Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether resignation or dismissal - factual dispute - jurisdictional objection upheld - application dismissed

• [1] Ms Xanthie Thomson (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 27 February 2025. The Applicant claims that adverse action was taken against her by Tristan Rasmussen (the Respondent) under s.340, 341 and 343 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Respondent raised the jurisdictional objection that there was no dismissal under s.386 of the Act as the Applicant resigned from her employment. The Applicant contests the objection and alleges that the Respondent dismissed her.

• [3] I conducted a determinative conference on 2 May 2025. Both parties were self-represented.

• [4] The Applicant is a film maker and producer and was employed on a part-time basis as a producer for a small film studio, Pluggas, owned and run by the Respondent.[1]

• [5] The Respondent engaged her for a couple of days a week with a varied range of duties that included administrative and project duties as well as broader business functions and the opportunity to undertake some creative work.

• [6] Separately, the Applicant also had some other employment activities with other organisations, some voluntary and some paid, on the days that she was not working for Pluggas. The Applicant was also working on her own feature film, which she stored on the Respondent's server.

• [7] The Applicant was employed by the Respondent since August 2023. The events leading up to the alleged dismissal occurred in January and February 2025.

• [8] From 13 January 2025 to 16 January 2025, the Applicant was involved as an employee in managing a filmmaking workshop.[2] On the second day of that project, 14 January 2025, the Applicant had a disagreement with the Respondent's partner, Ms Sabrina Dervis.[3] Ms Dervis is also an employee of the Respondent. The Applicant states that she felt she was being bullied and undermined by Ms Dervis throughout the project.[4]

• [9] On 25 January 2025, the Respondent sent the Applicant an email regarding her timesheet. The Respondent stated that the Applicant had been spending more time on the tasks than had been allocated. The Respondent requested that the Applicant seek approval for work beyond her allocated hours. The Respondent said: "I can understand your desire to work longer on these short film and series projects to make them better, but we only have a specific amount of time/wages allocated."[5] The Applicant submitted 48.5 hours for the week in question, including time spent on a freelancing project. The Respondent approved 32 hours.[6]

• [10] The Applicant felt offended by the Respondent's email and said she wanted to speak with him privately.[7] The Applicant felt that the Respondent was not accommodating her disability which caused her to spend more time on tasks. The Applicant texted the Respondent on 27 January 2025:

Applicant: Just wanted to check whether you need me this week or we hold off under we can tee up a meeting?

Yeh that's probably fair enough gives you more time to get yompers settled and focus on any other things you're working on.

I won't be back in the office until Wednesday 5th Feb at this stage.[8]

• [11] On 28 January 2025, the Respondent's business account received an email from a cloud-based management and scheduling software company.[9] The Respondent's use of this software apparently caused the Applicant to feel concerned about the security of her position.

• [12] Yompers was a project which the Applicant was working on in a freelancing capacity. Both the Applicant and the Respondent understand that the Applicant was not acting as an employee on that project.[10] The Respondent was not in charge of the project and says the Applicant was acting independently.

• [13] The Applicant states that she had asked that the Respondent's partner Ms Dervis not be involved in Yompers. However, Ms Dervis was brought onto the set on Sunday, 2 February 2025. The Applicant says she then felt forced to leave the set on 2 February 2025 and felt that she had been excluded from working on the project.[11] She states that Ms Dervis was "barking orders at her" and threatened to hit her. The Applicant felt that her authority had been undermined, discussions were manipulated and she was spoken to aggressively. The Applicant argues that the Respondent did not support her. The Applicant then called her husband who came to take her home. The Applicant produced an incident report about what happened on set on 2 February 2025.[12] I note the Applicant never sent the incident report.

• [14] The Respondent notes that two others were the creators of Yompers and the Applicant was acting as a secondary producer and director on the project. The Respondent argued that therefore management decisions must be run past the creators. The decision of whether to bring Ms Dervis was a collective decision and not solely his decision. The Applicant contended that it was the Respondent's decision.

• [15] The Respondent was not in the office on Tuesday, 4 February 2025, as he working offsite on a shoot. The Respondent stated that Applicant she normally worked Tuesday to Thursday. He called his partner Ms Dervis at 9:30am to ask if the Applicant had come into work that morning.[13] Ms Dervis said the Applicant had not.[14] The Respondent gave evidence that he was primarily concerned about whether the Applicant was coming into work that day because of the tension between the Applicant and Ms Dervis, as he did not want their relationship to deteriorate further.

• [16] On 4 February 2025, at 10:00am, the Applicant went to the workplace to download her own feature film project, which had been stored on the Respondent's servers. The Respondent had given her permission to store the large video and audio files of her personal project on the company system and also undertake some postproduction work using the company owned software. The Applicant would undertake her own editing outside of her contracted hours. The Applicant's husband had expressed to her that he felt the Respondent and Ms Dervis may be planning to delete the feature film.[15] I pause to note that the Applicant's husband was not directly involved in any of the interactions described between the Applicant and Ms Dervis in January and February 2025.

