s.365 - General protections

Commonwealth of Australia as represented by the Department of the Treasury

Application to deal with contraventions involving dismissal - whether Applicant was dismissed - no dismissal.

• [1] Mr Veasna Kong (Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 for the Commission to deal with general protections contraventions involving dismissal. He claims that he was forced to resign from his employment with the Commonwealth of Australia as represented by the Department of Treasury (Respondent) because he exercised workplace rights.

• [2] The Respondent raised a jurisdictional objection on the ground that the Applicant voluntarily resigned and was therefore not dismissed within the meaning of s386 of the Act.

• [3] Section 386 of the Act relevantly provides that a person has been dismissed if:

(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] A dismissal is a fundamental prerequisite that must be established before the Commission can exercise powers under s.368 of the Act to deal with a dispute about whether a dismissal was in contravention of the general protections provisions.[1]

• [5] The application was heard on 3 December 2025. The Applicant was self-represented and Mr Stephen Reeves appeared for the Respondent.

• [6] For the reasons outlined below, I find that the Applicant was not dismissed within the meaning of the Act.

• [7] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[2] (Bupa), a Full Bench of the Commission examined the relevant authorities as to what constitutes 'dismissed' under s.386(1) which included the following:

(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.

• [8] In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park[3] Deputy President Sams noted the following when considering whether the applicant in that matter was dismissed:

1. Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. 'Initiative' is relevantly defined in the New Shorter Oxford Dictionary as: "the action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act."

• b. This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd[4] (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, '... a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.'

'In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.'

• d. A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd[5] said, '... to constitute termination at the initiative of the employer the termination must be the direct or consequential result of 'some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...' [Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].

• [9] An employee seeking to establish that their employer should not have accepted their resignation will need to demonstrate two things: first, that there were circumstances that would cause a reasonable person in the employer's position to question whether the employee was conveying a real intention to resign; and second, their employer was or ought to have been aware of those circumstances. In the absence of such considerations, where an employee resigns in clear and unambiguous terms, the Commission cannot and should not intervene.

• [10] Finally, it is the case that "considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer's conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign".[6]

• [11] The Applicant was employed in the Australian Public Service for 10 years. He joined the Department of Treasury in April 2023 where he remained employed until he resigned on 29 August 2025, giving two weeks' notice. His resignation took effect on 12 September 2025 at the conclusion of the notice period.

• [12] The Respondent outlined the key events as follows:

1. Ms Jessica Block started supervising the Applicant around 20 January 2025.
2. Prior to this Ms Steph Gorecki Natik had been the Applicant's supervisor.
3. Ms Block and Ms Gorecki Natik conducted a mid-cycle review discussion with the Applicant on 24 February 2025.
4. Ms Block and the Applicant had a meeting regarding his performance on 21 March 2025.
5. In February to April 2025:
   1. an employee transferred out of the Applicant's team;
   2. an EL1 employee in the Applicant's team was selected to temporarily work on a 'sprint team'; and
   3. a graduate employee was placed in the Applicant's team for a rotation.
6. The Applicant and Ms Gorecki Natik had two meetings on 23 and 30 April 2025, and exchanged a related email. During this period, Ms Block was on leave.
7. On 14 May 2025, Ms Block and the Applicant had a meeting where Ms Block advised the Applicant of her decision to commence a 'Back on Track' plan in relation to his performance. Ms Block and the Applicant had a further meeting on 23 May 2025 about the details of the Back on Track plan.
8. The Applicant and Ms Block had three subsequent meetings as part of the Back on Track plan on 5 June 2025, 16 June 2025 and 20 June 2025.
9. On 25 June 2025 the Applicant commenced a period of paid personal leave. The Applicant remained on paid personal leave until the end of his employment.
10. Between 23 June 2025 and 22 July 2025, the Applicant had an email exchange with members of the Respondent's People and Organisational Strategy Branch (POSB).
11. On 24 July 2025, the Applicant lodged a formal complaint. Between 24 July and 8 September 2025, the Applicant and Mr Conor Pye from the Respondent's Employment Relations team exchanged emails regarding handling and progress of the Applicant's complaint.
12. On 29 August 2025, the Applicant submitted his written notice of resignation to Ms Block, giving 2 weeks' notice, which was the minimum notice period permitted by the Applicant's terms and conditions of employment. The Applicant's resignation took effect in accordance with that notice on 12 September 2025.

