1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Alisa Quill
v
The Trustee for Campbell Childcare Trust
(C2024/3257)
COMMISSIONER YILMAZ MELBOURNE, 26 AUGUST 2024
Application to deal with contraventions involving dismissal jurisdictional objection - whether
Applicant dismissed – no dismissal – resignation – application dismissed.
[1] On 17 May 2024, Ms Alisa Quill lodged an application pursuant to s.365 of the Fair
Work Act 2009 (the Act) against The Trustee for Campbell Childcare Trust (the Respondent).
In her application, Ms Quill alleges workplace rights contraventions in terms of ss.340, 341,
343 and industrial activities covered by ss.346 to 348 of the Act.
[2] The Respondent objects to the application on the basis that Ms Quill resigned from her
employment and was not dismissed. Further it submits that Ms Quill resigned on 3 May 2024
during her probation period, having only commenced employment on 6 December 2023.
[3] Ms Quill contends that she was pressured to resign after allegedly being demoted and
because of the treatment by her employer towards her and her son.
[4] Whether Ms Quill was dismissed within the meaning of s.386 of the Act is in dispute.
Ms Quill contends that she resigned because of the Respondent’s conduct and relies on
s.386(1)(b) of the Act. A s.365 application can be made where a person has been dismissed and
alleges that they are dismissed in contravention of their general protections. Before the
Commission can deal with the application under s.368, it must determine if Ms Quill was
dismissed. This decision considers whether Ms Quill was dismissed within the meaning of s.386
or she resigned voluntarily as contended by the Respondent.
[5] Ms Quill was supported by her union and the Respondent was granted leave to be
represented by Carter Newell Lawyers. Ms Quill gave evidence, and for the Respondent the
witnesses were:
• Ms Mynette Fulmer, Centre Manager, and
• Ms Amy Bodel, Operations Manager.
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DECISION
AUSTRALIA FairWork Commission
[2024] FWC 2281
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Was Ms Quill dismissed?
The Applicant’s submissions
[6] Ms Quill commenced employment as an unqualified Early Childhood Teacher (ECT)
on 6 December 2023. At the time of her commencement, the Centre was managed by a Director
who she says fully supported her, but in March with the change to Centre Director she submits
that she felt negativity, bullying and manipulation.1 The evidence bore out that there were
disagreements or differing views over the care of her son, her qualification and funding
eligibility for the centre. I observe that Ms Quill did not agree with the direction or decisions
taken by the new Centre Director or the Operations Manager.
[7] When Ms Quill commenced there were 2 kindergarten rooms, and at interview she was
given the option which room she wished to work in. It is apparent that the kindergarten program
was intended to deliver a service to 3–5-year-olds. Ms Quill chose the group with the older
children 4–5-year-olds preparing for school in 2025. At that time, the other room catered for 3–
5-year-olds and it is noted that some children in this room were expected to commence school
in 2025.
[8] In March 2024, a new Centre Director commenced employment and observed the spread
of children across the 2 rooms. This led to consultation with the objective of bringing all
children due to commence school in 2025 to be grouped together. Ms Quill’s son was in the
older cohort preparing for school and it was considered by the Centre Manager that it would be
preferable that mother and child were not in the same kindergarten room. Some options were
presented to deal with the situation, and Ms Quill was not happy with either the options,
rationale or the process undertaken to implement the change. Even though she was consulted
and agreed to lead the room with the younger cohort, she personally perceived this as a
demotion as a number of children had not yet been fully toilet trained. It is observed that the
position description or conditions of employment were not changed.
[9] Ms Quill lodged this application purporting that she was demoted, treated poorly and
forced to resign.2 Ms Quill alleges that the Respondent:
• Denied her a pay rise that she believed she was promised when interviewed,
• Directed that she and her son be in separate kindergarten rooms (Senior Kindy and Pre-
School respectively) and she considered it was unnecessary,
• Altered her role from ECT to Senior Kindy teacher, because she was required to perform
duties relating to the children’s personal care (nappy changes, toilet training etc) to
which she submits that she was not employed to do. She further submits that she was
not given additional support to manage these duties,
• Advised that kindergarten funding would be lost for her son,
• Advised that her son ought to go to school the following year, despite her own views,
• Failed to comprehend the degree to which her son suffered anxiety and needed her
support.
