1
Fair Work Act 2009
s.365—General protections
Tanaya Kar
v
Action Drill & Blast Pty Ltd
(C2023/3071)
DEPUTY PRESIDENT O’KEEFFE PERTH, 8 AUGUST 2023
Jurisdictional Objection employee not dismissed within the meaning of the Fair Work Act –
employee not forced to resign – application dismissed.
[1] Tanaya Kar (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 Action Drill and Blast Pty Ltd (the Respondent) in breach of sections
340 and 351 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 s365 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, and given that the case involved contested facts, the matter was set down for
hearing on 26 July 2023 to determine the jurisdictional issue.
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
[2023] FWC 1961 [Note: An appeal pursuant to s.604 (C2023/5192) was
lodged against this decision - refer to Full Bench decision dated 7 November
2023 [[2023] FWCFB 204] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb204.pdf
[2023] FWC 1961
2
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.
Witnesses
[7] The Applicant gave evidence on her own behalf.
[8] Ms Samantha Caldwell gave evidence on behalf of the Respondent.
Submissions
[9] The Respondent filed submissions in the FWC on 3 July 2023. The Applicant’s
submissions were due to be filed in the FWC on 10 July 2023. However, on 4 July 2023 the
Applicant sought an extension of time for filing as she was overseas. An extension of one week
was granted. However, on 18 July 2023 the Applicant sought a further extension of one week.
An extension until 19 July 2023 was granted and the Applicant’s submissions were received on
19 July 2023.
[10] The Respondent filed submissions in reply on 24 July 2023.
Background
[11] The Applicant was engaged by the Respondent as a Serviceperson at the Karara mine
site.
[12] On 20 April 2023 Mr Graeme Fairbairn (Maintenance Supervisor, Respondent) reported
a safety incident to Mr Darryn Mora (Project Manager, Respondent). Mr Fairbairn reported that
the Applicant had isolated (de-energised) a drill rig in preparation for its daily service but failed
to apply her personal serviceperson danger lock and tag to the isolation point before starting to
fuel the drill rig. The Respondent then commenced an investigation into the Safety Incident and
found that its safety procedures had been breached.
[13] On 24 April 2023, the Respondent sent a letter to the Applicant stating that she was
Stood Down with pay pending further investigation into the Safety Incident and the outcome of
the investigation. On 26 April 2023 the Respondent sent a letter to the Applicant which notified
her of the allegations against her, invited her to either attend a meeting or make a written
response, and advised her of the possible ramifications if the breach of safety protocols was
substantiated.
[14] A meeting with the Applicant to allow her to make a response was held on 5 May 2023.
A further meeting, described as an “outcomes meeting” was then held on 8 May 2023 to discuss
the Respondent’s findings. Following this meeting, the Applicant tendered her resignation on
8 May 2023.
Submissions and Evidence
[15] In its written submissions, the Respondent drew my attention to relevant case
precedent dealing with whether a resignation is a termination at the initiative of the employer,
highlighting Mohazab v Dick Smith Electronics Pty Ltd (No 2)2, Bupa Aged Care Australia
[2023] FWC 1961
3
Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli3 and Doumit v ABB Engineering
Construction Pty Ltd4 as support for the proposition that while employer actions can be
responsible for an employee’s resignation, it is only so in certain circumstances and the FWC
must carefully weigh up the employer’s behaviour to determine if it was such as to be the real
cause of the resignation.
[16] The Respondent also drew my attention to the finding from Australian Hearing v
Peary5 that in cases where an employee claims forced resignation, the onus is on the
employee to prove that they did not resign voluntarily.
[17] The Respondent also noted that in Moore v Woolworths Group Limited T/A Big W6,
Love v Alcoa of Australia Limited7, Davidson v Commonwealth8, Davidson v Commonwealth9
and Pacific National (NSW) Limited v Bell10 it was found that an employer conducting a
disciplinary investigation process is not of itself sufficient to force an employee’s resignation.
[18] The Respondent submitted that, in the present case, the Applicant had voluntarily
resigned and that it was not the case that she had no other choice. It was submitted that the
investigation process was proper and not of itself cause for resignation and that, in any case,
the Respondent had not completed its process, as the Applicant had been advised at the
“outcomes meeting” that she could provide the Respondent with reasons as to why she should
not be terminated and these would be considered prior to a final decision being made. Instead
of doing so, the Respondent submitted that the Applicant chose to resign, as this would assist
her when seeking alternative employment.
[19] In her written submissions, the Applicant sought to clarify the thinking around her
resignation. While the Respondent had suggested that she had offered to resign if it was the
case that termination was a possibility, the Applicant submitted that she only explored the
possibility of resignation in circumstances where the decision to terminate her had already been
made.
