[2023] FWC 1889
The attached document replaces the document previously issued with the above code on 31 July
2023.
The spelling of the surname of Counsel for the Respondent has been amended to the correct
spelling.
Catriona Ellisdon
Associate to Deputy President O’Keeffe
Dated 7 August 2023.
1
Fair Work Act 2009
s.365—General protections
Cassandra Tovey
v
The Trustee For Tillbrook Melaleuka Group Hospitality Trust
(C2023/1646)
DEPUTY PRESIDENT O’KEEFFE PERTH, 31 JULY 2023
Jurisdictional Objection employee not dismissed within the meaning of the Fair Work Act –
employee not forced to resign – application dismissed.
[1] Cassandra Tovey (the Applicant) made an application to the Fair Work Commission
(FWC) under s.365 of the Fair Work Act 2009 (Cth) (FW Act), alleging that she had been
dismissed from her employment with Tillbrook Melaleuka Group (the Respondent) in breach
of sections 340, 343, 344, 351 and 352 of the FW Act.
[2] The Respondent has objected to the application on the grounds that the Applicant
resigned her employment and was thus not dismissed within the meaning of the FW Act.
[3] As stated recently by the Full Bench in Lipa Pharmaceuticals v Mariam Jarouche:
“Where the respondent to a s 365 application contends, in its response to the application
or otherwise, that the application was not validly made because the applicant was not
dismissed, this must be determined prior to the Commission ‘dealing’ with the dispute
under s 368 including by conducting a conciliation conference.1”
[4] As such, the matter was set down for hearing on 6 July 2023 to determine the
jurisdictional issue. The matter was part heard on that day and then adjourned, with the
remainder of the hearing conducted on 18 July 2023.
Permission to appear
[5] The Respondent sought leave to be represented at the hearing.
[6] The Applicant made no submissions on the issue of the Respondent being represented.
In its submissions, the Respondent drew my attention to case precedent supporting the
proposition that in matters involving jurisdictional objections and particularly objections over
whether or not there has been a dismissal, there will be issues of such complexity that it would
be appropriate to allow representation. I accepted that this was true of the present case and
exercised my discretion to allow the Respondent to be represented.
[2023] FWC 1889
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1889
2
Witnesses
[7] The Applicant gave evidence on her own behalf.
[8] Ms Jaime Mills and Ms Louise Day gave evidence on behalf of the Respondent.
Submissions
[9] The Respondent filed submissions in the FWC on 19 June 2023. The Applicant filed
submissions in the FWC on 26 June 2023.
[10] The Respondent filed submissions in reply on 3 July 2023.
Background
[11] The Applicant was engaged by the Respondent as a Shift Supervisor at The Wellard
Tavern in Wellard, Western Australia.
[12] On 10 February 2023 Jaime Mills, the Respondent’s Hospitality Operations
Administrator, was advised that there had been some suspicious variances in cash balances of
banking envelopes. As these variances were not consistent with ordinary variances and were
occurring in envelopes that had already been reconciled twice, Ms Mills commenced an
investigation.
[13] As part of this investigation, on 22 February 2023 she viewed, along with the Group
Operations Manager – People and Process Louise Day, CCTV footage of the office where cash
was stored and counted, to try to determine the cause of a variation that was identified on 21
February 2023. As a result of viewing this footage, she formed the view that the Applicant was
a potential cause of the variation.
[14] Having formed this view, Ms Mills then viewed CCTV footage for 14 February 2023 to
try to find the cause of a further variance. After viewing that footage, she formed the view that
the Applicant was also potentially the cause of that variance.
[15] On 27 February 2023 Ms Day issued a letter to the Applicant, advising her that she was
being suspended with pay pending the outcome of an investigation into alleged theft of funds
and directing her to attend a meeting on 28 February 2023.
[16] On 28 February 2023 the Applicant attended this meeting with Ms Day and Hospitality
Operations Manager Vince Torsiello to discuss the allegations against her. Ms Day put a series
of allegations to the Applicant regarding timekeeping, and allegations about the two incidents
which had been viewed by her and Ms Mills on CCTV.
