X Y v ABC [2025] FWC 1892

s.365 - Application to deal with contraventions involving dismissal

General protections - whether employee "dismissed".

• [1] X Y has filed with the Commission an Application under section 365 of the Fair Work Act 2009 ('Act'), seeking that the Commission deal with a general protections dismissal dispute. The Applicant's former employer disputes that the Applicant is entitled to do so, on the basis that the Applicant resigned from their employment. This decision deals with the competing contentions of the parties as to whether Applicant was "dismissed" as defined in section 386 of the Act. The Commission must satisfy itself that the Applicant has been dismissed, before exercising its powers to deal with the dispute.[1]

• [2] As is apparent from the foregoing and the titles assigned to the parties in the heading, the Applicant has sought and obtained from the Commission an order to protect their identity. Such orders are rare in dismissal related matters. In general terms, orders to that effect may be available in exercise of the Commission's discretionary procedural powers under paragraph (c) of subsection 593(3) in the case of a hearing, or paragraph (b) subsection 594(1) in matters generally. In either case, such orders are expressed as being able to made "...if the FWC is satisfied it is desirable to do so because of the confidential nature of any evidence or for any other reason". In applying that expression of conspicuously wide ambit in other contexts, the Commission has taken into account the need to balance the principle of open justice against the interests of the party seeking to benefit from the order (including any pre-existing expectations or commitments as to confidentiality), and has identified that mere embarrassment, preference, distress or damaging publicity are an insufficient basis upon which to make such an order.[2] Particular factors that persuaded me to make the order sought in the instant case were as follows:

• (a) The Applicant has indicated in their Form F8 Application to the Commission that the nature of the relief he is ultimately seeking is in the nature of injunctive relief to protect his reputation and other interests, including in connection with conduct associated with the making by him of whistleblower disclosures to external authorities. Whilst it is not necessary to rehearse all the details of those disclosures in a decision concerning whether there has been a dismissal or resignation, something must and will be said about them. There is some risk that putting these matters on the record in a decision naming the Applicant may diminish the availability or utility of the remedies that the Applicant may in due course pursue in an eligible Court entitled to make "Any order it considers appropriate"[3] in respect of a future General Protections Court Application.

• (b) At least one of the whistleblower disclosures that the Applicant has made was made pursuant to Part IVD of the Taxation Administration Act 1953. The provisions of Part IVD entitle the Applicant to an expectation, albeit a limited one, concerning the protection of his identity and moreover anticipate the making of orders protecting the identity of the Applicant in subsequent proceedings in a Court or Tribunal.[4] The failure to make the anonymity order sought in the instant matter in the Commission may prejudice the availability of such an order were the Applicant minded to seek one in respect of a future General Protections Court Application or in other proceedings relating to the subject matter of the disclosures made under Part IVD of the Taxation Administration Act 1953.

• (c) The present Application is one that, insofar as the Commission's jurisdiction is concerned, culminates in a dispute resolution process that is required by law to be shielded from public view.[5] In my view, this reduces the weight to be placed on the consideration of open justice in this matter.

• [3] The Respondent's position on the making of the order for anonymity was that it was unnecessary, but it didn't ultimately resist such an order being made. I took the view that it was necessary to similarly de-identify the Respondent on the basis that it was a small organisation in a specialist industry and, in light of the public announcements concerning the Applicant's departure from the business, it would have been relatively easy to discern the identity of the Applicant if the identity of the Respondent was known.

• [4] An application under section 365 of the Act is conditional upon a person having been "dismissed". The meaning of dismissed is dealt with in section 386 of the Act, 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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

• [5] Language akin to that underlined in both paragraphs (a) and (b) of the definition above has long been relevant to determining disputes concerning employment relationships that in a formal sense or at face value were brought to an end by way of resignation. Disputes of this nature have commonly been encountered in proceedings in the unfair dismissal jurisdiction. The unfair dismissal jurisdiction has, since its inception, required that there be a termination of employment "at the initiative of the employer" as one of the essential elements. This is rooted in the historical constitutional underpinnings of Commonwealth laws providing for remedies in respect of unfair dismissal, yet the expression has remained a centrepiece of the scheme notwithstanding the shift to reliance on the corporations power and referral of State powers in recent decades. The expression "at the initiative of the employer" and its derivatives have been found to admit of some circumstances where the final act in bringing the employment to an end was an act of the employee claiming the remedy. In considering whether employment "has been terminated on the employer's initiative", a Full Bench of the Australian Industrial Relations Commission in O'Meara v. Stanley Works[6] held that there must be:

