1
Fair Work Act 2009
s.365—General protections
Chloe O’Brien
v
S+S Hair And Beauty
(C2023/2424)
DEPUTY PRESIDENT EASTON SYDNEY, 31 OCTOBER 2023
Application to deal with contraventions involving dismissal – dismissal – resignation –
employer sent a disciplinary meeting letter advising of a meeting – employee resigned the day
before the meeting – employee claimed that she resigned because of alleged bullying by
manager – not a heat of the moment resignation – no conduct by the employer with an
intention of bringing the employment to an end – termination of the employment was not the
probable result of the employer’s conduct – employee had real and effective choices other
than to resign – employee was not dismissed – application dismissed.
[1] On 17 April 2023 Ms Chloe O’Brien resigned her employment with S+S Hair and
Beauty Pty Ltd by email. Two days before sending her resignation Ms O’Brien received a
“Notice of Disciplinary meeting” that referred to certain alleged conduct/performance breaches
and said “Depending upon the discussion held in the meeting, disciplinary action may be taken
against you including the issue of a Formal Warning.” The disciplinary meeting was due to take
place the next morning but was cancelled after Ms O’Brien’s resignation was received.
[2] Ms O’Brien was employed for less than twelve months and gave two weeks’ notice to
finish on 1 May 2023. S+S Hair and Beauty did not require her to work out the two weeks’
notice. Ms O’Brien’s employment finished on 17 April 2023.
[3] On 28 April 2023 Ms O’Brien made an application to the Fair Work Commission under
s.365 of the Fair Work Act 2009 (Cth) (“the Act”), alleging that she had been dismissed from
her employment and that the dismissal contravened the general protection provisions of the Act.
The Commission’s jurisdiction, meaning of “dismissed”, resignation
[4] The first question to be resolved is whether in fact Ms O’Brien was dismissed. This
question was dealt with as a discrete issue and there has not been any hearing about the merits
of the general protections claim.
[5] The Fair Work Commission can deal with applications under s.365 of the Act by way
of conciliation or mediation under s.368. If the Commission is satisfied that all reasonable
attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate
under s.368(3). Section 370 imposes a substantial restriction upon applicants by preventing a
[2023] FWC 2864
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2864
2
general protections court application being made unless the FWC has issued a certificate under
s 368(3)(a) in relation to the dispute (Ward v St Catherine’s School [2016] FCA 790 at [3]).
[6] In Coles Supply Chain v Milford [2020] FCAFC 152 at [67], (2020) 300 IR 146 the Full
Court of the Federal Court of Australia found that the Commission must resolve any question
or dispute about whether an applicant was in fact dismissed before it can exercise its jurisdiction
to conciliate or mediate.
“A person who has been dismissed”
[7] It is agreed that Ms O’Brien in fact sent an email to her employer advising that she was
resigning. In some circumstances a resignation is treated as a dismissal. Section 386 deals with
the meaning of “dismissed” for the purposes of the unfair dismissal regime and also the general
protection regime. The relevant parts of s.386 are:
“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.
(2) …
[8] In Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245 at 268-9, [2017]
FWCFB 3941 at [47]-[48] (Tavassoli), 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 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
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
[2023] FWC 2864
3
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.
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.”
Ms O’Brien’s claim and the Evidence
[9] S+S Hair and Beauty (S+S) operates several salons in Queensland. Ms O’Brien alleges
that the manager and other employees at her salon engaged in bullying behaviour that made her
resign. More precisely, the Applicant said that was unhappy about the bullying behaviour of
the manager and others, and when she received the letter calling her to a disciplinary meeting,
she decided to resign instead.
[10] The only question to be determined in this proceeding is whether the employer engaged
in conduct that (1) had the intention of causing Ms O’Brien to resign or (2) left Ms O’Brien no
real or effective choice but to resign. The focus of this inquiry is the actions of the employer.
[11] Because of this I will not identify the location of the salons at which Ms O’Brien
worked, nor the manager’s full name, nor the details of the alleged bullying and harassment.
None of those accused of bullying have had a proper opportunity to defend the allegations
against them because of the narrow question I must determine, and it is not appropriate to
publish the details of untested allegations.
[12] In summary Ms O’Brien alleges that she was subject to bullying conduct of the
following nature:
(a) the workplace was unsafe and toxic and was not respectful;
(b) Ms Smith and others made harmful comments about Ms O’Brien’s appearance;
(c) Ms O’Brien was verbally abused in front of customers;
(d) Ms O’Brien was pressured to work unpaid overtime, and to buy/replace items for the
benefit of the salon;
(e) there were threats that Ms O’Brien would be reported to the area manager and threats
of termination of employment; and
(f) other staff teased Ms O’Brien because they thought she had a medical condition.
[13] Ms O’Brien in fact worked at two salons with S+S. At the first salon Ms O’Brien made
allegations of bullying against her manager. Those allegations were investigated and, even
though the allegations were not substantiated, Ms O’Brien moved to a different salon.
[2023] FWC 2864
4
[14] Ms Smith was the manager of the second salon. It is not clear from the evidence whether
Ms O’Brien made a formal complaint of bullying against Ms Smith.
