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.
[68] There are exceptions under s 386(2) of the Act regarding when a person has been dismissed; however, those exceptions are not relevant to this case.
[69] The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration.
[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.[8]
[71] While a summary of the position under s 386(1) of the Act 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)[9]
[23]... 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 of that the appellant had no effective or real choice but to resign.
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[15]...
[76] Insofar as it is necessary to address the matter, I do not consider that the Applicant resigned in circumstances which can be described as in the 'heat of the moment' or when the Applicant was in a state of emotional stress or mental confusion such that the Applicant could not reasonably be understood as conveying a real intention to resign.
[77] As to whether the Applicant was forced to resign because of the Respondent's conduct or a course of conduct engaged in by the Respondent, the Applicant provides several reasons why he considers the Respondent's conduct forced him to resign.
[78] It is uncontroversial that the Respondent contacted the Applicant during two periods when the Applicant was on parental leave and in October 2025 when the Applicant was on personal leave. Regarding the Human Rights audit and the contact that was made with the Applicant during his parental leave, the evidence of Sreejesh was that she had established folders on 'Teams' where documents were to be filed and the evidence of the Applicant was that he had similarly set up a filing system for the relevant documents, had undertaken handover in respect of accessing the documents and had provided passwords. I do not discount the evidence of Sreejesh that she was unable to locate and access the documents and had sought assistance from other personnel to locate the documents prior to contacting the Applicant. Boyd's text message to the Applicant on 5 June 2025 time stamped 9:33AM, read in context, was neither unacceptable nor inappropriate. Boyd simply asked whether the Applicant, who was the only site EHS Manager, was positioned to help to track down data and documents. These were materials that as EHS Manager, the Applicant should have been able to provide direction on how to access with relative ease. Whilst communicating that his partner was about to give birth hopefully in the next hour, the Applicant then invited a further response from Boyd by asking, 'What data exactly did he say?'. Had the Applicant wished for the communication to desist then the appropriate course would have been to communicate that he was unable to assist at that time and direct Boyd to someone in the business who could assist in his absence.
[79] Later in the day on 5 June 2025, there appears to be a text message from Sreejesh to the Applicant asking him if he had a quick five minutes for a call, noting the risk of non-conformance and the expression of an apology. On that same day, the Applicant apologised for missing the message and asked if contact the following day was okay. The following day, 6 June 2025, the Applicant appears to have sent a text message time stamped 8:44AM which reads, 'Ok will go home in a bit and have a look just woke up ha ha'. The evidence shows that Sreejesh and Boyd reached out to the Applicant via text message on 6 June 2026.
[80] Understandably the Applicant would have preferred not to have been contacted by the Respondent whilst on parental leave. He indicated as much on the parental leave forms. However, he held a senior position in the business, he was aware that the Humans Right audit was to take place, he held responsibility for ensuring that the Respondent was set up for success with respect to that audit by ensuring that relevant EHS documents and data could be accessed in his absence, and in circumstances where he was taking leave, it would have been reasonable for him to handover to a person within the broader EHS team to ensure that such documentation could be accessed or further documentation generated if the scope of the task changed. Further and as noted, it was, at all times, open to the Applicant to direct the Respondent to someone else who could assist.
[81] As to the contact made by Sreejesh regarding the QR-code incident reporting base in June 2025, clearly, contact by the Respondent may have been averted if the Applicant had again ensured that access to the QR code incident reporting base extended to multiple personnel and was not restricted to him. This may have required the Applicant to take additional steps such as providing training and awareness on the system in addition to making access information readily available to key personnel. That Sreejesh sent a text message to the Applicant seeking access to the QR code incident reporting base is not unreasonable, even while the Applicant was on leave given the circumstances.
[82] Sreejesh again contacted the Applicant by text message regarding the QR-code incident reporting base on 14 October 2025, as did Boyd on 16 October 2025, when once again access had been lost to view the incident report Microsoft form on the system. For the reasons outlined above, I do not consider the contact unreasonable in the circumstances, notwithstanding that the Applicant was on leave.
[83] The Applicant stated that throughout 2025, he faced repeated aggression and hostility in the warehouse such as shouting, swearing, refusal to follow mandatory safety controls, challenges to his competence and a near-violent incident where an employee removed his shirt and attempted to fight. In support of his contention of inaction by the Respondent to address his concerns, the Applicant included in his evidence various emails at pages 19 to 26 of the Digital Hearing Book. In respect of issues of behaviour and insubordination (presumedly amongst operators), an email dated 4 April 2025 from the Applicant to Sreejesh can be found at page 19 of the Digital Hearing Book, and, in respect to the incident on 8 May 2025, at page 25 of the Digital hearing Book. Whilst apparent that the Applicant had emailed Sreejesh about these matters in April and May 2025, some five months prior to his resignation, the evidence does not suggest that he escalated the issues by way of formal complaint to someone more senior than him within the business. It was Boyd's evidence that the Applicant did not make allegations to him about workplace bullying or a hostile work environment, and I am persuaded that Boyd approached his evidence in a candid manner. Had the Applicant considered that the work environment was hostile or that he was subject to workplace bullying and there was inaction on these issues by Sreejesh or site Managers, the Applicant was sufficiently senior to appreciate that there were alternative avenues open to him to have the concerns addressed. Instead, the Applicant now seeks to rely on purported conduct by the Respondent, some of which dates back five months prior to his dismissal, that he, as an EHS manager, failed to pursue in a formal manner to a more senior position than Sreejesh or Boyd, or through an alternative complaints procedure or whistleblower procedure.
