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Fair Work Act 2009
s.365—General protections
Jack Paisley
v
Western Highway Investments Pty Ltd
(C2023/3008)
DEPUTY PRESIDENT COLMAN MELBOURNE, 24 AUGUST 2023
Section 365 application – resignation – resignation not forced – application dismissed
[1] Mr Jack Paisley has made an application under s 365 of the Fair Work Act 2009 (Act)
for the Commission to deal with a general protections dispute involving an alleged dismissal.
He contends that Western Highway Investments Pty Ltd (company) contravened various
provisions of Part 3-1 of the Act by dismissing him for proscribed reasons. The company objects
to the application on the basis that Mr Paisley freely resigned. Mr Paisley contends that he was
forced to resign, and was therefore dismissed within the meaning of s 386(1)(b) of the Act.
[2] Section 365 states that if a person has been dismissed and alleges that the dismissal was
in contravention of Part 3-1, the person may apply to the Commission to ‘deal with the dispute’.
Generally speaking, the Commission does not have a determinative function in relation to
applications made under s 365. It will conduct a conciliation conference and, if satisfied that all
reasonable attempts to resolve the matter have been or are likely to be unsuccessful, it will issue
a certificate that allows an application to be made in an eligible court. However, if a respondent
raises a jurisdictional objection, the Commission is required to determine it (see Coles Supply
Chain Pty Ltd v Milford [2020] FCAFC 152). In this matter, the company contends that the
Commission has no jurisdiction to deal with the dispute because Mr Paisley was not dismissed.
[3] Mr Paisley gave evidence that he was employed as a sales consultant in the company’s
car dealership from July 2022 until April 2023. In February 2023 he became unwell and took
personal leave. On several occasions, he was contacted by Mr Brad Hopkins, the dealer
principal, about why he was absent and when he would return. Mr Paisley felt pressured to go
back to work. He did so from 13 to 18 March 2023, but then fell ill again. On 23 March 2023,
Mr Hopkins telephoned him and said that his time off work was adversely affecting the
business, and that it would be best for both of them if they parted ways. Mr Hopkins offered
him three weeks’ pay to resign. Mr Paisley wanted to think about the offer and get advice. Later
that day, he sent Mr Hopkins an email asking that the company confirm its offer in writing so
that he could consider it. However, he did not receive a reply.
[4] Mr Paisley’s evidence was that he did not know how long his illness might continue,
and that Mr Hopkins had ‘indicated’ to him that his employment could not continue in these
[2023] FWC 2126
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2126
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circumstances. Mr Paisley said he eventually ‘acceded to (his) demand’ and decided to resign.
On 23 April 2023, Mr Paisley sent an email message to the company stating:
“On recent events I consider I am being forced to resign therefore I wish to advise I am
resigning effective immediately due to a series of adverse actions taken against me
whilst on sick leave, in particular, Brad Hopkins asking me if I would resign in exchange
for 3 weeks leave (sic), and this was being offered on the basis I had exercised my
workplace right to take personal leave whilst unwell which was fully supported by
medical certificates, this offer was communicated to myself and my father as a witness,
and further pressure exerted on me to return the company car whilst unwell further
demonstrates the continued adverse action taken against me due to being on sick leave,
and ongoing pressure and lack of genuine support by management in my time of illness
has caused me great distress.”
[5] Mr Paisley’s father, Michael Paisley, is an employee of the company. He gave evidence
that on 23 March 2023, Mr Hopkins told him that he was going to call his son and suggest that
he resign in exchange for three weeks’ pay. Mr Hopkins then said words to the effect that Mr
Paisley junior was ‘not for him or the business’. Mr Paisley senior replied that he did not want
anything to do with the matter. He also gave evidence that on or about 4 March 2021, Mr
Hopkins had berated him, saying that he was just like his son and that if he did not like the way
the company was dealing with his son he could ‘fuck off’. He said that he understood from this
that his son would be dismissed, but did not explain why he thought this.