[10] She submits that the poor treatment and an event led to her resignation. The event she
refers to concerns the reaction by her employer when she consoled her son. She submits that
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she was outdoors supervising all of the children when she noticed her son crying. She then
comforted her son and brought him indoors with another child and was questioned why she had
her son with her. She submits that this was a criticism and an example of double standards as
other staff with children at the centre were permitted to spend time with their children.
[11] Ms Quill produced unsworn statements from the former Director and 2 former
educators, texts with a staff member and an email from a previous parent of the Centre. None
of these individuals presented to give evidence. It is apparent that the former Director was
dismissed (by his own admission) and had thought unkindly towards the Operations Manager.
The 2 former staff were either unsupportive of the decisions made by the new Centre Director
or unhappy with the quality of care to their own children. One former staff member did not
provide a statement, but rather the attachment consisted of extracts of text messages with the
Applicant. The former parent’s attachment was an email to the Applicant explaining why she
removed her child from the Centre. None of these “statements” add any weight to the issue of
forced resignation being determined, `nor can any of these “statements” be tested. Rather these
documents are presented with an intention to discredit the Centre or certain individuals and
accordingly have no evidentiary weight in this matter.
The Respondent’s submissions
[12] The Respondent submits that Ms Quill was not dismissed but resigned. In reference to
the letter of resignation, the Respondent points out that the letter thanked her employer for the
support afforded to her and expressed excitement for her next adventure.3
[13] Ms Bodel gave evidence that when Ms Quill was employed as an Early Childhood
Teacher, she was allocated to a room with 4- and 5-year-olds, intended for children entering
school in 2025. As Ms Quill was not fully qualified, the Centre was ineligible for funding to
deliver free Kindy. In March 2024, the Centre determined to create a single room to meet
kindergarten regulatory requirements which required the recruitment of a qualified ECT for the
3 – 5-year-old group of children. This resulted in Ms Quill being allocated to a kindergarten
room next door comprising 3–4-year-olds (Senior Kindy). She submits that Ms Quill’s position
and title remained unchanged, and an additional support was allocated following Ms Quill’s
request. She contends that Ms Quill was not forced to resign, and she was not demoted as all
terms and conditions remained the same despite the change in allocation of children to the
kindergarten rooms.4
[14] Ms Fulmer gave evidence that when she commenced as the Centre Director in March
2024, there were 2 kindergarten rooms, one was called Preschool 1 (with children 4-5 years
old) and the other Preschool 2 (with children 3-5 years old). She gave evidence that it was her
decision that the children of Preschool 2 that were readying for school in 2025 year would be
better served by relocating to Preschool 1 alongside their peers. She further gave evidence of
the consultation she had with staff and with Ms Quill including the options discussed - of
moving her son to the older room, the preference that they are not in the same room, and of the
idea of placement of either mother or son in a local sister centre. The final decision which was
accepted was to place Ms Quill’s son in the Preschool room (4–5-year-olds), and she transfer
to the room with children 3-4 years old. Ms Fulmer asserts there was no change to the terms
and conditions and denies any pressure for Ms Quill to resign. She further addressed allegations
made by Ms Quill that there were double standards in terms of other staff. In her situation she
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explained that she negotiated a flexible working arrangement following a period of maternity
leave when her child was 6 weeks old.5 No flexible working arrangement request was made by
Ms Quill.
[15] The Respondent tendered in evidence Ms Quill’s new employee details form which
shows training in “Birth to 8 years Bachelor of Early Childhood”, the letter of resignation,
position description and payslips.
The legislation
[16] Section 365 of the Act deals with applications before the Commission and contains two
limbs, one that there is a dismissal and secondly that the Applicant alleges that the dismissal
occurred because of a contravention of general protections. Relevantly, the Act at s.365
provides:
‘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.’
[17] The term “dismissed” in s.365 of the Act is defined in s.386 of the of the Act.6 A
dismissal is to be at the initiative of the employer, or a person was forced to resign but a
dismissal does not include a range of situations (e.g. employment for a specified period of time
or for a specified reason). The relevant extract from s.386 provides:
‘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 their employment but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her
employer.’
[18] The relevant provision in this matter is the application of subsection 386 (1) (b) of the
Act. There is no dispute that the exclusions in subsections 386 (2) and (3) do not apply. Both
subsections of 386 (1) go to the employment coming to an end because of the employer’s
conduct and there is no dispute that the application of subsection 386(1)(b) which Ms Quill
relies on is contested between the parties.
