1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Alys Lloyd
v
P D Curran Plumbing Pty. Limited
(U2021/8418)
COMMISSIONER RIORDAN SYDNEY, 11 FEBRUARY 2022
Application for an unfair dismissal remedy
[1] On 16 September 2021, Ms Alys Lloyd (the Applicant) filed with the Fair Work
Commission (the Commission) an application (the Application) for a remedy for an alleged
unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the Act). The Applicant
alleged that she was constructively dismissed from her employment by P D Curran Plumbing
Pty. Limited (the Respondent) on 25 August 2021.
[2] In its Form F3 Employer Response to the Application, the Respondent raised a
jurisdictional objection on the basis that the Applicant resigned from her employment and was
not dismissed at the initiative of the Employer.
[3] The parties attended a number of conferences in this matter, however the matter was
unable to be resolved.
[4] Directions were issued and the parties filed materials addressing the jurisdictional
objection. The matter was listed for Hearing via Microsoft Teams on 17 December 2021. At
the Hearing the Applicant was represented by Mr Matthew Lynch of Gorval Lynch and the
Respondent was represented by Mr Andrew Bland of BlandsLaw. The parties were granted
leave to be represented pursuant to s.596(2) of the Act.
Background
[5] The Applicant maintained that she was unfairly dismissed within the meaning of s.385
of the Act and sought an order of compensation for loss of wages. The Respondent’s position
was that the Application should be dismissed on jurisdictional grounds.
[6] This decision deals only with the Respondent’s jurisdictional objection.
Legal principles – forced resignation
[7] The term ‘dismissed’ is defined in section 386 of the Act as follows:
[2022] FWC 71
DECISION
AUSTRALIA FairWork Commission
[2022] FWC 71
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“Meaning of dismissed
(1) 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.
(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
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(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
(c) the person was demoted in employment but:
(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.”
(My emphasis)
Applicant’s Submissions
[8] The Applicant submitted that she was constructively dismissed by the Respondent on
25 August 2021. In summary terms, the Applicant stated the pertinent facts are as follows:
a. On 16 March 2020, the Applicant commenced employment with the Respondent in the
full-time position of Customer Service Representative.
b. In July 2021, due to the effects of NSW’s Covid-19 Lockdown and a necessary change
in its Senior Management, the Respondent implemented changes to its management
hierarchy. Following such changes, the Applicant alleges she was subjected to repeated
instances of bullying and harassment by her new supervisors.
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c. The Applicant attempted to raise her concerns to management of the Respondent on
repeated occasions between July 2021 and August 2021. The Respondent failed to
address or investigate the Applicant’s concerns.
d. On 25 August 2021, the Applicant was forced to resign from her employment due to the
ongoing effects of the bullying and harassment and the Respondent’s inaction.
[9] The Applicant cited the decision in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged
Care Mosman v Shahin Tavassoli,1 which provides commentary on section 386(1)(b) of the Act
as follows:
“[47] 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 brining 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 real or
effective choice but to resign. Unlike the situation in (1), the requisite employer conduct
is the essential element.”
[10] The Applicant submitted that in determining whether the Respondent’s conduct left the
Applicant with “no effective or real choice but to resign”, the decision in Boulic v Robot
Building Supplies2 relevantly held:
“[16] From the many authorities on this subject it appears that there must be a “critical
action” or “critical actions” of the employer which was intended to bring the
“employment relationship” to an end and perhaps action which would on any
reasonable view probably have that effect. In identifying both the critical action of the
employer and its intent “it is a matter of objectively looking at the employer’s conduct
as a whole and determining whether its effect, judged reasonably and sensibly, is such
that the employee cannot be expected to put up with it” The examination of the
employer’s conduct must also take into account that the employer is under an implied
obligation that it “will not without reasonable and proper cause, conduct itself in a
manner calculated or likely to destroy or seriously damage the relationship of
confidence and trust between employer and employee”.
