1
Fair Work Act 2009
s.365—General protections
Levi Moon
v
McMillan Shakespeare Limited; Maxxia Pty Ltd
(C2024/4789)
DEPUTY PRESIDENT LAKE BRISBANE, 18 NOVEMBER 2024
Application to deal with contraventions involving dismissal – forced resignation –
jurisdictional objection – no dismissal – jurisdictional objection upheld – application
dismissed.
[1] Mr Levi Moon (the Applicant) lodged a general protections application involving
dismissal with the Fair Work Commission (the Commission) on 12 July 2024. The Applicant
claims that adverse action was taken against him by McMillan Shakespeare Limited and
Maxxia Pty Ltd (the Respondent) under ss.340 and 351 of the Fair Work Act 2009 (Cth) (the
Act).
[2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed
under s.386 of the Act as the Applicant resigned from his employment on 11 June 2024. The
Applicant contests the objection on the basis that he was constructively dismissed and forced
to resign under s.386(1)(b) of the Act.
[3] Directions were issued and the matter was listed for hearing on 15 October 2024. The
Applicant was represented by Taylor Rose, and the Respondent was represented by Rigby
Cooke Lawyers.
[4] There was no objection raised by either party regarding representation at the Hearing.
Representation was granted on the basis that the matter would run efficiently given the
complexity of the matter, and there would be no unfairness between the parties.
Procedural Matters
[5] The Applicant named McMillan Shakespeare Limited as his employer in his Form F8
Application. It was uncontested that Applicant’s letter of offer of employment noted the
Applicant’s employer as being Maxxia Pty Ltd (Maxxia),1 a subsidiary of McMillan
Shakespeare Limited and part of the McMillan Shakespeare Corporate group. The parties both
noted Maxxia as a Respondent in their submissions. Neither party formally requested for the
Respondent to be changed to Maxxia under s.586 of the Act. Maxxia is a wholly owned
subsidiary of McMillan Shakespeare Limited.
[2024] FWC 3140
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3140
2
[6] I consider that in the circumstances where Maxxia is a wholly owned subsidiary of the
McMillan Shakespeare Limited, the Respondent has not objected to the inclusion of Maxxia as
a Second Respondent in the Applicant’s submissions, and the Respondent themselves in their
submissions has referred to both companies interchangeably as being the Respondent, then it is
appropriate to exercise my discretion pursuant to s.586 of the Act to amend the Form F8 to note
Maxxia as a Second Respondent.
Background
[7] The Applicant commenced full-time employment with Maxxia as a Customer Care
Consultant within the Respondent’s brand, RemsServ on 5 July 2021.2
[8] The Applicant is a full-time carer for his wife. Without disclosing the nature of the
Applicant’s wife’s disability, I accept that her care requirements are ongoing.
[9] Over the course of his employment, the Applicant made several requests for flexible
working arrangements, the last of which was to expire on 8 July 2024.3
[10] It was not contested that the Applicant is entitled as a carer to request flexible working
arrangements under s.65 of the Act.
[11] The Applicant’s claim of constructive dismissal is centred around the need for him to
make repeated requests for flexible working arrangements, as his employer would only approve
flexible working arrangements with a three-month period.4 The Applicant argued he was being
placed in the position where his work arrangements were being made subject to change every
three months. This made it difficult for the Applicant to make care arrangements for his wife.
[12] Alternatively, the Applicant argued that in his circumstances, the Respondent should
have allowed him to work from home.5
[13] The Applicant claims that in a meeting on 10 June 2024, the Applicant was informed by
his Team Leader, Mr Jesse Mason, that any further flexible working arrangement requests
would be denied.6 The Respondent denies that the Applicant was told this. 7 The Respondent
instead claims that it would have been likely to approve a further flexible working arrangement
request, had one been made. The Applicant resigned the day after the meeting, on 11 June 2024.
[14] The Respondent made much of the content of the Applicant’s resignation letter,8 which
I note is very positive and describes the Applicant’s experience as being “truly rewarding” with
“exemplary leadership and unwavering support”. The Applicant states in the letter that he is
resigning to pursue a career path which more closely aligns with his goals and aspirations. The
Respondent claims that the letter proves that the Applicant exercised a choice when resigning
and was not forced to resign.9 When questioned on this point, the Applicant argued that the
letter was phrased that way because he may have needed to use the Respondent as a reference.