• [17] When the Applicant arrived at the workplace, she spoke to another employee, Mr Joshua Gannon, who was editing at the time. She states that she said to Mr Gannon words to the effect of:

You know how Sabby was at the workshop? Well, Fisch brought her onto Yompers on Sunday and it got so bad had to leave. I'll have to tell you about it later though. I'm going to start downloading my Wicked Faith stuff and go somewhere else to wait before Sabby gets back. I cannot handle anything else from her right now.[16]

• [18] Mr Gannon provided a witness statement and gave evidence of his conversation with the Applicant. He said the conversation was brief and that the Applicant said words to the effect of: "I've come in to get my files because I am leaving". Mr Gannon confirmed this under cross-examination. He said he was not surprised by the Applicant's statement that she was leaving, because he thought the project was a "shemozzle". The Applicant said that, to the best of her recollection, she did not say that she was "leaving".

• [19] After speaking with Mr Gannon, the Applicant began a file transfer on the second editing computer and then left the workplace.[17]

• [20] After having the conversation with the Applicant, Mr Gannon called the Respondent at around 12:00pm. He told the Respondent that the Applicant had spoken with him and was collecting her files "because she was leaving".[18]

• [21] At around 1:00pm, the Applicant came back to the office and ran into Ms Dervis. Soon after, Ms Dervis came into the office where the Applicant was and told her words to the effect of "Fisch [the Respondent] has told me to tell you that you are not allowed to work here until he has a meeting with you."[19] The Applicant said Ms Dervis was tense and antagonistic. The Respondent confirmed in his statement that he had told Ms Dervis to inform the Applicant that she should not return to the building until he had an opportunity to meet with her and discuss the situation. [20] The Applicant left the building after her conversation with Ms Dervis.

• [22] Later that afternoon, the Applicant called and texted the Respondent:

Applicant: As per the above, can I please request that my Wicked Faith files not be

deleted off the NAS? It's the only collated copy I have. Before the last couple of weeks I wouldn't have thought I'd even need to ask, but so many things have happened that I never thought would, and I am so afraid that losing my film could be the next. Even just a thumbs up on this message to confirm that it won't be deleted would be greatly appreciated.

Respondent: Hey buddy. No one wishes you ill will here buddy but I can't have a conversation about this until tomorrow.

Applicant: Okay, good to know. The way that Sabby was talking to me just before

had me feeling pretty scared! I'll wait to hear from you later.

Respondent: Ok. Well I can't speak to anything she said, but I did ask her to tell you

Applicant: That's okay. I was trying to download an export of Wicked Faith onto my SSD to work on it at home, but Sabby said I wasn't allowed in the office at all so I had to leave. That's what kind of threw me.

But we can park this until you're available to chat tomorrow.

Respondent: Hey buddy, I just spoke with Josh and understand what's happening now.

Obviously, that is totally fine. And of course I still want you to finish that film and get it out for sale etc [smiley face emoji][21]

• [23] The Applicant contacted the Workplace Advisory Service that afternoon to enquire into getting assistance with bullying at work.[22]

• [24] The Respondent states that he formed the view, based on the cumulative effect of the Applicant arriving late for work, telling Mr Gannon she was "leaving" and starting a file download, that she was planning to resign.[23] Conversely, the Applicant notes that her work account access was deactivated on 5 February 2025 and she formed the view that the meeting the next day was to "facilitate" her dismissal.[24]

• [25] The Applicant met with the Respondent at approximately 9:15am in the morning. The Applicant's husband was there as a support person.

• [26] The Applicant provided a detailed description of what was said during the meeting. The Respondent noted during the hearing that the Applicant's recollection of the meeting appeared to be very accurate. It turned out that the reason the Applicant's account was so accurate is because the meeting was covertly recorded by the Applicant's husband. I note that the Applicant only revealed this part way through the hearing, which in my view, casts doubt upon her level of honesty with the Commission.

• [27] The Applicant described the conversation as follows:

I said, "I don't really know what to say. I'm confused, hurt and scared. I guess I mainly want to find out when and how I might be able to get my files?"

Fisch said, "Getting you the files is not a problem I personally don't hold any animosity towards you, and I want you to be successful. Now is a good time to move on and go our separate ways. It's just not a good fit at this time. There are some good quality reasons I'm sure you feel why we need to go our own ways. I understand you told Josh that you're leaving so I believe you've already made your mind up about that."