[17] The Applicant denied all of the allegations against her.
[18] Later that day, Ms Day sent the Applicant a record by email of their discussions entitled
“Record of Interview” to review and sign. On 1 March 2023 the Applicant advised Ms Day by
[2023] FWC 1889
3
email that she had not signed the Record of Interview but that the process had upset her and she
was intending to resign. On 2 March 2023 the Applicant sent Ms Day a further email which
advised that she was resigning her employment.
[19] On 23 March 2023 the Applicant applied to the FWC alleging she had been dismissed
in breach of sections 340, 343, 344, 351 and 352 of the FW Act.
Submissions and Evidence
[20] The Respondent submitted that the Applicant had clearly resigned her employment. The
evidence from the witnesses for the Respondent was that once the Respondent had been made
aware of the concerns regarding the Applicant’s actions, it engaged in a structured and fair
process to address those concerns and had at all times afforded procedural fairness to the
Applicant. Copies of relevant letters and emails to the Applicant, along with meeting notes
from the discussion on 28 February 2023 and the relevant CCTV footage were tendered into
evidence to support the Respondent’s contentions about procedural fairness.
[21] The Respondent submitted that in considering the issue, I should be mindful of the
findings in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli
when considering the type of resignation tendered by the Applicant. In that case, the Full Bench
noted as follows:
“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 probably [sic] 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.2”
[2023] FWC 1889
4
[22] The Respondent submitted that the Applicant’s resignation should be considered to be
analogous to the situation outlined in paragraph (2) of Bupa as above, on the basis that it was
not given in the heat of the moment and no attempt has been made to retract it. As such, it was
contended that the FWC needed to look at the actions of the Respondent to see if they were
such that the Applicant had no other choice other than to resign.
[23] The Respondent noted a number of cases that supported the proposition that an employer
engaging in a reasonable investigation into alleged misbehaviour could not be taken as forcing
an employee to resign. In Moore v Woolworths Group Limited T/A Big W3, Deputy President
Lake stated that “it would be a perverse outcome to consider an objectively fair investigation
and show cause process as imposing forcibly upon the Applicant that they must resign”. Deputy
President Lake further noted, in Becker v Greater Bank Limited as follows:
“The usual purpose of an investigation is not, of itself, to bring about termination. Rather,
the intention is to ascertain, with a degree of certainty, what event – or series of events
– transpired and, if relevant, their cause. Once that information is gathered and
conclusions drawn, the employer can decide what action is appropriate.4”
[24] The Respondent also cited the decision of Deputy President Lake in the Becker case,
noting that the employer’s jurisdictional objection had been upheld, with the FWC finding that
the Applicant had voluntarily resigned:
“That said, it seems that at some point during the meeting, the Applicant came to the view
that her employment was at risk. She had been confronted by numerous new allegations
regarding her poor performance and reminded of the two previous occasions when
similar concerns had been raised. Faced with these mounting matters, it seems that the
Applicant made the decision to resign from her employment, perhaps – rightly or
wrongly – in anticipation of the potential termination of her employment. I do not,
however, accept that was the only opportunity available to her. Had she not resigned,
but instead responded to the show cause notice and allowed an investigation to be
conducted into the branch manager’s conduct (as the Respondent had done in 2019),
her employment may not have been terminated. Or it may have. Either way, resigning
was not the only option available to the Applicant at the meeting on 1 June 2021. Nor,
on any reasonable view, did the Respondent’s conduct force the Applicant to resign.5”
[25] Finally, in addressing the insinuation in the Applicant’s resignation email dated 2 March
2023 about being bullied, the Respondent submitted that if indeed the Applicant had been
bullied, she had options to deal with this without resigning. In support of this, the Respondent
noted the decisions of Deputy President Asbury in O’Keefe v Ramsay Health Care6 and
Commissioner Riordan in Lloyd v PD Curran Plumbing7.
