d) despite the Applicant choosing to resign, the Respondent made genuine attempts to have her reconsider and reverse her decision (by providing further alternatives to keep her on). These proposals were rejected by the Applicant, reflecting that her decision to resign was voluntary. The Respondent thus had no alternative but to acknowledge the Applicant's (own) decision to resign; and

e) the Applicant cannot show that her resignation was the objective probable result of the Respondent's conduct, having regard to, or in light of, other options equally available to the Applicant other than resignation.[57]

• [43] Post the conclusion of the hearing, the Respondent (relevantly) made the following written closing submissions (footnotes omitted):

14. The onus rests with Ms Slatyer to prove, on the balance of probabilities, that [the Respondent] took action with the intent, or with the objectively probable result of bringing the employment relationship to an end. The focus must be on whether the Resignation was the objective probable result of [the Respondent's] conduct, or course of conduct, having regard to, or in light of, other options available to Ms Slatyer rather than resignation.

15. In determining whether termination was at the initiative of [the Respondent]:

(a) the Commission is required to undertake an objective analysis of [the Respondent's] conduct to determine whether it was of such a nature that resignation was the probable result or that Ms Slatyer had no effective or real choice but to resign;

(b) regard must be had to what other options were available to Ms Slatyer rather than resignation; and

(c) where the decision to resign is based largely on the perceptions and subjective response of an employee made unilaterally, considerable caution should be exercised in treating the resignation as involuntary. What matters is what each party by their words and/or conduct, would have led a reasonable person in the position of the other party to believe at the time of the Resignation.

Concerns raised by Ms Slatyer during her employment

23. During her employment, Ms Slatyer raised concerns in relation to what she described as unconscious gender bias, the use of gendered language in the workplace and feeling excluded.

24. During cross-examination, Ms Slatyer confirmed that the evidence of examples of her experience in the workplace were those set out in her Response. Ms Slatyer asserted that there were other examples, but failed to provide any evidence of those examples.

(a) concerns in relation to the use of gendered language in emails, with examples provided by Ms Slatyer;

(b) a concern in relation to Mr Eamon O'Hare regarding the use of gendered language in December 2023;

(c) a concern in relation to Mr Jay Waterhouse regarding the use of gendered language in August 2024; and

(d) a concern in relation to Mr Ashley Zollner in August 2024, which included [verbally] excluding her name from a list of Area Inspectors, the allocation of work, and alleged conduct at unspecified pre-start meetings.

Concerns in relation to gendered language in emails

26. Prior to resigning, Ms Slatyer collated emails in support of her contention that she was subjected to the systemic use of gendered language in the workplace.

27.The emails provided by Ms Slatyer, as evidence of Ms Slatyer being subjected to the systemic use of gendered language in the workplace:

(a) contained emails that were sent prior to the commencement of her employment with [the Respondent];

(b) were addressed to men and not women, and neither sent to Ms Slayter directly nor copied to her. Mr Hislop's evidence in this regard was not challenged under cross-examination; and

(c) do not postdate March 2024, some six months before Ms Slatyer's resignation.

28. Ms Slatyer's contention that she was subjected to systemic use of gendered language in emails during her employment cannot be sustained.

29. Ms Slatyer contends that her complaints were often left unresolved and ignored. The evidence shows that Ms Slatyer's supervisors took prompt and reasonable steps in response to the concerns raised.

30. In an email dated 18 December 2023, Ms Slatyer raised an incident involving Mr Eamonn O'Hare in relation to what she says was Mr O'Hare's 'persistent use of gendered language.' The email is titled 'FYI discussion today - no action required'.

31. In cross-examination, Ms Slatyer agreed that on 18 December 2023 Mr Hislop replied to this email and Mr Bromilow replied to the email on 19 December 2023. Ms Slatyer further agreed that in their emails, both Mr Hislop and Mr Bromilow indicated that they would talk to Mr O'Hare in relation to the issues she raised.

32. Further, Mr Hislop's unchallenged evidence was that he had a discussion with Mr O'Hare in relation to the issues raised by Ms Slatyer and that there were no further instances of Mr O'Hare using such language.

33. The evidence shows that Ms Slatyer's supervisor took prompt and reasonable steps in response to the concern in relation to Jay Waterhouse using the term 'NDT Brothers'.

34. Ms Slatyer acknowledges that Mr Waterhouse apologised to her directly in relation to his use of the term 'NDT Brothers'. Ms Slatyer denies that during this conversation with Mr Waterhouse she said words to the effect 'It's your white male privilege'. However, the steps taken by Mr Hislop to address the situation, were otherwise unchallenged.