[20] She further submitted that during the meeting held on 8 May 2023, the Respondent had
said words to the effect that they had decided to terminate her employment and had referred to
the letter that was discussed at the meeting as a “termination letter” as opposed to a “show cause
termination letter”. The Applicant submitted that at the meeting, she had formed the view that
her employment was going to be terminated and that any opportunity to respond was at best
simply a device to give an illusion of procedural fairness, as she submitted that there was
nothing she could have said that would have prevented termination.
[21] In her submissions, the Applicant conceded that being subjected to disciplinary
procedures in not sufficient of itself to demonstrate forced resignation, nor does advice that
employment may be terminated as a result of those processes. However, the Applicant
submitted that her own experience had been that as she was expressly informed she was
terminated, encouraged to resign and presented with no other options, the termination had been
the Respondent’s initiative. I note that in its reply submissions, the Respondent emphatically
rejects the notion that the Applicant was encouraged to resign.
[22] In support of her position, the Applicant drew my attention to a number of cases. In the
first instance, she noted the decision of Commissioner Mirabella in Costigan v KOR Equipment
[2023] FWC 1961
4
Solutions Pty Ltd11, where a decision had been made to terminate an employee but he had been
offered the chance to resign instead. In that case, the Commissioner found that the only choice
the employee had was the way he would leave the Company and the Applicant submitted that
this was the same choice she had faced.
[23] The Applicant also cited Jenny Yang v FCS Business Service Pty Ltd12 as support for
the proposition that a forced resignation can occur prior to the completion of an investigation.
She further submitted that, should the FWC not find that her dismissal falls with the ambit of s
386(1)(b) of the FW Act because the actions of the Respondent did not force her resignation, I
should nonetheless find that it was a termination for the purposes of s386(1)(a), as the
resignation could be considered as being given in the “heat of the moment” and the Respondent
had not sought to clarify, within a reasonable time, if the Applicant genuinely wanted to resign.
[24] I note that in its reply submissions, the Respondent rejected the relevance of the cases
cited by the Applicant as it submitted that the facts of the present case differed from the
circumstances in those cases. It also rejected the notion that the Applicant had resigned “in the
heat of the moment”.
[25] In addressing the Respondent’s submissions based on case precedent, the Applicant
sought to draw distinctions between the circumstances of those cases and her own situation.
She submitted that Moore v Woolworths Group Limited T/A Big W13, Pacific National (NSW)
Limited v Bell14 and Davidson v Commonwealth15 were not relevant, as the applicants in those
cases had resigned prior to the outcome of a disciplinary process, whereas in the present case
the Applicant claimed she did not resign until after she had been advised of her termination.
She further distinguished Love v Alcoa of Australia Limited16 as the Applicant in that case had
refused to attend a meeting to discuss allegations against him, whereas in her case she had
attended such a meeting.
[26] Finally, the Applicant submitted that her case should be considered in light of the finding
by Deputy President Anderson in Jarouche v Lipa Pharmaceuticals Ltd17, which was upheld
on appeal. In that case, the Applicant submitted that a decision had been made to terminate,
and the only discussion was about how Dr Jarouche would exit the business. The Applicant
noted that in his decision, the Deputy President found that there was “no realistic counterfactual
whereby Dr Jarouche’s employment would have continued” and thus the resignation had been
forced by the employer. The Respondent submitted that the circumstances of Jarouche could
be distinguished from the present case as the employer in Jarouche had intended to procure a
resignation while no such intent was evidenced by the Respondent.
[27] The evidence of Ms Caldwell for the Respondent is that she attended the meeting held
with the Applicant on 5 May 2023. Appended to her statement are the contemporaneous notes
taken by a colleague of Ms Caldwell who was also present at the meeting. Ms Caldwell
confirmed in evidence that the notes are a true and accurate reflection of the meeting. At that
meeting, Ms Caldwell says that she advised the Applicant of the nature of the allegations against
her and sought a response.
[28] Ms Caldwell’s further evidence was that she advised the Applicant that the outcomes of
the process could include termination. Her evidence, which is contested by the Applicant, is
that the Applicant said that if the findings suggested a possible case for termination, she would
[2023] FWC 1961
5
like to resign. The Applicant’s contention is that she asked that if the decision was made to
terminate would she be allowed to resign. The evidence of Ms Caldwell is that she indicated
that the process would still need to go to the “show cause” phase but that the Applicant would
have the option of resigning. Again, the Applicant challenges this on the basis that she says
she was told that her resignation was something that would be “taken into consideration”.
Further, her evidence was that she understood that the show cause process was simply to advise
her of the outcome.
[29] It was the Applicant’s evidence that she called Ms Caldwell prior to the meeting on 8
May 2023 and as part of that conversation asked that if a decision was taken to terminate her,
would she be allowed to resign. The Applicant claims that Ms Caldwell said that the
Respondent would allow her to resign.
