1
Fair Work Act 2009
s.365—General protections
Beverley Ann McCabe
v
St Vincent de Paul Society Qld
(C2022/7429)
DEPUTY PRESIDENT LAKE BRISBANE, 15 FEBRUARY 2023
Application to deal with contraventions involving dismissal – jurisdictional objection –
resignation – no dismissal found – application dismissed.
[1] Ms Beverley McCabe (the Applicant) lodged an application with the Fair Work
Commission (the Commission) to deal with a general protections dispute involving dismissal
under Part 3-1 of the Fair Work Act 2009 (Cth) (the Act).
[2] The Applicant claimed she was constructively dismissed from her employment with St
Vincent de Paul Society Qld (the Respondent) on 4 November 2022.
[3] The Respondent raised a jurisdictional objection to the application on the basis that the
Applicant was not constructively dismissed, but that she voluntarily resigned on 4 November
2022.
[4] Directions were set for the filing and service of material. The Applicant filed and served
their material at 4:00pm on Friday, 6 January 2023. The Respondent filed and served their
material at 4:00pm on Friday, 13 January 2023. The jurisdictional matter was heard at 11:30am
on Wednesday, 18 January 2023.
[5] Following the jurisdictional hearing, the Applicant and Respondent provided their
closing submissions to the Commission on 6 February 2023.
Preliminary issues
Representation
[6] Both parties sought to be represented. To allow the matter to be dealt with most
efficiently – given the legal question of whether a dismissal occurred – I was satisfied that the
present case is one in which both parties and the Commission would benefit from the assistance
of legal representation to allow for the efficient conduct of the case. Accordingly, both parties
were granted permission to be represented. Ms Jacinta Roberts from BR Solicitors appeared on
[2023] FWC 373
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 373
2
behalf of the Applicant, while Ms Megan Kavanagh of Colin Biggers & Paisley appeared on
behalf of the Respondent.
Filed material
[7] The Applicant provided submissions that the Respondent identified as confidential
client reports which should not be in the control of the Applicant. The Respondent informed
my chambers about the issues with the documents and the Applicant raised issues regarding the
communication.
[8] The Respondent asserts that the Applicant should not have been in possession of these
reports. If the Applicant wished to rely upon the reports, they may have requested them through
an order for production. The Act has provisions to allow for access to documents in the
Respondent’s possession. Further, the Respondent asserts that accepting these reports in
evidence would not be in the best interest of the clients as they contain personal information
which they are obliged to protect under the Privacy Act.
[9] The Applicant asserts that these reports were collected while the Applicant was still
employed by the Respondent in support of a stop bullying order. These reports are now in
possession of the Applicant’s representative and their accessibility is being controlled. Further,
the Applicant asserts that the feedback on the reports is evidence of the adverse action taken
against them.
[10] The Applicant wished to rely on all the reports filed, in which case I proposed that each
of the reports filed by the Applicant can be put to the Respondent, and the Respondent can
determine whether they objected and on what basis. The issue was resolved as the hearing was
focused upon the jurisdictional matter of whether there was a resignation or a dismissal and the
documents in question were found to be of limited probative value.
[11] In the interest of performing the functions of the Commission under s.577 of the Act, I
determined that only the question of whether there was a resignation would be considered. Any
specific information pertaining to the client reports would not be considered and if the
jurisdictional objection is overcome, then the appropriate orders could be made to consider the
reports in evidence.
The Commission’s Jurisdiction
[12] The Commission can deal with applications under s.365 of the Act by way of
conciliation or mediation under s.368.
[13] If the Commission is satisfied that all reasonable attempts to resolve the dispute (other
than arbitration) have been, or are likely to be, unsuccessful, it must issue a certificate under
s.368(3). Section 370 imposes a substantial restriction1 upon applicants by preventing a general
protections court application being made unless the Commission has issued a certificate under
s.368(3)(a) in relation to the dispute.
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[14] The Commission cannot issue a certificate pursuant to s.368(3) of the Act unless “an
application is made under s 365.”2 An application cannot be considered to have been properly
made unless the criteria outlined in s.365 have been properly addressed.3
[15] Section 365 of the Act relevantly states:
365 Application for the FWC to deal with a dismissal dispute
If:
a) a person has been dismissed; and
b) the person, or an industrial association that is entitled to represent the
industrial interests of the person, alleges that the person was dismissed
in contravention of this part
the person, or the industrial association, may apply to the FWC for the FWC to deal
with the dispute.