35. In further support of her contention that Ms Slatyer's complaints were left unresolved or ignored, Ms Slatyer alleges that she sent an email to Mr Bromilow and Mr Hislop on 14 August 2024 and that she did not receive a response from either Mr Hislop or Mr Bromilow.

36. Ms Slatyer provides no evidence of her raising any concerns in relation to Mr Zollner prior to 14 August 2024 other than to say that her concerns were raised 'verbally'. The raising of such verbal concerns was not put to Mr Bromilow or Mr Hislop in cross-examination. Mr Bromilow's evidence and Mr Hislop's evidence was otherwise unchallenged in respect of when issues in relation to Mr Zollner were first raised.

37. During cross-examination, Ms Slatyer agreed that she attended a meeting on 17 August 2024, convened by Mr Bromilow and attended by herself, Mr Bromilow, Mr Zollner, Mr Paul Tardent and Ms Hanni Beswick. She further agreed that Mr Bromilow addressed the issues raised in Ms Slatyer's email of 14 August 2024, although in her view it did not resolve them.

38. Ms Slatyer also conceded that there were multiple conversations between 14 August 2024 and 17 August 2024 in relation to the issues that she had raised. She further conceded that she was aware that Mr Hislop was not working during this period.

39. Similarly, Ms Slatyer stated in her Response that one of the ways that she was experiencing 'exclusion' was through not being assigned more technical jobs. During cross-examination, Ms Slatyer agreed that she had been allocated modular inspections prior to her resignation. In relation to modular inspections, Ms Slatyer explained that they are 'a lot more complex. You're inspecting the entire module on every level. You're looking at all of the pressure equipment and auxiliary equipment, and all the supports, tubing, everything' Ms Slatyer also agreed that at the meeting on 17 August 2024, it was agreed that she would be allocated tasks of a more technical nature.

40. Ms Slatyer was advised that she could make a formal complaint in relation to Mr Zollner. Ms Slatyer confirmed that she did not put in a formal complaint. Ms Slatyer's evidence was that she said to Ms Ricci in relation to the offer to put in a formal complaint, not at this stage'

41. Ms Slatyer made a number of other assertions during the hearing that were not otherwise supported by any evidence filed by her, and contradicted by other evidence. For example, Ms Slatyer asserted that Mr Hislop was involved in the behaviours that she raised and that he contributed to the issues as to why Ms Slatyer left site. However, Ms Slatyer provided no evidence in support of this assertion. To the contrary, Ms Slatyer acknowledged in writing and orally the support that Mr Hislop had provided. In this regard it is noted:

(a) in her email of 14 August 2024 to Mr Hislop, Ms Slatyer stated:

'I appreciate your own and Paul's notable efforts in including me since I first raised this.';

(b) she had said to Ms Ricci that her supervisors had been very supportive.

42. Ms Slatyer stated in her Response that 'there was no plan for improving workplace culture, no commitment to training or education for those involved, and no tangible actions to prevent future incidents. Ms Slatyer agreed in cross-examination that this was her opinion. When asked whether she attended any BETTER training programs aimed at promoting gender inclusivity, among other topics, she confirmed that she had attended all of them.

43. Throughout her materials Ms Slatyer variously references a toxic workplace, bullying and that she was not 'culturally safe'. Ms Slatyer has failed to provide any objective evidence to support such assertions. Ms Slatyer's evidence cannot give rise to a finding of a workplace with systemic issues, a toxic workplace, or of bullying or of a workplace where she was not culturally safe as alleged."

• [44] On the question of whether or not the Applicant had choices, at the time she resigned, other than resignation, the Respondent submitted:

(b) the Applicant never made a 'formal' complaint with the Respondent about her concerns (under the Respondent's written policies), despite being offered the opportunity to do so;[58]

(c) the Applicant had the ability to make an external complaint (or lodge an external claim, e.g. with the Fair Work Commission) about her concerns, but never did so; and

(d) the Applicant rejected the Respondent's offer to work in the Perth office for a temporary period to facilitate more direct discussions with Mr Ligertwood about her issues and work towards a solution that would see her return to site. This was despite the Applicant being told on multiple occasions that she was a valuable team member, and that her supervisors wanted her to remain employed in her role on site.

• [45] In support of the foregoing submissions, the Respondent's written closing submissions read (footnotes omitted):

"52. In her Response, Ms Slatyer stated that the option of working in the Perth office for two weeks, was unacceptable to her because it would have required her to work seven days per week, in a new role while preparing for end of semester exams In cross-examination it was put to Ms Slatyer that Mr Hislop's email to her dated 5 September 2024 stated, 'you will be required to attend the Perth office and, my preference, use the longer option of Monday to Friday so you can have the weekends off to study.' Ms Slatyer admitted in cross-examination that this constituted a 'longer option' and that more than one option had therefore been presented to her during this period.