"...some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution.... In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign."[7]

• [6] Explicit reference to a resignation brought about by employer conduct developed in the unfair dismissal provisions of successive Commonwealth workplace relations legislation over the last two decades. In considering whether a resignation has been "forced" in the manner currently dealt with in paragraph (b) of subsection 386(1), a Full Bench of the Commission in Bupa Aged Care Australia v. Tavassoli[8]('Bupa') said:

"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 probably [sic] result of the employer's conduct such that the employee had no effective or real choice but to resign." (emphasis in underline and bold added).

• [7] It should be noted that the immediate predecessor of paragraph (b) of subsection 386 (1), section 642(4) of the Workplace Relations Act 1996, referred to "forced" resignation but continued the legislative tradition of requiring such forced resignations to be characterised as a species of termination at the initiative of the employer in order to be actionable as an unfair dismissal. It relevantly provided as follows:

"For the purposes of this Division, the resignation of an employee is taken to constitute the termination of employment at initiative of the employer if the employee can prove that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer"

• [8] Section 642(4) of the Workplace Relations Act 1996 was considered by a Full Bench of the Australian Industrial Relations Commission in Australian Hearing v. L Peary[9]('Australian Hearing') in circumstances where it was contended by the Appellant that it was an essential ingredient in satisfying that section that the employee prove that the resignation was an intended consequence of conduct or a course of conduct engaged in by the employer. In rejecting that submission, the Full Bench said:

"We cannot accept this construction of the section. The section specifies the matters that an employee who has resigned must prove in order to displace the legal effect of the resignation. The employee must prove that the employer engaged in conduct or a course of conduct which forced the employee to resign. There is no warrant for requiring the employee to prove an additional matter, that the employer intended to force the employee to resign. The plain words of the section deny such a requirement. Furthermore, the section is not directed at the state of mind of the employer, but at the state of mind of the employee. It is particularly difficult for an employee to prove an employer's intention. In that respect it is relevant to note that where the Act imposes a requirement related to the intention or motive of the employer a reverse onus is usually applied."[10]

• [9] In light of the decision in Bupa, it seems that it is no longer the case that the intention of the employer is necessarily irrelevant to determining whether a resignation is "forced" in the relevant sense, although it is not a requirement to show such intention in every case. In any event, there have been differing views to that expressed in Australian Hearing as to the role or relevance of employer intention even when the legislative scheme did require forced resignations to be characterised as "at the initiative of the employer". For example, in Rheinberger v. Huxley Marketing[11], Moore J approached the issue this way:

"The issue that emerges from these facts is whether the applicant has demonstrated there has been a termination of her employment at the initiative of the Company. The applicant relied on several passages from a recent Judgement of a Full Court in Mohazab v. Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200. Particular reliance was placed on the following passage:

'It accords with the purpose of the Convention to treat the expression 'termination at the initiative of the employer' as a reference to a termination that is brought about by an employer and which is not agreed to by the employee...'

These observations had been preceded by a discussion by the Full Cout of the relationship between the Convention concerning Termination of Employment at the Initiative of the Employer, which is Sch 10 to the Act, and the importation into the Act of the meaning of expressions in it by operation of s. 170CB. The applicant further relied on a later passage in which the Full Court said:

'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 that it did, the employee would have remained in the employment relationship.'

However, it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of employment at the initiative of the employer. Such a termination must result from 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. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that employment will conclude. I am prepared to assume, for present purposes that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employers conduct"[12] (emphasis in underline and bold added).