The Applicant stated most people are not truthful when writing resignation letters. I accept the
Applicant’s argument. A white lie to preserve a professional relationship is not the same as a
lie which goes to credit. The resignation letter is not by itself proof that the Applicant exercised
a choice when resigning.
[2024] FWC 3140
3
Was the Applicant forced to resign under s.386(1)(b) of the Act?
[15] Section 386(1) of the Act relevantly provides that 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.10
[16] The Applicant’s main contention is that he was dismissed within the meaning of
s.386(1)(b) of the Act as he was forced to resign.
[17] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v
Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee
to be terminated at the initiative of the employer.11 In short, it is not sufficient to simply
demonstrate that the employee did not voluntarily leave their employment.12
[18] While it may be that some action on the part of the employer is intended to bring the
employment to an end, it is not necessary to show the employer held that intention.13 It is
sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the
employment relationship to an end.14
[19] All the circumstances – including the conduct of both the employer and employee –
must be examined.15 In other words, it must be shown that “the act of the employer results
directly or consequentially in the termination of the employment and the employment
relationship is not voluntarily left by the employee. That is, had the employer not taken the
action it did, the employee would have remained in the employment relationship.”16
[20] The Full Bench of this Commission in ABB Engineering Construction Pty Limited v
Doumit (ABB) said, in relation to determining whether the ending of an employment
relationship is a voluntary or forced resignation:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee
no real choice but to resign employment, from conduct that cannot be held to cause a
resultant resignation to be a termination at the initiative of the employer. But narrow
though it be, it is important that that line be closely drawn and rigorously observed.
Otherwise, the remedy against unfair termination of employment at the initiative of the
employer may be too readily invoked in circumstances where it is the discretion of a
resigning employee, rather than that of the employer, that gives rise to the termination.
The remedies provided in the Act are directed to the provision of remedies against
unlawful termination of employment. Where it is the immediate action of the employee
that causes the employment relationship to cease, it is necessary to ensure that the
employer’s conduct, said to have been the principal contributing factor in the resultant
termination of employment, is weighed objectively.
[2024] FWC 3140
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The employer’s conduct may be shown to be a sufficiently operative factor in the
resignation for it to be tantamount to a reason for dismissal. In such circumstances, a
resignation may fairly readily be conceived to be a termination at the initiative of the
employer. The validity of any associated reason for the termination by resignation is
tested. Where the conduct of the employer is ambiguous, and the bearing it has on the
decision to resign is based largely on the perceptions and subjective response of the
employee made unilaterally, considerable caution should be exercised in treating the
resignation as other than voluntary.”17
[21] Furthermore, in Pawel v Australian Industrial Relations Commission,18 the Full Bench
noted:
“Mere “causation” or “motivation” will not satisfy the requirement that the
termination be at the initiative of the employer.”
[22] Forced resignation has been interpreted by the Commission in the following ways:
• the actual conduct of the employer forced to do so, such that there was an element of
compulsion present;19
• a ‘critical action’ or ‘critical actions’ of the employer which was intended to bring the
employment relationship to an end;20
• as a result of some action on the part of the employer intended to bring the employment
to an end and perhaps action which would, on any reasonable view, probably have that
effect;21 and
• the employer’s conduct (when it is not evidenced was intended to bring about the
resignation directly) must be conduct that is in some way or in some manner oppressive
or repugnant in the ordinary course, and/or else so impacted on the volition of the
employee such that the resignation was a reasonable response to that conduct in all the
circumstances.22
Working from Home
[23] The Respondent’s policy for granting a remote contract to employees is based on
whether an employee’s residence is within a metropolitan area.
