s.365 - General protections

Campbell Webb Cabinetry Pty Ltd, Campbell Construction Co Pty Ltd

Application to deal with contraventions involving dismissal - jurisdictional objection: not dismissed, resigned voluntarily - Applicant resigned - application dismissed.

• [1] On 11 August 2025, Mr Timothy Edmonds (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 Respondents in the matter were named as Campbell Webb Cabinetry Pty Ltd and Campbell Construction Co Pty Ltd (the Respondents).

• [2] The Respondents raised a jurisdictional objection that the Applicant was not dismissed and resigned.

• [3] On 4 September 2025, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. A jurisdictional hearing was held on 29 September 2025.

• [4] Ms Jessica Lancashire, General Manager, People & Culture and Mr Wes Bucci, General Manager appeared on behalf of the Respondents, and the Applicant was represented by Ms Kelleigh Jackson.

• [5] The following people provided witness statements for the Respondents:

• Mr Wes Bucci, General Manager
• Mr Kyle Black, colleague of the Applicant
• Mr Andrew Wilson, Project Manager
• Mr Andrew Zielke, Project Manager/Estimator
• Mr Isaac Hardy, colleague of the Applicant
• Mr Kyle Buck, colleague of the Applicant
• Mr Michael Dodd, Operations Manager
• Ms Emily Nugent, Admin Officer
• Mr Ethan Bower, colleague of the Applicant
• Mr Robert Esling, colleague of the Applicant

• [6] The Applicant initially did not propose to cross examine any witnesses. It was submitted for the Applicant that the Applicant was forced to resign. The Applicant did not file a witness statement, however, was cross examined at the hearing.

• [7] It was submitted that it was events leading up to 22 July 2025 that the Applicant maintained forced him to resign. This included an assertion that there had been a material breach of the employment contract by the Respondent. I explained to the Applicant that to the extent there were factual disputes, the Applicant should challenge facts asserted by the Respondent that were in dispute. On that basis, the Applicant cross examined some of the Respondent's witnesses.

• [8] Mr Bucci gave evidence that the Applicant had worked for him some years ago as a labourer. Mr Bucci said the Applicant did not want to work on an apprentice wage at that time and wanted to be employed as a labourer, so he was, and the Applicant worked for Mr Bucci for approximately six months before he decided to go back to Sydney.

• [9] Mr Bucci said the Applicant was signed up with TAFE as a third-year apprentice. Mr Bucci was asked whether, as a third-year apprentice, the Applicant would be on site alone and unsupervised. Mr Bucci appeared to accept this occurred. He said a lot of the time the Applicant was on site with others. Mr Bucci said it was the Applicant who approached him and asked to do the installs, and the Applicant has a good skill set.

• [10] Mr Bucci did not appear to know whether the Applicant could work unsupervised. Mr Bucci said the Applicant requested to be an on site installer and that is what he was being used for. Mr Bucci said that was part of apprentice learning and how they become a tradesperson.

• [11] On 25 March 2025, the Applicant completed a Health and Medical Declaration noting he had 'spinalis thoracis flare ups occasionally.'

• [12] On 3 April 2025, the Applicant signed an Apprenticeship/Traineeship Training Contract with the Respondent to complete a Certificate III in Cabinet Making and Timber Technology.

• [13] Based on payslips dated between 17 April 2025 and 26 June 2025, the Applicant was paid an overnight travel allowance of $480 total.

• [14] On a payslip dated 22 May 2025, the Applicant was paid a 'bonus' of $700.

• [15] Mr Bucci was asked whether he made an agreement with the Applicant, that the Applicant would go to Cairns and Mossman and the Atherton Tablelands to do instalments in exchange for paying for the Applicant's Recognition of Prior Learning (RPL).

• [16] Mr Bucci said the Applicant came back from the very first trip and said for future trips he should be paid as an installer. Mr Bucci said he agreed to that, and the Applicant went on a further two trips. Mr Bucci said he was paid a bonus of $2,000 for the first one, and $700 for the second one.

