s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - not dismissed - resignation - changes to childcare arrangements - conduct by the employer 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 - not satisfied that the Applicant was dismissed - application dismissed.

[1] On 8 October 2025 Ms Ebsworth made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth). Ms Ebsworth claims that she was dismissed from her employment with Great Community Transport and that the dismissal contravened the general protection provisions of the Act.

[2] Great Community Transport (GCT) maintains that Ms Ebsworth resigned her employment and was not ever dismissed. The Commission's power to deal with a dispute under s.368 of the Fair Work Act 2009 (Cth) is only enlivened if Ms Ebsworth's application was properly made under s.365. In light of GCT's objection I must determine whether Ms Ebsworth was dismissed from her employment.

[3] Ms Ebsworth only has capacity to make a claim if she is "a person who has been dismissed" (per s.365(a)). "Dismissed" is defined in s.12 of the Act by reference to s.386. Section 386 is in the following terms:

(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.

[4] In Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47]- [48], [2017] FWCFB 3941; (2017) 271 IR 245 at 268-9, the Full Bench summarised the relevant tests under s.386 as follows:

"[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.

[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter."

[5] The test I must apply is an objective one - and properly so. My inquiry is primarily directed to the employer's conduct - in this case Mr Robinson's conduct as an officer of GCT.

[6] The evidence in this matter was not particularly controversial. There were differences of opinion about whether Ms Ebsworth's son was disruptive when Ms Ebsworth brought him to the workplace, but I am not required to make any findings about that.

[7] Ms Ebsworth was the only person required for cross-examination. I found Ms Ebsworth to be an honest witness who made appropriate concessions about how GCT's conduct might be objectively interpreted, and appeared to be careful to ensure that each of her answers was accurate and truthful.

[8] The relevant communication between Ms Ebsworth and GCT in the final few days of Ms Ebsworth's employment was by email or by SMS. The events that led to these final exchanges can be summarised as follows:

(a) Ms Ebsworth commenced work with Active Care Network/Peppercorn in November 2023;

(c) Ms Ebsworth said that management at Active Care Network/Peppercorn allowed Ms Ebsworth to bring her children to the workplace in school holidays;

(d) following a transfer from Active Care Network/Peppercorn on 1 July 2025, Ms Ebsworth began working for GCT;

(e) Ms Ebsworth's direct manager was Amanda Kant;

(f) Ms Kant gave approval for Ms Ebsworth to bring a child to the work in the July 2025 school holidays. There were no instances of any disruption in the July holidays;

(g) Ms Ebsworth said that Ms Kant agreed on 24 September 2025 that Ms Ebsworth could bring a child to work in the September-October school holidays. Ms Kant said that Ms Ebsworth did not ask to bring her son to work and Ms Kant did not give any such approval;

(h) from the first Monday of the school holidays, being 29 September 2025, Ms Ebsworth brought her 5-year-old son to work because she had no other option;

(i) Ms Ebsworth took her son to meetings in the workplace, including a one-to-one meeting with Ms Kant on Tuesday, 30 September 2025 and a team meeting on Wednesday 1 October 2025;

(j) Ms Kant and at least one other co-worker had concerns about Ms Ebsworth's son causing distractions in the workplace; and

(k) Ms Kant said she called her manager, Mr Robinson, who was not in the office at the time, straight after a team meeting on 1 October 2025 to raise her concerns about Ms Ebsworth's son being at work. Ms Kant said that she and Mr Robinson agreed that "this needed to be clarified with Ms Ebsworth."

[9] In the afternoon of 1 October 2025 Ms Ebsworth send an email to Ms Kant and to Ms Kant's manager, Mr Robinson. Ms Ebsworth said that Ms Kant encouraged Ms Ebsworth to write formally to Mr Robinson so that Ms Ebsworth could get more help. Ms Ebsworth's email to Ms Kant and Mr Robinson said:

I wanted to reach out because I'm really struggling with the NDIS and home care clients. I haven't been given any proper training, and I'm finding it hard to meet expectations when I don't fully understand the processes. I'd really appreciate some guidance or training to help me do the role properly.

I also want to mention that at times the way things are being communicated feels quite harsh, and it makes it even harder for me to ask questions or learn. On top of that, I feel like I'm being treated unfairly because of my part-time hours, with the same level of expectation placed on me as someone full-time.