[24] The Applicant lives 46 kilometres away from the office.23 He lives within the Brisbane
metropolitan area. The Applicant stated that if he lived one kilometre further away, he would
be outside the metropolitan area.24
[25] On 10 June 2024, the Applicant called Mr Mason and asked what the process was to
have his contract permanently changed from a metro to a remote contract. Mr Mason showed
the Applicant a map of the boundaries of the Brisbane metropolitan area, showing that the
Applicant lives inside the boundary. Mr Mason informed the Applicant that because of this, the
Applicant was not eligible for a remote contract. Mr Mason states that the Applicant was
“visibly frustrated”.25 Mr Mason states that he told the Applicant that given the Applicant was
already on a flexible working arrangement, Mr Mason could make enquiries to see whether the
Applicant could be placed on a remote contract. Mr Mason stated that “I wouldn’t be able to
make any promises”. 26
[2024] FWC 3140
5
[26] Mr Mason stated in his witness statement that, in response to being told that the
Applicant may not be able to be put on a remote contract, the Applicant told Mr Mason that he
was considering resigning and would be looking to move to a “part time carer role”.27 In the
hearing, Mr Mason clarified that the Applicant did not in fact state this intention in words but
instead gave an “impression” that he would resign. The Applicant had indicated that needing to
submit flexible working arrangement requests every three months was affecting his mental
health.
[27] Mr Mason gave evidence that, to his knowledge, there are no employees in the
metropolitan area on remote contracts.
Flexible Working Arrangement Requests
[28] The Respondent provided a copy of the Flexible Working Arrangements Policy from
the McMillan Shakespeare Group as evidence.28 The policy notes that the process for requesting
a flexible working arrangement involves an employee first submitting a request to their
manager, “setting out the details of the change requested and the reasons why the change is
requested”.29 The next step is for the employee’s manager to review the request with Human
Resources. The policy notes that a written response to the request will be provided within 21
days of receipt of the original request. If the request is refused, then the written response will
include:
• an explanation of the reasonable business grounds for refusing the request and
how these grounds apply to the request;
• other changes the MMS is willing to make that would accommodate the
employee’s circumstances or that says there aren’t any changes; and
• information about referring a dispute to the Fair Work Commission.30
[29] The Applicant’s first flexible working arrangement with the Respondent was dated 2
June 2023.31 Over the following year, he submitted four flexible working arrangements
requests.32 On 10 June 2024, he made a verbal request for a fifth flexible working arrangement.
Each request was made a few weeks before the flexible working arrangement which was in
place expired.
[30] The request in October 2023 was for the Applicant to work from home. This was
approved.33 The request in December 2023 was for the Applicant to work a 9-day fortnight.
This was approved without modification.34 The request in March 2024 was for a 10-day
fortnight working from home. This was approved without modification.35 The Applicant’s last
flexible working arrangement had an expiry date of 8 July 2024.
[31] Mr Mason gave evidence that it was his process to informally discuss the request with
the employee before submitting it for approval to his manager. Mr Mason’s manager is Ms
Emily Greenwood.
[32] The Applicant gave evidence that he had to “push” for the last two requests to be
approved. This contributed to the Applicant’s apprehension that his request on 10 June 2024
would be denied. The Applicant suggested that the Respondent was “setting the tone” for a
[2024] FWC 3140
6
refusal in the future.36 This evidence is contradicted by Mr Mason’s evidence that the Applicant
was not being made to push for the requests to be approved, but was instead being asked to
provide additional information to evidence a change in circumstances where the working
arrangements were changed. For example, the Applicant had moved from the Sunshine Coast
and additional information was required to substantiate how the move changed the care needs
of his wife.
[33] While I can sympathise with the Applicant’s frustrations at being required to provide
documentation when making a new request, the requests by the Respondent to provide evidence
were entirely reasonable. It would be expected that a diligent employer would request evidence
of a change in circumstances. I find that the Applicant interpreted the requests by the
Respondent to provide additional information as being a pushback against the Applicant
making further requests for flexible working arrangements.
[34] The Applicant was frustrated by the fact that the flexible working arrangements were
only approved on a three-month basis.
[35] The Applicant stated that in December 2023 he was initially told by Ms Greenwood and
Mr Mason that the business was not willing to support his request for a flexible working
arrangement at the time. However, they told later told him that he could submit another request.
[36] Mr Mason stated that flexible working arrangements with the Respondent range from a
period of three to six months, but that approval would be needed from hire ups for a period of
six months.