53. Further, Ms Slatyer submitted in her Response that she resigned due to the 'absence of options presented to [her]'. However, during her cross-examination, she agreed that, in discussions with Ms Ricci prior to her resignation, Ms Ricci raised that additional leave could be explored if deemed appropriate, directly contradicting her earlier claim. Despite this, when Ms Slatyer cross examined Ms Ricci, she again asserted that 'there was no option to take leave without pay'. This back-and-forth inconsistency in her testimony undermines the reliability of her evidence.

54. Despite rejecting the offer to have her allegations against Mr Zollner investigated, Ms Slatyer contends that it was unreasonable for [the Respondent] to not put her on the opposite swing to Mr Zollner, and claims that this would have been an option she would have taken instead of resigning. Not only was this not a commercially viable option for [the Respondent], this assertion contradicts her consistent position that she did not want to return to site at all as well as her claims that the issue involved multiple people onsite, not just one.

55. A forced resignation requires there to be 'no other option'. The evidence shows that Ms Slatyer had multiple options available to her with the aim of retaining her employment.

56. Where there has been careful consideration prior to resignation, the resignation cannot be a dismissal for the purposes of s 365 of the Fair Work Act, as the employee has clearly made a decision to resign.

57. A resignation following careful consideration, consultation, or made at the employee's own initiative is generally regarded as voluntary, and if the resignation was not immediate but occurred after such deliberation, it further supports this conclusion

58. In Adamson v Spotless Facility Services Pty Ltd ( [2024] FWC 2341, at [14]), Commissioner Harper-Greenwell concluded that Ms Adamson's resignation:

'was not a dismissal at the initiative of the Respondent. There was a significant period of time that had passed between the events relied on by Ms Adamson and the date her resignation occurred. It is my conclusion that the termination was not done in haste but with careful consideration. Ms Adamson made the considered decision to resign from her employment. I am not satisfied that Ms Adamson had no other option but to resign as a result of the Respondent's conduct. It is however understandable given her other unrelated mental health issues and the complex issues which had arisen during the employment relationship, Ms Adamson no longer had a desire to remain in her employment.'

59. There is a significant period of time between the events relied on by Ms Slatyer to support her contention that her continued employment was untenable and the date of her resignation:

(a) all evidence Ms Slatyer has provided of gender-based language used in emails are from no later than March 2024;

(b) Ms Slatyer's concern in relation to Mr O'Hare was raised on 18 December 2023, She made no further complaints about this individual after December 2023; and

(c) Ms Slatyer concerns in relation to Mr Zollner or Mr Waterhouse were raised in August 2024. She did not then resign from her employment until 11 September 2024.

60. In cross-examination, Ms Slatyer agreed that there were thorough discussions between herself and [the Respondent] prior to her making the decision to resign from her employment.

61. Ms Slatyer has indicated at various points in her evidence that she was taking the time to make a decision or 'make plans'. Namely:

(a) During cross-examination, Ms Slatyer admitted that on 5 September 2024, she forwarded an email to her personal email address 'because [she] had a sense that [she] might not have access to [her] emails for much longer because [she] was considering resigning'.

(b) On 4 September 2024, Ms Slatyer sent a text message to Ms Ricci which stated; 'Hi Rebecca, Any updates for me? I would really like to know where I stand so I can make plans if needed'; and

(c) On 5 September 2024, Ms Slatyer sent an email to Mr Hislop in which she states: 'I would really like to understand what action CVX [the Respondent] has of plans to take to address my complaint before I make a decision.'

62. During questions from the Deputy President, Ms Slatyer confirmed that in her text message dated 4 [September] 2024 and email dated 5 September 2024 she was referring to making the decision of whether or not to resign. These communications were sent five and six days prior to her submitting her resignation.

63. Further, this decision was not made in haste or under the pressure of the employer. [the Respondent] had put before Ms Slatyer a proposal which she conceded was an attempt to keep her at work.

64. In her resignation letter, Ms Slatyer, referencing [the Respondent], wrote:

'Despite our thorough discussions, I believe that resigning at this time is the best decision for my wellbeing and professional growth.

65. Ms Slatyer has failed to demonstrate any action on the part of [the Respondent] which could be objectively said to have put her in a situation where she had no choice but to resign. To the contrary, during her employment:

(a) Ms Slatyer was supported, including by being provided with flexibility to manage commitments outside of work;

(b) Ms Slatyer knew that she was a valued member of the team;

(c) [The Respondent] had in place measures to support its commitment to providing a safe, inclusive and respectful workplace;

(d) Ms Slatyer's supervisors took prompt and appropriate steps to address concerns that were raised by her; and

(e) [The Respondent] presented Ms Slatyer with options as an alternative to resignation.