I did not provide verbal or non-verbal response to this statement

Fisch said, "We've already spoken to Josh Fisk about the Cert program you've been designing and we've decided there's a better way to continue down that pathway by just

purchasing ready-made assets. Collectively we appreciate the work you've done here, but sometimes tensions get high on set. The only reason why Sabby stopped you from coming into the office was because we needed to have a little chat beforehand. Coming into the office without communicating with us felt quite disrespectful."

The conversation continued, focussing more on the change to my involvement in Yompers and the logistics of obtaining my feature film project files.

• [28] The Applicant states that she was surprised by the assertion that she had resigned. Following the meeting, the Applicant received an email purporting to accept her resignation:

As you are resigning I would like to take the time to thank you for helping support Pluggas and our interests. It's been a journey, and I wish you all the success in your future projects.

As I mentioned, Wicked Faith will be retained on our servers, until you have a copy. And then we will move it into Tape Storage, when and as required.

Please feel free to reach out to me about anything in the future :)

• [29] The Applicant did not reply to this email stating that she had not resigned.

• [30] The Respondent followed up and assisted with the transfer of the feature film files and ensured the Applicant's material was transferred correctly.

• [31] On 26 February 2025, the Applicant emailed the Respondent to request a separation certificate. Again, the Applicant took no steps to confirm that she did not resign. The Respondent provided a separation certificate the same day noting the reason for separation as voluntary resignation.

• [32] The Applicant lodged her Form F8 application the next day, on 27 February 2025.

• [33] Section 386(1) 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.

• [34] Where there is a factual dispute about whether an employee resigned, it is determined that objectively.

• [35] I note Deputy President Anderson made the following comments in Kershaw v Stewarts Welding and Fabrication Pty Ltd [2023] FWC 2619 when determining whether there was a dismissal following an argument between the Applicant and employer:

[55] It is relevant to note that the fact of dismissal is to be determined objectively by reference to all relevant circumstances. It is not determined subjectively based on whether an employer intended or did not intend to dismiss or whether an employee believed they had or had not been dismissed.

• [36] The Applicant contends that her actions could not be understood as conveying an intention to resign.

...[T]he Respondent, in the course of his conduct as an employer, treated what he considered to be an '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" by:

i. Using assertive language in both the verbal interaction (9:30am, 6 February 2025) and follow-up email (3:30pm, 6 February 2025) to the Applicant of a nature that did not invite the Applicant's response for clarification, confirmation or dispute

ii. Deactivating the Applicant's work-based accounts (5 February 2025) prior to any in-person or verbal communication to clarify, confirm, or dispute the event that the Respondent perceived to be an 'ostensible resignation'

... Despite assurance by the Respondent that such a meeting would take place, instead facilitating a meeting (6 February 2025) where the 'situation' was not discussed, instead employing language consistent with termination procedures, with minimal opportunities for reciprocal dialogue from the Applicant, which is a reasonable expectation when categorising an interaction as a 'discussion'

• [38] I note that there is doubt over whether the Applicant did in fact say the words "I'm leaving" to Mr Gannon on 4 February 2025. The Applicant says that she did not and while I found Mr Gannon to be a truthful witness, his recollection was understandably hazy on the details of the conversation with the Applicant.

• [39] However, it is immaterial what the Applicant actually said to Mr Gannon. What is relevant is what the Respondent, as the employer, conveyed his understanding of the situation to be. The Respondent plainly told the Applicant: "I understand you told Josh that you're leaving so I believe you've already made your mind up about that." If the Applicant had not said those words to Mr Gannon, she had a clear opportunity to correct the Respondent's understanding. If there was a misunderstanding, it was one which she induced. She had multiple opportunities to correct the Respondent. Firstly, during the meeting on 6 February 2025. Secondly, after the Respondent sent her an email stating that she was resigning later that day. Thirdly, when the Respondent provided a separation certificate which stated she had resigned.

• [40] The Applicant claims that she could not speak for fear that her files would be deleted. However, based on the material provided by the Applicant, there is no indication of any intention by the Respondent or Ms Dervis to delete her files. The Respondent's text messages indicated that he was supportive of the Applicant's project. During the same meeting, the parties discussed the logistics of how the files would be transferred.

• [41] The Applicant's claim that the Respondent took no steps to clarify whether she was resigning is seriously misconceived. The Respondent presented his understanding to the Applicant during a meeting, and she did not correct him. Any claim of supposed "minimal opportunities for reciprocal dialogue" is rejected. A conversation goes two ways. There was an opportunity for either the Applicant or her husband to correct the Respondent's understanding and they chose not to.

• [42] On an objective assessment, it was entirely reasonable for the Respondent to form the view that the Applicant was resigning, when considering the following facts:

• Mr Gannon told the Respondent that the Applicant had said "I'm leaving";
• The Applicant proceeded to begin to transfer her personal project off the Respondent's server;
• The Respondent told the Applicant "I understand you told Josh that you're leaving so I believe you've already made your mind up about that." The Applicant did not correct the Respondent's understanding;
• The Respondent sent the Applicant an email noting she was resigning. Again, the Applicant did not correct the Respondent's understanding.