[16] The Full Court in Coles Supply Chain v Milford4 made the following relevant
observations about the Commission’s capacity to deal with applications under s.365 and
antecedent disputes about dismissal:
a) the Commission’s non-determinative powers to deal with a dispute under s.368 are only
enlivened if an application is properly made under s.365. The proper making of an
application under s.365 is an essential precondition to the Commission’s authority to
perform its functions under s.368 (at [51]).
b) a dispute about whether a person has been dismissed raises an antecedent issue going to
the existence of the Commission’s authority to compel an employer to participate in its
conciliation processes (at [65]).
c) it is open for a respondent to assert that there has been no dismissal, which gives rise to
a dispute on that question that falls to be determined under s.365 (at [67]).
d) that dispute must be resolved before the Commission’s powers under s.368 can be
exercised at all (at [67]).
e) the Commission is entitled to determine the limits of its authority to deal with a dispute
under s.368, although it has no authority to conclusively determine those limits (at [43]).
f) in so determining the limits of its authority the Commission may determine matters of
fact (at [71]).
g) the Federal Court or the Federal Circuit Court has the power to judicially determine
whether a person is entitled to make an application to the Commission (at [74]). The
Act establishes alternative pathways for an applicant and prospective litigant and a court
might decline to recognise an “application” or resulting certificate is valid when
determining an objection to competency of a legal proceeding under s.370 of the Act (at
[75]); and
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h) the determination by the Commission is not authoritative in the sense of being final. If
the Commission errs in determining a question upon which its authority depends, it will
commit jurisdictional error by wrongfully denying that it has the authority to “deal with
the dispute” under s.368 of the Act (at [79]).
“A person who has been dismissed”
[17] The pertinent question for the Commission is whether the Applicant was forced to
resign, in circumstances that constituted constructive dismissal.
[18] “Dismissed” is defined in s.12 of the Act by reference to s.386. Section 386 provides:
386 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.
[19] In Bupa Aged Care Australia Pty Ltd v Tavassoli,5 the Full Bench summarised the
relevant tests under s.386 as follows:
“[47] Having regard to the above authorities and the bifurcation in the definition of
“dismissal” established in s 386(1) of the 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 probable result of the employer’s conduct such that the employee had no effective
[2023] FWC 373
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or real choice but to resign. Unlike the situation in (1), the requisite employer conduct
is the essential element.
[48] It is necessary for an applicant for an unfair dismissal remedy whose employment
has terminated because the employer has acted on a communication of resignation on
the part of the employee to articulate whether they contend they were dismissed in the
first or the second scenario above (although it may be possible for both scenarios to arise
in a particular factual situation). Where the applicant is self-represented or inadequately
represented, it may be necessary for the member of the Commission hearing the matter
to clarify with the applicant the precise basis upon which it is contended that the
applicant was dismissed. If this is not done, it may lead to the wrong test being applied
to the matter.”
Background
[20] The Respondent operates a Family Intervention Service which aids families referred by
the Queensland Child Safety Services.
[21] Prior to employment, the Applicant had completed her degree in social work in 2021.
[22] On 21 June 2021, the Applicant was employed as a Family Intervention Practitioner
(FIP) with the Respondent.
[23] The Applicant’s role required her to attend homes of families where child protection
concerns have been raised as well as write progress reports to Child Safety Queensland.
[24] On 8 August 2022, the Applicant advised the Respondent that she had concerns
regarding the Service Coordinator, Ms Nikkilyn Owen.
[25] On 9 August 2022, Ms Yolanda Mui-Normand (State Manager Community & Family
for the Respondent) met with the Applicant regarding Ms Owen’s alleged conduct during a trip
to Melbourne.
[26] In or around August 2022, Ms Joanne Dennington began assisting the FIP staff. She
provided feedback on departmental reports.
[27] On 21 September 2022, Ms Dennington sent an email to the FIP staff setting out her
process for reviewing reports.
[28] On 26 September 2022, Ms Dennington requested a meeting with the Applicant to
provide feedback on a report she submitted.
[29] On 26 September 2022, the Applicant provided an updated draft to Ms Dennington. She
advised her that she did not make all the requested changes.
[30] On 27 September 2022, the Applicant cancelled the meeting with Ms Dennington,
requesting that feedback be provided in writing.
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[31] On 28 September 2022, Ms Dennington made a further request for a meeting to occur.
[32] On 4 October 2022, the Applicant again refused to meet with Ms Dennington.
[33] On 7 October 2022, Ms Dennington attended the Ipswich office to speak with the
Applicant. At 7:50am, Ms Dennington spoke to the Applicant, in an attempt to organise an
informal discussion that morning regarding the department reporting. The Applicant again
indicated that the feedback be provided in writing. When Ms Dennington advised that it was
more efficient to have a discussion regarding the reporting, the Applicant refused, stating that
she had to attend to a home visit in Lowood. Ms Dennington then offered the Applicant further
meeting options on alternative days. The Applicant responded that she wanted the discussion
to be recorded if it was not to be provided in writing and then left the room.
