1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Majd Rustom
v
Western Health
(U2024/12317)
COMMISSIONER JOHNS MELBOURNE, 19 MARCH 2025
Application for an unfair dismissal remedy – jurisdictional objection – not dismissed –
repudiation – forced to resign
[1] On 16 October 2024, Majd Rustom (Applicant) made an application to the Fair Work
Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act) for a
remedy in respect of his dismissal by Western Health (Respondent).
[2] On 23 October 2024, the Respondent filed a response to the unfair dismissal application.
In its response, the Respondent objected to the Commission exercising its jurisdiction in relation
to the application on the basis that, it submitted, the Applicant was not dismissed.
[3] The matter was allocated to my Chambers on 22 November 2024. That same day, I
issued Directions listing the matter for a jurisdictional objection hearing on 8 January 2025.
[4] For the reasons below I have decided that the Applicant was not dismissed.
The hearing
[5] At the jurisdictional objection hearing, I granted both parties permission to be
represented. Having regard to the nature of the jurisdictional objection, I was satisfied that the
matter was invested with sufficient complexity such that I would be assisted in the efficient
conduct of the matter if, in the overall exercise of my discretion, I allowed both parties to be
represented pursuant to s.596(2) of the FW Act.
[6] Consequently, at the hearing on 8 January 2025,
(a) the Applicant was represented by Mr Gary Dircks, a paid agent; and
(b) the Respondent was represented by Mr Charles Pym, a barrister.
[7] In advance of the hearing, the parties filed materials which were compiled in a Digital
Tribunal Book (DTB). For completeness, I set out below the materials relied upon the parties.
I have had regard to all these materials in coming to this decision:
[2025] FWC 115
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 115
2
Exhibit Document title Date
1 Form F2 15-10-2024
1.1 Resignation Email 30-09-2024
2 Form F3 and attachments 24-10-2024
2.1 Form F3 23-10-2024
2.2 Letter to Applicant 04-10-2024
2.3 AB2024/655 Decision 08-10-2024
2.4 AB2024/655 Order 08-10-2024
2.5 Resignation Email Undated
3 Respondent’s Submissions 16-12-2024
3.1 Respondent’s Outline of Submissions 16-12-2024
3.2 Witness Statement – Robyn Peel (with
annexures)
16-12-2024
3.3 Witness Statement – Debra Hill (with
annexures)
16-12-2024
4 Applicant’s Submissions 03-01-2025
4.1 Outline of Submissions 03-01-2025
4.2 Witness Statement – Majd Rustom 03-01-2025
4.3 MR 1 – Employment Contract 29-07-2019
4.4 MR 2 – Contract variations 23-04-2021
4.5 MR 3 – Fair Work Commission
Agreement
24-07-2024
4.6 MR 4 – Emails about excessive
workload
Various
4.7 MR 5 – Emails outlining continued
unfair treatment and breach of FWC
agreement terms
Various
4.8 MR 6 – Correspondence with
management about issues with allocated
work
Various
[2025] FWC 115
3
4.9 MR 7 – Emails regarding LinkedIn post
publicising my absence from my side
Various
4.10 MR 8 – Formal resignation from
Western Health
30-09-2024
5 Respondent’s Submissions in Reply 07-01-2025
[8] During the hearing, the Respondent filed:
a) an email from Emma Thaus to the Applicant dated 22 August 2024. This was
marked as Exhibit 6 in these proceedings.
b) a position description for the role of education coordinator. This was marked as
Exhibit 7 in these proceedings.
Background and findings of fact
[9] The following matters were either agreed between the parties or not otherwise
substantially contested. Consequently, I make the following findings of fact:
(a) On 19 August 2019, the Applicant commenced employment with Western Health as a
Learning Designer in the LMS team on a part-time basis.1
(b) Through periods in 2020 and 2021, the Applicant worked remotely as required by
COVID health restrictions applicable at the time.