[6] Mr Hopkins gave evidence that on 23 March 2023, he telephoned Mr Paisley and asked
him how he was going. He then told Mr Paisley that he had still not finished his online training
or submitted the police clearance check that was required under the Motor Traders Act 1986
(Vic), and which Mr Paisley had promised to complete. Mr Hopkins told Mr Paisley that, if it
would help him, he could resign, and the company would give him three weeks’ pay. Mr Paisley
then became angry and said words to the effect of ‘No, this is bullshit. Are you sacking me
because I am sick? You will be hearing from my lawyer.’ Mr Hopkins told Mr Paisley that he
was not sacking him, and that he was just giving him an option. The call ended. Mr Hopkins
understood that Mr Paisley had rejected the proposal that he resign in exchange for three weeks’
pay. That evening, Mr Paisley sent Mr Hopkins the email referred to above. Mr Hopkins did
not respond to it because Mr Paisley was threatening legal action.
[7] Mr Hopkins said that on 4 March 2023 he had words with Mr Paisley senior because he
had been badmouthing the company to other workers about its dealings with his son, which Mr
Hopkins considered inappropriate. He admitted swearing at Mr Paisley senior and recognised
that he should not have done so. Mr Hopkins said that on 23 March 2023 he told Mr Paisley
senior that he was planning to offer his son three weeks’ pay if he resigned. He did so because
he is a father himself and he thought it appropriate in the circumstances.
[8] Mr Gustav Roos is the company’s human resources manager. Mr Roos gave evidence
that on 5 April 2023 he spoke with Mr Paisley on the telephone and asked him how he was. He
requested that Mr Paisley meet with him to discuss his recovery, but Mr Paisley replied that he
did not want to do this, and that he would ‘just keep taking sick leave’.
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[9] Mr Roos said that on 12 April 2023, Mr Paisley sent him an email requesting
information about his commission payments. Mr Roos replied, stating that these had been paid
in full. On 14 April 2023, Mr Roos wrote to Mr Paisley, stating that the company required him
to return the company car because a customer had expressed interest in it, and that an alternative
car would be provided to him when he returned to work. Mr Roos noted that Mr Paisley had
exhausted his sick leave and that the company would grant him unpaid sick leave, but that he
needed to submit medical certificates covering his absence. Mr Roos also asked Mr Paisley to
complete his police check. This was now the sixth time he had been asked to do this. Later that
day, Mr Paisley replied to Mr Roos’s letter, stating that the request to return the company car
was a breach of his contract, and that he was doing everything possible to return to work but
that the company’s actions had caused him great distress.
[10] On 20 April 2023, Mr Roos sent an email to Mr Paisley, pointing out that clause 10 of
his contract required that the company vehicle be returned on request, and that if an employee
is on leave at the relevant time, the company can collect it. He told Mr Paisley to make
arrangements to return the car by 23 April 2023 otherwise the company would pick it up. Mr
Roos confirmed receipt of Mr Paisley’s doctor’s certificate for the period 15 to 22 April 2023.
He told Mr Paisley that he would need medical clearance from his doctor before he could return
to work. Mr Roos also directed Mr Paisley to complete his police check by the close of business
on 24 April 2023. Mr Roos noted that ‘the company considers the above constitutes reasonable
and fair instruction and if you do not comply with the above instructions, it may result in
termination of your employment.’
[11] Mr Roos gave evidence that when he received Mr Paisley’s message of resignation on
23 April 2023, he did not respond right away, but waited until it was clear that the resignation
‘stood’. By this I understand he meant that he waited a time to see whether Mr Paisley would
change his mind. On 27 April 2023, Mr Roos replied to Mr Paisley, advising that the company
had processed his final payments that day, including an additional week’s pay as a gesture of
goodwill.