66. Instead, after careful consideration, Ms Slatyer decided to bring her employment to an end. The fact that Ms Slatyer was not satisfied with the options available to her, does not give rise to a finding of some conduct on the part of [the Respondent] which brought about her resignation.

67. For the reasons set out above, the Commission should be satisfied that it has no jurisdiction to exercise its powers under s.368 of the Fair Work Act.

68. As such, the Application should be dismissed."

• [46] The resolution of these proceedings requires focus upon the Respondent's conduct, as against the Applicant's concerns or complaints, so as to determine whether or not, in all of the relevant circumstances of this case, the Respondent had an intention to bring the Applicant's employment to an end, or the Respondent's conduct (acts or omissions) placed the Applicant in a position such that she had no real or effective choice but to resign.

• [47] Given the word "forced" is included in s.386(1)(b) of the Act, the test is not one that is based upon or around the concept of a 'constructive dismissal'. Rather, the core focus is upon whether or not the employer's conduct was 'objectively' the real and effective initiator of the relevant employee tendering their resignation (i.e. based upon other 'choices' equally available or open to the employee 'at the time' that they resigned). This is to be contrasted with an employee who is simply fed-up with an employer or the workplace that they find themselves in (for whatever reason), who determines to leave and move on to what are (ideally or hopefully) greener pastures somewhere else. In other words, the relevant employee has a choice to stay on (despite their dislike of management, colleagues, culture, or terms and conditions), or leave (including for their own personal, health (including mental health), family, lifestyle, or remuneration reasons). The ultimate negation of "choice" (that an employee must prove) is a high bar or threshold for an employee to cross. It is not to be concluded lightly, or via subjective considerations. As was stated in the case of Doumit:

"it is important that [this] line be closely drawn and rigorously observed. 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."[59]

• [48] Considered in further context, an employer has no ability (or power) to stop an employee resigning, i.e. an employer can only put forward suggestions or options for an employee to consider instead of resigning, with such suggestions or options ordinarily grounded or advanced by the employer based upon its own operational, and business, objectives and priorities. The important point being that any suggestions or options put forward to an employee at or around the time of their resignation go directly to, or cut across, whether or not it is to be objectively concluded that the relevant employee had no choice but (or was forced) to resign at the 'time' that they did.

• [49] I do not accept that the facts and circumstances of this case give rise to a finding as to an 'intention' by the Respondent to bring the Applicant's employment to an end. Rather, the evidence as to the Respondent's intentions is to the contrary. It follows that I must determine whether or not the Respondent's conduct (or course of conduct) in this case gave rise to the Applicant having no real or effective choice but to resign. In resolving this question, my findings need to be based upon the objective (as opposed to subjective) evidence, with particular focus upon the 'time' that the Applicant resigned (i.e. as at the specific 'time' that the Applicant resigned (in this case, 11 September 2024), did she have no real or effective choice but to do so).

• [50] In my view, the evidence discloses that the Applicant raised legitimate concerns around her treatment in the workplace by some of her colleagues, and made relevant complaints about same. In advancing her case as to forced resignation, the Applicant contends that her concerns (raised consistently but sporadically over a 12 month period) were ignored, not adequately addressed, and/or were not followed up with appropriate corrective action by the Respondent. In relation to these contentions by the Applicant (grounded upon issues related to workplace culture, gender bias (conscious and unconscious), exclusion, and lack of support), I make the following findings:

(a) The evidence does not support a finding that the Applicant's complaints as to conscious or unconscious gender bias were ignored, or were "dismissed or trivially addressed". Nor does it support a finding that Mr Bromilow and/or Mr Hislop were unsupportive of the Applicant, or the concerns she raised with either of them. The evidence of Mr Bromilow and Mr Hislop (the Applicant's supervisors) is that they took on board the Applicant's concerns, and sought to ensure (to the extent they could) that further instances were not repeated.[60] The fact that the Applicant encountered further instances of unconscious gender bias (because certain individual employees unintentionally used gendered language during further workplace interactions), cannot (on the evidence before me) be sheeted home to the Respondent as a foundation (or part of a foundation) for a forced resignation. To be clear, the evidence does not support the Applicant's contention that her concerns, requests or complaints were ignored, or dismissed, or only trivially addressed.

