1
Fair Work Act 2009
s.365—General protections
Jaclyn Anderson
v
Edamgrove Pty Ltd as trustee for the Edamgrove Trust No 8 & Keith
Thompson
(C2024/7586)
COMMISSIONER CRAWFORD SYDNEY, 20 DECEMBER 2024
General protections dismissal dispute – jurisdictional objection – employer argued employee
voluntarily resigned – employee was dismissed - jurisdictional objection dismissed.
BACKGROUND
[1] Jaclyn Anderson commenced full-time employment with Edamgrove Pty Ltd as trustee
for Edamgrove Trust No 8 (Edamgrove) on 30 September 2024 in the position of Property
Manager at the Stirling Motel in Rockhampton. Ms Anderson’s employment with Edamgrove
ended on 16 October 2024. Ms Anderson filed a general protections application pursuant to
s.365 of the Fair Work Act 2009 (FW Act) on 21 October 2024 which alleges Edamgrove
dismissed Ms Anderson for exercising workplace rights. Edamgrove has raised a jurisdictional
objection to Ms Anderson’s application on the basis that she voluntarily resigned from her
employment with Edamgrove. This decision concerns how the employment relationship
between Ms Anderson and Edamgrove ended.
[2] I issued directions for the filing of evidence and submissions and listed the jurisdictional
objection for hearing on 17 December 2024 via video. Ms Anderson represented herself. I
granted permission for Edamgrove to be represented by Lisa Carey from CTI Lawyers because
I was satisfied that would enable the matter to be dealt with more efficiently.
MATERIAL FILED
Ms Anderson
[3] Ms Anderson provided a witness statement dated 22 November 2024. Ms Anderson
provides her account of the events that led to her employment with Edamgrove ending on 16
October 2024. Ms Anderson’s evidence is that she attended work in the morning on 16 October
2024 and performed administrative duties. Ms Anderson then told Keith Thompson (Project
Manager – Operations) that she was going back to her room onsite to talk to her father and
would come back at 1pm for a meeting about her employment. Ms Anderson handed her
manager’s phone to Mr Thompson. Ms Anderson says she attended a meeting with Mr
[2024] FWC 3546
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3546
2
Thompson and Lee Dickens (Project Manager) at around 1pm on 16 October 2024. The meeting
turned into an argument about Ms Anderson’s performance. Ms Anderson was eventually told
by Mr Dickens to “pack up her things and go.” Ms Anderson needed a few hours to pack up her
belongings and left the site that afternoon. I marked Ms Anderson’s statement Exhibit A1. Ms
Anderson was cross-examined during the hearing on 17 December 2024. Ms Anderson
maintained in cross-examination that she did not resign from her employment with Edamgrove.
[4] Ms Anderson provided oral submissions at the end of the hearing.
Edamgrove
[5] Edamgrove relied on a copy of Ms Anderson’s employment contract. I marked the
contract Exhibit R1.
[6] Edamgrove relied on a copy of a job advertisement for the Property Manger role. I
marked the advertisement Exhibit R2.
[7] Edamgrove relied on training and induction notes regarding Ms Anderson’s
employment. I marked the notes Exhibit R3.
[8] Edamgrove relied on a witness statement from Mr Thompson dated 29 September 2024.
Mr Thompson’s evidence is that Ms Anderson told him at about 9:30am on 16 October 2024
that:
“I cannot balance for rollover. I am going back to my apartment to pack my bags and talk
to her father and will be back at 1:00pm to hand the keys back.”
Mr Thompson says he then called Liam Kelly (CEO) and told Mr Kelly that Ms Anderson had
resigned. Mr Thompson says Ms Anderson returned at around 12:40pm for a meeting with
himself and Mr Dickens. The meeting turned into an argument and Mr Thompson says:
“… as the meeting progressed Jacklyn started to yell at us and Lee Dickens stated that
this was not acceptable and that he felt that it was in everyone’s best interest that she
should leave, Jacklyn got up and said she was allowed 2 hours to pack, which we
granted.”