I also need to raise that one staff member does not communicate in an appropriate way and often speaks to me as if I don't know anything. This has been very discouraging and is affecting my confidence in the role.

I'm genuinely trying my best, but I do need more support, training, and respectful communication to succeed.

[10] The next morning Ms Kant sent an email to Mr Robinson about Ms Ebsworth's son in the following terms:

Further to me questions around bringing children to work,? Did you know if this was approved or discussed with anyone other than me ?

I am unsure of who approved this, but its becoming distributive, especially when he is brought in to professional meeting settings. I have also received concerns from team members regarding having a child in the room, especially when we are having tough conversations regarding welfare check's & death of clients etc.

Would it be okay for me to request that Tameeka's son is set up somewhere other then the Engine room ? perhaps in the cozy corner or activity hub room.

Today again his play items are spread right across the mail station, but he is sitting directly behind Tameeka and Andrew, its quiet disruptive he seems to be bored and banging his chair into the drawers.

What would be the process for the above or should it just be a conversation between Tameeka

[11] In the afternoon of 2 October 2025 Mr Robinson sent Ms Ebsworth an email in the following terms:

Thank you for reaching out and sharing how you're feeling. I appreciate that you have raised your concerns, as it's important we understand what support you need to perform well in your role.

I do want to clarify a few points in relation to your email and recent events:

• Support and Training: to my understanding, Amanda has been regularly checking in and offering to assist you. While it's good that you've now raised that you need more guidance, it's important that you take initiative to ask questions in the moment rather than waiting until things escalate. We expect all team members to actively seek clarification when needed, as this helps avoid delays or errors.

• Professional Conduct in the Office: Amanda also asked me about policy regarding bringing kids in. This has been allowed for exceptional circumstances ln a case by case basis and on the provision that you ask your manager each time. Bringing your son into the workplace without prior approval with no headphones sounds like it caused disruption for your team and for clients. This is not appropriate and needs to be avoided in the future. If exceptional circumstances arise, these must be discussed and approved by your Team Leader beforehand please.

• Respectful Communication: I understand you feel some communication has been harsh. At the same time, it was reported to me yesterday that you were abrupt and frustrated when you responded to Amanda yesterday that without investigation, did not sound acceptable. All staff are expected to treat their colleagues, and particularly their team leaders, with respect even when under pressure. We need to ensure our workplace remains professional and collaborative.

In terms of next steps, we will arrange a time for you to sit down with Amanda and go through further training and guidance around NDIS and home care clients. This will be an opportunity for you to ask specific questions and build your confidence. At the same time, I expect to see all staff communicate in a way that is line with our values and will investigate further what you have spoken about above upon my return.

Please confirm your availability next week so that a meeting can be scheduled.

[12] The next day Ms Ebsworth commenced sick leave and did not ever return to work. Over the following days there were email and SMS exchanges between Ms Ebsworth and Ms Kant in relation to Ms Ebsworth's medical certificate covering her absence. Ms Ebsworth's first certificate said that she was unfit for work from 3 October 2025 until 7 October 2025.

[13] At 9:00am on 8 October 2025 Ms Ebsworth sent an email to Mr Robinson resigning in the following terms:

Further to your email below, I wish to formally resign from my position at Active Care Network, effective immediately.

This decision has been made as a direct result of the unexpected change regarding my ability to bring my son into the office, something that had been verbally supported by Amanda, Team Leader, and allowed without issue. This was the current arrangement that had been in place and working effectively, which was verbally agreed to on 24 September 2025.

The change occurred immediately after I raised a complaint on 1 October 2025 about the lack of support I was receiving and was communicated at short notice, leaving me unable to arrange suitable childcare midway through the school holidays.

As a single parent, this has caused significant stress and hardship, and I am unable to continue in the role. Based on medical advice, I believe it is best that I step away at this time.

I have valued the opportunity to contribute to the community through my work at Active Care Network and wish the organisation and team well in the future.

Please confirm receipt of this email and advise if any final paperwork is required.

[14] In her witness statement Ms Ebsworth said: "Because the childcare arrangement was withdrawn and I had no alternatives, it became impossible to continue working."

[15] Mr Robinson replied on 8 October 2025 as follows:

Thank you for your email. I acknowledge receipt of your resignation; however, before we process it, I'd like to ask that you take some time to consider your decision.

