1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Sondra Zoumas
v
Sydney Physiotherapy 1 Pty Ltd
(C2023/4194)
DEPUTY PRESIDENT ROBERTS SYDNEY, 18 SEPTEMBER 2023
Application to deal with contraventions involving dismissal – Whether employee dismissed
within the meaning of s.365(a)
[1] Ms. Sondra Zoumas (the Applicant) has applied under s.365 of the Fair Work Act 2009
(Cth) (the FW Act) for the Fair Work Commission (the Commission) to deal with a dispute
relating to her alleged dismissal by Sydney Physiotherapy 1 Pty Ltd (the Respondent). The
Applicant claims that the alleged dismissal was in contravention of Part 3-1, General
Protections, of the FW Act. The Respondent has submitted that the Applicant was not dismissed
and that she terminated her own employment. Further, the Respondent says that the Applicant
has not alleged that any dismissal was in contravention of the General Protections provisions
of the FW Act.
[2] Section 365 of the FW Act provides:
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.
[3] Applications made under s.365 are dealt with under s.368 of the FW Act. In order for
the Commission to be able to deal with the dispute under s.368 of the FW Act, it must determine
that the Applicant has been dismissed within the meaning of s.365.1 The Commission must
conclude that the relevant dismissal has actually occurred as a matter of jurisdictional fact. It is
not sufficient that the applicant merely alleges that they were dismissed. If there is a contest as
to whether the alleged dismissal the subject of the application has occurred, this is an antecedent
[2023] FWC 2403
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2403
2
question which has to be determined before the powers to deal with the dispute conferred by
s.368 can be exercised.2
[4] For the reasons which follow I have concluded that the Applicant was not dismissed
within the meaning of s.365.
Preliminary Issue
[5] Before describing the context in which the present dispute arose, it is necessary to refer
briefly to a preliminary issue that emerged at the commencement of the hearing on 21 August
2023. On that date and after submissions and evidentiary material had been filed, the Applicant
asked that her application be treated as a “non-dismissal dispute” on the basis that she had
inadvertently filed the incorrect application form. Applications of that kind are dealt with under
s.372 of the FW Act. There were limited references in the Applicant’s material to a non-
dismissal dispute. In the Applicant’s Outline of Submissions there was a reference in a heading
to an “F8C General Protections application.”3 A Form F8C is used when an application is made
under s.372. In the same document, under the heading “Outcome and Remedy”, the Applicant
submitted “My constructive dismissal (general protections F8C) is and was valid.”4 In her
witness statement the Applicant said:
On Friday 14 July 2023, I downloaded F8-the wrong form and submitted it. Apologies-
it was an F8C Form no-dismissal form I was required to submit, as instructed by Fair
Work.5
[6] The Respondent resisted any attempt by the Applicant to recast her application as a non-
dismissal dispute. The Respondent said it had prepared its case on the basis of the application
as filed and would be disadvantaged by a change of course, including by having incurred costs
in the preparation of the matter. In its written submissions in reply dated 18 August 2023, the
Respondent referred to the Applicant’s references to a “Form F8C” and said that it had not been
served with such an application.
[7] It appeared from the material that had been filed by the Applicant that, notwithstanding
the advice that the Applicant said she had received that she should lodge an F8C non-dismissal
dispute form, the substance of the Applicant’s claim was that she was alleging that she had been
dismissed by the Respondent within the meaning of s.386(1)(b). After hearing from the parties
and providing the Applicant with an opportunity to obtain some further advice as to whether
she wished to press her original application under s.365 or to pursue an alternate course, the
Applicant advised that she wanted to proceed with the s.365 application and the matter was
dealt with on that basis.
Background
[8] The Applicant commenced employment with the Respondent as a receptionist/support
services worker at the Respondent’s physiotherapy business in Sydney on or about July 2014.
She was employed under the Health Professionals and Support Services Award 2020.
[9] In March 2021, the Applicant’s employment with the Respondent became part-time and
her hours of work were reduced to 19.5 hours per week. In July 2022, the Applicant’s hours of
[2023] FWC 2403
3
work were again reduced such that the Applicant only worked 6.5 hours per week with the
Respondent. This arrangement continued until 19 June 2023 when the Applicant provided the
Respondent with a letter to say that she was resigning her employment. Thereafter, the
Applicant continued to work with the Respondent until 5 July 2023 when her employment
ceased.
