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Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Ka Ki (Gabby) Lo
v
Connect Facilities Pty Ltd, Ms Madelyn Lloyd
(C2024/5991)
COMMISSIONER HARPER-GREENWELL MELBOURNE, 25 OCTOBER 2024
Application to deal with contraventions involving dismissal
[1] The following is an edited version of the reasons for the decision I delivered ex tempore
on 22 October 2024. I have added to the decision an introduction and a full summary of the
facts in this matter for context.
[2] On 27 August 2024, Ms Ka Ki Lo made an application under s.365 of the Fair Work
Act 2009 (Cth) (the Act) to deal with a contravention involving dismissal. The Respondent
objects to the application on the basis that there was no dismissal.
[3] Ms Lo commenced employment with the Respondent on 20 May 2021 as a full-time
concierge and was later promoted to the position of Building Manger, her employment ended
on 9 August 2024.
Jurisdictional objection: No dismissal
[4] The facts in this matter relating to the cessation of Ms Lo’s employment are largely
uncontested and can be summarised as follows.
[5] Prior to her resignation Ms Lo made a request to take five weeks annual leave to go
overseas. Ms Lo’s request was denied due to other employees taking leave at the same time.
Although Ms Lo had notified her manager of her intention to take leave she had not logged her
leave request into the employee portal, which was her responsibility to do so.
[6] On 24 July 2024, in an attempt to facilitate Ms Lo’s leave request she was asked to
consider alternative dates or shortening the existing leave request. Ms Lo declined to consider
any alternative dates as she had confirmed her travel arrangements.
[7] On 25 July 2024 at 4:54pm Ms Lloyd, People and Culture Manager, wrote to Ms Lo to
confirm the discussion held on 24 July 2024, during which Ms Lo expressed that she would
like to move away from her role as building manager and transition back to a casual concierge
[2024] FWC 2925
REASON FOR DECISION EX
TEMPORE
AUSTRALIA FairWork Commission
[2024] FWC 2925
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within the business. Ms Lloyd wrote that she would start work on the transition and provide
updates with plenty of notice.
[8] At 5.17pm that same day, Ms Lo replied to Ms Lloyd submitting her resignation. In her
correspondence Ms Lo says it was her intention to give 4 weeks’ notice and that her
employment would end on 22 August 2024. Ms Lo wrote:
“For casual concierge role; due to my parenting and health concerns-I am unable to start
straight away but in a few weeks time. Please provide the hourly rate for casual
concierge from Connect Facilities. Thank you very much.:” (sic)
[9] In her resignation letter attached to the 25 July 2024 email, Ms Lo states that her last
day will be 22 August 2024. Ms Lo then writes her preferred last day is 2 August 2024. Ms Lo
goes on to state that she believes her expertise and availability would be better suited to her
original role as casual concierge.
[10] On 26 July 2024, Ms Lloyd wrote to Ms Lo stating that they could not accommodate
her request to finish on 2 August 2024 and she would see if there was anything she could do to
accommodate an earlier exit. In that same email Ms Lloyd provided details of the casual
concierge hourly rate and requested Ms Lo reach out once she was in a position to take on some
shifts and she would confirm what was available to her.
[11] From the afternoon of 26 July 2024, Ms Lo then took paid carers leave. Ms Lo
commenced personal leave from 28 July 2024 to 8 August 2024 inclusive and unpaid personal
leave on the 9 August 2024.
[12] On 6 August 2024, at 3.17pm Ms Pitcher, People and Culture Coordinator, sent an email
to Ms Lo stating that she understood Ms Lo had recently resigned and was looking to finish
prior to her four weeks notice period. Ms Pitcher stated that this could be accommodated and
proposed a finish date of 9 August 2024.
[13] On 7 August 2024, at 9:36pm Ms Lo replied by email confirming that her last day would
be 9 August 2024 and requested that she be provided with her exit letter for review.
[14] On 8 August 2024, Ms Lo received her exit letter which confirmed her final day be 9
August 2024.
[15] On 10 August 2024, Ms Lo attended the Respondents premises and returned some of
the company property and retrieved her personal belongings.
[16] On 13 August 2024, Ms Lloyd wrote to Ms Lo informing her that she had not returned
all of the company property and had entered the site without permission and as she was no
longer an employee this was a concern. Ms Lloyd invited Ms Lo to make arrangements to
collect any personal belongings that she may have left on site.
[17] Ms Lo took offence to the tone of Ms Lloyd’s letter. On 14 August 2024, Ms Lo replied
stating that she has not signed the exit letter and her final date will now be 22 August 2024. Ms
Lo offered to provide medical certificates covering her for the period up to and including the
[2024] FWC 2925
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22 August 2024. Because Ms Lo has resigned from her employment and confirmed her last day
of employment was 9 August 2024, the Respondent refused to accommodate her request.
Conclusion
[18] It is not in contention that Ms Lo resigned from her employment. The evidence does not
support a finding that Ms Lo was dismissed from her employment at the initiative of the
Respondent. Ms Lo applied for annual leave and her annual leave application was not granted.
She subsequently resigned from her employment and requested that she not be required to work
the four week notice period she was required to give under her contract. Although the original
end date requested by Ms Lo could not be accommodated, she agreed that her employment
would end by way of resignation on 9 August 2024.
[19] Ms Lo did not resign in the heat of the moment. At the time of her resignation Ms Lo
requested an alternative role within the Respondents business citing personal reasons and the
Respondent agreed to accommodate that request. Ms Lo also requested and received an exit
letter prior to her last day of employment. She had time to consider the exit letter prior to
retrieving her belongings from the Respondents premises on 10 August 2024. It wasn’t until 13
August 2024, when Ms Lo received Ms Llyod’s email with its harsh tones, to which she took
offence that she attempted to unilaterally change the date of her resignation. Ms Lo made no
attempt to rescind her resignation, she sought only to change the date it was to take effect. The
Respondent’s refusal to accommodate Ms Lo’s request does not result in her employment being
terminated at the initiative of the Respondent.
[20] I am not persuaded that the Respondent’s conduct resulted in Ms Lo having no other
option than to resign or that it would have that probable effect. It is my conclusion that the
termination was not done in haste but with careful consideration. Ms Lo made the considered
decision to resign from her employment. I am not satisfied that Ms Lo had no other option but
to resign as a result of the Respondent’s conduct. Ms Lo expressed she no longer had a desire
to remain in her employment in a letter to Respondent and sought alternative employment that
better suited her lifestyle which the Respondent agreed to accommodate.
[21] I find that Lo was not dismissed for the purposes of s. 368 of the Act. As Ms Lo was not
dismissed she cannot bring an application under s. 365 of the Act.
[22] The application is dismissed.
COMMISSIONER
Appearances:
K Lo for herself
M Llyod for the respondent
COM MISSION IS NORK AIR WORK ? TH SEAL OF THE
[2024] FWC 2925
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Hearing details:
22 October 2024
Video by MS Teams
Printed by authority of the Commonwealth Government Printer
PR780461
