s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - not dismissed - Application dismissed

• [1] On 9 June 2025, Mr Steven Curr (Mr Curr / the Applicant) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondent in the matter was named as Virgin Australia Airlines Pty Ltd (the Respondent).

• [2] The Respondent raised a jurisdictional objection that Mr Curr was not dismissed and rather had resigned from his employment, with notice, on 22 April 2025.

• [3] On 1 July 2025, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. A jurisdictional hearing was held on 23 July 2025.

• [4] Ms Lillian Donner In-House Counsel appeared on behalf of the Respondent, and the Applicant appeared on his own behalf.

• [5] The Applicant filed a witness statement dated 16 July 2025,[1] and Mr Barry Connelly, Head of Operations, Guest Contact Centres provided a witness statement dated 9 July 2025[2] for the Respondent.

• [6] Mr Curr was employed with the Respondent from 14 October 2024, until 19 May 2025 in the role of Operations Leader. He successfully completed his 6-month probation period on 14 April 2025. Mr Curr cites the difficult workplace environment as the incentive for his applying for a role with another organisation. He was offered the role and submitted his resignation (the Letter) to the Respondent on 22 April 2025, indicating that his final day would be 19 May 2025. The resignation letter indicated that the offer with the new employer aligned "perfectly with (his) skillset" and offered a salary increase he couldn't decline. The Letter goes on to indicate that his decision was not due to any dissatisfaction with the Respondent, and that he was committed to ensuring a smooth transition.

• [7] On 24 April 2025, Mr Curr became aware of intervening circumstances preventing him from undertaking the role with the other organisation and contacted Mr Connelly to withdraw his resignation. The recission letter indicated that Mr Curr's instinct had been "screaming 'stay'" but that his "ego was busy being dazzled by shiny new offers". The rescission letter goes on to apologise for the inconvenience that his "2 x 360-degree pivots in two days" might have caused and that he hoped he could remain in his position with the Respondent.

• [8] On 28 April 2025, Mr Curr met with Mr Connelly to discuss his request to retain his role. Mr Connelly states that during this meeting he told Mr Curr that he would not be able to accept the rescission request, owing to the Respondent's requirements to restructure how the Leader, Operations' portfolios were managed within the Guest Contact Centre. Mr Curr stated that Mr Connelly had indicated he would discuss it with Ms Natalie Mason (General Manager of Guest Operations) as her approval was required.

• [9] The next day, on 29 April 2025, Mr Curr and Mr Connelly met to discuss the request. Mr Connelly states that he informed Mr Curr that the Respondent declined his recission request, and that Mr Curr had informed him that the reason for his request was because the other job opportunity had been withdrawn. Mr Connelly states that Mr Curr said words to the effect of "I got myself into this mess" and that he accepted and understood Mr Connelly's decision. Mr Curr states that at the meeting on 29 April 2025, Mr Connelly appeared uncomfortable when he explained that the request had been denied that the reason he was given was strange. Mr Curr stated that Mr Connelly had informed him that the resignation had triggered a restructure, and that the Respondent would be unable to wind back the changes.

• [10] Mr Connelly provided information about the actions that the Respondent took following receipt of the Letter. The Respondent reassigned the Industry Support portfolio and the Group Bookings Portfolio (for which Mr Curr had been responsible) to the Premium Business Unit, and the Guest Care Business Unit respectively. The Respondent determined to advertise for a new role which would become responsible for the Group Bookings portfolio. Mr Connelly stated that the role that was advertised on 26 May 2025 was only responsible for the Group Bookings portfolio and had different reporting requirements and accountabilities to Mr Curr's former role.

• [11] The Respondent submitted that there was no dismissal, and that the Applicant resigned from his employment with notice, on 22 April 2025. In reference to the Letter, the Respondent submitted that the resignation was voluntary and with clear intent. Mr Connelly accepted Mr Curr's resignation on the same date. The Respondent referenced Birrell[3] where it was held that a notice of termination, once given, cannot be unilaterally withdrawn without the consent of the other party. The Respondent considered that the resignation concluded the employment relationship between Mr Curr and the Respondent and that it was under no obligation to acquiesce to Mr Curr's recission request.

• [12] The Applicant contended that dismissal occurred within the meaning of the Act through the Respondent's employer-initiated conduct following the resignation and withdrawal request which was denied. The Respondent possessed discretion to retain or terminate the Applicant. In this instance, they chose to terminate the employment relationship. The Applicant submitted this choice and the process undertaken render the termination employer-initiated under s.386(1)(a).

• [13] The Respondent submitted that the wording in the Letter indicated that the relationship between Mr Curr and the Respondent was good, and that the resignation was not due to any dissatisfaction with his employment. In considering Mr Curr's view that the refusal to accept the recission request constituted adverse action, the Respondent submitted this was a misconceived misapplication of the intention of the General Protections provisions.