[11] The Applicant submitted that whilst the onus is on her to demonstrate that she did not
resign from her employment voluntarily, the onus “does not impose a burden of proof…to
establish that there was absolutely no alternative to the resignation.”3
[12] Further, the Applicant relied on the decision in Ravi Sathananthan v BT Financial
Group Pty Limited4 as outlining the relevant legal principles in determining whether a dismissal
was at the initiative of an employer:
“• The question as to whether the resignation was forced within the meaning of the FW
Act is a jurisdictional fact that must be established by the applicant;
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• A termination at the initiative of the employer involves the conduct (or course of
conduct) engaged in by the employer as the principal constituting factor leading to the
termination;
• The employer must have engaged in some conduct that intended to bring the
employment relationship to an end or had that probable result;
• Conduct includes an omission;
• 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;
and
• In determining the question of whether the termination was at the initiative of the
employer, an objective analysis of the employer’s conduct is required.”
[13] The Applicant submitted that on an objective view of the evidence, between July 2021
and August 2021 the Respondent engaged in conduct or a course of conduct that intended to
bring the employment relationship to an end or had the probable result of bringing the
relationship to an end, including:
a. Mr Sid Curran, General Manager, stating to a new employee, Mr Tom Baker, who
was being inducted by the Applicant, words to the effect of, “You need to crack the
whip at her,” in the presence of the Applicant.
b. Ms Samantha Carrol repeatedly calling the Applicant a “child.”
c. Mr Jack Rhienberger and Ms Carrol insisting the Applicant had been seen vaping in
the office and not wearing a mask, despite the Applicant’s denial, and initiating
disciplinary proceedings against her unreasonably.
d. Mr Carrol raising her voice aggressively at the Applicant and stating words to the
effect of “Alys you’re a fucking liar, you’re a f**king child and speak nothing but
fucking bullshit”.
e. Mr Stewart saying to the Applicant words to the effect of “Now that you’re off the
phone you can go back to being your bogan self”.
f. Mr Stewart emotionally abusing the Applicant via gaslighting, in particular,
pretending Mr Stewart did not understand what the Applicant was talking about in
relation to a complimentary tap replacement for a customer.
g. The Respondent initiating disciplinary proceedings against the Applicant
unreasonably, for conduct that did not occur, including the Applicant allegedly
swearing.
[14] The Applicant submitted that at the time she communicated her resignation to the
Respondent on 25 August 2021:
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a. The Applicant had been the subject of bullying and harassment at the hands of
management, namely Ms Samantha Carrol, Mr Jack Rheinberger and Mr Alan
Stewart since July 2021;
b. The repeated bullying and harassment of the Applicant was known and
acknowledged by other employees of the Respondent, including Ms Rosemaree
Matheson;5
c. The Applicant had raised and/or attempted to raise legitimate complaints regarding
the repeated bullying and harassment on:
i. 16 July 2021 to Mr Curran;6
ii. 19 July 2021 to Mr Curran;7
iii. 30 July 2021 to Ms Judy Barker;8
iv. 30 July 2021 to Mr Curran;9
v. 2 August 2021 to Ms Samantha Carrol;10
vi. 4 August 2021 to Ms Barker;11
d. Despite the Applicant’s repeated attempts to notify the Respondent of the bullying
and harassment, the Respondent provided no indication to the Applicant that it
recognised or intended to deal with those complaints;
e. At the time of resignation, the Applicant had been the subject of two separate and
baseless disciplinary investigations by the Respondent.12 Such investigations were
actioned and investigated by the Respondent and its HR team in an efficient manner,
yet when the Applicant attempted to lodge bullying and harassment complaints,
there was no similar acknowledgement or investigation into such allegations;
f. The Respondent failed, neglected, or refused to investigate the Applicant’s
complaints;
g. The Applicant consistently indicated at the time of resignation that she was
providing her resignation involuntarily, and because of to the ongoing bullying and
repeated failures of the Respondent to remedy her complaints.13
[15] The Applicant submitted that the Respondent’s failure to investigate her legitimate
concerns is an omission on the part of the Respondent and is a factor relevant when assessing
whether the Applicant had any real or effective choice but to resign.
[16] The Applicant submitted that she attempted to remedy her concerns with the Respondent
on 26 August 2021 and “clearly indicated to Mr Curran that she would be willing to continue
her employment if her complaints were investigated”.14 The Applicant submitted that this
weighs in favour of a finding that she did not voluntarily resign from her employment. The
Applicant submitted that if she had, she would not have expressed a “keen willingness” to return
to work for the Respondent.