• [17] Mr Bucci said the Applicant came to him and said he wanted to be RPL'd, gave him the Skilled Certified company and asked that Mr Bucci pay for the certification. Mr Bucci said at that point they made an agreement that the Applicant would do a further two trips to Cairns to perform installations. Mr Bucci said the Applicant approached him about paying for his RPL in June or July 2025.

• [18] Mr Bucci said the two jobs in Cairns are still yet to be installed as the Applicant resigned prior to these trips. Mr Bucci said the Respondent paid for the RPL in advance on the basis the Applicant would be doing those trips, and they were not done. Mr Bucci said he did not see why the Respondent should pay for his qualification after he had resigned.

• [19] The Applicant said he believed he tweaked his lower back on 24 June 2025, when he was left at a job himself and had to lift a benchtop by himself.

• [20] On 26 June 2025 at 6:43pm, the Applicant notified Mr Bucci he wouldn't be able to work the next day as he had pulled his back pretty bad. The Applicant's timecard records that he finished work at 3.30pm that day as per his standard shift. The Respondent submitted that their office policy requires employees to immediately report any workplace incident resulting in personal injury by completing an incident report unless it is unsafe to do so, and in such event, it is to be reported at the earliest opportunity.

• [21] On 29 June 2025, the Applicant noted he wouldn't be able to do any heavy lifting.

• [22] On 30 June 2025 at 7am, the Applicant's first day back at work, the Respondent submitted it sought clarification from the Applicant.

• [23] Mr Bucci adopted his statement.[1]

• [24] Mr Bucci said he sought clarification from the Applicant about what he had done to his back. He said the Applicant advised him that it was an old injury, he just deals with it through physiotherapy and advised that he will not be able to perform any lifting above his head. Mr Bucci said he changed the work schedule immediately and sent another employee to perform site work and told the Applicant to stay in the workshop and avoid work above head height so that he could be monitored and ensure he did not aggravate his injuries.

• [25] Mr Bucci's evidence was he spoke to the Applicant again a few days later to ask how it was going, and the Applicant expressed disappointment that he couldn't find a good physio in Townsville. Mr Bucci said the Applicant mentioned that previously he had a physio that he had seen for the same injury in Sydney, and she was always able to sort it out. Mr Bucci said he let the Applicant know that he had an Osteo friend who did great work and had previously helped one of the contract installers with a back injury and he could see if he could get the Applicant an appointment if he liked. Mr Bucci said the Applicant said it was fine it was a long-term injury, and it would come good with time.

• [26] Mr Bucci's evidence was that the Applicant never submitted an incident report and never brought up in the daily meeting that he had injured his back at work. Mr Bucci said the first time there has been any indication of a workplace incident or injury is upon receipt of the Applicant's Workcover claim, which came after he resigned and realised his funding to fast track his apprenticeship had been retracted.

• [27] Mr Esling adopted his statement[2] and it was admitted into evidence. Mr Esling's evidence was that:

"we have teams at work and I was in the same team as Tim. He constantly expressed his dislike of being an apprentice cabinetmaker and kept saying he should see what else is out there.

• [28] The Applicant contested this evidence in cross examination due to the lack of a personal relationship between the Applicant and Mr Esling. Mr Esling stood by his evidence on this point.

• [29] On 4 July 2025, the Applicant called in sick, and Mr Bucci requested a medical certificate.

• [30] On approximately 21 July 2025, the Applicant attended the office and complained to Mr Zielke about not performing full kitchen installations. The Applicant was informed that was to accommodate his request not to perform overhead lifting, and in response the Applicant indicated he could perform the work provided he had someone to help him with any overhead lifting.

• [31] On 22 July 2025, the Respondent submitted the Applicant attended work as normal but finished early without signing out or prior approval to do so. Before leaving, he approached Mr Zielke asking who he needed to notify about his resignation. Upon being informed about this, Mr Bucci attempted to telephone him unsuccessfully.