(c) On 15 March 2021, the Applicant was promoted to the role of WeLearn Coordinator
managing the LMS team (Manager Role).2
(d) Although no position description3 was ever provided to the Applicant, nor was the
position of WeLearn Coordinator ever explained to him4, it was agreed before me that
the Manager Role included the following key duties and responsibilities,
a. Managing the LMS function for Western Health, including the training platform,
b. Coordinating the LMS administration team as well as other LMS course
designers,
c. Managing recruitment,
d. Leading and developing LMS team members, and
e. Prioritising work according to need and working on developing packages as well
as delegating work to the team.5
(e) In October 2021, a clinical learning designer with the Applicant’s LMS team, Daniel
Nolan, was redeployed as a result of COVID-19. No additional resources were allocated
to replace Mr Nolan.6
(f) On 28 August 2023, the Applicant wrote to his manager, Hayley Pohatu, seeking
guidance “on how to get support from Western Health to have … flexibility to be able
to care for [his] mother during … challenging times.”7
(g) On 1 October 2023, the Applicant requested to work from home on a full-time basis to
support his mother whose health was said to have further deteriorated.8
(h) On 5 October 2023 the Respondent granted the Applicant flexible work in the form of
two days per week from home and three days per week in the office. A flexible work
agreement was prepared.9
(i) These arrangements were confirmed on 16 October 2023. However, as it was not
[2025] FWC 115
4
practical for the Applicant, the Respondent agreed to allow him to access carer’s leave
when he was meant to be onsite. 10 From October 2023 the Applicant only attended
onsite if requested to do so.
(j) On 15 November 2023, the Applicant sought support and guidance about several
WeLearn function issues including, the positioning of the team, resourcing, career
prospects, authority, accountability, exclusion from decision making, his missing
position description, changes to working conditions, underperforming subordinates, and
micromanagement.11 The recipient of his email was on leave at the time.
(k) On 10 January 2024, the Applicant sent a follow-up email to his 15 November 2024
email.12 He wrote that he was “keen to hear … thoughts and guidance…”
(l) On 12 January 2024, the Applicant met with the Respondent’s Executive Director of
People, Culture and Communication, Ms Sandy Schutte about the matters he raised on
15 November 2023. The Applicant alleged bullying, but did not identify anyone as an
alleged bully.
(m) The Applicant did not access the anti-bullying policies and procedures of the
Respondent.
(n) On 18 January 2024 the Applicant requested full-time remote work and to extend
flexible work arrangements for a 3-month period. The Respondent agreed to the
request.13
(o) On 19 February 2024 the Applicant commenced periods of personal leave. He was
absent from work from approximately May to July 2024. Because the Applicant was on
personal leave, Mr Nolan took over the role of WeLearn Coordinator.
(p) On 22 February 2024, a bullying complaint was lodged against the Applicant by his
direct report a Technical Administrator, Ms Rummy Saini. 14
(q) On 27 May 2024 the Applicant provided the Respondent with a Certificate of Capacity.
It provided that,
“Recommended [return to work], with 2 days per week for 4 weeks, in different
team, to avoid as much as possible the contact with previous team.”15
(r) On 20 June 2024 the Applicant provided the Respondent with a Certificate of Capacity.
It provided that,
“Recommended [return to work], with 2 days per week for 4 weeks with the
same previous job with recommended support.”16
(s) On 1 July 2024, the Applicant filed a stop-bullying application in the Fair Work
Commission.
(t) On 11 July 2024 a psychological assessment was prepared in respect of the Applicant.17
(u) On 24 July 2024, Commissioner Lee, who had carriage of the stop-bullying application,
issued a recommendation in the following terms:
“[2] The Applicant will return to work subject to the specified modifications
by his treating medical practitioner, i.e. 2 days per week.
[3] The Applicant will return to his previous role.
[4] An external person will be appointed to review the Applicant’s workload
claims.
[5] The Applicant will participate in an investigation of the allegations
[2025] FWC 115
5
against him raised by Ms Saini upon his return to work.…”
(v) On 26 July 2024 Susan Zeitz of Peacemaker ADR was appointed as an external
investigator to investigate the allegations made against the Applicant and his allegations
about excessive workload.18 The Applicant was twice interviewed by Ms Zeitz.
(w) On 29 July 2024 the Applicant was requested to “not come into Western Health at all
and thus work your two days per week from home” during the investigation.19 The
Applicant did not object to the request.20
(x) On 6 August 2024, the Applicant returned to working two days per week remotely while
the investigations were ongoing. When the Applicant returned to work, he shared the
Manager Role with Mr Nolan. Before me, the Applicant conceded that, in circumstances
where he could not perform the Manager Role on a full-time basis it was reasonable for
the Respondent to split the role between him and Mr Nolan.21 For example, because the
Applicant did not work on Mondays he could not conduct the start-of-the-week “stand
up meeting in person” with his team. Consequently, the division of tasks saw the
Applicant primarily perform non-supervisory technical work.
(y) Noting the terms of the Applicant’s Certificate of Capacity, 4 weeks from his return date
was 3 September 2024. From 3 September 2024, without objection by the Applicant, he
continued to work 2 days per week from home.