[10] In summary, the Applicant maintains that the letter of the 19 June was not a voluntary
resignation. The Applicant says that she was forced to resign by her employer because the
Respondent would not bring what she said was to be a temporary reduction of hours to an end
and that this resulted in overwhelming financial hardship that left her with no other option but
to resign.
[11] The Respondent submitted that the reduced working hours were agreed to by the
Applicant and that Applicant’s resignation on 19 June 2023 was entirely voluntary.
The Applicant’s Evidence
[12] The Applicant’s evidence was that in June 2022 she had a conversation with Mr. Jerome
Murphy, the managing director of the Respondent. She said that Mr. Murphy indicated that he
could no longer afford to keep the Applicant in employment and that the business had no money
to pay out the Applicant’s entitlements because of the downturn caused by the pandemic.
According to the Applicant, Mr. Murphy said he could only afford to have the Applicant work
one day per week. The Applicant said she agreed to work for one day a week in order to assist
the Respondent but that she only agreed on the basis that it would be for a trial period and not
an indefinite arrangement. The Applicant said that in early July 2022, shortly after the
conversation with Mr. Murphy, Mr. Murphy gave her a copy of a document to sign
acknowledging the reduction of her hours to 6.5 hours per week.6 The Applicant said she
refused to sign the document because it made no reference to the arrangement being a trial
arrangement only. She said that she asked for this omission to be rectified but it was not
changed. The document remained unsigned by the Applicant.
[13] From 11 July 2022 the Applicant worked 6.5 hours per week. This was her only paid
employment from that period until her employment with the Respondent came to an end in July
2023.
[14] The Applicant said her efforts after 11 July 2022 to secure another part-time role to
supplement her income proved to be unsuccessful. She said her economic circumstances
became extremely difficult. She said she raised this problem with Mr. Murphy repeatedly, but
he ignored her concerns or brushed them aside.
The Respondent’s Evidence
[15] Mr. Murphy gave evidence that in June 2022 he had to make a decision about reducing
the business’s operating costs. He said that one option he was considering was to make the
position of the Applicant redundant. He denied that he said to the Applicant that he was unable
to pay out entitlements, including redundancy entitlements and said the company would not
have been required to make redundancy payments in any event as it was a small business
[2023] FWC 2403
4
employer. He said that he spoke to the Applicant in early July 2022 about the situation and
asked her if she would agree to reduce her hours to 6.5 hours per week. Mr. Murphy said the
Applicant agreed to reduce her hours and did so from 11 July 2022. He said that those hours
were worked by the Applicant on a single day each week. Mr. Murphy denied that there was
any agreement that the reduced hours arrangement was a trial only.
[16] Mr. Murphy said the Applicant made him aware in January 2023 that she was looking
for other part-time work. He said he spoke to a colleague who was looking for a part-time
employee on or about 9 February 2023 and shortly thereafter spoke to the Applicant and
suggested she contact this person and provide Mr. Murphy’s name as a referee. He said the
Respondent’s business placed no restrictions on the Applicant obtaining other part-time (or full-
time) employment. He said the Respondent could not be responsible for any difficulty the
Applicant might have had in obtaining other part-time or full-time employment.
[17] The Respondent also relied on the terms of the Applicant’s letter of 19 June 2023 which
is set out in full below:
Dear Jerry,
It is with great sadness that I announce my resignation today from my position of
Practice Manager/Receptionist/Personal Assistant/Marketing Department/Interior
Design/I.T Department/Kitchen Hand/Plumber/Carpenter/Electrician/Function
Coordinator/Cleaner/Company Entertainer/Covid Marshall.
I feel so lucky to have worked with such a talented, honest and exceptional
Physiotherapist boss and various fun and strange work colleagues throughout my nine
years here. I’ve learned and grown so much from you and the various team members
who have passed through these doors. While I am excited about the future, I’m sad to
leave, I’m sad that I won’t be able to share a morning coffee with you and try and guess
the coffee blend, or argue with you about which coffee cup to use, chat about our not-
so-inspiring Instagram dinner pics and what we cooked over the weekend, our
politically incorrect topics. I will miss the unique way you pretend to listen to my stories,
but I did the same haha! It’s been a great pleasure working with you and representing
Sydney Physiotherapy & Ortho. I will forever remember my time here. Of course, this
isn’t goodbye, I know we will keep in touch (I will pop in). Thank you for all your support
and friendship.