[30] In the meeting itself on 8 May 2023, the Applicant claims that Ms Caldwell told her that
the Respondent had decided not to continue her employment and suggested that it was
understood that the Applicant did not want to go through a termination process. Her evidence
is that she told the Respondent that she would rather resign if the Respondent was going to
terminate her employment, and that Ms Caldwell then offered to assist her to write a resignation
letter. The Applicant says that she did not accept this assistance.
[31] Ms Caldwell’s evidence is that in the meeting of 8 May 2023 she did not advise the
Applicant that the Respondent had decided not to continue with her employment. Ms
Caldwell’s contemporaneous notes of the meeting, which were in evidence, show that she did
not tell the Applicant that she was terminated. Ms Caldwell, under cross examination,
explained that she had used the “show cause” letter drafted for the Applicant, which was in
evidence, as a prompt to assist her in the meeting and that she had followed this letter when
speaking to the Applicant. As part of this, she would have used the word “termination” but not
in the context suggested by the Applicant. Rather, it would have been used on the basis that
the Respondent was considering terminating the Applicant’s employment, subject to any
reasons that the Applicant gave as to why termination should not take place. In her cross
examination, the Applicant sought to draw Ms Caldwell on the issue of what it was that she
could have told the Respondent that might have prevented termination. Ms Caldwell did not
provide an answer as she said that any such answer would be mere speculation.
[32] Under cross examination, the Applicant maintained that she understood in the meeting
of 8 May 2023 that her employment was terminated. However, she wavered in her answers
when pressed. When asked if the words “your employment will not be continuing” were
definitely used she answered that she had been upset and so could not recall definitively if that
was the case. Mr Le Mare for the Respondent then asked if she was saying that she could not
definitively recall if the words were used and the Applicant responded that she could not but
that there were what she called “contextual clues” that she would be terminated.
[33] Mr Le Mare then took the Applicant to her witness statement at paragraph 22, wherein
the Applicant claims that she was told her employment would not be continuing and asked if
that was correct. The Applicant answered that yes, that was what she was told. At this point
Mr Le Mare pointed out to the Applicant that this answer was inconsistent with the one she had
previously given.
[2023] FWC 1961
6
Consideration
[34] In his opening submissions, Mr Le Mare for the Respondent advanced the argument that
the crux of the matter revolves around what was or was not said at the meeting on 8 May 2023.
I agree that this is the principal issue to which I should turn my mind. Before doing so, I should
address two issues that arose in submissions.
[35] In the first instance, I must reject the proposition advanced by the Applicant that her
resignation was given in the heat of the moment. Based on her own evidence, the Applicant
had raised the issue of resignation on two occasions prior to the meeting on 8 May 2023.
Further, the resignation itself was not submitted until some five hours after the meeting. I find
that the Applicant took the view that having a resignation on her record as opposed to a
termination was an advantage to her and that she had given the issue some serious consideration.
I cannot therefore accept that her resignation was given in the heat of the moment.
[36] I am also not persuaded that the present case should be likened to Jarouche. I do not
find any credible evidence that the Respondent was attempting to procure a resignation from
the Applicant. While the Respondent may have indicated that it was open to resignation, I do
not accept that it entered the disciplinary process with a view to forcing the Applicant to resign.
Further, while the Respondent may have offered to assist the Applicant in drafting her
resignation, I find that this was more likely to have been intended to secure a resignation in
clear terms than any attempt to force the Applicant’s hand.
[37] The submissions and evidence of the Respondent are that at the meeting on 8 May 2023,
the Applicant was advised that the allegations against her had been substantiated and that the
Respondent would be seeking submissions from her as to why her employment should not be
terminated. It is the Respondent’s position that it did not advise the Applicant that her
employment was to be terminated and that the Applicant, consistent with her earlier inquiries,
chose not to participate in the “show cause” process but rather elected to resign her employment.
[38] The submissions and evidence of the Applicant are that at the meeting on 8 May 2023,
she was advised that the Respondent would not be continuing her employment. She claimed
that even if it was accepted that the meeting was not simply a termination meeting but rather an
invitation to “show cause”, there was no answer she could have given that would have prevented
termination. Her response was instead, consistent with what she claims was her previous
position, that having been terminated, she then sought permission to resign.
[39] In terms of what went on during the meeting on 8 May 2023, I prefer the version of Ms
Caldwell. I accept her evidence regarding the notes she took of the meeting and the process
she followed. Her notes indicate that she did not tell the Applicant she was terminated, nor
does the letter she used as a prompt during that meeting. On this matter the Applicant’s
evidence given under cross-examination was, as noted above, somewhat inconsistent and
consequently unreliable. As such, I do not accept that she was told that the Respondent was
not continuing her employment and further, that such references to termination as were made
were made in the context of a potential outcome, subject to her making further submissions to
the Respondent.