• [10] To similar effect was the decision in Hastie v. Impress Australia[13], which, like Australian Hearing, considered section 642(4) of the Workplace Relations Act 1996 and in addition the particular significance of the then nascent addition of the adjective "forced", which is also now adopted in s. 386(1)(b):

"The employer's conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.

If this were not the case, then it would be difficult to distinguish between many instances of voluntary resignations which arise from a discretionary judgment of the employee, and resignations which are the result of the conduct of the employer. This is because, for all practical purposes, most decisions by an employee to resign their employment arise from the conduct of the employer, in some manner or form. That is, employer conduct is causally responsible at some level for most resignations.

But not all the species of the conduct of an employer have the probable result of the employee's resignation or make the resignation, on an objective view, a reasonable response to the employer's conduct. It is only a sub set of employer conduct that ought to attract the remedy against a harsh, unjust or unreasonable termination of employment based on a termination at the initiative of the employer.

If this is so, in what manner then has the amended statutory provisions affected this approach to determination whether an employee was terminated at the initiative of the employer or if the employee resigned voluntarily?

Putting aside the onus specified in the Act, the critical issue here is whether the inclusion of the adjective "forced" affects in any way of the above discussion of the authorities as they were before the introduction of the Workchoices legislation.

To describe the conduct of the employer as forcing an outcome suggest that the conduct in some manner or form compelled or mandated or obliged or necessitated the resignation of the employee. These seem to be the common dictionary meanings of "forced".

In a narrow sense, no resignation is ever forced unless there is some observable physical intervention by the employer. Consequently, all resignations are likely to be voluntary, in a narrow sense. Such was commented on by Dowsett J in his minority decision in Pawel v Advanced Precast Pty Ltd:

"As to 'compulsion', it is difficult to contemplate circumstances in which it can be said that an employee has been compelled to resign, but not dismissed, unless one accepts the somewhat bizarre reference in the course of argument to an employer holding a gun to the employee's head."

That said, to describe an employer's conduct as forcing a resignation does not demand a narrow reading such as this. Force may be applied in a physical sense, as Dowsett J describes it, or else it may be applied indirectly, by the conduct or the course of conduct by an employer which makes an outcome. Of course, many such examples of such conduct might be provided, and a person may be forced or compelled to adopt a course of action by a variety of actions taken by their employer.

Generally, the exercise of force may take many forms, and there is little point in exploring these in detail. But common manifestations of 'force' will always exhibit an outcome in which a person acts contrary to their desired intention, and because of the conduct of another person that was directed at or towards them.

I do not think the definition should be limited to cases in which an employee can demonstrate that the employer took positive action of some kind that was motivated to bring about the resignation, though many cases no doubt will fall into that category. The conduct of an employer, wilful or not, may nonetheless generate circumstances in which the resignation of an employee was the probable result.

It would appear to me, then, that on an ordinary or natural reading of the term "forced", an employee may be forced (or compelled) to resign for reason of the employer expressly demands the resignation (perhaps, though not necessarily, in conjunction with a threat of termination), or makes the conditions of work so oppressive or repugnant to the employee (and the employment relationship), and/or else, so bears down on the volition of the employee, that the resignation was a reasonable probable response to the circumstances the employee faced at the time.

In effect, therefore, it appears that the inclusion of the adjective "forced" in s.642(4) of the Act does not require a new or additional test as to whether a resignation was at the initiative of the employer to that which may have been alluded to by the Full Bench in O'Meara v Stanley Works Pty Ltd (under the pre-reform Act). Rather, it simply recasts descriptively and makes express the implied nature of a resignation by an employee that is taken to constitute a termination at the initiative of the employer, and it (s.642(4) of the Act) does so in juxtaposition to a "voluntary" resignation. The Explanatory Memorandum, as quoted above, does not invite a different reading.

Further, I note that in some instances in which members of the Commission have applied the test of "force" to a determination as to whether a resignation was termination at the initiative of the employer for purposes of s.642(4) of the Act, they have drawn on the availability of an "effective choice" in demonstration of that finding." (emphasis in underline and bold added, footnotes omitted)."[14]

• [11] In light of the above, in considering the current matter, I have adopted the following approach:

a) A resignation may be forced in the relevant sense either because it was the intended result of the employer's conduct or because the employer's conduct left the employee with no real or effective choice other than to resign. > > b) The inclusion of the word "forced" does not signify that the employee must be physically overborne or be explicitly issued with an ultimatum. The focus is on the conduct of the employer and its intended and/or probable effects.