(b) The Applicant says that she was was "routinely excluded from critical team communications and team tasks". The primary evidence surrounding this issue concerns the complaint made by the Applicant about Mr Zollner in mid-August 2024.[61] The evidence of Mr Bromilow is that he engaged with the Applicant's concerns about Mr Zollner directly.[62] The fact that the Applicant remained unsatisfied, post 17 August 2024, about Mr Zollner (or his attitude, behaviour, or conduct), cannot (on the evidence before me) be sheeted home to the Respondent as a foundation (or part of a foundation) for a forced resignation.

(c) The Applicant contends that she was not assigned any high-value or more complex tasks, leading to the stalling of her professional growth. The only evidence in this regard, and of the Applicant raising the issue prior to her resignation, arises from a meeting on 17 August 2024, and it does not support the Applicant's contentions.[63] As Mr Bromilow states: "[The Applicant] was given inspection tasks that aligned with the degree she was obtaining in civil engineering. Her tasks were mostly in relation to structural inspections which I understood to be what she preferred. Having received the feedback that she preferred more technical duties, it was agreed at the meeting on 17 August 2024 that we would provide her with more technical inspections."[64] The short point here is that given the Applicant demobilised from site on 19 August 2024, the Applicant's complaints about the allocation of tasks do not give rise (on the evidence) to a foundation (or part of a foundation) for a forced resignation. In other words, if the Applicant had remained employed by the Respondent and returned to site, there is no evidence to suggest that the Applicant would not have been allocated more technical inspections per Mr Bromilow's evidence.

(d) The Applicant's contentions as to a lack of support to deal with her concerns are not borne out on the evidence. The evidence of Mr Bromilow and Mr Hislop identifies that any concerns or complaints raised with them by the Applicant were respectfully considered, and engaged with. Whilst the Applicant does not accept that Mr Bromilow and Mr Hislop appropriately deal with her concerns or complaints, I do not consider that the evidence supports the view taken by the Applicant in this regard.

• [51] The Applicant has put forward examples of actions that could or should have been (reasonably) taken by the Respondent to resolve her concerns, as follows:

• A formal response acknowledging receipt of complaints in July to August 2024 and outlining the next steps.

• Group communication to all inspectors reinforcing company expectations of professional language and behaviour.

• An investigation by HR or Employee Relations into complaints of gendered exclusion.

• Implementation of workplace inclusivity training or corrective actions.

• Commitment to policy enforcement, disciplinary actions, or cultural changes.

• [52] The Applicant does not indicate whether or not the taking of these steps would have resulted in her not resigning. At a more specific level, I find that the objective evidence discloses that during her employment with the Respondent:

(a) the Applicant's concerns or complaints did not go unacknowledged by the Respondent, and steps were taken to attempt to deal with the issues raised by her;

(b) the Applicant did not make a request for a formal investigation to occur, by human resources, or anyone else.[65] It is therefore not clear as to the basis upon which any disciplinary action against other employees could be initiated or maintained;

(c) there were communications to other employees on-site around the use of non-gendered language;[66]

(d) the Respondent did put on training, that required employee attendance at same, around improving workplace culture;[67] and

(e) whilst the Applicant did not consider it satisfactory, the evidence discloses that the Respondent repeatedly reiterated its commitment to the maintenance and enforcement of its policies and procedures amongst employees.

• [53] It follows from my findings in the foregoing paragraph that the Applicant's examples of actions that could or should have been (reasonably) taken by the Respondent to resolve her concerns do not give rise (on the evidence) to a foundation (or part of a foundation) for her forced resignation.[68]

• [54] I make the following findings in relation to the 'time' that the Applicant tendered her resignation on 11 September 2024:

(a) the Applicant's concerns centre upon her working (or continuing to work) on the Gorgon Site. The Applicant demobilised from the Gorgon Site on 19 August 2024 (pursuant to a request made by her (to Mr Bromilow) on 18 August 2024, and prior to her roster being completed). This was over three weeks before she tendered her resignation on 11 September 2024. At the time that she demobilised from site, she packed up and removed her personal belongings from site, indicating (as at 19 August 2024) that she did not (herself) consider that she would be returning to the Gorgon Site. Further, this was prior to the Applicant raising any of her more recent concerns with Ms Ricci of Human Resources;

(b) consistent with the Applicant's view that she would not be returning to the Gorgon Site, on 28 August 2024, the Applicant requested Ms Ricci consider whether she could take extended leave without pay (to focus upon her studies), move to another role, and/or move to another asset or site;

(c) the Applicant's suggestions of moving to another role, moving to another site, or moving to a different roster on the Gorgon Site (such that she would not come into contact with her existing supervisors) were not considered by the Respondent to be viable for its operations (at least, as at August/September 2024);