[2023] FWC 1961
7
[40] As I read the evidence submitted, the Respondent’s process has two distinct stages. The
first is to give the employee an opportunity to respond to an allegation against them. From this
response, the Respondent determines if the employee is indeed guilty of the alleged misconduct.
If not, the process presumably ends there. However, if as in the case of the Applicant the
employee is indeed guilty, then the Respondent moves to the second stage and considers what
is an appropriate outcome. If that outcome could mean termination, then the Respondent
advises the employee that they are considering termination but giving the employee a chance
to make any submissions they wish as to why this should not occur.
[41] The Applicant by implication says that this second stage, at least in her case, was merely
a contrivance to make the process seem eminently procedurally fair. It was the Applicant’s
contention that there was nothing she could have said that would have changed the outcome.
While I accept that she firmly believes that to be the case, I do not agree. While there were no
particular circumstances offered up by Ms Caldwell when asked a direct question about possible
scenarios that may have forestalled termination, that does not mean that none exist.
[42] In circumstances where an employer has found an employee guilty of misconduct that
warrants termination, it is in the employee’s best interest to have an opportunity to address the
employer on the issue of termination prior to a final decision being made. There may be
significant mitigating factors at play of which the employer is unaware that may mean
termination is not appropriate. Or there may not. It may be that in almost all cases termination
proceeds. But that does not invalidate the process. Although in this instance the Applicant may
have taken the view that nothing she could have said would have changed the outcome, the
reality is that she simply could not know for certain that this was the case.
[43] In considering this matter, I have been mindful of the findings of Deputy President Lake
in Becker v Greater Bank Limited, where he said, in finding that an employee 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.18”
[44] It seems to me that, given the response she says was given by Ms Caldwell to her
question about resignation, which is set out in paragraph 28, the Applicant could have made
any number of submissions in response to the “show cause” letter and, if the Respondent was
still minded to terminate her employment, have tendered her resignation at that point. However,
she chose not to avail herself of the opportunity to engage with the Respondent’s process and
[2023] FWC 1961
8
instead resigned her employment. As such, I find that the cases cited by the Respondent in
paragraph 17 and the findings therein are relevant to the current matter.
Conclusion
[45] In my assessment, it is likely that the Applicant’s employment would have been
terminated unless she provided some substantial reason or reasons why termination should not
proceed. However, I do not accept that she had no choice other than to resign at the point of
time at which she did, as the Respondent was undertaking a process that was offering her an
opportunity to address termination and make any pleas in mitigation that she so chose. The
Respondent did not terminate her employment at the meeting on 8 May 2023 and for the reasons
set out above, I do not accept that her resignation falls within the scope of either s386(1)(a) or
s386(1)(b) of the FW Act. Her application under s365 will be dismissed, an order will follow.
DEPUTY PRESIDENT
Appearances:
T Kar, Applicant
N La Mare of Counsel for the Respondent.
Hearing details:
2023.
Perth (via Microsoft Teams):
26 July 2023.
Printed by authority of the Commonwealth Government Printer
PR764969
TE FAIR WORLE SOMECCION
[2023] FWC 1961
9
1 Lipa Pharmaceuticals v Mariam Jarouche 2023 FWCFB 101 [23].
2 Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, [205-206].
3 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [32].
4 Doumit v ABB Engineering Construction Pty Ltd (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December
1996) Print N6999, 12.
5 Australian Hearing v Peary (2009) 185 IR 359, 367 at [30].
6 Moore v Woolworths Group Limited T/A Big W [2020] FWC 963.
7 Love v Alcoa of Australia Limited [2012] FWAFB 6754.
8 Davidson v Commonwealth [2011] FWA 3610.
9 Davidson v Commonwealth [2011] FWAFB 6265.
10 Pacific National (NSW) Limited v Bell [2008] AIRCFB 555.
11 Costigan v KOR Equipment Solutions Pty Ltd [2022] FWC 176 [109].
12 Jenny Yang v FCS Business Service Pty Ltd [202] FWC 4560 [80] and [96].
13 Moore v Woolworths Group Limited T/A Big W [2020] FWC 963.
14 Pacific National (NSW) Limited v Bell [2008] AIRCFB 555.
15 Davidson v Commonwealth [2011] FWA 3610; Davidson v Commonwealth [2011] FWAFB 6265.
16 Love v Alcoa of Australia Limited [2012] FWAFB 6754.
17 Jarouche v Lipa Pharmaceuticals Ltd [2023] FWA 493 [28-33] and [115].
18 Becker v Greater Bank Limited [2021] FWC 5063 at [36].
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/2012fwafb6754.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa3610.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb6265.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc176.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc963.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa3610.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb6265.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwafb6754.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwa493.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc5063.htm