I understand there have been some challenges and that recent changes may have been difficult to manage. It's important that we have a clear and fair discussion about these matters before anything is finalised.

Please let me know if you're willing to meet this week to talk through the circumstances and clarify any misunderstandings.

Until that discussion has taken place or I hear that you're certain, I will hold off processing your resignation.

[16] In the early afternoon on 8 October 2025 Ms Ebsworth sent the following confirmation of her decision to resign:

Thank you for your response. I've considered my decision carefully and confirm that my

As outlined in my previous email, this decision was made only after the sudden change regarding my ability to bring my son into the office, an arrangement that had previously been verbally supported by Amanda and allowed without issue. This change was communicated shortly after I raised a complaint about the lack of support I was receiving, which left me with no reasonable alternative but to resign.

I also note that prior to submitting my resignation, there had been no attempt to address my concerns or offer any genuine support, which has contributed significantly to the stress I have experienced.

Please proceed with processing my resignation effective immediately.

[17] Mr Robinson confirmed Ms Ebsworth's resignation by email the next morning in the following terms:

Thank you for your email confirming your decision to resign from your position at Active Care Network, effective immediately.

To ensure there is no misunderstanding, I wish to confirm that your resignation has been accepted as a voluntary decision made by you. No direction or requirement to resign has been made by the organisation.

As your resignation is effective as of yesterday I will arrange for your final pay and separation documentation to be processed in accordance with Fair Work requirements. As your resignation has been provided without the required notice period, this will be noted in your separation documentation but we won't be deducting it from your final pay.

Would you like an exit interview? It can be done with a Manager of your choosing. We will also need all work property to be returned at a time that is convenient for you.

[18] There was one further email exchange between Ms Ebsworth and Mr Robinson later in the morning of 9 October 2025. Ms Ebsworth said:

Thank you for confirming receipt of my resignation and arranging my final pay and separation documents.

To note, my decision to resign was not voluntary but made in response to the actions taken after I raised a formal complaint on 1 October 2025, including the sudden change regarding my ability to bring my son into the office - an arrangement previously agreed to and supported. I have since lodged a General Protections (Dismissal) application with the Fair Work Commission (case number L010837) in relation to these circumstances.

I don't wish to participate in an exit interview.

Thank you for your email. I acknowledge receipt of your correspondence and note that you have lodged a General Protections (Dismissal) application with the Fair Work Commission.

As this matter is now subject to a formal process, any further communication regarding your employment or the circumstances of your resignation should occur through the Fair Work Commission or your nominated representative.

Your final pay and separation documentation will be processed in accordance with legislative requirements.

[20] There is no doubt that Mr Robinson's email on 2 October 2025 (see [11] above) was the catalyst for Ms Ebsworth's resignation. Ms Ebsworth said that the decision to change her childcare arrangements in the middle of the school holidays made it "impossible" to continue employment. However, Ms Ebsworth did not work again for the balance of the school holidays because she took sick leave.

[21] Within the email exchange between Ms Ebsworth and Mr Robinson there were two conversations going on - one about childcare arrangements, and another about support provided to Ms Ebsworth from Ms Kant and perhaps from Mr Robinson. The two conversations were intertwined: Ms Ebsworth's complaint that the childcare issue was only raised by Ms Kant after Ms Ebsworth had complained about support from Ms Kant is valid.

[22] The primary matter I must determine is whether Ms Ebsworth was dismissed from her employment with GCT. This inquiry necessarily focuses on the actions of the employer - in this case being Mr Robinson acting on behalf of the employer. As such, I need to consider whether, viewed objectively, Mr Robinson's emails were sent "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" (per Bupa at [47]).

[23] Ms Ebsworth focused her attention on Mr Robinson's email responses about the childcare arrangements - unambiguously alleging on the day of her resignation his response "left me with no reasonable alternative but to resign." (see [16] above).

[24] At the hearing Ms Ebsworth expressed disappointment that Ms Kant did not raise any concerns directly with her about her son causing disruptions - which is understandable. Ms Kant raised concerns with her boss, Mr Robinson, and Mr Robinson agreed that the arrangements needed to be clarified - which is also understandable. There is no suggestion in Ms Kant's evidence that she wanted Ms Ebsworth's son immediately removed from the premises or that Ms Ebsworth immediately cease bringing him to work.