• [12] The matter was heard by way of determinative conference on 21 May 2025. In advance of that date, the Applicant prepared two outlines of argument, two witness statements, a list of documents, a submission in support of his de-identification and supplied numerous documents. The Respondent prepared an outline of argument and also supplied documents. I have had regard to all of this material. The Respondent prepared and exchanged a witness statement but later withdrew it. The Applicant was evidently confused as to whether Respondent wished to pursue a separate objection that the Application was made out of time. The Respondent did not press that objection, and the basis upon which it might have been advanced was, in any event, elusive. The Applicant's resignation, that he claims was a dismissal, took effect on 21 March 2025 and the Application was made on 11 April 2025.

• [13] The Applicant gave evidence on his own behalf and was cross examined. The Respondent called no witnesses. Numerous documents were tendered without objection, which I refer to where relevant in the course or the discussion below.

• [14] The Applicant was not only an employee of the Respondent, he was also one of its founders and one of three Directors of the Respondent in the period leading up to his resignation. He remains a substantial shareholder.[15] The Applicant's witness statement attests to the concerns the Applicant developed in December of 2024 concerning the correctness of information provided to external parties on the Respondent's behalf. Specifically, the Applicant was concerned that some information provided in grant applications, tax incentive applications and related tax filings was inaccurate and misleading, and he believed deliberately so. The Applicant's evidence is essentially that, after raising these concerns with the other two Directors, there was a difference of opinion as to how (and in respect of some of the alleged inaccuracies, if) these concerns ought to be addressed, with the Applicant urging the Respondent to take external advice and be more forthcoming about these matters. The expression of these concerns is the setting in which the Applicant claims he exercised workplace rights, which allegedly led to adverse action in the form of his resignation that he characterises as "forced" in the relevant sense and therefore a dismissal.

• [15] The expression of the Applicant's concerns and the Respondent's initial response to them occurred in January of 2025. The Applicant says he had separate meetings with the other two Directors to discuss the concerns he had on 8 and 10 January 2025, and was then asked to provide the concerns in writing. The e-mail by which the Applicant gave written notice of those concerns to his fellow Directors dated 12 January 2025 was tendered as part of a bundle documents relied upon by the Applicant.[16] The Respondent subsequently confirmed receipt of that material and indicated that it would be reviewed and that the Respondent would "be in touch in due course".[17] The Applicant nonetheless followed his fellow Directors up some 11 days later, ostensibly to "...check on the progress of your enquiries, to understand what actions are planned next, and to see I there's anything I can do to assist"[18] and to seek a meeting with them. That communication also noted, inter alia, that the Applicant had become aware that the CEO had been informed of the Applicant's concerns. The CEO was a person that the Applicant believed to have been in part responsible for the making of statements that the Applicant believed to have been deliberately misleading.[19] The Respondent replied, confirming that the CEO had been made aware of the concerns, advising the Applicant that information had been received and was being reviewed, and proposing times for a further discussion.[20]

• [16] The Applicant's evidence is that that further discussion occurred on Zoom on 24 January, at the instigation of his fellow Directors. As to what transpired at that meeting, the Applicant's evidence is as follows:

"I was told at that meeting very specifically that I'd need to resign. I was told that that had been the decision that was made and it was not a discussion to be had. I had a - adjourned that meeting, appealed for them to consider independent review of the concerns document. My understanding or my belief at the time was that surely if they fully understood the nature of my concerns, they would see that they were good faith, legitimate concerns and that they needed to be addressed in a different way to what was suggested. You know, I was really desperately trying to get them to accept the need for independent review and during that meeting, well, I was essentially pleading for them to change their mind and make a different decision. But I was told that it was very clear and not negotiable that my resignation was required and then this email followed up with the same - the same basic instruction." [21]

• [17] The email to which the Applicant referred in his evidence is dated 24 January 2025 from one of the Directors and was tendered and relied on by both parties.[22] As it is reasonably brief and highly relevant, I set out its contents in full (with the exception of names):

Thank you for your time on the call earlier today. Further to that call I would like to summarise the actions below:

1. The FY2024 RDTI claim needs to be reviewed and updated to correct some of the outcome data.
2. The FY2023 RDTI claim is considered supported based on the information provided
3. The additional items of concern all came back to the relationship between the founders. The review found that this relationship is destructive to the business and untenable going forward.