Summary of submissions
[12] Mr Paisley submitted that he was forced to resign because of the conduct, or a course of
conduct, of the company. He said that Mr Hopkins’ offer that he resign was effectively a
demand or a form of pressure that he do so, and that the reason for this had been the company’s
dissatisfaction with his continued absence on sick leave. The company’s offer had not been
retracted and remained in place until he felt compelled to accept it. Mr Paisley said that the
company had made it plain to him that it would not tolerate his continued absence on personal
leave, but that he could not say how long his illness would persist. He said that the company’s
continued requests for him to meet and discuss his absence were unacceptable and placed
pressure on him to resign at a time when he was sick, as did its demand that he return the
company vehicle to which he was entitled. He said that it was inappropriate that Mr Hopkins
spoke to his father about the proposed resignation, and that this too placed pressure on him to
resign. He said that the concerns cited by the company relating to his alleged failure to complete
training and submit a police check were not legitimate grounds to force him to resign, and that
the company chose to chase him about these matters at a time when he was sick. He said that
the company wanted him to resign, and forced him to do so, because it found his absence for
reason of illness to be inconvenient. Mr Paisley said that the circumstances of his case fell
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within s 386(1)(b) of the Act, that he had therefore been dismissed, and that the company’s
jurisdictional objection to his application should be rejected.
[13] The company submitted that Mr Paisley had resigned of his own free will and that it
was fanciful to suggest that he was forced to resign. It said that Mr Paisley could simply have
continued in his employment. He could have accepted Mr Roos’s offer to speak with him. He
could also have done the things that Mr Roos had asked of him. Although Mr Paisley had been
given a direction by Mr Roos which he did not comply with, the company had not taken any
disciplinary action against him. The company said that it had in fact supported Mr Paisley
during his illness. He had exhausted his paid sick leave but was permitted to continue his
absence on unpaid leave. The company’s offer to Mr Paisley on 23 March 2023 that he resign
in exchange for three weeks’ pay was merely a proposal which he was free to accept or reject.
The company had understood that Mr Paisley had rejected it over the phone to Mr Hopkins on
23 March 2023. Mr Roos’s efforts to engage with Mr Paisley from 23 March 2023 to 23 April
2023 further demonstrated that the company had no intention to force Mr Paisley to resign. Mr
Paisley’s resignation was entirely voluntary, he had not been dismissed, and his application
under s 365 was therefore incompetent and should be dismissed.
Consideration
[14] Section 386(1)(b) of the Act provides that a person has been ‘dismissed’ if the person
has resigned, but ‘was forced to do so because of conduct, or a course of conduct, engaged in
by his or her employer’. Although s 386 is found in Part 3-2 of the Act, which relates to unfair
dismissals, it also applies to Part 3-1 of the Act (see s 12). In Bupa Aged Care Australia Pty Ltd
t/a Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941, the Full Bench stated, at [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 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
or real choice but to resign.”
[15] I find that Mr Paisley was not forced to resign from his employment because of the
conduct, or a course of conduct of the company.
[16] Mr Hopkins’ proposal that Mr Paisley resign and receive three weeks’ pay was an offer
that he was free to accept or reject. In his witness statement, Mr Paisley said that Mr Hopkins
had demanded that he resign, but when questioned about exactly what Mr Hopkins said, Mr
Paisley acknowledged that he did not demand that he resign. Elsewhere in his evidence, and in
his correspondence with the company, Mr Paisley refers to Mr Hopkins having made him an
‘offer’ to resign. Further, I accept Mr Hopkins’ evidence that he told Mr Paisley that he was not
being dismissed.
[17] Mr Paisley was unclear in his evidence about whether he believed on 23 April 2023 that
he was accepting Mr Hopkins’ resignation proposal. In his final submissions, he contended that
he did accept the offer. In my view, this is what in fact occurred. Mr Hopkins’ offer had not
been withdrawn. Mr Paisley had asked the company to put it in writing. The company had not
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
[2023] FWC 2126
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done so. But the offer remained open. Mr Paisley seemed to think that this helped his case, but
in my view it underscores the fact that he was not forced to resign. He agreed, after one month’s
deliberation, to accept the company’s proposal that he resign. However, it does not ultimately
matter whether the offer remained open. What matters is whether Mr Paisley was forced to
resign because of the conduct, or a course of conduct, of his employer. Mr Paisley was not
forced to accept the offer. He was not forced to resign.