[26] In assessing the Applicant’s submissions and evidence, I am mindful that she was
unrepresented and unlikely to be cognisant of the relevant case law or conventions for witness
statements and submissions. As such, I have made some allowance for the manner in which
the Applicant’s submissions and evidence were presented. At hearing, Ms Lakhia for the
Respondent sought permission, which was granted, to draw my attention to those parts of the
Applicant’s submissions that were in fact evidence and those parts which were submissions and
I have been mindful of those distinctions.
[2023] FWC 1889
5
[27] The Applicant at all times maintained that she had not engaged in the alleged theft of
monies. She contended that the allegations against her were false and as such, the actions of
the Respondent were both unlawful and discriminatory.
[28] The Applicant claimed in her defence that she had not been present at the Respondent’s
premises on one of the occasions, being 19 February 2023 where money was alleged to have
gone missing. However, in evidence the Respondent explained that the monies from 19
February 2023 had been actually checked on 20 February 2023 and found to be correct and it
was later on this date, a date on which the Applicant did work, when the funds went missing.
[29] It was the Applicant’s submission that her suspension pending an investigation was
unfair, in that she claimed that the Respondent did not provide sufficient evidence of any
wrongdoing on her part. She further contended that, as other managers were not questioned
about cash variances, that she had been discriminated against by the Respondent. On the issue
of what the Applicant contended was “discrimination”, the evidence given by both witnesses
for the Respondent was that all managers had, in effect, been investigated. Their evidence,
which I accept, was that they viewed CCTV footage of all managers who had worked on the
relevant days and the only activity they viewed as suspicious was that engaged in by the
Applicant.
[30] In terms of the actual conduct of the investigation interview, the Applicant contended
that the representative of the Respondent, Ms Day, was hostile and made what the Applicant
described as “unwarranted demands with menaces”. Under cross-examination, the Applicant
conceded that the nature of the unwarranted demands with menaces was to repeat certain
questions and then ask follow up questions with what she deemed was the intention of eliciting
a desired response. While this form of questioning would have been at the very least unwise if
it constituted badgering the Applicant, I am not persuaded that it was in fact of that nature.
[31] The final issue canvassed was the Applicant’s claim regarding bullying. It was the
Respondent’s position that if bullying was part of the reason that the Applicant resigned, then
the Applicant had options other than resignation. Under cross-examination, Ms Lakhia for the
Respondent attempted to elicit from the Applicant a concession that her claims of bullying could
have been pursued further, potentially as far as the FWC, even in light of the situation in which
the Applicant found herself regarding the alleged theft. While the Applicant did finally concede
to Ms Lakhia’s line of questioning, I found that line to be of little value as it was clear that any
such option was theoretical rather than practical. In any case, it was clear by the end of cross
examination that the chief motivation for the Applicant’s decision to resign was the situation
regarding the alleged theft rather than any bullying issues which allegedly took place prior to
the investigation of theft.
Consideration
[32] The task for the FWC is not to determine whether or not the Applicant is guilty of the
theft as alleged by the Respondent. The task is instead, consistent with paragraph two of the
decision in Bupa referenced earlier, to determine if the conduct engaged in by the Respondent
was so repugnant that the Applicant had no real alternative other than to resign her employment.
[2023] FWC 1889
6
[33] Based on the evidence, the process engaged in by the Respondent to investigate the
Applicant once it had formed the view that she was a potential cause of the missing funds was
initially procedurally sound. The Applicant was advised in writing of the allegations against
her, given time to prepare herself, encouraged to utilise the Respondent’s employee assistance
program and invited to bring a support person to the investigation meeting.
[34] I do not find that the standing down of the Applicant with pay by the Respondent as part
of that process was improper. The standing down of employees with pay is not unusual where
an employer is investigating conduct that may meet the standard of serious misconduct allowing
summary termination. Although the Applicant submitted that the Respondent did not have
sufficient evidence to suspend her, I find that the evidence submitted in the form of CCTV
footage was sufficient to create some level of concern in an environment where money was
going missing and no other managers had been observed acting in a suspicious manner.