[15] S+S had concerns about Ms O’Brien’s conduct and work. S+S said that it had received
complaints from clients about tasks performed by Ms O’Brien. Ms O’Brien accepted that she
had made some mistakes but in her evidence in the Commission she raised complaints about
what she thought was a lack of training and supervision provided to her.
[16] On 15 April 2023 Ms Carolyn Lee, Human Resources Manager of S+S, sent Ms O’Brien
a letter advising her that she was required to attend a disciplinary meeting about her work
performance. The letter said:
“Notice of Disciplinary meeting
Dear Chloe
This letter is to confirm a meeting scheduled with you, Donna Smith (Salon Manager)
and myself for Tuesday 18th at 9am at [her] salon.
This meeting is in relation to the following alleged conduct / performance breaches:
Despite being counselled on numerous occasions the following breaches are still
occurring on a regular basis
Unacceptable appearance. You are wearing bleach stained, untidy clothing over your
uniform. You are wearing your hair in a claw or in a pony tail rather than styling your
hair as required
Rough treatment of clients. You are not following correct procedures for combing
hair, blow drying and straightening. Your actions are visibly causing clients pain.
Finishing procedure. You are not taking the time to finish procedures correctly eg
wiping off colour from a clients forehead
Project. Your project is overdue
Lack of care taken with salon items and other people’s property. eg spilling water
on mobile phone, breaking steriliser
At this meeting you may bring a support person of your choice to accompany you.
Depending upon the discussion held in the meeting, disciplinary action may be taken
against you including the issue of a Formal Warning.
If you have any questions or concerns, please do not hesitate to contact me.”
[2023] FWC 2864
5
[17] The meeting never occurred because Ms O’Brien resigned her employment instead.
[18] Ms O’Brien did not speak to any S+S manager about the letter before sending in her
resignation. The resignation letter was in the following terms:
“To whom it may concern,
Due to unsafe working conditions and ongoing bullying and harassment within the
workplace, I am providing 2wks notice, and will be resigning from the company .
This saddens me, as this career choice was something I have always wanted to do, and
have really loved and enjoyed the job and work itself. However, remaining as an
employee at this time, is having severe negative impacts on my overall mental health,
health and well-being and I must look after myself.
I appreciate the opportunity to have gained an Apprenticeship with the company, and
wish the salon all the best in the future.
My last day of employment will be monday 1st of May .”
[19] S+S did not attempt to dissuade Ms O’Brien from resigning or attempt to explore with
her whether it was a properly considered decision. Since the general protections application
was lodged S+S has offered to reinstate Ms O’Brien on multiple occasions. Ms O’Brien has no
interest in returning to work with S+S and so it seems safe to assume that since the day she
decided to resign on 17 April 2023 she has not changed her mind about working for S+S.
[20] Ms O’Brien submitted that the letter from S+S on 15 April 2023 was sent in order to
induce her to resign. Ms O’Brien was represented at the hearing by her parents. None of S+S’
witnesses were cross-examined about the letter of 15 April 2023.
[21] There is no suggestion that the resignation was given in the heat of the moment (per the
first limb in Tavassoli at [47(1)]).
[22] I cannot objectively find that the letter of 15 April 2023 was sent with the intention of
bringing the employment to an end, or that the letter was in such terms that the probable result
of sending the letter was that Ms O’Brien’s employment would end (per the second limb in
Tavassoli at [47(2)]).
[23] The letter referred to a “disciplinary meeting”, which was reasonable conduct by S+S
that put Ms O’Brien on notice that the meeting was important to her employment. The letter
identified in broad terms the allegations that Ms Lee wanted to discuss, which is again
reasonable conduct. The allegations themselves do not appear to me to be capricious or unfair
or so unreasonable that Ms O’Brien could have legitimately believed that she would not be
treated fairly at the disciplinary meeting.
[2023] FWC 2864
6
[24] In fact the letter specifically said that one possible outcome of the meeting was that she
could receive a formal warning. This seems significant insofar as the letter did not even indicate
the possibility that Ms O’Brien’s employment might be terminated at the meeting.
[25] I also cannot objectively find that the letter from Ms Lee left Ms O’Brien with no
effective or real choice but to resign (per the second limb in Tavassoli at [47(2)]).
[26] Ms O’Brien had options available to her other than resigning - the most obvious two
options being that she (1) attend the disciplinary meeting and explain her conduct and
performance and/or (2) make a formal complaint about Ms Smith and/or her co-workers. The
fact that Ms O’Brien’s employment survived the first bullying complaint she made suggests
that the making of a second complaint would not necessarily put her employment at risk.
[27] In all the circumstances, and despite Ms O’Brien’s belief that the only way to make the
bullying stop was to resign, I do not find that S+S engaged in conduct that forced Ms O’Brien
to resign.
[28] As such I do not find that Ms O’Brien was dismissed from her employment. Ms
O’Brien’s general protection claim that relies on her dismissal cannot therefore continue. I will
make an order dismissing Ms O’Brien’s application (PR767805).
DEPUTY PRESIDENT
Appearances:
C O’Brien and B O’Brien for the Applicant
C Lee and A Tacey, for the Respondent
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
August 31.
Printed by authority of the Commonwealth Government Printer
PR767804
OF THE THE SEAL WORK COMMISSION
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr767805.pdf