[34] On 7 October 2022, Ms Mui-Normand sent an email to the Applicant regarding the
report, directing her to finalise the report and provide the amended draft to Ms Dennington by
10 October 2022, which the Applicant failed to provide.
[35] On 20 October 2022, the Applicant sent an email resigning from her position as FIP
Evidence
The Applicant’s case
[36] The Applicant’s submissions can be summarised below.
[37] The Respondent’s actions caused the termination of the Applicant’s employment. The
Applicant relies on the formula established by Mahoney v White6 and Mohebatullah Mohazav
v Dick Smith Electronics Pty Ltd.7 This is, was the termination brought about by the employer
and not agreed to by the employee? Was the action of the employer the principal contributing
factor? And finally, did the act of the employer result directly or consequentially in the
termination of the employee with the employment relationship not voluntarily being left by the
employee?
[38] The Applicant’s duty was to write case reports that are reviewed by a senior team
member. This was primarily conducted by Ms Owen without incident. After the Applicant had
exercised her workplace right, Ms Dennington began her discriminative reviewing of the
Applicant’s case reports. The Applicant could not submit her reports to the Department of Child
Safety in a timely fashion because of these edits. Therefore, the Applicant was unable to
undertake a core duty to her position. This resulted in significant distress for the Applicant.
The Respondent’s case
[39] The Respondent objects to the application on two grounds. Firstly, that the Applicant
was not dismissed from her employment. Secondly, that there has been no adverse action on
the part of the Respondent. Therefore, the Applicant has no jurisdiction to proceed with this
claim.
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[40] The Applicant clearly and unambiguously resigned. This was at her own volition and is
not the consequence of the Respondent’s actions. The resignation was not ‘heat of the moment’
as the Applicant applied for another role and secured the position prior to resignation. She
indicated an intention to work during the last week of her notice period, which makes her
resignation considered and deliberate.
[41] At no time was the Applicant instructed to resign, nor did the Respondent orchestrate
the termination of the Applicant’s employment. The Respondent implemented a new review
process which the Applicant detested. The Applicant conceded that she did not want to change.
Ms Owen and Ms Dennington responded to the Applicant’s concerns, but not in a way she
wanted. The Applicant exercised her choice, in the face of change, to seek alternative
employment and resign.
[42] The Applicant was supplied with unfavourable feedback. The Respondent relies on the
decision Melissa Marie Bruno v Victoria Building Authority.8
[43] The Respondent does not accept that Ms Dennington’s feedback to the Applicant was
at any time inappropriate or victimising in nature. As a newly qualified FIP, the Applicant was
required to take on feedback and make changes to departmental reports, as requested by Ms
Dennington. Nor was the feedback provided or the review of reports by Ms Dennington in
response to the exercise of any workplace right. The decision to ask Ms Dennington to review
reports was in response to Ms Owen’s workload, not any complaint made by the Applicant. The
Respondent does not accept that Ms Owen’s response to the Applicant’s concerns with Ms
Dennington’s feedback were unreasonable. In circumstances, where the responsibility for peer
case reviews had been assigned to Ms Dennington, and the feedback Ms Dennington had
provided to the Applicant was not inappropriate or victimising in nature, Ms Owen’s
recommendation that the Applicant discuss the feedback directly with Ms Dennington was
appropriate.
Consideration
[44] The Applicant asserted that the change in the review process was a deliberate attempt
to get her to resign. Despite the Applicant’s emphatic belief that the Respondent had been acting
in a nefarious manner, I found the Respondent’s witnesses provided cogent and balanced
recollections as to the Applicant’s performance, her errors, and the efforts they had gone to
provide support to the Applicant in her no doubt difficult situation. The Respondent had had
discussions with the Applicant to assist in her performance. However, the Applicant offered her
resignation freely. There was no evidence that the Applicant had no option, rather the Applicant
had options and she elected to resign.
Conclusion
[45] I am not satisfied that the Respondent’s actions left the Applicant no option but to resign.
The Applicant elected to resign. In these circumstances it is clear to me that the Applicant freely
made her choice to resign and the Respondent’s actions preceding the resignation did not leave
resignation as the only option nor the desirable option for the Respondent. I find that there was
no dismissal pursuant to s.386(1)(b).
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[46] The application is therefore dismissed. I Order accordingly.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR750621
1 Ward v St Catherine’s School [2016] FCA 790 at [3].
2 Fair Work Act 2009 (Cth) s 368(1).
3 Coles v Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [64], [67].
4 (2020) 300 IR 146; [2020] FCAFC 152.
5 (2017) 271 IR 245 at 268-9; [2017] FWCFB 3941 at [47]–[48].
6 [2016] FCAFC 160.
7 [1995] IRCA 645.
8 [2022] FWC 166.
THE FAIR WORK MISSION THE SEAL
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc166.htm