[35] At the investigation meeting, the Applicant was asked to provide responses to various
questions regarding timekeeping and the alleged theft of funds. Her responses were recorded
by the Respondent and the Respondent then provided her with its record of interview for her
consideration and potential amendment. Having done so, the Respondent then took time to
consider the Applicant’s answers and determine a course of action. Initially, the Respondent
had intended to communicate the outcome to the Applicant on Friday 3 March 2023, but advised
her that there would be a delay.
[36] The Applicant sought to characterise this delay as unreasonable, as it had extended a
period which, for her, was one of significant anxiety. I do not accept that this is the case. While
I do not wish to downplay the anxiety that Ms Tovey no doubt did experience, the decision to
terminate a person’s employment, particularly for theft, is one that deserves serious
consideration. As such a delay, while undesirable from one perspective, may be important
when viewed from another.
[37] In and of themselves, the actions of the Respondent appear to be broadly consistent with
contemporary expectations about the handling of sensitive investigations into potential
misconduct by an employee. However, I must express a level of disquiet over the failure of the
Respondent to show the CCTV footage to the Applicant. In her evidence, Ms Day conceded
that she would have shown the footage if the Applicant had asked to see it. Ms Day was a very
credible witness who gave straightforward responses and I accept that she would indeed have
done so. In cross examination, Ms Lakhia for the Respondent drew a concession from the
Applicant that she could have made such a request during the investigation meeting but did not
do so.
[38] Nevertheless, I believe the responsibility lay with the Respondent to give the Applicant
every chance to defend herself and this should have included showing her the footage that the
Respondent says indicated her guilt. It is understandable that the Applicant, who was in a state
of high anxiety, unrepresented and clearly had little if any experience of the sort of investigation
being conducted, did not think to ask for the footage. The Applicant was not only facing
possible termination of her employment, but an uncertain future should she be found guilty,
albeit on balance of probability, of theft. Clearly this would impact on her future prospects of
employment and I accept that her inexperience and level of worry was such that she could not
[2023] FWC 1889
7
be expected to make a dispassionate assessment of the process and determine that procedural
fairness would be better served by her viewing the relevant footage.
[39] The Applicant submitted that had she been shown the footage she could have presented
a better defence of herself. I believe that this is likely to have been the case. There were a
number of occasions during the hearing where the Applicant was able to draw attention to
various factors in the footage that, if raised with the Respondent during the investigation
meeting, would in my view have warranted further consideration.
[40] For example, under cross-examination the Applicant was asked by Ms Lakhia to explain
the motions she was seen to be making in a particular part of the CCTV footage shown to the
court. The Applicant responded that she may have been scratching herself. I found this answer
to be sufficiently plausible, based on the CCTV footage, to warrant further investigation and
questioning.
[41] In another video, the Applicant is seen shuffling through some envelopes. The
Applicant asked Ms Day in cross examination which particular envelopes they were, pointing
out that they could have been envelopes containing vouchers as opposed to cash. Ms Day was
unable to accurately identify the envelopes but maintained there were banking envelopes in the
safe. The Applicant drew the concession from Ms Day that there would only have been three
days of banking – however, there were clearly at least eight envelopes in the pile and Ms Day
conceded that they could have been voucher envelopes.
[42] On another occasion during the hearing, the Applicant drew the Respondent’s attention
to the fact that during a period where the Respondent alleges she was removing cash, the office
door was wide open meaning anyone could have walked in. The Respondent also alleges that
some of the movements seen on the CCTV footage suggested the Applicant was deliberately
concealing her actions from the camera, the location of which the Applicant conceded she was
aware. However, on another occasion, where the Respondent alleges the Applicant was placing
stolen money in her handbag, she undertook that particular action in full view of the camera.
[43] None of the observations above are intended to comment on the Applicant’s guilt or
otherwise. Nor are any of them - of themselves or collectively - definitive proof one way or
another. Notwithstanding this, I find that a reasonable person would have made further
investigations if those responses had been made during the investigation.