(d) the Applicant was offered an option to work from the Perth office for two to three weeks, and return to work on the Gorgon Site thereafter. It was envisaged that further solutions would be discussed and considered during this time in the Parth office with Mr Ligertwood. The Applicant was also advised that if the Perth office option does not work for her, a further discussion and reassessment could occur with an option that provides a mixture of work (on the Gorgon Site) and leave. These options were considered unsatisfactory to the Applicant as she did not wish to return to the Gorgon Site on her existing roster;

(e) the Applicant's decision to resign was one that was under active consideration by her at least six to seven days before she actually resigned;

(f) the Applicant's decision to resign involved consideration (at least in part) by her of her own personal circumstances concerning her on-going studies at university;[69] and

(g) the Applicant's letter of resignation makes reference to her decision to resign being arrived at "after careful consideration of [her] personal and professional circumstances" and her belief that "it is the best path forward", which "despite our thorough discussions" resignation "at this time is the best decision for my well-being and professional growth".

• [55] Ultimately, the Applicant's case as to forced resignation centres upon her desire not to return to work at the Gorgon Site, or to only return to work on the Gorgon Site if she was allocated a roster that did not involve her being supervised or otherwise interacting with Mr Hislop and Mr Bromilow (as she did not feel supported by them).[70] She considers that the Respondent was required to accommodate one of these options given her on-site experiences, and the complaints she made about same, which (again) in her view were not adequately addressed or otherwise resolved, and that there was no 'plan' in place for them to be resolved moving forward. In short, post being demobilised from the Gorgon Site, and prior to submitting her resignation, the Applicant was engaging in 'negotiations' with the Respondent around how she considered her employment arrangements with the Respondent would continue. The 'counter offers' from the Respondent in this regard were not acceptable to the Applicant, and she chose to end further negotiations around her continuing to remain in the Respondent's employ, and resign (providing notice in accordance with her contractual obligations).

• [56] I find that the options reasonably (and objectively) available (or open) to the Applicant other than resignation (as at the time that she submitted her resignation on 11 September 2024) were:

• (a) take up the Respondent's offer of two to three weeks in the Perth office, and have further discussions as to options (other than return to the Gorgon Site) with Mr Ligertwood during that time. Whilst these discussions may have resulted in no further or alternative options being presented, there was also the possibility that other options would be identified (whilst she remained off-site);[71]

(b) engage in further discussions with the Respondent (through Ms Ricci, or others), in relation to a mixture of work and leave beyond what the Respondent was offering her as at 10/11 September 2024;[72]

(c) request a formal investigation occur, pursuant to the Respondent's written policies and procedures, around her treatment and concerns with specific individuals at the Gorgon Site (or elsewhere);[73] and/or

(d) lodge an external complaint with a federal or state employment, discrimination or human rights (or alike) tribunal. In other words, State and Federal Parliaments have enacted a vast array (or a whole raft) of statutory provisions and protections for employees to utilise when they consider their work environment, or their treatment at work to, for want of better terms, to be 'unfair' or 'unlawful'. Such statutory provisions and protections (in one form or another) are available for all employees to access via tribunals and/or courts. The ability to access same is not to be disregarded when considering whether (objectively) an employee had (or has) no other choice but to resign at the specific time they do. As at the time that she resigned (on 11 September 2024), there is no evidence of anything at all preventing the Applicant from making an external claim to an external body (that a relevant State or federal government has empowered and funded for such purposes).

• [57] In all of the circumstances of this case, as disclosed on the objective evidence, I find that the Applicant voluntarily resigned from her employment with the Respondent. In my view, the fact that the Applicant was not satisfied with the options available to her as at the time she resigned on 11 September 2024, does not give rise to a finding that:

(a) the Respondent engaged in any repudiatory conduct;

(b) the Applicant was placed under any duress to resign;

(c) the Respondent's conduct, or the course of conduct engaged in by the Respondent, forced the Applicant to resign (within the meaning of the term "dismissal" under s.386(1)(b) of the Act); or

(d) the Applicant had no other options or choices, other than resignation, reasonably available to her.

• [58] Given that the Applicant was not "dismissed" by the Respondent, the Commission has no further jurisdiction to deal with the Applicant's Application. An Order [PR790733] has been issued contemporaneously with this decision, dismissing the Applicant's case.

Ms Thea Kay Slatyer (Applicant), appeared on her own behalf.

Ms Rosemary Roach, Partner, Hall & Wilcox lawyers, appeared with permission on behalf of the Respondent.