• [14] The Respondent referred to Tao Yang[4] and noted that "an employer is generally able to treat a clear and unambiguous resignation as a resignation" and further submitted that there was nothing to suggest that Mr Curr's resignation was given in the heat of the moment or under extreme pressure[5].

• [15] Regarding Mr Curr's recission request, the Respondent submitted that it exercised its discretion to refuse the request, as Mr Curr did not appear to be committed to the role that he had resigned from. The Respondent pointed to Mr Curr's decision to resign because he was offered a role externally with a higher salary. The Respondent further submitted that it refused the recission request owing to its having acted quickly in making operational decisions following the receipt of the Letter.

• [16] The Applicant referred to Patterson[6] where he said it was recognised that dismissal can occur following employee resignation where employer conduct becomes the decisive termination factor. The Commission examines substantive employer actions rather than chronological sequence.

• [17] The Applicant submitted that the Respondent transformed the resignation into employer-initiated dismissal through deliberate conduct. Upon receiving the withdrawal request on 24 April 2025, they elected a comprehensive assessment rather than passive acceptance. He said the structured process involved formal meetings to gather evaluative information, senior management consultation with Ms Mason, and reasoned rejection applying both operational and undisclosed performance criteria. He submitted that Mr Connolly's evidence reveals that alleged performance issues and "lack of interest" assertions formed decision criteria despite never being raised with the Applicant. The Applicant therefore asserted that this extensive assessment constituted fresh employer-initiated conduct determining the employment outcome. The Respondent moved beyond resignation acceptance to active employment determination, becoming the operative termination cause.

• [18] The Respondent referred to Ngo whereby a notice of resignation can only be unilaterally withdrawn if it was given in the heat of the moment and withdrawn immediately after the "heat dies down"[7]. The Respondent submitted that Mr Curr's resignation could not be considered to have been made in the heat of the moment and further that the withdrawal request was not sent to them until 2 days after the Letter.

• [19] The Applicant submitted that the temporal context reinforces the employer initiative to bring the employment to an end. He submitted that the resignation remained ineffective until 19 May 2025, maintaining the employment relationship throughout the assessment period. The Respondent's actions occurred whilst statutory obligations continued, negating immunity based on prior resignation.

• [20] The Applicant also raised concern with the alleged 'restructure' of his role, as he said within days of his departure, the Respondent advertised positions bearing substantial similarity to the original role. This conduct appears inconsistent with restructure assertions and suggests operational capacity existed to accommodate withdrawal. The re-advertised role contains comparable responsibilities, qualifications and scope. Claimed distinctions regarding reporting lines and focus do not establish material difference, with described activities constituting approximately 80% of original responsibilities.

• [21] The Applicant alleges he was dismissed within the meaning of section 386(1)(a). Section 386 reads as follows:

(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."

• [22] The Applicant agreed that he worked the entirety of the notice period referred to in his resignation letter. He conceded that he voluntarily tendered a written resignation on 22 April 2025. He accepted this was not done in the heat of the moment. A valid resignation will end the employment relationship at the end of the relevant notice period in the absence of some other event ending the employment relationship before the end of the notice period. There is no such circumstance here.

• [23] The Applicant submits that the actions of the Respondent after his having resigned, specifically the Respondents decision not to agree to his request to rescind his resignation amounted to his being terminated at the initiative of the Respondent. This argument seems to be premised on the view that the Respondent's explanation to him as to why it did not agree to his request to rescind his resignation was not a legitimate reason. There is nothing in what the Applicant has submitted to support a conclusion that employment was terminated by the Respondent within the notice period. There was no obligation on the Respondent to agree to the Applicant's request to rescind his voluntary resignation.

• [24] Whilst it was not strictly necessary for the Respondent to explain why it chose not to agree to the Applicant's request to rescind his voluntarily tendered resignation, I regard the Respondent's explanation as logical and reasonable. Being that Mr Curr did not appear to be committed to the role that he had resigned from, as it understood Mr Curr decided to resign because he was offered a role externally with a higher salary. The Respondent further submitted that it refused the recission request owing to its having acted quickly in making operational decisions following the receipt of the resignation letter.

• [25] The Applicant's employment came to an end because of his voluntary resignation. There has not been a termination at the Respondent's initiative within the meaning of s.386 of the Act.

Based on the conclusion above the Commission has no jurisdiction to deal with the application made under s.365 and the application is dismissed. An order will be issued separately and concurrently with this decision to that effect.

[3] Birrell v Australian National Airlines Commission (1978) 18 ALR 109.

[4] Yang v SAL HR Services Pty Ltd [2023] FWC 1325.

[6] Patterson v Re-Engage Youth Services Inc [2018] FWC 20.

[7] Ngo v Link Printing Pty Ltd [1999] AIRCFB 7005 at [18].

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