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[17] The Applicant submitted that she had no intention to voluntarily resign from her
employment in circumstances where she had not secured alternative employment, and further
submitted that she is a single mother responsible for supporting her young children.15
[18] The Applicant submitted that for the above reasons, the Commission ought to find that
she had no effective or real choice but to resign from her employment due to the course of
conduct engaged in by the Respondent between July 2021 and August 2021. The Applicant
submitted that the Respondent’s jurisdictional objection must therefore be dismissed.
Respondent’s Submissions
[19] The Respondent contended that the Application should fail on jurisdictional grounds
because the Applicant resigned from her employment of her own volition and was not dismissed
at the Respondent’s initiative. The Respondent submitted that the Applicant was not ‘dismissed’
within the meaning of s.386 of the Act, therefore she was not unfairly dismissed within the
meaning of s.385 of the Act.
[20] The Respondent provided a brief chronology of relevant events as follows:
On or about 3 August 2021, following allegations of inappropriate conduct, the
Applicant was provided with a written warning letter.16
On 25 August 2021, the Applicant was provided with a notice requiring her to attend a
meeting the following day regarding further allegations of inappropriate conduct.
On 25 August 2021, shortly after receiving the notice requiring her to attend a meeting
the following day, the Applicant typed out and signed her resignation letter, handing it
to the Respondent stating, “I’ve had enough I’m out”.
[21] The Respondent submitted that it was entitled to treat a clear and unambiguous
resignation letter as the Applicant’s resignation.17
[22] The Respondent noted that the onus is on the Applicant to prove that the Respondent
forced her to resign and that the resignation was not voluntary.18 However, the Respondent
relied on its evidence in these proceedings as demonstrating that no undue or unreasonable
pressure was placed on the Applicant. The Respondent submitted that the Applicant’s evidence
is contradicted by the Respondent’s witness evidence, which is also corroborated by direct
documentary evidence.
[23] The Respondent submitted that the Applicant was not singled out or treated differently.
Mr Curran testified that another employee also received a written warning for the same conduct
as the Applicant.
[24] The Respondent submitted that contrary to the Applicant’s claim, the evidence
demonstrates that in response to performance concerns, having been legitimately and fairly
expressed, the Applicant chose to resign her employment rather than deal with those issues.
[2022] FWC 71
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[25] The Respondent further submitted that the Applicant’s claims of bulling, harassment,
and like conduct cannot be accepted. The Respondent submitted that it did not fail to investigate
the Applicant’s claims; it noted that on the evidence, Mr Curran had offered to look into the
matters raised by the Applicant.19
[26] The Respondent maintained that the termination of the Applicant’s employment was at
the Applicant’s own, voluntary initiative. The Respondent submitted that the Applicant’s
employment was not terminated nor was the Applicant forced to resign, therefore the
Commission does not have jurisdiction and the Application must be dismissed.
Consideration
[27] I have taken into account all of the submissions that have been provided by the parties
and I have attached the appropriate weight to the evidence of the witnesses. The fact that an
issue is not mentioned in this decision does not mean that it has not been taken into account.
[28] A person cannot bring an unfair dismissal application under s.394 of the Act unless the
person has been ‘dismissed’. Section 386(1) states that a person has been dismissed if the
person’s employment was terminated ‘on the employer’s initiative’ (s 386(1)(a)) or 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’ (s 386(1)(b)).
[29] It is not in contention that the Applicant resigned from her employment with the
Respondent (albeit the Applicant asserts that she was forced to do so). In these circumstances,
my determination in this matter is based upon whether the Applicant was dismissed within the
meaning of s.386(1)(b) of the Act.
[30] The case of Mohazab v Dick Smith Electronics (No 2)20 is a foundational case in
determining what is classified as a ‘forced resignation’. There it was stated:
“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.”
[31] In Bupa v Tavassoli, the Full Bench helpfully expounded on Mohazab in the following
terms:
“[31] The approach taken in Mohazab that a termination of employment at the initiative
of the employer could be constituted by a “forced” resignation was followed in
numerous decisions made in respect of the various iterations of the termination of
employment scheme in the Workplace Relations Act 1996. These decisions most notably
include Rheinberger v Huxley Marketing Pty Limited and O’Meara v Stanley Works Pty
Ltd. In the former decision, the Industrial Relations Court (Moore J) referred to
Mohazab and said:
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“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 the 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 the 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 employer’s conduct.”
