Corrected spelling of Mr Gemayel in multiple paragraphs.

Corrected date from 25 November 2025 to 25 November 2024 in paragraphs [43] and [45]

Fair Work Act 2009

s.365 - General protections

General protections dismissal dispute - jurisdictional objection relating to no dismissal - section 386 meaning of dismissed - whether dismissal or voluntary resignation -- whether forced resignation

• [1] This is an edited version of my decision delivered ex tempore and recorded in transcript on 1 May 2025.

• [2] This decision relates to an application by Mr Suhayl Ali for the Fair Work Commission to deal with a dismissal dispute under s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Ali alleges he was unlawfully dismissed from his employment with DMG Building & Electrical Services Pty Ltd (DMG or the Respondent) in contravention of Part 3-1 of the FW Act.

• [3] Mr Ali commenced employment with DMG on 17 September 2024. DMG is a small business of approximately 4 employees providing electrical maintenance and repairs to housing projects. Mr Ali was engaged as an electrician.

• [4] On 27 November 2024, Mr Ali tendered his resignation by letter to the Director of the Respondent, Mr Darren Gemayel. Shortly after, Mr Ali filed a general protections application involving dismissal contending that he was forced to resign due to various alleged business practices at DMG and the conduct of Mr Gemayel.

• [5] The Respondent has raised a jurisdictional objection to Mr Ali's application, being that Mr Ali voluntarily resigned from his employment and was not dismissed.

• [6] If no dismissal took place, the Commission has no jurisdiction to progress the dispute under s.368 of the FW Act and the application must be dismissed.[1] This decision considers whether Mr Ali was dismissed within the meaning of s.386 of the FW Act.

• [7] As noted above, this decision considers whether the Applicant was dismissed for the purposes of s.365 of the Act. An application under s.365 of the Act requires that "a person has been dismissed" as a threshold matter. An actual dismissal must occur - a mere allegation that a person has been dismissed is not sufficient.[2]

• [8] The meaning of "dismissed" for the purposes of s.365 and other sections of the Act is set out in s.386 of the Act.

• [9] Section 386 of the Act relevantly provides 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."

• [10] The Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli considered the application of s.386 of the FW Act in detail and provided the following guidance in applying the section when there has been an ostensible resignation:[3]

(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 probably (sic) result of the employer's conduct such that the employee had no effective or real choice but to resign..."

Determinative conference, Applicant's primary contention, Evidence

• [11] I held a determinative conference in this matter on 1 May 2025. Mr Ali presented submissions and evidence on behalf of himself. Mr Gemayel presented submissions and evidence on behalf of DMG.

• [12] In written submissions and at the determinative conference, Mr Ali submitted that he was forced to resign because of a range of conduct engaged in by DMG including allegedly requiring him to engage in unethical work practices and unprofessional performance management practices. However, Mr Ali's key contention was that Mr Gemayel engaged in abusive and bullying behaviour that made Mr Ali fear for his safety. In particular Mr Ali relied on the conduct of Mr Gemayel in a meeting on 25 November 2024.

• [13] Mr Ali submitted a covert recording of the meeting with Mr Gemayel which occurred on 25 November 2024, two days before his resignation. Mr Ali submitted he made the recording because there had been occasions where Mr Gemayel had allegedly verbally abused him in the past, but this had occurred in private with no witnesses.

• [14] Mr Gemayel did not object to the recording being included in evidence, and ultimately relied on it during submissions.

• [15] While a person can record a private conversation in Victoria under the Surveillance Devices Act 1999, there is no guarantee that such recordings will be admitted into evidence in the Commission. In this instance, I determined to allow the recording on the basis it had significant probative value, and it went to a central matter in contest between the parties - namely whether Mr Gemayel had engaged in behaviour that forced Mr Ali to resign. Having said that, I made clear that I would approach the recording with some caution, and in particular, take account of the fact that Mr Ali was aware that what he was saying during the meeting was being recorded while Mr Gemayel was not.

• [16] On 8 October 2024, Mr Ali and Mr Gemayel had a telephone discussion relating to tenants not being home when DMG was scheduled to do work. I note that there is contested evidence regarding the tone of this discussion and whether Mr Gemayel swore during the discussion. As part of the discussion, Mr Gemayel asked Mr Ali to call tenants on his personal phone. Mr Ali refused to use his personal phone to contact tenants because he did not want to share his private number. While Mr Gemayel was not happy with Mr Ali's approach given other employees used their personal phone, Mr Gemayel nevertheless arranged for Mr Ali to contact the office to make the calls.