I marked Mr Thompson’s statement Exhibit R4. Mr Thompson answered some questions from
me under an affirmation during the hearing.
[9] Edamgrove relied on a witness statement from Mr Kelly dated 6 December 2024. Mr
Kelly states he received a phone call from Mr Thompson at around 9:45am on 16 October 2024
and that Mr Thompson indicated Ms Anderson had resigned and would be returning at 1pm to
return the keys. Mr Kelly states Mr Dickens and Mr Thompson did not have the authority to
dismiss Ms Anderson and that he did not give them authorisation to dismiss Ms Anderson. I
marked Mr Kelly’s statement Exhibit R5. Mr Kelly was not required for cross-examination.
Mr Kelly confirmed during the hearing that Ms Anderson was paid one week of wages in lieu
of notice by Edamgrove. Mr Kelly indicated that payment was required by the probationary
period clause in Ms Anderson’s employment contract.
[2024] FWC 3546
3
[10] Edamgrove relied on a witness statement from Mr Dickens dated 29 October 2024.
Mr Dickens states Mr Thompson:
“… approached me to inform me that Jaclyn had informed him that she was resigning and
that she would be back at 1pm to hand in her keys and formalise the resignation.
1pm came Jaclyn approached me and said “are we all good to talk” I assumed this was
in reference to her resigning and handing in her keys. Keith and I sat down at a table
with Jaclyn.
At this point she stated that she wanted to discuss her role and her position…”
Mr Dickens says he and Ms Anderson then disputed elements of her performance and the
requirements of her role. Mr Dickens says the meeting ended in the following way:
“She then became very aggressive in her speech towards Keith and myself, at that point
I said ‘I’m not going to continue with the meeting, as per your instruction this morning
Jaclyn you were resigning and leaving, I suggest we finish this meeting you can go and
pack your things hand in your keys and leave the premises”.
At this point the meeting finished, and she left the table.
Jaclyn then came back towards the table very loudly asking to speak again. At which
point I stated: ‘I do not wish to continue talking as it was not in the best interests of all
parties.’”
I marked Mr Dickens’ statement Exhibit R6. Mr Dickens was cross-examined by Ms
Anderson.
[11] Ms Carey made oral submissions at the end of the hearing.
CONSIDERATION
[12] I consider the evidence establishes that Ms Anderson referred to resigning in a
conversation with Mr Thompson at around 9:30am on 16 October 2024. Mr Thompson’s
evidence was not challenged in cross-examination. There is also uncontested evidence from Mr
Dickens and Mr Kelly that Mr Thompson informed them that Ms Anderson was resigning. I
accept Ms Anderson denies stating that she was resigning but I consider based on the other
evidence that Ms Anderson must have made some reference to resigning in the conversation
with Mr Thompson. I do not consider Ms Anderson’s conduct in handing her manager’s phone
to Mr Thompson to be overly relevant. Ms Anderson may have taken that step if she was
resigning from her employment, but she may also have done that because she was stepping
away from her duties to remain in her room until the 1pm meeting.
[13] However, I do not consider the evidence establishes that Ms Anderson communicated a
legally effective resignation to Mr Thompson during the conversation at around 9:30am on 16
October 2024. I consider the following evidence suggests that Ms Anderson indicated to Mr
[2024] FWC 3546
4
Thompson that she would resign at a meeting later in the day, as opposed to communicating a
legally effective resignation:
i. Ms Anderson and Mr Thompson both confirmed that Ms Anderson referred to
returning to her room to discuss the situation with her father. This suggests Ms
Anderson wanted to seek advice from her father about what to do. This is not
consistent with Ms Anderson having already communicated a definite decision
to resign.
ii. Mr Dickens’ statement refers to Mr Thompson telling him that Ms Anderson
would be attending a meeting at 1pm to “hand in her keys and formalise the
resignation.” That evidence suggests Mr Thompson communicated that Ms
Anderson had not “formalised” her resignation and that this step would
subsequently occur at the 1pm meeting. This indicates Ms Anderson’s
resignation was not confirmed during the discussion with Mr Thomson at around
9:30am.