• [43] I find that a reasonable person would interpret the Applicant's conduct to mean that she was resigning.

• [44] I note the Applicant argues in her submissions that she was "forced out" by the Respondent and/or Ms Dervis. I attempted to clarify with the Applicant during the hearing whether she was making an argument of forced resignation. She did not provide a clear answer. For completeness, I will consider whether the Applicant was forced to resign.

• [45] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee to be terminated at the initiative of the employer.[25] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[26]

• [46] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[27] It is sufficient that the employer's conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[28]

• [47] All the circumstances - including the conduct of both the employer and employee - must be examined.[29] In other words, it must be shown 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."[30]

• [48] The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) said, in relation to determining whether the ending of an employment relationship is a voluntary or forced resignation:

"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that 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.

The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively.

The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."[31]

• [49] Furthermore, in Pawel v Australian Industrial Relations Commission,[32] the Full Bench noted:

"Mere "causation" or "motivation" will not satisfy the requirement that the termination be at the initiative of the employer."

• [50] Forced resignation has been interpreted by the Commission in the following ways:

• • the actual conduct of the employer forced to do so, such that there was an element of compulsion present;[33]
• • a 'critical action' or 'critical actions' of the employer which was intended to bring the employment relationship to an end;[34]
• • as a 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;[35] and
• • 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.[36]

• [51] The Applicant alleges that she was subject to bullying by the Respondent's partner. I make no findings on whether bullying occurred, as I have not heard evidence from Ms Dervis.

• [52] It seems that the Applicant formed a view, based upon several workplace interactions, that she was no longer welcome at the workplace. These interactions occurred in the course of employment and also whilst working on freelancing projects. In relation to the cloud-based management software, there appears to be no sound basis for a conclusion that the Respondent was trying to replace the Applicant. The Applicant convinced herself that she was going to be terminated and then constructed a fictitious scenario where the Respondent for some reason would delete her personal projects. The Respondent had never suggested that this was a possible course of action prior or during the events.

• [53] I note, on the material I have seen, and based on the evidence given in the hearing, the Respondent's interactions with the Applicant appear to have been entirely respectful. In relation to the Applicant's assertions regarding the Respondent refusing to approve her timesheet in January 2025, this does not form a basis for forced resignation. The Applicant's hours varied based on the current projects being undertaken by the studio, but she usually worked two days a week. It was not unreasonable for the Respondent to advise the Applicant that as the project has a budget for wages, the Applicant needs to only work for the allocated time, or otherwise speak to the Respondent to find a solution.

• [54] The Respondent did not undertake a course of action designed to force a resignation and, although there were several disagreements during a creative project, these incidents do not rise higher than ordinary workplace disagreements.

• [55] I have found that the Applicant's conduct over 4 February 2025 to 6 February 2025 would convey to a reasonable person that the Applicant resigned. The Applicant was not dismissed within the meaning of s.386(1)(a) of the Act. Further, and in the alternative, I do not find the Applicant's resignation to meet the threshold of a forced resignation per s.386(1)(b) of the Act. Therefore, the Applicant is not eligible to lodge an application under s.365 of the Act. The jurisdictional objection is upheld, and the Application is dismissed.

[1] Applicant Submissions [7]; Respondent Submissions [3].

[5] Email from the Respondent to the Applicant dated 25 January 2025.

[6] Applicant Timesheet 10 January to 16 January 2025.

[8] Annexure XT-9 to Applicant Witness Statement

[9] Annexure XT-10 to Applicant Witness Statement

[10] Applicant Witness Statement [20] and [21]; Respondent Form F8A page 7.

[11] Applicant Witness Statement [21].

[12] Incident Report dated 6 February 2025

[13] Respondent Witness Statement [1]-[2].

[15] Matthew Thomson Witness Statement [8].

[16] Applicant Witness Statement [30].

[17] Applicant Witness Statement [32].

[18] Respondent Witness Statement [3].

[19] Applicant Witness Statement [35]

[20] Respondent Witness Statement [6].

[21] Annexure XT-16 to Applicant Witness Statement - Fisch SMS 1-3

[22] Applicant Witness Statement [39].

[23] Respondent Witness Statement [5].

[24] Applicant Witness Statement [47].

[25] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

[27] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200.

[28] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [31].

[29] Whirisky v DivaT Home Care [2021] FWC 650 at [77].

[30] Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [28].

[32] (1999) FCA 1660 at 58.

[33] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.

[34] Boulic v Robot Building Supplies [2010] FWA 6905, [16].

[35] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [1995] IRCA 625; (1995) 62 IR 200, 205-206.

[36] Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].

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