• [17] On 4 November 2024, Mr Gemayel and Mr Ali had a conversation where Mr

Gemayel asserted that Mr Ali was not producing enough work at the sites he visited. Mr Ali disputed this. There is contested evidence between the parties regarding this conversation. Mr Ali claims Mr Gemayel was seeking him to replace items regardless of whether they were faulty or not, whereas Mr Gemayel states he was concerned Mr Ali was not performing a thorough check. There is also a dispute regarding the tone of the conversation and whether Mr Gemayel swore.

• [18] On 15 November 2024, Mr Ali attended a Mosque in Broadmeadows to pray during work time. Mr Ali did not previously arrange with Mr Gemayel to take time off work. While Mr Ali was at the Mosque, another vehicle reversed into the company van he was driving. Mr Ali contacted Mr Gemayel regarding the incident, with driver's details. In addition to being upset about the company car, Mr Gemayel was upset that Mr Ali did not tell him he was taking time off work in addition to his lunch break to attend to his religious practices. There is contested evidence relating to the tone of this discussion and whether Mr Gemayel swore during the discussion.

• [19] On 24 November 2024, Mr Gemayel sent Mr Ali an email which stated the following:

This is just a follow up to our conversation in regards to work performance which was discussed Tuesday, 12 November 2024. As discussed the work levels produced by you to date have been below average and not at the required level. This in turn is having impact to my company which needs to be addressed.. It was also discussed that you have been undertaking religious prayer times during work hours. This was never discussed or agreed upon prior to commenced of employment but has not been noted. I am happy to accommodate this as best I can, provided I am made aware of these days/time prior. In addition to this time used during work hours needs to be made up for at times that I am aware of and agreed to. Moving forward I will endeavour to assess and review your performance to try help you improved in areas lacking."

• [20] On 25 November 2024, Mr Ali approached Mr Gemayel seeking further details in relation to the performance issues raised in the email. As noted above, Mr Ali made a secret recording of the interaction.

• [21] In the meeting, Mr Ali and Mr Gemayel initially discuss Mr Ali's work levels with Mr Gemayel asserting that Mr Ali should do more jobs at a worksite to make the job financially worthwhile.

• [22] Mr Gemayel and Mr Ali then discuss potential arrangements for Mr Ali to take time off work to attend prayer, including whether this should be done in lunch time or whether it would take longer than the lunch break. During this discussion, Mr Gemayel asserts that if Mr Ali is driving to and from a Mosque in a company car, there will be wear and tear on a company vehicle and the use of company fuel. Mr Ali then likens the wear and tear on the work car to his claim that he should not have to use his private mobile to call tenants.

• [23] At this stages Mr Gemayel clearly becomes upset. During the interaction he raises his voice, starts speaking over Mr Ali, he swears regularly including stating the following:

"The bullshit about wear and tear on the phone is a fucking joke"[4]

"Are you fucking serious, are you serious?"[5]

• [24] When Mr Ali says "You don't have to get angry", Mr Gemayel responds "You're making me angry!"[6]

• [25] Mr Gemayel gets a glass of water and offers Mr Ali a drink.

• [26] Mr Ali and Mr Gemayel then continue to discuss Mr Ali taking time off for prayer and how this time will be made up at work.

• [27] Following the discussion regarding taking time off work to attend prayer, Mr Gemayel shifts the conversation to what in effect is a general discussion on Mr Ali's performance. Mr Gemayel raises concerns that Mr Ali appears to be "self-absorbed" and "not a team player."[7] Mr Gemayel says that based on Mr Ali's actions to date he has "not got a good vibe"[8] about him.

• [28] Mr Gemayel refers to the incident where Mr Ali did not reveal he was taking time off to pray and says it was "deceitful". Mr Gemayel states that he told Mr Ali during the interview process that "there's two things I can't fucking tolerate its people who steal and people who lie. Right now you've done that."[9]

• [29] Mr Gemayel states that "I don't want any negative nancies running around my company fucking becoming toxic to other blokes. It festers. What we do with those people, we fucking weed them out... You need to be on the same page as everyone"[10]

• [30] Mr Gemayel also states that Mr Ali's numbers are down.

• [31] The meeting ends with Mr Gemayel and Mr Ali again discussing how Mr Ali might take time off for his religious practices and make up work time. Mr Gemayel expresses that he will work with Mr Ali, but he needs to be clear on what times Mr Ali will not be available.