• [13] The Applicant said that he was subjected to a sustained pattern of coercive and unreasonable management conduct which rendered the working environment untenable. He said that after nearly two years of positive performance with no documented concerns, performance issues were raised for the first time 15 days after his manager was merit-listed for promotion, a timing he contends was not coincidental. He said he was excluded from recruitment decisions within his own team (ie the graduate who rotated into his team) and had his EL1 taken offline without consultation (ie the temporary work on the 'sprint team'). The Applicant said he was harassed during his personal leave and the Respondent's handling of his bullying complaint was marked by delay, procedural opacity and inaction.

• [14] He submitted that the cumulative effect of these actions, being unsubstantiated performance allegations, systematic exclusion, harassment during personal leave, and institutional inaction, created an intolerable work environment from which resignation was the only rational option.

• [15] At the time of his resignation on 29 August 2025, he had been on continuous personal leave since 25 June 2025.

• [16] The only matter the Commission is required to determine is whether the Applicant was dismissed within the meaning of s.386. The onus is on the Applicant to prove that she had no real or effective choice in the circumstances but to resign because of the Respondent's conduct.

• [17] For the reasons given below, I am satisfied on the evidence that the Applicant was not dismissed.

• [18] First, there is no obvious connection between the Applicant's manager being merit-listed for promotion and the raising of performance concerns with the Applicant.

• [19] In terms of the allegation that the Applicant was excluded from a recruitment decision, I am satisfied on the evidence that this related to a graduate employee being placed in the Applicant's team as a part of a rotation program in February 2025.

• [20] As to the issue of the EL1 employee being moved to a different team in March 2025, I accept the Respondent's evidence that this was to participate in a short term "sprint team" designed to complete a particular task.

• [21] Additionally, both staffing matters occurred many months prior to his resignation.

• [22] In terms of the performance management process, I do not accept that such a process would have forced the Applicant to resign. The "Back on Track' plan is one option available to support employees to improve their performance. The Respondent pointed to its policies which showed that this type of plan does not lead to a decision to terminate employment - that would require a different type of performance management process. Further, the Applicant was not required to engage with the plan while he was on personal leave.

• [23] In terms the Applicant's bullying complaint, the complaint was made on 24 July, the day prior to his personal leave commencing. I accept the process to begin an investigation was not particularly quick, however I am satisfied that the Applicant was kept informed of the progress, and that the correspondence between the Applicant and the Respondent in relation to his complaint was reasonable and appropriate. I do not accept that any delay is evidence of conduct on the part of the Respondent designed to force the Applicant to resign.

• [24] I accept the Respondent's submissions that the Applicant had multiple options available to him other than resignation, which included remaining on paid leave, returning to work and engaging with the plan, taking up the offer to explore other roles within the Department, or seeking a review of the outcome of the plan in accordance with his rights as an Australian Public Service employee.

• [25] Finally, any events that took place after the Applicant resigned cannot have had any bearing on his decision to resign.

• [26] These matters, whether considered individually or collectively, cannot reasonably be said to give rise to a finding that the Respondent intended to bring about the end of the Applicant's employment, such that he had no real or effective choice but to resign.

• [27] The Applicant has not discharged his onus to demonstrate that he had no real, effective or meaningful option but to resign in these circumstances. As a result, I am not satisfied that he was dismissed within the meaning of the Act and so this application is dismissed.

S Reeves of the Australian Government Solicitor for Commonwealth of Australia as represented by the Department of the Treasury.

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

[2] [2017] FWCFB 3941.

[3] [2012] FWA 2473.

[6] Sathananthan v BT Financial Group Pty Ltd [2019] FWC 5583.

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