Consideration
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[19] To make a general protections dismissal application the person must have been
dismissed as defined by the Act. Before exercising its powers under s.3687 of the Act, the
Commission must be satisfied that the person was dismissed in fact.8
[20] The principle from the authorities is that the employer’s conduct is key to effect the
resignation of the employee, and such that the employee had no choice but to resign.9 A quick
acceptance by the employer of a resignation in the heat of the moment may be considered a
dismissal, however, Ms Quill does not argue this, nor does the evidence support a heat of the
moment resignation. A repudiation of the contract by the employer may also give rise to a
termination caused by the employer. While Ms Quill asserts that she was demoted, the evidence
does not support this, the position description, pay rate and all other terms and conditions were
not altered. The only change that occurred was the reallocation of children in the 2 kindergarten
rooms on 8 April 2024. Ms Quill relies on the argument that the conduct of her employer forced
her resignation.
[21] The question of whether the employee had no real choice but to resign is not a matter
where the employee did not agree with the circumstances, rather the action of the employer
must be such that the employee had no real choice but to resign. Therefore, had the action of
the employer not occurred, the employee would not have resigned. That is that the conduct of
the employer intended to bring the employment relationship to an end. It is important to
consider the facts objectively, and where an employee does not like the circumstances, is
uncomfortable, finds it difficult or distressing, such characterisations alone would not satisfy
the principles in Mohazab.10
[22] Since Mohazab, a number of cases11 have considered forced resignation with the most
recent full bench authority being BUPA Aged Care.12 The Full Bench reviewed the authorities
in relation to s.386(1) and (2) of the Act. The relevant summary paragraph 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
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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 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.”
[23] The evidence does not support a resignation in the heat of the moment. Ms Quill
tendered her written resignation on 3 May 2024 with a letter dated 2 May 2024 to take effect
after 1 week of notice ending on 10 May 2024. The contents of the letter make no suggestion
of a forced resignation or any concerns leading to resignation. The letter states “Thank you for
giving me the opportunity to work in this position for the past 5 months. I have thoroughly
enjoyed working here and appreciate all of the opportunities you have given me. However, I
have decided it is time for me to move on to my next challenge.” The letter also offers to assist
with the effect of her transition. The letter further makes no suggestion of conduct forcing a
resignation. There was an absence of evidence in support of a forced resignation in the heat of
the moment.
[24] The conduct of the employer is to be scrutinised in terms of the application of
s.386(1)(b). Following the commencement of the Centre Director in March, an assessment of
the make-up of children in the 2 kindergarten rooms resulted in consultation over March and
an eventual transfer in April of the older children into one room. Ms Quill was consulted in this
process and with her acceptance, her son was placed in the room with the older children which
were scheduled to commence school in 2025. Due to the challenges that can arise when young
children are placed with a parent in a work environment, Ms Quill was placed in charge of the
3–4-year-old room. I observe throughout her witness evidence Ms Quill made the point she had
no objections with being in a room separate from her son provided they were located in the
same Centre. While this decision was accepted by Ms Quill, she expressed a view that no
conflict arose being the kindergarten teacher in the same room as her son, nor did she consider
it necessary that they were separated. Witnesses for the Respondent stated it was perceived that
Ms Quill did not focus her attentions on the needs of all of the children equally with those of
her son, particularly if he became anxious. However, it was also considered beneficial for Ms
Quill’s son to attend a room independent of his mother. These observations and the preference
from the Respondent to separate mother and child is not unreasonable and not inconsistent with
Ms Quill’s employment conditions.
[25] Ms Quill raised during her witness evidence an objection to having to perform duties
that she considered inconsistent with her role as ECT. While she agreed to take responsibility
for the 3–4-year-old kindergarten room, she objected to having to perform nappy changes and
toilet training. She gave evidence that these duties which she says she previously was not
required to perform required additional support that the Respondent failed to provide. The
Respondent gave evidence that it did provide additional support and this fact remained in
contention during proceedings. Any suggestion that these duties were a demotion or repudiation
of the contract was not substantiated.