• [32] On 26 November 2024, Mr Ali took a personal leave day, texting Mr Gemayel "my mental health is not in the right place." Mr Ali resigned the following day.

• [33] Mr Ali primarily submits that he was forced to resign because of bullying, poor treatment and serious safety concerns.

• [34] In support of this claim, Mr Ali gives witness evidence that on several occasions during his employment Mr Gemayel used aggressive and abusive language towards him. These included a phone call on 8 October 2024, a brief in-person meeting at the company worksite on 4 November 2024, and his final performance meeting on 25 November 2024.

• [35] Mr Ali stated that he decided to record the meeting on 25 November 2024 because previously there had been no witness to this language. He gave evidence that the meeting occurred in a separate room at the worksite, Mr Gemayel shut the door, and that both Mr Gemayel and Mr Ali were standing. When Mr Gemayel got angry, he raised his voice, made fists with his hands and stepped towards Mr Ali. Mr Gemayel's conduct made Mr Ali feel scared and worried for his own safety.

• [36] After his resignation, Mr Ali commenced a WorkCover claim. In the proceeding before me, Mr Ali further sought to rely on an independent medical examination (IME) by Dr Ajit Kumar originally prepared for the WorkCover proceeding. The IME concluded that Mr Ali had suffered a mental injury and that he did not have capacity to return to work at DMG but may have capacity for reduced hours at a different workplace.

• [37] DMG submits that Mr Ali voluntarily resigned and relies on the oral and written evidence of Mr Gemayel in support of its position.

• [38] Firstly, DMG contends that Mr Gemayel did not, at any stage, engage in inappropriate conduct with Mr Ali. It contends that throughout Mr Ali's and DMG's employment relationship, Mr Gemayel addressed all queries and concerns by Mr Ali as they were raised and provided Mr Ali with a flexible working arrangement to accommodate his religious beliefs.[11]

• [39] In evidence, Mr Gemayel did not deny the authenticity of the audio recording of the 25 November 2024 meeting. However, Mr Gemayel disputes Mr Ali's evidence that he made any physical threat during the meeting or had any other inappropriate behaviour and instead states: "at no stage was I disrespectful, unprofessional or aggressive as indicated by Mr Ali. This is evident in the covert audio recording provided by Mr Ali."[12] Mr Gemayel states that he addressed the situation in a normal manner that he would with any of his other employees.

• [40] Mr Gemayel gave evidence that the 25 November 2024 meeting was a performance meeting and that he took steps to assuage any concerns of being intimidating during the meeting. He explained that he first suggested the meeting take place in a private room to avoid having a performance review in an open public space for Mr Ali's benefit. He also noted that during the conversation, he consistently attempted to provide Mr Ali with feedback, and offered Mr Ali a drink of water. In summary, Mr Gemayel felt that he did not say anything disrespectful, unprofessional, or aggressive, either at the meeting or in his other interactions with Mr Ali.

• [41] Mr Gemayel submits that the Workcover agent has rejected Mr Ali's Workcover claim. This shows that Mr Ali's claim that he has been subjected to unsafe behaviour is unfounded.

• [42] Having considered all the material and submissions before me, I have ultimately come to the conclusion that Mr Ali was forced to resign because of the conduct of Mr Gemayel towards Mr Ali, particularly on 25 November 2024.

• [43] I do not think that Mr Gemayel intended Mr Ali to resign. I want to acknowledge that Mr Gemayel is clearly an employer who cares about his employees and listens to their concerns. This is illustrated by the fact that in the meeting on 25 November 2024, Mr Gemayel was very open to establishing flexible work arrangements with Mr Ali so he could attend to his religious practices. Mr Gemayel also took steps to provide a company phone after Mr Ali raised the issue of using his personal phone.

• [44] In addition, I also recognised that Mr Gemayel runs a small business in a blue-collar environment without the assistance of a human resources manager. He relies on close, direct relationships with his staff, speaking openly and frankly, and swearing is likely to be part of the everyday work culture.

• [45] Having said that, in my view, the language and behaviour directed towards Mr Ali at the meeting on 25 November 2024 is not appropriate or acceptable behaviour in any workplace.

• [46] An employer and an employee do not approach each other on a level playing field. An employer is in a position of power and Mr Gemayel needs to be aware that behaviour that might be acceptable with a friend or in another context, is not acceptable or appropriate with an employee. In particular, I refer to Mr Gemayel's confrontational tone, raised voice and comments such as:

"I don't want any negative nancies running around my company fucking becoming toxic to other blokes. It festers. What we do with those people, we fucking weed them out... You need to be on the same page as everyone."

