1
Fair Work Act 2009
s.365—General protections
Rachel Gear
v
RelyOn Australia Pty Ltd
(C2024/6329)
DEPUTY PRESIDENT COLMAN MELBOURNE, 1 NOVEMBER 2024
Application under s 365 – applicant not dismissed – application dismissed
[1] Rachel Gear has made an application under s 365 of the Fair Work Act 2009 (Act) which
alleges that she was dismissed by RelyOn Australia Pty Ltd (company) in contravention of Part
3-1 of the Act. The company objects to the application on the ground that Ms Gear was not
dismissed, but freely resigned.
[2] In brief summary, Ms Gear’s evidence was that she was forced to resign because the
company demoted her by no longer allowing her to lead projects and by preventing her from
travelling for work because it wrongly believed that she had a spatial disability. Ms Gear said
that she does have a disability, but not a spatial one, and that she never told the company what
her disability was, but that the company made offensive assumptions about it. Ms Gear said
that Erica Peters, the people manager, told her that the general manager, Matthew Peters, and a
colleague, ‘Brad’, no longer wanted to work with her, and that the company then cut off her
access to its systems. Ms Gear said that she was demoted and placed in a position where she
had no choice but to resign. Ms Peters denied saying that Mr Peters or Brad did not want to
work with her. She said that Ms Gear’s access to company systems was not cut off, but that if
that did happen it could only have been a mistake, because the company needed her to continue
to have access. Mr Peters denied saying that he did not want to work with Ms Gear. He said
that the company had operational reasons for deciding that Ms Gear would no longer travel to
client sites and that such travel was not a condition of her employment. He also said that Ms
Gear was not employed to lead projects. Ms Peters and Mr Peters denied that Ms Gear was
demoted. They also said that they did not want her to resign because she had been working on
an important project and her departure had made things difficult for the company.
[3] I find that Ms Gear was not demoted. She was not employed to lead projects and travel
was not a condition of her employment. Ms Gear’s contract of employment was submitted to
the Commission. It did not state that Ms Gear would lead projects. It stated that Ms Gear’s role
was that of a learning and development specialist, that her employment location was in
Scoresby, and that visits to client sites would be ‘as directed’. Ms Gear said that her interview
notes confirmed that she would be able to travel and to lead projects. But these are merely brief
records of precontractual discussions. They are not terms of her contract. I find that Ms Gear
remained at all times a learning and development specialist and was paid the daily rate to which
[2024] FWC 3038
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3038
2
she was entitled under her contract. I further find that Mr Peters did not say to anyone that he
did not want to work with Ms Gear, and that Ms Peters did not relay words to that effect to Ms
Gear. They denied doing so, and I prefer their evidence to that of Ms Gear on this point. I further
find that if Ms Gear’s access to company systems was indeed cut off, this was a mistake. I find
that the company still wanted and needed her to have this access, and to work on the important
project. In Ms Gear’s written materials, she noted that in her last telephone discussion with Ms
Peters on 21 August 2024, Ms Peters asked her whether she was willing to speak with her and
Brad together. This was a clear indication that the company was willing to work through the
relevant problems. However Ms Gear’s response was to say to Ms Peters that a discussion
would be futile.
[4] I note that in the lead up to the end of the employment, there were numerous
disagreements between Ms Gear and the company about reimbursement of travelling expenses
and other matters. I find that there is no reason why Ms Gear could not have pursued any claims
or grievances about these matters while remaining in her employment. I find that Ms Gear was
incensed that the company had decided that she would no longer travel. This is clear from her
resignation message, where she stated that she was saddened that the company had refused to
make a minor internal procedural adjustment so that she could continue to lead interviews onsite
interstate. I consider that Ms Gear had lost satisfaction in her work as a result of no longer being
able to travel. But this would be a good reason for her to resign. It is not a matter that forced
her to resign. Ms Gear said that when she did not receive a termination letter on 21 August
2024, she submitted her resignation. But nothing compelled her to do this. I find that if she had
not done so, she would have continued to be employed by the company.
[5] In conclusion, I find that there were no circumstances of compulsion associated with the
conduct of the employer that forced Ms Gear to resign, nor was she dismissed on the employer’s
initiative. She was therefore not dismissed within the meaning of s 386 and was not eligible to
make an application under s 365. The jurisdictional objection is upheld. Ms Gear’s application
under s 365 is dismissed.
DEPUTY PRESIDENT
Appearances:
R. Gear for herself
E. Peters and M. Peters for the respondent
Hearing details:
2024
Melbourne (by Microsoft Teams)
1 November
Printed by authority of the Commonwealth Government Printer
PR780892
WORK COMMISSION THE SEAL OF THE F