• [32] Mr Zielke's unchallenged evidence was:

"On the day Tim left work he got back from being away from workshop and approached me as I was in workshop and asked "is it you I give my 2 weeks notice to". I responded with "no, mate that's a Wes thing. He is in his office now if you want to talk to him."

• [33] The Applicant accepted he said that to Mr Zielke.

• [34] The Applicant submitted he has provided testimony that he felt he had no other choice than to leave the workplace on the day. On this day, his evidence was he was on the verge of an almost total mental breakdown due to the behaviour of the management. He confirmed that he felt like he was going to blackout due to the behaviour of those in his workplace.

• [35] The Applicant was asked if he reported his mental state at the time. He said he did not report it to "Mick or Wes" but did report it to Hayden the foreman.

• [36] The Applicant's evidence was he believes he was forced to make the decision for his own health and safety to leave the workshop and remove himself from the situation and that he started to have anxiety attacks in the lead up to attending work. On the day in question, he couldn't remain there any longer. He continued to have anxiety attacks after leaving.

• [37] On 23 July 2025 during the morning meeting at 7am, the Applicant attended site in plain clothes, reversed his car to the side of the shed, and then proceeded to collect all his tools before driving away. This was not contested by the Applicant and therefore the Respondent's witnesses whose evidence was only in relation to this point were not cross examined.

• [38] Mr Zielke's unchallenged evidence was:

"Before leaving then he walked into office and asked if Wes was here, I responded and said "no, he has just left for a measure". He once again got into his car and drove away."

• [39] Mr Bucci received a text message from the Applicant shortly afterwards at 8:45am stating "Hey Wes, didn't see you. Call me when you get a chance. Thanks".

• [40] Mr Bucci subsequently contacted the Applicant by phone and said that during the discussion, the Applicant resigned from his employment indicating to Mr Bucci words to the effect that the workplace was not working for him, and he had decided that he was not going to come back, and he had made the decision to go elsewhere. In response, the Respondent accepted his resignation and wished him well for the future. Mr Bucci's statement on this point read as follows:

"After the meeting I headed off to get my kids to school as I do most days. At 8.45am I received a text from Tim that said "Hey Wes, didn't see you. Call me when you get a chance, thanks". I called Tim immediately and he advised that he had decided to go in a different direction. He had previously requested pay increases and advised that other cabinetmakers were offering higher rates of pay which told me he had already been looking around. Tim advised that he was going to take on another opportunity elsewhere and wouldn't be coming back to work. I wished him well for the future and he thanked me for understanding."

• [41] During cross examination, Mr Bucci said about a week earlier the Applicant had a conversation with him where the Applicant had said he wanted an increase in pay. Mr Bucci said in his oral evidence they had a discussion about some of the issues the workplace was having and the Applicant was upset about previously working for the prior owner of the business, and he had also previously worked as a labourer for Mr Bucci and his concern was a lot of the same issues were still happening relating to a particular draftsman.

• [42] Mr Bucci said they spoke about that, and Mr Bucci said he told the Applicant they were trying to fix that, and that was why they have a meeting every morning to talk about issues from the previous day and try and work through them.

• [43] Mr Bucci said once they went through all that, he accepted the Applicant's resignation, and he wished the Applicant all the best for the future and the Applicant thanked him for his understanding. Mr Bucci was asked whether the Applicant stated to him "I am resigning" and Mr Bucci said yes.

• [44] Mr Bucci said the Applicant had come to the office a couple of days earlier, upset about having to go back to complete defective works from other installers which he was being sent to because he said he had a sore back. Mr Bucci said the Applicant was not being sent to full kitchen installations where there was heavy lifting, but Mr Bucci said he believed the Applicant was agitated about that.

• [45] Mr Bucci's evidence was when he got off the phone with the Applicant, he contacted the company that was organising to sign the Applicant off for RPL to advise them that he had resigned and the Respondent would require a refund of the funds they had recently put up for the sign off. He said the Applicant had agreed to do 2 installation trips to Cairns as payment for the funding that Mr Bucci put up in advance. As the Applicant had resigned and was no longer going to complete these trips, the funding was revoked.