(z) On 13 August 2024 the Applicant sent an email indicating that he was “happy to
continue with working on Tuesday and Thursday this week.” He then noted some
concerns about work arrangements and wrote “I would like to request a reassignment to
a more straightforward, independent eLearning design project…”22
(aa) On 22 August 2024 the Applicant wrote to his acting manager requesting
supports to manage priorities.23 He wrote, “Given the current restrictions and limited
hours I can commit to, I’d like to propose the fulling timelines…” His proposals were
agreed to.24
(bb) On 2 September 2024, the Applicant filed another stop-bullying application. On
8 October 2024 that application was dismissed by Commissioner Lee on the basis that
it had no prospects of success.
(cc) On 16 September 2024 the Applicant also filed a general protections application.
(dd) On 24 September 2024 Western Health made it clear to the Applicant that Mr
Nolan had not replaced him. Ms Hill wrote, “given that you are only able to work two
days a week at present [it] means that we can only give you some of your duties and not
all of them to be completed.”25
(ee) On 30 September 2024 the Applicant resigned from Western Health with
effective from 10 October 2024.26 He wrote,
“…. It is with regret that I submit my resignation from my role as WeLearn
Coordinator, effective 10th October 2024. This decision follows sustained unfair
and discriminatory treatment and retaliation after my workplace mental health
injury, which has made it impossible for me to continue in my role.
The key actions taken by Western Health that have led me to this difficult
decision include:
Challenges Related to Support and Fair Treatment
….
[2025] FWC 115
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Discriminatory and Retaliatory Actions:
….
• Western Health did not comply with our Fair Work Commission
agreement upon my return to work in August 2024.
• Western Health denied me the right to return to my role as the WeLearn
Coordinator, with Daniel Nolan continuing to act in my position to date.
Unfair Task Allocation and Investigative Failures:
….
Failure to Ensure a Safe Work Environment
….
After five years of dedication, passion and hard work, I have contributed to
uplifting the digital learning function of Western Health. However, the unfair
treatment, lack of support and retaliatory actions over the past few years have
been (sic) severely impacted my career and well-being.
The cumulative effects of these actions have left me with no choice but to
resign….
(ff) The two italicised items above were not the subject of complaint by the Applicant to
Western Health prior to the resignation. In fact, considering the evidence and emails
between the parties the 2-day arrangement working from home, assigned tasks and
timeframes were either agreed or never complained about the Applicant after he return
to work in August 2024. Before me the Applicant could not point to evidence to the
contrary.27
(gg) Western Health did not require the Applicant to work out his notice period. He
was paid 2 weeks’ pay in lieu of notice.
(hh) On 2 October 2024 Ms Zeitz made a determination about the matters before her.
Because the Applicant’s employment had ended by then, I do not need to further
consider those findings. However, as might be expected of an experience practitioner
such as Ms Zeitz, there is nothing in the process engaged in by her that I can find fault
with. Nothing, in the conduct of her investigation gave rise to the Applicant having no
choice but to resign his employment. It was not, as the Applicant alleged in this Witness
Statement an “unfair and one-sided investigation process”.28 Ultimately, before me, the
Applicant could not maintain that there was anything improper about Ms Zeitz’s
investigation.29
[10] The central issue in contention is whether the Applicant was dismissed. The Applicant
contends that he was dismissed. He says he resigned due to the course of conduct by Western
Health. He relies upon section 386(1)(b) of the FW Act.30
[11] The Respondent denies that it dismissed the Applicant. It contends that the Applicant
voluntarily resigned.
Protection from Unfair Dismissal
[12] An order for reinstatement or compensation may only be issued where the Commission
is satisfied the applicant was protected from unfair dismissal at the time of the dismissal.
[2025] FWC 115
7
[13] Section 382 sets out the circumstances that must exist for the applicant to be protected
from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with
his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in accordance with
the regulations, is less than the high income threshold.
[14] There is no dispute, and I so find that the applicant has completed the minimum
employment period, and is covered by an enterprise agreement, namely the Health and Allied
Services, Managers and Administrative Workers (Victorian Public Sector)(Single Interest
Employers) Enterprise Agreement 2021-2025 (Agreement). Consequently, I find that that the
applicant was protected from unfair dismissal.
[15] I will now consider if the dismissal of the applicant by the respondent was unfair within
the meaning of the FW Act.
Was the dismissal unfair?
[16] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of
the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.
(emphasis added)
[17] Before considering any concept of unfairness it is a precondition that there has been a
dismissal.
Was the applicant dismissed?
[18] A person has been unfairly dismissed if the termination of their employment comes
within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. Section 386 of the
[2025] FWC 115
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FW Act provides that:
“386 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 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.”