Based on the review conducted by S and myself, we have found few paths forward that will give the company any chance of success. The path chosen requires:

• You to step down from your role as Director
• You to step down from your role within the company.

The shareholder agreement provides the founders with the right to appoint someone to the board. If you and [the CEO] can propose someone that is acceptable to the board then that person can be added to the board as the founder representative.

Please consider the above and let us know your response by 27 January 2025."

• [18] I pause at this juncture to note that the witness statement prepared and ultimately withdrawn by the Respondent was authored by one of the Director participants in the meeting on 24 January, referred to as "S" in the e-mail cited above. During the Applicant's closing submissions, I asked whether he wanted to make any submission about the inferences I might draw from the failure of his fellow Directors to give evidence. The Applicant did not wish me to draw any inferences, and submitted in effect that the documents and conversations he had given evidence about spoke for themselves.[23] The Applicant was not cross examined about what transpired in the meeting on 24 January.

• [19] The events of 24 January 2025 are the first in a series of events that the Applicant describes as a clear and unambiguous instruction to resign which was never rescinded or changed but was in fact affirmed on many occasions and led directly to his resignation.[24] The matter would in my view be relatively uncomplicated if the evidence ended on 24 January with the Applicant tendering his resignation on that day. The unchallenged evidence of what transpired on that day clearly points to:
  • An intention on the part of the employer that the Applicant resign ("the chosen path requires...");
  • Termination of the employment being the probable result of the employer's plainly expressed requirement that a resignation occur;
  • The Applicant having no real or effective choice other than to resign.

It must be remembered that the Applicant was one of 3 Directors, and was outnumbered 2 to1 on the question of him departing the company (both as a Director and as an employee). Any rational, real world, assessment of the situation facing the Applicant at that point must accept the reality that this was a numbers game and he had lost. When a majority of the Board advises its sole detractor of its view that the current situation is "destructive to the business" and "untenable" for which "the chosen path requires" a resignation, resistance is futile.

• [20] The complication is that the Applicant didn't act as a reasonable person would in that situation to accept the reality facing him. Instead, he offered a Hail Mary. The immediate step he took following the discussion and e-mail of 24 January was to attempt, as he variously described it, to "manage fallout", "minimise damage", "resist" and "bargain".[25] The Applicant replied to the 24 January e-mail on the same day, as follows:

"Thank you for meeting with me and sharing your perspectives.

To help guide next steps, could you please pass along the information that has been provided in response to the issues I have raised. I would also like to be forwarded any legal, tax/accounting or other independent professional advice that may have been solicited during your enquiries. If we have not yet received any advice of this kind, I suggest we arrange this now to ensure all parties fully understand our position as we navigate these decisions.

I look forward to your response and to working towards an outcome that serves the company's best interests."[26]

• [21] The Applicant explains this response on the basis that he "...had been hoping that if independent advice was sought that a different outcome could have evolved, but it was never - was never entertained and there was no - there was no revocation of the instruction to resign and there was no softening of that position"[27]. Indeed, the Applicant received a response to his message on 28 January, which confirmed that the Board had not, and would not "at this time", seek any independent professional advice. The response relevantly concluded as follows:

"[name withheld] and I had separate meetings with yourself and [the CEO] on Friday, as the two founders. We suggest it would be sensible for the two of you to discuss the current situation and requirements of each of you, if you have not already done so. If you need to extend the timeframe for that conversation to take place, please let us know, noting that it needs to be within the next few days"[28]