[26] Ms Quill gave evidence that when she commenced as an ECT at the Centre, she was
given the option of which kindergarten room she preferred to work in. The same age cohort of
children 3–5-year-olds were the focus of the kindergarten program comprising of 2 rooms. The
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job description is the same regardless of which room the staff worked in. There was no evidence
that nappy changing, or toilet training was not required of an ECT and given the age of children
it was reasonable to expect such responsibilities applied. In any event the reallocation of the
children occurred on 8 April and Ms Quill resigned on 3 May, even if she was dissatisfied with
the frequency of the duties to be performed in her room, her resignation cannot be considered
forced. Dissatisfaction with the duties on any reasonable objective assessment cannot be
considered conduct by the employer forcing a resignation.
[27] It cannot be reasonably accepted that the reallocation of children resulted in a
repudiation of the contract of employment, or that she faced no option other than to resign nor
that the conduct can be characterised as forcing a resignation by the employer or an intention
to bring the employment relationship to an end.
[28] In terms of the other allegations of poor treatment and double standards, they are better
described as differing views rather than evidence of conduct forcing a resignation. Ms Quill
tendered with her materials an extract email (original source not tendered) that she sent to the
owner dated 29 March 2024 (during the consultation period) expressing her concerns and
feelings “about all of the changes.”13 Despite the effluxion of time following staff changes and
reallocation of children in the kindergarten rooms, Ms Quill was evidently still unhappy when
she resigned despite agreeing to transfer to Senior Kindy and submitting a positive letter of
resignation. This email complaint and resignation is not evidence of a forced resignation instead
it is evident of Ms Quill’s dissatisfaction of the changes in the Centre. In addition, the allegation
that Ms Quill was denied a promised salary adjustment cannot be found in her favour. On 15
March 2024, Ms Quill sent an email requesting a pay rise on the basis that an adjustment was
discussed at interview. There was no evidence of a promised wage adjustment, rather there was
agreement to review after 3 months.14 Again, this is not evident of conduct forcing a resignation.
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Conclusion
[29] Having considered the evidence I am satisfied that Ms Quill was not forced to resign
and therefore not dismissed within the meaning of s.386(1)(b) of the Act. None of the evidence
supports a conclusion that the employer’s conduct forced a resignation or placed Ms Quill in a
position that she had no choice but to resign. The evidence does show that Ms Quill was
unhappy that the Senior Kindy room, required nappy changing and toilet training which in her
view compromised her capacity to focus on educational ECT responsibilities.
[30] For the above reasons Ms Quill was not dismissed from her employment with the
Respondent. Rather she voluntarily resigned because she was unhappy with the changes in the
Centre. On this basis Ms Quill’s application for general protections involving dismissal is not
made in accordance with s.365 and the application is dismissed pursuant to s.587(1)(a) of the
Act.
[31] An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Alisa Quill for the Applicant
Lara Radik for the Respondent
Hearing details:
2024.
Melbourne (via Microsoft Teams):
July 24.
Final written submissions:
Applicant, 28 June 2024
Respondent, 12 July 2024
Printed by authority of the Commonwealth Government Printer
PR778654
OF THE FAIR WORK FAIR ION THE SEA
[2024] FWC 2281
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1 Exhibit A1- Applicant’s statement of Evidence at [7]-[8].
2 Exhibit A1- Applicant’s statement of evidence.
3 Respondent’s outline of argument at 1f and letter of resignation dated 2 May 2024.
4 Exhibit A2- Statement of evidence of Amy Bodel, Operations Manager at [3] – [7] and [10].
5 Exhibit R1- Statement of evidence of Mynette Fulmer Centre Director.
6 See Part 1-2 – Definitions in s.12 of the Fair Work Act 2009, which refers to s.386.
7 Dealing with a dismissal dispute other than by arbitration.
8 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54].
9 See Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; 39 AILR 3-234 at 205 (IR) per Lee, Moore and
Marshall JJ and O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100-528 AIRC 496 at [19] – [23].
10 Ibid.
11 Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279, Pawel v Advanced Precast Pty Ltd AIRC Print S5904 (12 May
2000), O’Meara v Stanley Works Pty Ltd AIRC Print PR973462 (11 August 2006) ABB Engineering Construction Pty
Ltd v Doumit Print N6999, (9 December 1996) and Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154.
12 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941.
13 Email of 29 March 2024 at 8.01pm to Nick Campbell.
14 Unsworn statement of Thomas Kiely, previous Director.
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb5279.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr973462.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