[1] See email from Chambers to the parties, granting permission for the Respondent to be legally represented generally in the proceedings, dated 22 November 2025; Transcript PN5-PN6.

[2] Form F8A, Item 1.2, at [5]-[6], Digital Hearing Book (Court Book (CB), p.47.

[5] APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ), at p.5: ''I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.'' (cited with approval in Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200, at 206)

[6] Ibid, p.65. See also Bromilow Statement, at [18], CB, p.59, and Hislop Statement, at [38], CB, p.73.

[7] Hislop Statement, at [8], CB, p.70. Bromilow Statement, at [8], CB, p.58. Transcript, PN579.

[8] Bromilow Statement, at [20]-[25], CB, p.60.

[9] Bromilow Statement, at [26]-[28], CB, pp.60-61.

[10] CB, pp.79-80. I note that there was some discussion (or dispute) during the hearing as to whether or not, and/or when, the Applicant provided a medical certificate in relation to her demobilisation. I do not consider this issue relevant in that the Respondent has not called into question the Applicant's demobilisation from site, or her reasons for doing so. See Transcript, PN606-PN624.

[11] Ricci Statement, at [16]-[18], CB, pp.90-91. See also Ricci Reply Statement, Annexure RR-12, CB, pp.257-259.

[12] Ricci Statement, at [22], CB, p.91. See also Ricci Reply Statement, Annexure RR-12, CB, pp.257-259.

[15] Ricci Statement, at [25], CB, pp.91-92. See also Ricci Reply Statement, at [9], and Annexure RR-12, CB, pp.255-259.

[18] Ricci Statement, at [28], CB, p.92. See also Ricci Reply Statement, Annexure RR-12, CB, pp.257-259. Transcript, PN625-PN645.

[19] Bromilow Statement, at [29]-[31], CB, p.61.

[20] See the decision of the Full Federal Court in Coles Supply Chain v Milford [2020] FCAFC 152, at [74]-[75], and Lipa Pharmaceuticals Ltd v Mariam Jarouche [2023] FWCFB 101, at [3]-[4], and [23].

[21] In relation to the application of s.386 of the Fair Work Act 2009 (Act) to general protections involving dismissal claims, see Coles Supply Chain v Milford [2020] FCAFC 152; (2020) 300 IR 146, and Fair Work Ombudsman v Austrend International [2018] FCA 171; (2018) 273 IR 439. See also the discussion in Morris v Allied Express Transport [2016] FCCA 1589, at [116] and [117], and Searle v Moly Mines Limited [2008] AIRCFB 1088; (2008) 174 IR 21, at [17].

[22] Birrell v Australian National Airlines Commission (1984) 5 FCR 447; [1984] FCA 378. See also Ngo v Link Printing Pty Ltd (1999) 94 IR 375, Print R7005, AIRCFB (McIntrye VP, Marsh SDP and Harrison C), 7 July 1999, and the authorities cited at 377-378, [12]-[16]; Koutalis v Pollett [2015] FCA 1165; (2015) 235 FCR 370, at [44], citing Sovereign House Security Services Limited v Savage [1989] IRLR 115, at 116; Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245, at [35]; Mohazab v Dick Smith Electronics (1995) 62 IR 195, at 198.

[23] Birrell v Australian National Airlines Commission [1984] FCA 378; (1984) 5 FCR 447, at 458. See also Saddington v Building Workers Industrial Union of Australia (1993) 49 IR 323, at 336-337; Emery v Commonwealth [1963] VicRp 79; [1963] VR 586; Australian Wool Selling Brokers Employers' Federation v Federated Storemen and Packers Union of Australia [1976] CthArbRp 820; (1976) 176 CAR 884.

[24] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245, at [35] (see also at [36]-[47]).

[25] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245. See also Bruce v Fingal Glen Pty Ltd (in Liq) [2013] FWCFB 5279, and Australian Hearing v Perry [2009] AIRCFB 680; (2009) 185 IR 359, at 367-368.

[26] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245, at [44] and [47]; Kylie Bruce v Fingal Glen Pty Ltd (in Liq) [2013] FWCFB 5279; Pawel v Advanced Precast Pty Ltd AIRC (FB), Print S5904 (12 May 2000).

[27] McGregor v Melbourne Equine Veterinary Group [2012] FWA 6712, at [37]; Morley v Intelitec Pacific Pty Ltd [2015] FWC 3168, at [40].

[28] [2017] FWCFB 3941; (2017) 271 IR 245.

[29] Ibid, at [34], footnotes omitted.

[30] [1996] AIRC 1880, Print N5682 (Munro J, Harrison, Lawson C, 14 October 1996). This print does not contain page or paragraph numbers.