[32] In the latter decision a Full Bench of the Australian Industrial Relations
Commission said:
“[23] ... 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 as they may not give full weight to the decision in Mohazab.
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.”
[33] Notwithstanding that it was clearly established, prior to the enactment of the FW
Act, that a “forced” resignation could constitute a termination of employment at the
initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way
that retained the “termination at the initiative of the employer” formulation but
separately provided for forced resignation. This was discussed in the Explanatory
Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be
dismissed. A person is dismissed if the person’s employment with his or her
employer was terminated on the employer’s initiative. This is intended to capture
case law relating to the meaning of ‘termination at the initiative of the employer’
(see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they
resigned from their employment but were forced to do so because of conduct,
or a course of conduct, engaged in by their employer. Conduct includes both
an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of
constructive dismissal, and allow for a finding that an employee was dismissed
in the following situations:
• where the employee is effectively instructed to resign by the employer
in the face of a threatened or impending dismissal; or
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• where the employee quits their job in response to conduct by the
employer which gives them no reasonable choice but to resign.”
(My emphasis)
[32] Mr Reinberger has been the Service Manager for 12 months. He testified that “the
Applicant performed some of her work very well, whilst some of it was not so good”. Mr
Reinberger claimed the Applicant could, at times, be a difficult employee to manage. In saying
that, Mr Reinberger did not want the Applicant to resign but to take notice of her warning and
improve her performance. I regard Mr Reinberger to be a witness of credit. I have taken this
into account.
[33] It is obvious that the Applicant preferred to be supervised by Mr Curran. Clearly they
were friends. However, Mr Curran was promoted to run the family business. The Applicant’s
new managers did not have the same relationship with the Applicant. The Applicant’s work
performance may have slipped or her new managers may have expected more in her
performance. The Applicant’s manager is allowed to set his own benchmark, as long as it is not
unreasonable. I have taken this into account.
[34] I accept that the Respondent may not have dealt with the complaints by the Applicant
in an expeditious manner. However, if the Applicant believed that she was being bullied and
that her complaints were being ignored, I am satisfied that the Applicant could have made a
stop bullying application to the Commission.
[35] The Applicant is clearly an intelligent young woman, with an effervescent personality.
However, what is evident from the proceeding, is that the Applicant struggles when she is
criticised or disciplined, even when these actions are undertaken in a constructive manner. I
have taken this into account.
[36] Relevantly, the Applicant offered to withdraw her resignation and return to work under
the supervising structure that was in existence. This offer by the Applicant was rejected by the
Respondent. I have taken this into account.
Conclusion
[37] I am satisfied and find that resignation was not the only option available to the
Applicant. The actions of the Respondent in issuing a warning to the Applicant and a colleague
and asking her to attend an investigative meeting for another issue are not actions which fall
within the context of deliberate actions by an employer directed at ensuring the outcome of the
Applicant’s resignation.
[38] The Respondent was simply adopting reasonable management action to ensure that its
employees operated in accordance with the Respondent’s policies, including treating each other
with respect.
[39] I find that the Applicant resigned from her employment of her own accord.
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[40] I find that the Applicant was not forced to resign because of the conduct of the
Respondent, nor was she dismissed at the initiative of the Respondent.
[41] The Respondent’s jurisdictional objection is upheld and the Application for unfair
dismissal remedy is therefore dismissed.
[42] I so Order.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR737550
1 [2017] FWCFB 3941.
2 [2010] FWA 6905.
3 Marcia Doyle v Department of Justice 2008 AIRC 350 at [88].
4 [2019] FWC 5583 at [82].
5 Statement of Rosemaree Matheson dated 28 October 2021.
6 Statement of Alys Lloyd affirmed 18 November 2021 at [15].
7 Ibid at [16].
8 Ibid at [23]-[25].
9 Ibid at [26].
10 Ibid at [29].
11 Ibid at [31].
12 Ibid at [17] to [22], [30].
13 Ibid at [38] to [43].
14 Ibid at [44] to [50].
15 Applicant’s Form F2 Application dated 16 September 2021 at [58].
16 Annexure B to the Statement of Mr Sid Curran.
17 Ngo v Link Printing Pty Ltd (1999) 94 IR 375.
18 Australian Hearing v Peary (2009) 185 IR 359.
19 See Statement of Mr Sid Curran at [38].
20 (1995) 62 IR 200.