Your employee and friend.
[18] Mr. Murphy said that after he received the letter, he discussed the end of the Applicant’s
employment with her, and it was agreed that she would work out a notice period and finish on
5 July 2023.
[19] The Respondent also relied on an email that the Applicant had sent to the Commission
on 1 August 2023 which the Commission had forwarded to the Respondent. In that email the
Applicant said “I was forced to do a constructive dismissal. My employer did not terminate me
he wouldn’t terminate me – because he knew he would have to pay me out.”
[2023] FWC 2403
5
[20] Further, the Applicant sent an email to Mr. Murphy on 11 July 2023 in which she said
“I had no choice, as you did not make any further action to terminate my employment, your
inactions forced me to resign as I had no real alternative.”
Submissions
[21] The Applicant submitted that the conduct engaged in by her employer left her with no
choice but to resign her employment on 19 June 2023. The Applicant said the temporary trial
part-time arrangement that she agreed to was to assist the Respondent overcome financial
difficulties but that the Respondent refused to acknowledge or recognise the financial problems
that the arrangement led to for her. She said that she complained about her lack of income to
Mr. Murphy and he must have known the dire financial predicament she was in. The Applicant
said that the Respondent knew that it was not feasible for her continue working a small number
of hours each week and that eventually this would lead to a resignation and relieve the
Respondent of paying out entitlements such as long service leave. The Applicant claimed that
it was the inaction of the Respondent and the refusal to recognise that the situation was not
sustainable that deprived her of any other option but to resign. She said she had no choice but
to resign because of economic hardship and “pressing necessities”.
[22] In her application the Applicant sought as a remedy her long service leave entitlements
and a revision or “rectification” of her annual leave.
[23] The Respondent submitted that there was no “forced resignation” by the Applicant. The
Respondent said that the letter from the Applicant of 19 June was clear evidence of a voluntary
resignation. The Respondent said that the Applicant had conceded in writing that the
Respondent did not terminate her employment and that in reality the Applicant was simply
seeking to create a legal fiction that she had been constructively dismissed to enable her to
pursue a claim for long service leave to which she was not entitled. The Respondent said that
the Applicant had voluntarily agreed to enter into the reduced part-time work arrangement. The
Respondent said they had assisted the Applicant in trying to obtain other work and that the
Respondent wanted the Applicant to continue to work part-time in the Respondent’s business.
The Respondent said there was no conduct, including any omission, that deprived the Applicant
of any real choice and thereby forced her to resign. The Respondent submitted that the
Applicant had made written admissions that supported the view that there was no conduct on
the part of the Respondent that forced the Applicant’s resignation.
Consideration
[24] Section 386 of the FW Act sets out the circumstances in which an employee can be said
to have been ‘dismissed’ for the purposes of s.365.7 That section 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
[2023] FWC 2403
6
(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.
‘Forced Resignation’
[25] The Applicant’s submission was that the Applicant had resigned but had been forced to
do so by the Respondent and that this constituted a dismissal within the meaning of s.386(1)(b).
The test for a dismissal of this kind was described by a Full Bench of the Commission in the
matter of Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli.8
In that matter the Commission said:
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.9
[26] Where it is alleged that an employee was forced to resign, the onus is on the employee
to prove, by an objective measure,10 that they did not resign voluntarily and that the conduct or
course of conduct engaged in by the employer forced them to resign.11
[27] I have no doubt in this case that the circumstances that the Applicant found herself in
created serious hardship for her. The Applicant had agreed to an arrangement which she had
understood would be temporary only and had done so for well-intentioned reasons, namely, to
assist her employer to recover from losses incurred during the pandemic. In relation to the
reduction of the Applicant’s hours in mid-2022, I prefer the Applicant’s evidence that she
indicated at the time that she would work the reduced hours on a “trial” basis. This version of
events is supported by the fact that the document recording the arrangement was not signed by
the Applicant. The Applicant said she did not sign the document because it did not state that
the arrangement was a trial only and I accept that to be the case. However, it is also the case
that the period of operation of any such trial was indeterminate. I accept that the Applicant
raised her difficult economic circumstances with her employer on more than one occasion in an
effort to obtain more work and by doing so, sought to bring any trial period to an end. The
Respondent appeared to be indifferent to her requests and ultimately did not offer her any more
work.