[84] Regarding the near violent incident referred to by the Applicant in August 2025, it was Sreejesh's evidence, which I believe as there was no direct evidence to contradict it, that the employee in question was subject to a disciplinary process and was warned in respect of the behaviour. I am therefore not persuaded that the Respondent failed to address the conduct in question.
[85] As to the adequacy of resourcing at the Forrestfield site, the evidence before me was that there were 60 employees at the site. At page 22 of the Digital Hearing Book, the Applicant relies upon an email to Boyd where he addresses the impact of the departure of Rob Alberton and his role not being replaced. In the email dated 30 April 2025, the Applicant refers to, amongst other matters, the '[o]ne big impact is the validation frequency increasing from annual to monthly so the impact will increase significantly'. Boyd gave detailed evidence on resourcing, noting that the impact of the withdrawal of Alberton's role on the Applicant was minimal because the number of EHS reporting incidents per month at the Forrestfield site were very few, due, in large part to the work undertaken by the Applicant. Boyd stated that the Applicant was required to undertake the data validation exercise once per month. Further, Boyd gave solid rationale as to budget constraints. In light of Boyd's evidence and noting that essentially it was not challenged, I am unpersuaded that issues concerning budget and resourcing can be held, cumulatively with other purported conduct of the Respondent, as unreasonable conduct. As to the Applicant having to provide parental leave support to another site, there is very little in the way of cogent evidence to support a finding that the requirement was unreasonable.
[86] The Applicant gave evidence of having been publicly undermined and humiliated in respect of the 'curtain' issue and the presentation in a public forum of an anonymous safety complaint. Boyd gave plausible and persuasive evidence that the Applicant was not required to apologise with respect to the curtain issue and explained the rationale behind the instructions that he gave - which I consider reasoned and appropriate. Regarding the anonymous complaint, in my view, Sreejesh handled the matter appropriately and as reported.
[87] As to a mocking handwritten comment about the Applicant's competence having been left on the Learning Board and not removed and contradictory feedback being given despite HR witnessing the original discussions, the lack of probative evidence in support of these assertions makes it difficult to make a finding as to whether the conduct complained of did, or did not, occur. As to the Applicant having been excluded from relevant meetings, Boyd expresses no knowledge of the same and again arriving at a finding on the issue proves difficult. However, as I have already identified, the Applicant held a senior position at the Forrestfield site in a safety orientated position. It remained open to the Applicant to escalate the concerns he held in a formal manner to those more senior within the business. It was not the case that the Applicant's choice was negated. If the Applicant considered that his concerns were not gaining traction or where otherwise insufficiently addressed, it was, at all material times, open to the Applicant to formalise a complaint or complaints and follow up with respect to a response from the Respondent, such as an investigation.
[88] The Applicant submits that as a result of the Respondent's conduct he was forced to resign. Further, the Applicant places reliance on the Respondent's conduct that unfolded after he gave notice of his resignation. On balance, the argument that the Applicant was forced to resign due to the Respondent's conduct or course of conduct is not compelling because the evidence does not support such findings. There were alternative options available to the Applicant other than resigning from his employment. Furthermore, it was open to the Applicant to research and explore those options before deciding to bring his employment to an end - a decision he exercised and a choice he made, voluntarily. As to the Respondent's conduct subsequent to the Applicant tendering his resignation, it is not necessarily relevant. However, to the extent that it is, it does not demonstrate conduct that is arbitrary in nature.
[89] I find that the Applicant was not 'dismissed' as that term is understood by reference to ss 12, and 386(1)(a) and (b) of the Act.
[90] The jurisdictional objection is upheld, and the substantive application under s 365 of the Act is dismissed.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591, 603 [54], ('Milford'); special leave to appeal declined in Coles Supply Chain Pty Ltd v Milford [2021] HCASL 37.
[4] Morris v Allied Express Transport Pty Ltd [2016] FCCA 1589, [117].
[6] [2017] FWCFB 3941 ('Bupa').
[7] [2023] FWCFB 101, [18].
[9] [2018] FWCFB 5 [10]-[11].
[10] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1528].
[13] A.S Doumit v ABB Engineering Construction Pty Ltd (Australian Industrial Relations Commission, Munro J, Duncan DP and Merriman C, 9 December 1996) Print N6999.
[15] Ibid; cited with approval in BC Stubbs v Austar Entertainment Pty Ltd (Australian Industrial Relations Commission, Ross VP, Munro J and Harrison C, 9 April 1998) Print Q0008.
Printed by authority of the Commonwealth Government Printer
Stephen Graham Clarke
Quaker Oats Australia Pty Ltd [2026] FWC 1091
(2020) 279 FCR 591
Jurisdictional objection upheld; application dismissed