• [47] On the evidence before me I was not able to determine whether Mr Gemayel physically approached Mr Ali as he was speaking. However, ultimately, I have found that the verbal evidence before me is enough to establish that Mr Gemayel was acting in an aggressive, confrontational and inappropriate way that was likely to make Mr Ali feel intimidated.

• [48] Mr Ali gave oral witness evidence that he was scared during the meeting. I accept his evidence. I further find that Mr Gemayel's behaviour in the meeting would make a reasonable person in Mr Ali's position intimidated.

• [49] As noted above, I do not think Mr Gemayel intended for Mr Ali to resign. However, I find that the probable result of an employer engaging in the aggressive and confrontational conduct described in the 25 November 2024 meeting was such that Mr Ali would resign. Given Mr Ali was reasonably concerned for his mental and physical safety, I find that Mr Ali had no effective or real choice but to resign.

• [50] For completeness, I note that Mr Ali gave multiple other reasons for his resignation, aside from Mr Gemayel's conduct towards him on 25 November 2024, in his resignation letter. These included assertions that:

1. Mr Gremayel and DMG conducted fraudulent business practices;

1. Mr Gemayel gave unprofessional feedback to Mr Ali;

1. DMG's work practices and expectations were unethical;

1. Mr Gemayel accused Mr Ali of not fulfilling his job responsibilities;

1. Mr Gemayel pressured Mr Ali to deceitfully conduct maintenance checks;

1. Mr Gemayel drew unfavourable comparisons between Mr Ali and his colleagues;

1. DMG promoted a work culture where staff were expected to work beyond contracted hours without compensation;

1. DMG required apprentices to illegally carry out electrical work without proper supervision;

1. DMG completed and filed official electrical safety certificates in Mr Ali's name and without his consent; and

1. DMG expected Mr Ali to utilise his personal device for work purposes.

• [51] As I have already found above that Mr Gemayel's conduct on 25 November 2024 was such that the probable result was that Mr Ali had no effective or real choice but to resign, it is unnecessary for me to fully consider each of the above allegations and whether or not they amounted to a forced resignation. However, I will make some brief comments addressing each of the above.

• [52] Allegations 1, 3, 5, 8, and 9 can be effectively categorised as Mr Ali's concerns with DMG's business practices. These allegations were contested by DMG, and ultimately, there was not enough evidence before me to conclude whether these business practices occurred, and if so, whether these business practices were illegal and/or unethical.

• [53] Allegations 2, 4 and 6 can be broadly characterised as complaints that Mr Gemayel had with Mr Ali's performance, both individually and compared with his colleagues. While I understand Mr Ali did not agree with Mr Gemayel's feedback, ultimately Mr Gemayel was entitled to raise any performance concerns he had with Mr Ali, including relating to productivity and absenteeism during work time. However, the conduct of Mr Gemayel when communicating his feedback and managing Mr Ali, was what left Mr Ali with no effective or real choice but to resign.

• [54] Finally, Allegations 7 and 10 are complaints about working conditions. Neither of these matters on their own could reasonably be considered grounds for a forced resignation.

• [55] For reasons given above, and with regard to s.386(1)(b), I consider that despite Mr Ali's resignation, DMG engaged in conduct that had the probable result that Mr Ali had no choice but to resign. Accordingly, I find that Mr Ali was dismissed for the purposes of s.365 of the Act. DMG's jurisdictional objection is therefore dismissed.

• [56] The result of the dismissal of this jurisdictional objection is that the matter will now be listed for a formal conciliation pursuant to s.368 of the Act. Attendance at that conference by both parties is mandatory.

• [57] If the matter cannot be resolved, then the Commission will issue a certificate pursuant to s.368(2) of the Act indicating that all reasonable attempts to resolve this matter have been, or are likely to be, unsuccessful. Following that, Mr Ali will then have 14 days to decide whether to exercise his legal right to pursue a general protections application in the Courts or, by agreement with DMG, in the Commission.

• [58] I will shortly list this matter for conciliation, to take place by Video using Microsoft Teams.

[1] Coles Supply Chain v Milford [2020] FCAFC 152.

[2] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [54].

[3] [2017] FWCFB 3941 at [47].

[11] Respondent's Submissions, paragraph 4.5 (DHB page 94).

[12] Witness Statement of Darren Gemayel at [19] (DHB page 98).

Printed by authority of the Commonwealth Government Printer