Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

General protections application involving dismissal - whether the Applicant dismissed - whether the Applicant forced to resign because of conduct, or a course of conduct, engaged in by his or her employer - Applicant was dismissed - jurisdictional objection dismissed

• [1] Ms Victoria Cook made an application under s 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving an alleged dismissal by Lynington Enterprises Pty Ltd (Lynington).

• [2] Ms Cook says that she was forced to resign from her employment with Lynington as an All-Rounder at Utzi Espresso Cafe because of Lynington's conduct.

• [3] Lynington objected to the application, stating that Ms Cook resigned voluntarily and was not dismissed.

• [4] In order for the Commission to deal with the application under s 368 of the Act, I must first determine whether Ms Cook was dismissed.[1]

• [5] I find that Lynington dismissed Ms Cook for the reasons set out below.

• [6] Section 386 of the Act defines 'dismissed' as,

(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_._

• [7] The exemptions in s 386 (2) of the Act are not relevant based on the facts before the Commission in this matter.

• [8] Both Ms Cook and Mr Andrew Stathopoulos, Owner of Lynington, agree that on 10 April 2025 while Ms Cook was working, Mr Stathopoulos queried a customer order. Ms Cook subsequently told Mr Stathopoulos he was being rude and became increasingly frustrated and emotive toward Mr Stathopoulos. This ultimately resulted in Ms Cook swearing at him.

• [9] Mr Stathopoulos told Ms Cook during the "exchange" that she should leave prior to the conclusion of her shift.

• [10] After she left the workplace, Ms Cook attempted unsuccessfully to contact Mrs Stathopoulos, Mr Stathopoulos' wife, shortly after the incident. She left a message on Mrs Stathopoulos' voicemail saying, "I'm done, I can't deal with this anymore and it's because of Andrew".[2]

• [11] There were differing recollections between Ms Cook and Mr Stathopoulos about the other events that took place.

• [12] Mr Stathopoulos denies being angry and says he "didn't want to have any conversation that would upset her [Ms Cook]".[3] His evidence was that rather than responding to Ms Cook, he "attempted to try and walk away".[4]

• [13] It was Ms Cook's evidence that in the interactions between herself and Mr Stathopoulos he "seemed agitated",[5], was screaming[6] and told her "if you had been doing your jobs and not messing around, this wouldn't have been a problem" and "I pay you so you should do as you're told and not question me",[7] which left her feeling like she had "been disrespected".[8]

• [14] Critically Ms Cook says that after swearing at Mr Stathopoulos, she was sent home from her shift and told by Mr Stathopoulos that "he expected me to hand in my resignation".[9] Her evidence was that she "quit" in the voicemail because she was told she had to.[10]

• [15] Mr Stathopoulos says that Ms Cook said "I quit" twice in the heat of the moment and he simply asked her to put the resignation in writing afterwards.[11]

• [16] I found both Ms Cook and Mr Stathopoulos to be genuine in their efforts to assist the Commission.

• [17] Ms Cook appeared to recall the specific events of 10 April 2025 more clearly than Mr Stathopoulos, who noted a number of times that he could not recall things that were said, or the order of events.

• [18] Concessions were made by Ms Cook, some of which were not in her favour. This supports that she was being truthful in giving her evidence. Her recollection of events was consistent throughout the proceeding whereas Mr Stathopoulos' evidence was at times inconsistent and evasive.

• [19] It is for these reasons that I prefer Ms Cook's evidence where it differs from Mr Stathopoulos'.

• [20] Accordingly, I find that following a heated exchange between Ms Cook and Mr Stathopoulos which resulted in Ms Cook swearing, Mr Stathopoulos told Ms Cook he expected her to resign and as a direct result of that, Ms Cook resigned in the voicemail left for Mrs Stathopoulos.

• [21] The resignation was immediately after the exchange with Mr Stathopoulos where the expectation to resign was conveyed.

• [22] Ms Cook resigned because she had just been sent home part way through her shift and told she was expected to resign after an altercation with Mr Stathopoulos.

• [23] The relevant test that must be applied arises from s 386 (1) (b) of the Act.

Whether Ms Cook resigned from her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by her employer?

• [24] It would not have been unreasonable for Lynington to address Ms Cook's behaviours by considering disciplinary action (which may have included dismissal), after following an appropriate process due to the events that occurred. However, that was not the course of action taken.

• [25] Instead, Mr Stathopoulos sent Ms Cook home part way through her shift and conveyed an expectation for her to resign following a heated exchange. In choosing this course of conduct Lynington was the real and effective initiator of the termination of the contract of employment[12] and the conduct by Mr Stathopoulos had the probable result of resignation by Ms Cook.[13]

• [26] Ms Cook had no real option to resign after her employer had effectively directed her to do so.

• [27] Upon finding that Ms Cook was dismissed because she resigned from her employment but was forced to do so because of the conduct engaged in by Lynington, I will now proceed to deal with the application made under s 365 of the Act, which will progress to conciliation.

A Stathopoulos for Lynington Enterprises Pty Ltd.

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

[2] Audio recording of Determinative Conference part 1 at 1:40:57.

[3] Audio recording of Determinative Conference part 1 at 38:56.

[4] Audio recording of Determinative Conference part 1 at 14:08.

[5] Audio recording of Determinative Conference part 1 at 1:03:02.

[6] Audio recording of Determinative Conference part 1 at 1:12:37.

[7] Digital Hearing Book, Ms Cook Witness Statement at p 9.

[8] Audio recording of Determinative Conference part 1 at 1:12:21.

[9] Audio recording at Determinative Conference part 1 at 1:11:46.

[10] Digital Hearing Book, Ms Cook Witness Statement at p 10.

[11] Audio recording at Determinative Conference part 1 at 16:39-17:13.

[12] Allison v Bega Valley Council [1995] NSWIRComm 175; (1995) 63 IR 68 referred to in Mohzab v Dick Smith Electronics (No 2) (1995) 62 IR 205.

[13] O'Meara v Stanley Works Pty Ltd [2006] AIRC 496.

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