[32] Unreported, Print N6999 (Munro J, Duncan DP, Merriman C, 9 December 1996). This print does not contain page or paragraph numbers.

[34] (1996) 67 IR 154, 31 December 1996.

[36] AIRC Print PR973462 (11 August 2006).

[37] Ibid, at [23]. The references to the extracts from cases such as Rheinberger, Pawel, Mohazab and ABB Engineering are found at [19]-[22] of O'Meara v Stanley Works Pty Ltd.

[38] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245, at 269, [47(2)].

[39] Ibid, at 269-270, [49]-[50], footnotes omitted. See also Phillip Knight v Wattyl Australia Pty Ltd, PR974876, Deegan C, 8 December 2006, at [47]-[49], noting that s.386(1)(b) is intended to reflect case law applying prior to the Work Choices amendments, and Mariam Jarouche v Lipa Pharmaceuticals [2023] FWC 493, at [106] (upheld on appeal in Lipa Pharmaceuticals v Mariam Jarouche [2023] FWCFB 101).

[40] [2023] FWC 493.

[41] [2023] FWCFB 101.

[42] [2023] FWC 493, at [106]. See also Annette Megna v No 1 Riverside Quay (SEQ) Pty Ltd [2006] AIRC 519 (PR973785), 24 August 2006, at [16].

[43] Applicant's Form F8 Application CB pp 33, 65, 173, 183-185; Transcript PN144, PN543.

[44] Applicant's Form F8 Application; CB p 34.

[45] Ibid, CB, p.35. See also Transcript PN551.

[49] Applicant's Outline of Submission's, at [16]; CB, pp. 171-172; Transcript, PN61-67.

[50] Applicant's Outline of Submissions at [15]; CB, p.171.

[51] Respondent's Outline of Submissions at [20](f)(iii); Witness Statement of Rebecca Ricci, at [9]-[10]. Transcript, PN695.

[52] Respondent's Outline of Submissions at [5]; Witness Statement of Jamie Hislop, at [16]-[17], [26]-[30], [33]-[36], [42]-[43]; Witness Statement of Paul Bromilow dated 26 November 2024, at [15], [17]-[26].

[53] Witness Statement of Jamie Hislop, at [17], CB p.71.

[54] Witness Statement of Paul Bromilow, at [24], CB p.60.

[55] Witness Statement of Jamie Hislop at [42]-[43], Annexure JH-5; CB, p.82; Witness Statement of Paul Bromilow at [13]; CB, p.59; Witness Statement of Jamie Hislop at [18], [26], [28]; CB, pp.71-72.

[56] Respondent's Outline of Submissions at [20](d); CB pp 56-57.

[57] Respondent's Outline of Submissions at [16]; CB p 55.

[58] Transcript, PN184-PN185, and PN222.

[59] Cited at paragraph [33] of this decision.

[60] Bromilow Statement, at [12]-[25], CB, pp. 58-59, and 63-65. Hislop Statement, at [16]-[18], [26]-[30], and [33]-[36], CB, pp.71-73.

[62] Bromilow Statement, at [17]-[25], CB, pp.59-60. Bromilow Reply Statement, at [7]-[12], CB, pp.216-217. Hislop Reply Statement, at [18]-[24], CB, p.220. Transcript, PN128.

[63] I do not consider that the Applicant's contention as to the allocation of work tasks, made at CB, pp.35, 164, 175, and 195, are sufficiently particularised to warrant engagement by the Respondent beyond what is has done on the evidence it has tendered in these proceedings (see Bromilow Statement, at [17]-[25], CB, pp.59-60. Bromilow Reply Statement, at [7]-[12], CB, pp.216-217. Hislop Reply Statement, at [18]-[24], CB, p.220). Note also, Transcript, PN132 and PN136.

[64] Bromilow Statement, at [17]-[25], CB, pp.59-60. Bromilow Reply Statement, at [7]-[12], CB, pp.216-217. Hislop Reply Statement, at [18]-[24], CB, p.220. Transcript, PN129.

[65] See, for example, Transcript, PN184-PN185.

[66] Hislop Statement, at [44], CB, p.73-74, and at [51-[52], CB, p.74 and 88-89. Bromilow Statement, at [19], CB, pp.59-60. See also, CB, pp.250-253.

[68] I equally concur with the Respondent's Closing Reply Submissions, at 13 March 2025, at [5]-[13] (with footnote references to evidence and transcript), in this regard.

[70] CB, p.148, and Ricci Statement, at [28], CB, p.92.

[73] CB, pp.105-109, and 131-142. Transcript, PN185, PN333, PN375, PN449, and PN800-PN811.

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