[19] In the present matter the Applicant relies upon s.386(1)(b) of the FW Act. He relies
upon the following events:
a) The Respondent’s “failure to return the Applicant to his substantive role as the
WeLearn Coordinator (thereby breaching his employment contract)”; and
b) “Other actions including blocking the Applicant’s return to work causing the
applicant substantial period of unpaid leave and failure to abide by some
recommendations of Commissioner Lee made on 24 July 2024 (re AB2024/435).
[20] However, in fairness to the Applicant, because he alleges repudiation, section 386(1)(a)
may also be relevant. That is, it might be arguable that the employment was terminated “on the
employer’s initiative”.
[21] In his witness statement the Applicant summarised “the reasons for my forced
resignation” as follows:
a) Failure to implement the underperformance management policy when handling Ms
Saini’s performance and behaviour issue,
b) Rejection of my flexible work arrangement application to care for my ill mother in
September 2023,
c) Unfair mediation process, led by Ms Hill,
d) Western Health blocked my return to work after my mental health injury forcing me
to go on unpaid leave for an extended period of time,
e) Western Health failed to allow me to return to my substantive role by imposing
unfair restrictions and altering my role, and
f) Unfair and one-sided investigation process.31
Relevant time period
[22] I am not satisfied that Western Health:
a) failed to implement underperformance management of Ms Saini. There was no
evidence before me that Ms Saini needed performance management.
b) Unreasonably rejected the Applicant’s flexible work requests to care for his ill
mother. The factual findings above support a conclusion that Western Health was
generous to the Applicant in its approach to his personal circumstances. From
October 2023 the Applicant only attended onsite if requested to do so. This rarely,
if every, occurred.
[2025] FWC 115
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c) Conducted unfairly a mediation process to be led by Ms Hill. A decision was made
to terminate a proposed mediation process. There is no evidence before me that the
decision was unreasonable in all the circumstances.
d) through its agent, Ms Zeitz, conducted an unfair and one-sided investigation process.
Ultimately, the Applicant conceded the same.32
[23] However, I consider the recommendation issued by Commissioner Lee on 24 July 2024
to be significant. As I said during the hearing,
“… [the Applicant’s] case is pretty clear. The case is there’s a recommendation made
by Commissioner Lee and Western Health didn’t comply with it … I can tell you that,
as a member of this Commission and with the respect I hold for Commissioner Lee, it
exercises my mind greatly that it [might be said to] appear on the materials before me
that Western Health didn’t comply with that recommendation”.33
[24] Nearly 12 years ago, I had the honour of being appointed to this Commission. At the
ceremonial sitting which was held on 13 June 2013 to welcome me to the Commission, I said,
I am of course honoured by the appointment. I have a deep and abiding respect for the
Commission. Alongside the Commonwealth parliament, the Commonwealth
government and the High Court, this Commission, which can trace its history back to
1904, is one of our nation’s oldest institutions. It is also one of the most important,
noting the significant role it has played in our social, economic and political history,
having established the minimum wage system, annual leave, sick leave, parental leave,
ordinary working hours, equal pay for women and for Aboriginal workers and, with
some initial reluctance, enterprise bargaining.
For 109 years it has provided a means for employers, employer associations, trade
unions and employees to settle disputes.34
[25] It is in this context that recommendations made by the Fair Work Commission are
important mechanisms in the settlement of disputes. They are born out of the considerable skills
and experience of my colleagues on this Commission having regard to their diverse
backgrounds. Recommendations give life to the Commission’s statutory mandate to perform its
functions in a manner that “is quick, informal and avoids unnecessary technicalities”35, taking
into account “equity, good conscience and the merits of the matter.”36
[26] When I leave this august institution on 28 March 2025, it will have been my honour for
the previous 11 years, 11 months, and 20 days to have served it and the Australian people, first
under the reforming leadership of the Honourable Justice Iain Ross AO and now under the
continuing effective and steady leadership of the Honourable Justice Adam Hatcher. In that
time, I have issued many recommendations (likely more than I have substantive decisions) as
an effective way to resolve matters before me. Of course, recommendations are not enforceable.
The power of them rests in the voluntary compliance of the parties who are the subject of them.
It is therefore important that recommendations are respected and abided by. It would be more
than a great pity if the mechanism of recommendations fell into disregard in the administration
of industrial justice; lest they become the proverbial into the wind.
https://en.wikipedia.org/wiki/The_Honourable
[2025] FWC 115
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[27] Consequently, it is from 24 July 2024 that the conduct of Western Health is to be judged
to determine if the Applicant:
a) was entitled to accept the conduct of Western Health as a repudiation of his contract
of employment; and/or
b) had no choice but to resign.