• [46] On 24 July 2025, as the Respondent had not received a written resignation from the Applicant, Mr Bucci sent a message:

"Hi Tim, just in the process of finalising your last pay, can you please send through in writing confirming that you resigned? even via a text message is fine."

• [47] The Respondent said no response was ever received and the Applicant never returned to work. The Respondent submitted there was otherwise no reason for Mr Bucci to have sent this message had the Applicant not resigned earlier. The Applicant was aware that he needed to provide notice of non-attendance due to illness and had previously done this.

• [48] On 29 July 2025, the Applicant provided a medical certificate to the Respondent for the period from 24 to 31 July 2025 stating he was 'unfit for work' as he was suffering a medical condition. The medical certificate was generic, and was not a Workcover medical certificate. There is also no mention of a workplace injury on the medical certificate.

• [49] Later that same day, Ms Lancashire emailed the Applicant in response to the medical certificate noting:

We accepted your resignation on Tuesday 22nd July, as per your conversation with Wes.

Therefore no need to provide medical certificate and will be paying out your entitlements this week when we do the payrun on Thursday."

• [50] On 8 August 2025, the Applicant received payment for his remaining leave entitlements from the Respondent. In cross examination, the Applicant was asked for specific examples of management action that forced him to resign. The Applicant answered, not being listened to when he was informed he was going on light duties, being sent out with inadequate help or not being sent out with other people, and the overall way he had been treated since bringing up certain matters. The Applicant also said he was harassed on sick leave by being sent text messages including from contract installers.

• [51] The Applicant submitted he was being used as a fully qualified tradesman from the start of his employment with the Respondent, however, was only contracted and paid as an apprentice.

• [52] The Applicant submitted that in good faith, he approached Mr Bucci to discuss being used as a tradesman and his pay. They agreed that since the Applicant had already spent a great deal of time working with that company previously, and was an excellent tradesman, the Respondent would assist him with the achievement of RPL.

• [53] The Applicant said he was asked to go to Cairns and other places such as Mossman and Atherton, which he did. He said he negotiated a bonus on these jobs, because of his still very low pay. The Applicant submitted that he negotiated with Mr Bucci to do some of the travel away from home jobs without the bonus, if the organisation would pay for his RPL. The Respondent agreed to pay for it and the Applicant didn't get the bonus for those specific jobs.

• [54] The Applicant submitted that the RPL does not require him to 'complete the qualification' as the Respondent had contended. The Applicant said it's an application, for which three of the management signed off on.

• [55] The Applicant contended it was a false and misleading statement to suggest a 'course had not yet commenced'. The Applicant said he had already spent a month collating the documents required for the company providing the RPL, Skills Certified, to submit his application to the RTO and assessor.

• [56] The Applicant submitted that when he left the workplace, Mr Bucci acted in a vexatious manner, calling Skills Certified and asking for the Respondent's money back. As Skills Certified said they were unable to refund the money, however said Mr Bucci could transfer the funds as a credit to another employee. Mr Bucci did so, transferring it to one of the administration staff.

• [57] The Applicant submitted that as he had agreed to travel to Cairns, Mossman, Atherton Tablelands and other places to complete work in exchange for this qualification to be paid for by the Respondent, he was fully entitled to continue with the RPL under the payment model agreed.

• [58] The Applicant alleged he was paid for two of the trips north, but the other trip payments were withheld in exchange for the RPL agreement. The Applicant said after his employment ended and the Respondent transferred the RPL to another employee, his mother paid for the RPL so it could continue. The Applicant said this is further proof there was no such course 'waiting to commence,' nor did the Applicant in fact need to be employed by the Respondent any longer to complete the activity.