[37] Mr Mason gave evidence he explained to the Applicant that flexible working
arrangements are not a permanent solution. He states that Applicant was told that after a period
of twelve months it becomes harder to approve a further request. It is evident that the Applicant
interpreted this was an outright refusal of his verbal request for a further flexible working
arrangement on 10 June 2024. I find that the Respondent was, with good reason, reticent to
approve a further request in June 2024, given the Applicant had been on flexible working
arrangements for a period of twelve months. However, the Respondent’s reticence was not a
refusal. Mr Mason gave evidence that neither he nor Ms Greenwood would refuse a request for
a flexible working arrangement on the spot. Ms Mason also stated that he is “not heartless” and
did not believe that the flexible working arrangement expiring on 8 July 2024 would be the
final one.
Consideration
[38] There is a high bar required to establish forced resignation. The onus is on the Applicant
to prove that he had no real choice but to resign. I find that the Applicant’s evidence does not
establish that he was forced to resign.
[39] The Applicant was in a difficult position and clearly under stress due to having to
arrange care for his wife. The Applicant’s stress was compounded by his need to submit flexible
working arrangement requests every three months. However, the Respondent, and particularly
Mr Mason, showed a great level of sympathy for the Applicant and approved numerous requests
for flexible working arrangements in the past. I find that it was probable that the verbal request
[2024] FWC 3140
7
on 10 June 2024 would have been approved eventually, had the Applicant not resigned the next
day. I find that it was open to the Applicant to wait for the request to be formally considered,
in accordance with the flexible working arrangements policy, of which he was aware. The
policy included that the Respondent may try to find alternative ways to accommodate the
employee’s needs, should the request be denied.
[40] The Applicant had indicated that he was considering resigning to become a carer for his
wife. I find that the conversation on 10 June 2024 brought this prospect to the forefront of the
Applicant’s mind, but resigning was not something that he was forced to do.
[41] As a result, I do not find the Applicant’s resignation to meet the threshold of a forced
resignation per s.386(1)(b) of the Act. Therefore, the Applicant is not eligible to lodge an
application under s.365 of the Act. The jurisdictional objection is upheld, and the Application
is dismissed.
[2024] FWC 3140
8
[42] I Order accordingly.
DEPUTY PRESIDENT
Appearances:
E Jordaan appearing for the Applicant from Taylor Rose
V Comino appearing for the Respondent from Rigby Cooke Lawyers
Hearing details:
15 October 2024
Brisbane.
Hearing via Microsoft Teams
Printed by authority of the Commonwealth Government Printer
PR781237
1 Jessee Mason Witness Statement Annexure JM-1.
2 Applicant Submissions [4]; Jessee Mason Witness Statement Annexure JM-1.
3 Applicant Submissions [9].
4 Ibid.
5 Ibid.
6 Ibid [9]-[10].
7 Jesse Mason Further Witness Statement [2].
8 Respondent Submissions [18]-[19].
9 Ibid [19].
10 Fair Work Act 2009 (Cth) s 386(1)(b).
11 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
12 Ibid.
13 Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works
Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
14 Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A
Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [31].
15 Whirisky v DivaT Home Care [2021] FWC 650 at [77].
16 Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care
Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [28].
17 (1996) PRN6999.
18 (1999) FCA 1660 at 58.
19 Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.
WORK COMMISSION THE SENS
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc650.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
[2024] FWC 3140
9
20 Boulic v Robot Building Supplies [2010] FWA 6905, [16].
21 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (1995) 62 IR 200, 205-206.
22 Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].
23 Applicant Witness Statement [12].
24 Ibid [12].
25 Jessee Mason Witness Statement [10].
26 Ibid.
27 Ibid.
28 Jesse Mason Witness Statement Annexure JM-2,
29 Jesse Mason Witness Statement Annexure JM-2, page 5.
30 Ibid JM-2, page 5.
31 Form F8A, page 4.
32 Respondent Submissions [5] –[8].
33 Jesse Mason Witness Statement [7].
34 Ibid [8].
35 Ibid [8].
36
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa6905.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2008airc102.htm