[44] I am also concerned about the evidence of the Applicant, which was unchallenged by
the Respondent, that cash discrepancies had been occurring prior to this time, during a period
where the Applicant had been on annual leave yet no investigation was undertaken of these
variances. It may be that such an investigation may well have identified a common thread
amongst all of the discrepancies that did not involve the Applicant.
[45] It is not my contention that the Respondent’s officers were in any way malicious in the
way they conducted themselves, nor do I think their competency ought be questioned. I am of
the view that they were doing the best they could in a situation that was no doubt very difficult
and uncomfortable, in that they were accusing a colleague of theft. However, in situations
where an employer is investigating an employee on suspicion of committing a criminal act,
where a guilty finding will have significant impact on the employee’s immediate circumstances
[2023] FWC 1889
8
and future, the employer should ensure that they have given the employee every possible chance
to exonerate themselves. That is not to suggest that the employer ought engage in a level of
forensic investigation that would yield a conclusion that would stand up to a “beyond reasonable
doubt” standard of proof. However, in this instance, if Ms Tovey is indeed innocent, then being
asked to defend herself against allegations about her actions derived from CCTV footage that
she had not seen and had no chance to explain would have been a deeply distressing experience.
Conclusion
[46] In the first instance, I note that the second paragraph of Bupa as cited above
contemplates two types of forced resignation. The first is where the employer is deliberately
acting in such a way as to secure a resignation. The other is where the actions of the employer,
though not intended to secure a resignation, are nonetheless of such a nature that the employee
is forced to resign. In this case, I find no suggestion that the actions of the Respondent could
be said to fall into the former category. As such, it is to the latter category that I turn my
attention.
[47] In making my decision in this matter, I find that the cases referred to by the Respondent
in its submissions should be given significant weight. I am also mindful of the view expressed
in a decision of a Full Bench in ABB Engineering Construction Pty Ltd v Doumit, cited in
O’Meara v Stanley Works Pty Ltd:
“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.8”
[48] It is no doubt the case that employees facing potential disciplinary action will usually
feel uncomfortable. Where they are suspended and being investigated for theft, this discomfort
will be significantly magnified. I have no doubt that Ms Tovey was distressed that she was
being investigated for theft. It would be highly unusual for this not to have been the case.
However, if it were to be found that because being investigated for theft is distressing an
[2023] FWC 1889
9
employee is therefore entitled to claim forced resignation, this would, in my view, fall foul of
the notion, set out above, of ensuring that termination of employment at the initiative of the
employer is not too readily invoked where the discretion of the employee is actually the cause.
As such, it is important to exercise caution.
[49] It is my view that if an employer did conduct an investigation into possible theft in a
manner that was devoid of any procedural fairness, then that behaviour could well be such that
it could be said to force a resignation. While as expressed above I do have some disquiet about
certain elements of the process engaged in by the Respondent, I am not persuaded that, when
viewed as a whole, it could be said that the investigation was behaviour of such a nature that
the Applicant was forced to resign. I therefore find that the Applicant was not dismissed within
the meaning of the FW Act. Her application is thus dismissed for want of jurisdiction and an
order to that effect will issue.
DEPUTY PRESIDENT
Appearances:
C Tovey, Applicant.
A Lakhia of Counsel for the Respondent.
Hearing details:
2023.
Perth (via Microsoft Teams):
July 6, 18.
Printed by authority of the Commonwealth Government Printer
PR764752
1 Lipa Pharmaceuticals v Mariam Jarouche 2023 FWCFB 101 [23].
2 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [47].
3 Moore v Woolworths Group Limited T/A Big W [2020] FWC 963 at [29].
4 Becker v Greater Bank Limited [2021] FWC 5063 at [31].
5 Ibid, [36].
6 Celia O'Keefe v Ramsay Health Care Australia Pty Limited [2021] FWC 4796 at [151].
7 Lloyd v PD Curran Plumbing Pty Ltd [2022] FWC 71 at [34].
8 O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (PR973462); ABB Engineering Construction Pty Ltd v Doumit Print
N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
TE FAIR WORLE SOMECCION
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc963.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc5063.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc4796.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr973462.htm
