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[41]
[2026] FWC 797
General information, not legal advice.
Fair Work Commission
2026-03-20
Original judgment source is linked above.
s.365 - General protections
Melbourne Archdiocese Catholic Schools Early Years Education Ltd (MACSEYE)
Application to deal with contraventions involving dismissal - jurisdictional objection raised of 'not dismissed' - objection upheld
[1] On 27 January 2026, Mrs Yi-Hsin Chou filed an application under s.365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal against Melbourne Archdiocese Catholic Schools Early Years Education Ltd (MACSEYE).
[2] MACSEYE filed a Form F8A in which it raised a jurisdictional objection to the application - that Mrs Chou was not dismissed from her employment with MACSEYE.
[3] Where there is a dispute about whether a person was dismissed, the Commission is required to determine this point before exercising its Conference powers under s.368 of the Act. Therefore, the issue for determination is whether Mrs Chou was 'dismissed' from her employment within the meaning of s.386 of the Act.
[4] A Determinative Conference was held on 24 February 2026.
[5] Mrs Chou was employed as a part-time Outside School Hours Care (OSHC) Coordinator with MACSEYE from 29 September 2025. Around December 2025, MACSEYE made organisational changes which resulted in some sites being 'single staffed'. The site that Mrs Chou worked at was designated to be single staffed. Mrs Chou raised safety concerns with the new model and felt that it went strongly against her personal and professional beliefs. There were discussions between the parties about alternative options for Mrs Chou, which included working at other sites that were not single staffed.
[6] On 12 January 2026, Mrs Chou advised MACSEYE that she wished to step down from her role as OSHC Coordinator at the Ringwood site and instead be a casual educator. MACSYE obliged her request and confirmed to Mrs Chou that she would be placed in the casual pool from 27 January 2026.
[7] On 23 January 2026, MACSEYE phoned Mrs Chou and informed her that she would be receiving a show cause letter (via email) about some matters which had occurred on 17 and 18 December 2025 and the week of 19 January 2026, and that these would be discussed with her a meeting at 10AM on 27 January 2026.
[8] On 23 January 2026, Mrs Chou responded to that email as follows:
Thanks for your email and document outlining your concerns. I have provided a formal showcause response (please see attached) to the points that you raised in your request for HR and you to be aware. I have provided it at my earliest convenience since your email was only sent to me this afternoon during my shift.
Given the situation and the fact that I was never given an opportunity to address any of these, I believe it is not a suitable time to hold that meeting on Tuesday.
I suggest we find a better time to hold this meeting once MACSEYE's HR and you have read these.
I believe that it is important to document this discussion; all of the points you raised had not been communicated to me previously. No complaints were raised directly to me over this period. You presented them, hastily, in an email on Friday afternoon in writing, which does not give me sufficient time to respond to the claims. Some of the facts may have been, intentionally or unintentionally, misrepresented, and exaggerated using adjectives that clearly demonstrate bias. I wish such comprehensive responses were given to me during my time with MACSEYE.
Instead of discussing them first and letting me address them, you unilaterally called for a disciplinary meeting. I perceive it as a further attempt to hide some of the management failures and blame your own employee for the inability to take responsibility for some of the decisions and lack of clear communication. Some of those decisions, in fact, have led to the situations you mentioned - as a consequence.
I have attempted to provide the best care possible under the circumstances, and my service has been commended on multiple occasions by the parents - this is the best reward for me and proof of my diligent work. However, the state of some services and the failure of our area management to address them was what led to my decision to step down as a coordinator.
I can provide evidence of our previous communication if required, but I do not see the necessity to complicate these matters, as I am no longer interested in remaining on your casual roster. I am happy with just terminating my contract as I do not feel safe to be employed at an organisation that attempts personal attacks at its employees rather than addressing their workplace-related concerns in due time. (emphasis added)
From now on, I also prefer email communication to track this discussion.
[9] MACSEYE responded to Mrs Chou on 27 January 2026 and accepted her resignation.