• [59] The Applicant submitted this is a gross act of misconduct on the part of the Respondent and substantiates the Applicant's claims of the workplace being toxic, unreasonable and intolerable. He said it further confirms the unethical and immoral conduct of Mr Bucci, which had permeated the workplace through bullying and misuse of apprentices, and discrimination against the Applicant for raising concerns, and responding to the workplace requests for feedback.

• [60] The Respondent submitted there is no record of any report of an incident or workplace injury filed by the Applicant, and in fact, the first time there has been any indication of a workplace incident or injury was after the Applicant resigned.

• [61] The Respondent contended that as a result of the Applicant informing the Respondent that he was unable to lift above head height, it was agreed to accommodate his request and to ensure that the ongoing operational requirements of the business were met, that if he was sent to site for any works that required lifting, another employee would be sent with to assist. Mr Zeilke, Project Manager also changed the schedule so that rather than sending the Applicant to perform full kitchen installations, which involved lifting above head height, he was sent out to perform alternate tasks.

• [62] The Applicant agreed that the Respondent changed the nature of duties in response to his notification that he had injured his back, however he said it was not for required amount of time. The Applicant never obtained any medical advice to provide to the Respondent about the nature of his injury, such as Workcover medical certificate.

• [63] The Applicant alleges he was dismissed within the meaning of section 386(1)(b). 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."

• [64] In unpacking the question of dismissal compared to resignation, the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli[3] said the following at paragraph [47]:

[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.

• [65] I found Mr Bucci to be a reliable witness who answered questions directly and had a consistent recollection of the facts. The Applicant initially believed that certain work had been performed in Cairns in relation to an agreement for the Respondent to pay for his RPL certification, however, it became clear during the proceedings he did not perform two planned trips before he resigned. This leads me to favour Mr Bucci's evidence over the Applicant where they have conflicting recollections of events.

• [66] It appears reasonably clear the Applicant has raised with the Respondent certain matters that he was not happy about, including in relation to a draftsperson. Mr Bucci was attempting to manage that issue and others by team discussions.

• [67] It appears from the evidence, the Applicant felt his concerns were not being listened to in relation to being directed to perform certain work, however this appears to have been in response to his raising an issue about a back injury, and the Respondent was directing the Applicant away from work involving heavy lifting to manage that. I am inclined to accept Mr Bucci's version of the discussions between him and the Applicant about the nature of his back injury, and that the Applicant had told him it was an aggravation of an old injury.

• [68] It has been argued for the Applicant that the Respondent had committed a material breach of the employment contract. This appears to be an assertion that the Respondent, through its actions, had frustrated the contract of employment. This appears to be in relation to an assertion that the Applicant was being directed to perform work that he should not have been performing as a third-year apprentice.

• [69] I am satisfied that the Applicant was paid a bonus for installation work he performed on travel away from home. I am also satisfied an arrangement was entered into where the Respondent agreed to pay for the Applicant's RPL certification for prospective installation work that never occurred. Whilst it seems the Applicant is asserting he was performing trades work at an apprentice rate of pay, the evidence does not support a conclusion that this was clearly raised as a dispute with Respondent prior to his resignation.

• [70] The evidence is clear that the Applicant resigned during a telephone call with Mr Bucci on 23 July 2025. The Applicant asserts he resigned but was forced to do so because of conduct or a course of conduct engaged in by the Respondent.

• [71] Section 386(1)(b) focusses on the conduct of the employer. The evidence does not establish that the Respondent engaged in conduct that repudiated the contract of employment. The evidence does not establish that the employer engaged in conduct with the intention of bringing the employment to an end.

• [72] The evidence does not establish that 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.

• [73] Based on the findings above, the Applicant was not dismissed within the meaning of s.386(1) of the Act and voluntarily resigned from his employment on 23 July 2025. As the Applicant was not dismissed, there is no jurisdiction for the Commission to deal with the application for unfair dismissal remedy.

• [75] An order will be issued separately and concurrently with this decision to that effect.

[3] [2017] FWCFB 3941.

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