[18] I reject Mr Paisley’s contention that by contacting him while he was on sick leave, the
company placed inappropriate pressure on him to return to work, or to resign. I find that Mr
Roos’s efforts to contact Mr Paisley were reasonable. Contrary to Mr Paisley’s submission, he
was not subjected to coercion or duress. The company did not ‘indicate’ to him that he could
not continue to be absent. It told him that he could take unpaid sick leave and that he was
required to provide medical certificates, which he did. If Mr Paisley thought that the company
would probably not allow him to continue on unpaid sick leave indefinitely, he was probably
right. But that did not mean that he was forced to resign.
[19] The company had directed Mr Paisley to submit his police clearance, and to make
arrangements to return the car, and had flagged the possibility of disciplinary action if he failed
to comply with the directions. Mr Paisley suggested that it was inappropriate for the company
to follow up on these issues while he was sick, and that this was tantamount to asking an
employee to perform work while absent on sick leave. In my view it was not inappropriate for
the company to ask Mr Paisley to attend to these matters while he was absent on sick leave. Mr
Paisley did not tell the company that he was too sick to do these things. I find that the company
gave Mr Paisley a lawful and reasonable direction that he failed to comply with. He was told
that if he did not complete the police check by 24 April 2023, it could result in his dismissal.
But no disciplinary action was taken against Mr Paisley. Mr Paisley said that he had previously
had difficulties completing the form online. But he could have asked for further assistance, or
completed a paper copy. The requirement to complete the police check was not a factor
compelling his resignation.
[20] It was not inappropriate of Mr Hopkins to speak to Mr Paisley’s father about his
intention to propose a separation arrangement to his son. This was a gesture of courtesy from
one father to another. But even if it was not appropriate, it was not a form of pressure
contributing to a forced resignation.
[21] Mr Paisley is wrong to say that he had no choice but to resign. He could have remained
on unpaid sick leave and continued to provide medical certificates. He could have complied
with the directions given to him by Mr Roos. If he was having difficulties uploading the police
checks, or felt too ill to do the things the company required, he could have told Mr Roos.
[22] I reject Mr Paisley’s suggestion that the company’s requirement that he return the car
was a form of pressure that was designed to force his resignation. Mr Paisley was required by
clause 10 of his contract to return the car on request. The contract also stated that if he was
absent on sick leave the company could collect the car. The company had a good reason to seek
its return because a customer was interested in buying it. In any event, the requirement that Mr
Paisley return the car did not constitute pressure to force him to resign.
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[23] Mr Paisley appeared to suggest that the timing of Mr Hopkins’ call on 23 March 2023,
during which he raised the resignation proposal, was linked to Mr Paisley’s inquiry about his
wages, and that this too was a form of pressure that the company had applied to him in order to
force him to resign. I reject any such suggestion. There is no basis to draw such an inference.
Following his telephone call with Mr Hopkins on 23 March 2023, Mr Paisley remained
employed for another month before sending the company his resignation message. The query
about his wages was evidently resolved.
[24] Even when all of the circumstances of which Mr Paisley complains are taken together,
they simply do not constitute a situation of compulsion whereby Mr Paisley was forced to
resign. It was Mr Paisley’s decision to resign. He made this decision freely. It was not the
probable result of the employer’s conduct in this case that Mr Paisley would resign from his
employment. Mr Paisley could have chosen to remain in his employment. He chose to resign.
Conclusion
[25] Mr Paisley was not forced to resign because of conduct, or a course of conduct, engaged
in by his employer (s 386(1)(b)). He was not dismissed at all. The jurisdictional objection is
upheld. Mr Paisley’s application is dismissed.
DEPUTY PRESIDENT
Appearances:
M. Scherini for the applicant
R. Martin for the respondent
Hearing details:
2023
Melbourne
23 August
Printed by authority of the Commonwealth Government Printer
PR765519
WORK COMMISSION THE SEAL OF THE F