iii. There is no evidence that Ms Anderson returned to her room to pack her bags,
or that she intended to return her keys at the meeting at 1pm. Mr Dickens and
Mr Thompson confirmed that Ms Anderson attended the meeting at around 1pm
and started discussing issues she was experiencing with her role and defending
herself in relation to the alleged issues with her performance. Ms Anderson had
not packed her bags at this time because she subsequently requested, and was
granted, two hours to do this when the meeting ended. This all suggests Ms
Anderson did not believe she had communicated a definitive resignation to Mr
Thompson at around 9:30am.
iv. The Form F8A filed by Edamgrove refers to concluding Ms Anderson’s “tenure
on the probationary terms as per her employment agreement.” This suggests Mr
Kelly’s understanding when he completed the Form F8A was that Edamgrove
had dismissed Ms Anderson during her probationary period.
v. Mr Kelly confirmed during the hearing that Edamgrove paid Ms Anderson one
week of wages in lieu of notice for termination after the employment ended. Mr
Kelly referred to doing this because there was confusion about what had
occurred at the meeting on 16 October, and ambiguity as to what the resignation
date was. I agree the end of the employment relationship between Ms Anderson
and Edamgrove was confusing. That is why I do not consider I can find that Ms
Anderson communicated a clear and definitive resignation to Mr Thompson at
around 9:30am on 16 October 2024.
[14] In Bupa Aged Care,1 the Full Bench explained how a “dismissal” at the initiative of an
employer can arise where an employee has referred to resigning:
“(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
[2024] FWC 3546
5
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.”
[15] I consider this case falls within the category of an ostensible resignation where
Edamgrove decided to rely on the resignation rather than clarifying or confirming that Ms
Anderson genuinely intended to resign. That constituted a termination at the initiative of
Edamgrove and a “dismissal” within the meaning of s.386(1)(a) of the FW Act.
[16] I accept Ms Anderson admitted during cross-examination that she was in a “neutral”
state of mind when she had the discussion with Mr Thompson at around 9:30am on 16 October
2024. However, I do not consider this to be a case of a “heat of the moment” resignation or that
Ms Anderson’s mental condition was such that she could not have been reasonably understood
as communicating a resignation. I consider Ms Anderson told Mr Thompson that she intended
to subsequently resign at a meeting in the afternoon on 16 October 2024. Ms Anderson
ultimately decided not to finalise the resignation and instead tried to argue that she should
remain employed. Ms Anderson did not communicate a legally effective resignation.
[17] Edamgrove also argued that Mr Dickens and Mr Thompson did not have the authority
to dismiss Ms Anderson without Mr Kelly’s approval, and this demonstrates Ms Anderson
could not have been dismissed. I reject that argument. Mr Dickens and Mr Thompson
communicated to Mr Kelly that Ms Anderson had resigned. Mr Kelly relied on this information
to process the end of Ms Anderson’s employment with Edamgrove. However, I consider Mr
Dickens and Mr Thompson misstated the legal position to Mr Kelly who then acted on that
incorrect advice. That essentially means Mr Kelly made the decision to “dismiss” Ms Anderson
within the meaning of the FW Act based on the incorrect advice he received from Mr Dickens
and Mr Thompson.
[18] I dismiss Edamgrove’s jurisdictional objection.
[19] Ms Anderson’s application will be listed for conciliation in late January 2025.
COMMISSIONER
THE FAIR WORK 16 ISSION THE SEA
[2024] FWC 3546
6
Appearances:
Ms Anderson representing herself.
Ms Carey from CTI Lawyers representing Edamgrove.
Hearing details:
2024.
Sydney (by video via Microsoft Teams).
17 December.
Printed by authority of the Commonwealth Government Printer
PR782681
1 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