[25] Mr Robinson's comments in his email of 2 October 2025 about childcare arrangements are slightly ambiguous. They are open to be interpreted as a prohibition on bringing children to work, which is what Ms Ebsworth understood his words to mean. Mr Robinson gave no invitation to discuss the matter. Ms Ebsworth, quite reasonably, understood that her regular arrangement of bringing her son to work in school holidays would not fit within the exceptional circumstances to which Mr Robinson referred. The following extract from Mr Robinson's witness statement is consistent with Ms Ebsworth's interpretation of Mr Robinson's words:

"Some employees of the Respondent have, on a case by case basis, been permitted to bring their children to work in exceptional circumstances. Permission for this to occur is (and has always been) discretionary, and takes into consideration the potential for disruption to work. There is no general entitlement for the Respondent's employees to bring children into the office, and as such, staff typically request permission to do so in advance on each occasion they are seeking to bring their child into work."

[26] After Mr Robinson's email there was no longer any certainty as to whether Ms Ebsworth's son could attend work in school holidays.

[27] Ms Ebsworth was affronted by Mr Robinson's email and interpreted his reference to childcare arrangements as backlash or retribution for making a complaint about not being supported. Mr Robinson's email was not reasonable but that is not the test - a shortsighted or even a small-minded supervisor acting unreasonably towards an employee is not necessarily the same thing as conduct by an employer engaged in with the intention to force the employee to resign.

[28] I do not accept that Mr Robinson's references to childcare arrangements left Ms Ebsworth with no reasonable alternative but to resign. Mr Robinson's first email was received on 2 October 2025. Ms Ebsworth did not immediately resign. Ms Ebsworth did not return to work the next day and instead commenced a period of sick leave. By 8 October 2025, when Ms Ebsworth sent her resignation, there were only two days left of the school holidays, and Ms Ebsworth did not work those two days.

[29] Ms Ebsworth's employment could have continued into the new school term unaffected by Mr Robinson's email or apparent decision about childcare arrangements in future school holidays. Perhaps a sensible conversation could have been had about future school holiday periods.

[30] I am not satisfied that the references to childcare arrangements, and/or the apparent indication by Mr Robinson that Ms Ebsworth would not be given permission in the future to bring her son to the workplace in school holidays, was conduct by GCT that was intended to bring the employment to an end, nor was it the probable result of the email that Ms Ebsworth would resign.

[31] The second conversation in the same email exchange was about the level of support provided to Ms Ebsworth in her employment.

[32] Viewed objectively, Mr Robinson's emails were unhelpfully defensive (of the support already provided to Ms Ebsworth) and critical of Ms Ebsworth vis a vis her implied lack of "professional conduct in the office" and her lack of "respectful communications."

[33] Ms Ebsworth's first email said "I also want to mention that at times the way things are communicated feels quite harsh, and it makes it even harder for me to ask questions or to learn" (see [9] above). It is ironic that Mr Robinson's email was quite harsh, and was less than professional, and less than respectful insofar as it criticised Ms Ebsworth without speaking to her first and did not invite any future discussion with him about the matters raised.

[34] I am quite confident that the email was sent with the intention of devaluing Ms Ebsworth's complaints and pushing back upon Ms Ebsworth the responsibility for the problems raised in Ms Ebsworth's complaint. Mr Robinson's email did not provide any assurance that Ms Ebsworth's concerns would be heard or investigated.

[35] Ms Ebsworth's first email raised concerns about Ms Ebsworth doing her role properly, implying that she was concerned that she was not doing her role properly, and asked for more training and support so that she could succeed. Mr Robinson's response email would not have left Ms Ebsworth feeling comfortable about her ongoing employment.

[36] Despite these shortcomings in Mr Robinson's emails, I am not satisfied that they were conduct by GCT that was intended to bring the employment to an end, nor was it the probable result of the emails that Ms Ebsworth would resign.

[37] As such, Ms Ebsworth was not a person who was dismissed for the purposes of s.365 of the Act and her general protections application cannot continue. I make the following order:

1. The general protections application made by Ms Ebsworth on 8 October 2025 is dismissed.

Ms. P Thomson and Mr. V Lin of the Australian Federation of Employers and Industries for the Respondent

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