• [22] Consistent with the stated requirements in the earlier e-mail extracted at paragraph [17] above, the Applicant understood that the "requirements" of him referred to the 28 January message were that he provide his resignation and discuss with the CEO the appointment of a suitable replacem[29]t Director.29 Sometime after 28 January but after before 19 February, the Applicant says that he had a discussion with one of his fellow Directors to the effect that there would be a Board meeting on 19 February at which the Applicant would formally take the Board through his concerns and provide his resignation:

"My participation in that meeting was carefully orchestrated by the chair and governed entirely by the prior instruction to summarise the concerns that I had and to provide a resignation. It was very clear. So the acceptance as it was characterised came after weeks of pressure and coercion including explicit instructions from directors [name withheld] and [name withheld] before and after the meeting to follow through on the resignation that had been instructed."[30]

• [23] The Board meeting occurred on 19 February and the written notice of resignation came on 21 February. The written notice gave an effective date of 21 March 2025 "as per the notice period outlined in my employment agreement", recited concerns the Applicant had previously made concerning representations made about the performance and capability of the company's technology, and concluded as follows:

"Given these circumstances and the wishes of the board, I feel I have no choice but to step down. I remain optimistic about the significant impact this technology can have, and sincerely hope the company succeeds in bringing it to market at a scale that realises its full potential."[31]

• [24] The Respondent's cross examination of the Applicant was minimal and did not challenge his account of the meeting prior to the first e-mail of 24 January, the discussion at the Board meeting of 19 February or the Applicant's evidence that in preparation for that Board meeting he had been "instructed to play a role choreographed by the chair".[32] The Applicant rejected in cross examination the suggestion that his concerns were properly described as a Director dispute which he could have sought to resolve by obtaining independent advice on his own initiative at the company's expense rather than resigning.[33] In any event, as per the message referred to at paragraph [21] above, the company did not seem particularly interested in considering independent external advice. When questioned about the delay between the discussion on 24 January and the letter of resignation on 21 February, the Applicant said that the "main driver" of him giving the resignation when he did was that he had been instructed in advance to give his resignation "on or about" the date of the Board meeting of[34]9 February.34

• [25] Submissions were made by both parties, and evidence was given by the Applicant, about the events following the giving of the resignation letter. It is not in dispute that the parties continued to engage throughout the notice period and beyond in relation to particular matters related to the company. For the Respondent it is said that the willingness of the Applicant to engage is this way is inconsistent with the resignation having been forced in the relevant sense.[35] The Applicant points to some frustrations in that period of engagement, but essentially contends that the attitude he brought to his post resignation cooperation should not imply a voluntary resignation in the face of clear evidence that it was forced.[36]

• [26] In its written submissions, the Respondent urged the Commission to adopt a test that required that "the Applicant must demonstrate, beyond reasonable doubt, that the resignation was not voluntary; and the respondent engaged in conduct amounting to a repudiation of the employment contract or made the employment intolerable; and that conduct was a principle cause of the resignation".[37] Such a test finds no support in the authorities referred to at paragraphs [4] - [10] above. During the Respondent's oral submissions, I drew attention to the test in Bupa and as[38]d to be addressed on it.38 In the course of discussion during the Respondent's submissions, it appeared that the Respondent considered that in order for a resignation to be considered forced, it is insufficient for an employer to explicitly direct or require a resignation in writing, but rather there needs to be evidence that the employer also explicitly state what consequence will follow if that direction or requirement is disobeyed - an ultimatum. I respectfully disagree that it is a requirement in all circumstances for the employer to "say the quiet part out loud" in order for the test as articulated in Bupa and the elements stated in paragraph [11] to be met.