[28] I also accept that the Applicant was a dedicated employee who gave 9 years of service
to her employer and in those circumstances could not understand why her employment ended
in the way it did. However, looking at the circumstances overall I am not satisfied that it was
the conduct of the Respondent that brought the employment to an end or had that probable
result.
[29] The Applicant was, at the time her employment ended, working 6.5 hours per week on
one day of the week. The Respondent was made aware on at least one occasion that the
Applicant was looking for other work. The Respondent did not place any restrictions on the
[2023] FWC 2403
7
Applicant looking for or obtaining alternative employment. Mr. Murphy took some steps to
assist the Applicant obtain more work by speaking to a colleague about that prospect. I have no
reason to doubt the Applicant’s evidence that she had previously been actively looking for other
work but had had no success. However, I am unable to conclude on the evidence that the
Respondent was fully aware of the extent to which the Applicant had sought or was seeking
other work or that in the absence of the Respondent providing additional hours to the Applicant,
that the Applicant was likely to resign. There was no evidence that the Applicant sought any
specific amount of additional work from the Respondent or that the Respondent expressly
refused a request to provide additional hours. Moreover, notwithstanding previous unsuccessful
efforts and the Applicant’s decision to stop looking for part-time roles in early 2023,12 the
Applicant’s limited existing working hours did allow some scope for the possibility of
additional employment without necessarily having to resign and relinquish those existing hours.
In all of the circumstances I do not consider that the Respondent’s conduct negated all choice
for the Applicant such that she had no choice but to resign.
[30] The Applicant contended that it was inaction on the part of the Respondent rather than
any particular conduct that forced her resignation. In Doumit v. ABB Engineering Construction
Pty Ltd a Full Bench of the Commission observed:
“… 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.”13
[31] In this case the Respondent’s conduct up to the point of the Applicant’s resignation was
equally consistent with that of an employer who was content for the existing arrangement to
continue indefinitely rather than an employer who was inactive in an effort to force the
Applicant to resign.
[32] I conclude that the Applicant was not dismissed within the meaning of s.386(1)(b).
Having regard to that conclusion it is not necessary to deal with the issue as to whether the
application, in its terms, alleged any breach of the General Protections provisions of the FW
Act. I note in passing that at various points the Applicant contended that the action (or inaction)
of the Respondent was designed to avoid the payment of long service leave payments and that
the primary remedy the Applicant sought in the originating application related to the payment
of those amounts. The taking of adverse action against an employee because that employee has
a workplace right, such as an entitlement under a state law including the Long Service Leave
Act 1955 (NSW) may constitute a breach of Part 3-1 of the FW Act. Although it was not
considered in this case, the question as to whether such payments remain outstanding would be
a matter for determination by the Federal Court, Federal Circuit and Family Court of Australia
or an eligible New South Wales court.
[2023] FWC 2403
8
[33] For the foregoing reasons, the Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms. Sandra Zoumas, Applicant.
Mr. Mark Port, Solicitor for the Respondent.
Hearing details:
In-person at Fair Work Commission, Sydney on Monday, 21 August 2023 at 2:00pm AEST.
Printed by authority of the Commonwealth Government Printer
PR766340
1 Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche [2023] FWCFB 101
(‘Lipa’).
2 Lipa (n 1) [4].
3 Court Book page 38.
4 Ibid page 43.
5 Exhibit A3, paragraph 13.
6 Exhibit A3, Annexure 3.
7 See also s.12.
8 [2017] FWCFB 3941.
9 Ibid [47].
10 O’Meara v. Stanley Works Pty Ltd [(2006) 58 AILR 100.
11 Australian Hearing v Peary [(2009) 185 IR 359 at paragraph [30].
12 Application at 3.1, Court Book page 10.
13 Print N6999.
THE FAIR WORKS LUSTRAL AMISSION THE SE
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb101.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