[10] Section 386(1) of the Act states 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
[11] Section 386(2) of the Act sets out the circumstances where an employee has not been dismissed, none of which are relevant to the present matter.
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 probabl(e)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.
[13] Mrs Chou says she was forced to resign because of the conduct, or course of conduct by MACSEYE (s.386(1)(b) of the Act).
[14] Mrs Chou says that she had no choice but to resign from her employment because of the conduct of MACSEYE. Mrs Chou says that she exercised her workplace right by repeatedly raising concerns relating to child safety, supervision, and compliance with best practice in childcare settings. She says that rather than these concerns being addressed, she experienced increasing pressure and adverse treatment, which ultimately contributed to her decision to resign.
[15] It is evident that Mrs Chou did not support the single staff model. At the Determinative Conference it was Mrs Chou's evidence that she felt the single staff model was not best practice, although she acknowledged that the model was compliant with requirements. It was MACSEYE's evidence that it acknowledged Mrs Chou's concerns, but it did not agree with her based on the assessment process it had undertaken before moving to the single staffing model. It was MACSEYE's evidence that the new staffing model resulted in a staff/ child ratio at Mrs Chou's site of 1:9 whereas the regulatory requirement is a staff/ child ratio of 1:15.
[16] Mrs Chou says her resignation was also a consequence of the Respondent's handling of multiple workplace issues beyond the transition to a single staffing model, although she did not elaborate on what these were. She says that when she was advised to consider alternative options, her concerns were viewed as an inconvenience rather than a professional responsibility. MACSEYE says that it offered Mrs Chou alternative options to work at other non-single staffed sites, however these options were not acceptable to Mrs Chou.
[17] I accept that MACSEYE did not simply ignore or dismiss Mrs Chou's concerns about the single staffing model and that it did engage with her on various occasions about her concerns. It also offered her alternative options such as moving to a non-single staffed site. Mrs Chou did not avail herself of those options. Mrs Chou felt deeply about the single staffing model and was entitled to her opinion about it. However, she was not being asked to do anything that was against the law or non-compliant with standard practices. It was MACSEYE's evidence that while they acknowledged Mrs Chou's concerns, it did not share her concerns about the single staffing model - which they are entitled to do. Not agreeing with or sharing Mrs Chou's concerns is not conduct by the employer which left her with no choice but to resign.
[18] Mrs Chou also says that she was forced to resign because she was only advised of the show cause meeting on 23 January 2026 and the meeting was scheduled for 27 January 2026. She says this did not give her enough time to prepare. She says she asked for the meeting to be rescheduled but did not get a response from MACSEYE. However, in Mrs Chou's email of 23 January 2026, she provided responses to the matters raised in the show cause letter, which does not support her assertion that she did not have time to prepare. Further, Mrs Chou was first advised over the phone on 19 January 2026 that she would be receiving a show cause letter. I consider that Mrs Chou had sufficient time to prepare for the meeting on 27 January 2026. I do not consider the issuing of the show cause letter (which raised some concerning allegations), and the request for a meeting on 27 January 2026, was conduct which left Mrs Chou with no choice but to resign.
[19] Mrs Chou says that MACSEYE failed to reschedule the show cause meeting and never responded to her request to do so. While I accept that in her email of 23 January 2026, Mrs Chou suggested that 'we find a better time to hold this meeting once MACSEYE's HR and you have read these', she then went on to say that 'I am no longer interested in remaining on your casual roster. I am happy with just terminating my contract as I do not feel safe to be employed at an organisation that attempts personal attacks at its employees rather than addressing their workplace-related concerns in due time.' Based on this, there was no reasonable basis for the meeting to be rescheduled because Mrs Chou had resigned. There is no point entering into a disciplinary process with someone who is no longer an employee.
[20] When objectively viewed, I find Mrs Chou resigned from her employment voluntarily and was not forced to do because of any conduct, or course of conduct engaged in by MACSEYE.
Printed by authority of the Commonwealth Government Printer
Yi-Hsin Chou
Melbourne Archdiocese Catholic Schools Early Years Education Ltd