• [27] In any event, the evidence discloses that after the Board meeting of 19 February but prior to the written notice of resignation being provided, the Applicant's fellow Directors were eagerly seeking that the Applicant provide the "notifications" he had committed to give at that meeting. Both wrote to him separately, with one of the messages concluding as follows:

"Please can you ensure that you complete the actions you agreed to before opening of business (9am) Melbourne time on Monday. Unfortunately we cannot allow the matter to drag on, and without this step to be completed to enable a recovery plan, we will have to start moving forward on Monday towards an alternative"[39]

• [28] In oral submissions, the Respondent also posed an alternative test, that "the applicant must prove (1) that he resigned, (2) that the resignation was caused by the employers conduct, (3) that the conduct of the employer was the principle contributing factor and (4) that the resignation was a reasonable and immediate response to that conduct"[40]. I accept that there will likely be many resignations that qualify as dismissals under paragraph (b) of subsection 386(1) that meet those requirements. The alternative test posited by the Respondent bears some similarity to the factors considered in ABB Engineering v. Doumit[41] and the ultimate caution therein that the line between "conduct that leaves an employee no real choice but to resign" on the one hand and "conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer" on the other, must be "rigorously observed". However, the similarity ends insofar as the alternative test demands an immediate resignation in response to the employer's conduct. I accept that evidence of delay between the conduct complained of and a resignation, and evidence of what happened during that delay, may have a bearing on question of whether the resignation was forced in the relevant sense. However, the fact that paragraph (b) of subsection 386(1) may be satisfied by a forced resignation either in response to conduct or a course of conduct engaged in by the employer illustrates that a strict requirement of immediacy is incompatible with the legislative test. Were that not the case, the question would perennially arise as to whether the employee was disqualified from seeking a remedy if they did not resign immediately upon the first instance of conduct relied on in a course of conduct alleged.

• [29] The Applicant's written and oral submissions more closely aligned to the test stated in Bupa and emphasised that he was given a clear, imperative, unambiguous instruction to resign and he acted on that instruction having no alternative but to do so. In the Applicant's submission, the delayed timing of the resignation after the initial instruction to provide it was also a product of the employer's conduct. Although this was coupled with his hope that during the intervening period the Board might reconsider its instruction on the basis of independent advice about the matters of concern he had raised with them, the unchallenged instruction of the timing of the resignation was said to be the "main driver".[42]

• [30] As noted at paragraph [19] above, the matter would be relatively uncomplicated had the Applicant resigned promptly after the events of 24 January. The question is whether the subsequent delay in giving the resignation (verbally on 19 February, in writing on 21 February) alters the complexion of events. Having considered uncontradicted evidence of the Applicant in this regard, in particular concerning an instruction as to when and the setting in which the resignation should be given, the I am not satisfied that it does. The delay in this case does not evidence a lack of any compulsion to resign, and there is evidence of a continuing course of conduct by the Respondent requiring a resignation until proximate to the date it was ultimately given.

• [31] I find that the Applicant was forced to resign within the meaning of paragraph (b) of subsection 386(1), and accordingly has been dismissed.

• [32] An order PR788834 dismissing the Respondent's jurisdictional objection is published with this decision.

• [33] A notice of listing will be sent to the parties for a conference in relation to the section 365 dispute.

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

[2] Re Corfield [2014] FWC 4887, Bowker v DP World Melbourne Ltd (t/as DP World) [2015] FWC 4542.

[3] Fair Work Act 2009, s. 545.

[5] Fair Work Act 2009, s. 368(2).

[6] [2006] AIRC 496.

[8] [2017] FWCFB 3941. See also City of Sydney RSL & Community Club Limited v. Balgowan [2018] FWCFB 5 at [10]- [13].

[9] [2009] AIRCFB 680.

[11] (1996) 67 IR 154.

[12] At p 160-161. As an aside, whilst Ms Rheinberger was not successful in showing her resignation was a termination at the initiative of the employer in the relevant sense on the case presented, one suspects that her evidence of having being invited by her manager to stay in his motel room, conduct which she described as sexual harassment, might have assumed some greater significance were the matter brought before a Court or Tribunal in more contemporary times.

[13] [2008] AIRC 102.

[14] Hastie v. Impress Australia [2008] AIRC 102 [48]-[51], [54]-[62].

[19] Applicant's witness statement at paragraphs 2-7.

[35] PN237, Respondent's submission at [33]-[35], [43]-[47].

[37] Respondent's outline of submissions at paragraph 10.

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