[28] What happened between the date of Commissioner Lee’s recommendation and date of
the resignation is of primary relevance in this matter.
Legal principles
[29] The applicable legal principles governing the repudiation of an employment contract
were analysed by Ross J (as he then was with the Supreme Court of Victoria) in Whittaker v
Unisys Australia Pty Ltd.37
[30] Ross J’s principles were summarised by Hargrave J in Earney v Australian Property
Investment Strategic Pty Ltd 38 in the following terms:
1) “The term repudiation is used in a number of senses. Relevantly, the High Court has
recently stated that repudiation:
may refer to conduct which evinces an unwillingness or an inability to render
substantial performance of the contract. This is sometimes described as
conduct of a party which evinces an intention no longer to be bound by the
contract or to fulfil it only in a manner substantially inconsistent with the
party’s obligations. It be may termed renunciation. The test is whether the
conduct of one party is such as to convey to a reasonable person, in the
situation of the other party, renunciation either of the contract as a whole or
of a fundamental obligation under it.
2) It is not necessary to prove a subjective intention to repudiate. The test is an
objective one.
3) Whether there has been repudiation is a question of fact.
4) Repudiation is not to be inferred lightly. It is a serious matter.
5) Repudiation may be evidenced by a single act or by an accumulation of conduct in
circumstances where no individual act on its own constitutes a repudiation.
6) Repudiation does not bring an end to a contract. It is necessary for the innocent party
to elect to accept the repudiation.
7) Repudiatory conduct may be ‘cured’ by the party in breach, but only prior to the
acceptance of the repudiation. Accordingly, once the innocent party has elected to
terminate the contract for breach, it cannot thereafter be cured.
8) In the context of employment contracts, a significant diminution in remuneration,
status or responsibility may constitute a repudiation. Whether or not this is so is a
question of fact in each case.
9) There may be a significant diminution in status or responsibility, even where the
employee retains the same remuneration and title.
10) However, there are circumstances where a considerable change in the nature of an
[2025] FWC 115
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employee’s duties may not amount to a repudiation. Although an employer cannot
usually force changes of status and responsibility upon an employee, the
circumstances of a particular case may permit a degree of flexibility in approach,
with each party being required to provide ‘some reasonable give and take’. In such
cases, repudiation may not be inferred in the absence of serious non-consensual
intrusions upon the status or responsibilities of the employee.”
[31] In Cameron v Asciano Services Pty Ltd 39 Beach J respectfully adopted Hargrave J’s
summary of Ross J’s analysis. I now also respectfully do so.
[32] In respect of s.386(1)(a) the legal principles are as follows:
a) a termination is at the employer’s initiative when:
i. the employer’s action ‘directly and consequentially’ results in the
termination of employment, and
ii. had the employer not taken this action, the employee would have remained
employed.40
b) there must be action by the employer that either intends to bring the relationship to
an end or has that probable result.41
c) the question of whether the act of an employer results ‘directly or consequentially’
in the termination of employment is an important consideration but it is not the only
consideration.42
d) it is important to examine all of the circumstances including the conduct of the
employer and the employee.43
[33] In respect of s.386(1)(b), (the forced to resign cases) the legal principles are as follows:
a) a forced resignation is when an employee has no real choice but to resign.44
b) the onus is on the employee to prove that they did not resign voluntarily.45
c) the employee must prove that the employer forced their resignation.46
d) the employer must take action with the intent to bring the relationship to an end or
that has that probable result.47
e) the line distinguishing conduct that leaves an employee no real choice but to resign,
from an employee resigning at their own initiative is a narrow one.48 The line,
however, must be ‘closely drawn and rigorously observed’.49
What happened in the relevant period?
[34] What happened between the date of Commissioner Lee’s recommendation (on 24 July
2024) and the date of the resignation (on 30 September 2024) is as follows:
a) On 6 August 2024 the Applicant returned to work.
b) Consistent with Lee C’s recommendation the Applicant returned to work 2 days per
week50 “subject to the specified modifications by his treating medical practitioner”;
c) after 4 weeks (i.e. 3 September 2024) the Applicant continued (without objection by
him) to work 2 days per week from home.
d) Consistent with Lee C’s recommendation the Applicant returned to his previous
Manager Role. However, because the Applicant could only work 2 days per week
[2025] FWC 115
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from home, he could not perform the inherent requirements of the Manager Role. A
matter the Applicant conceded before me.51 Consequently, appropriately, some
duties were reallocated.
e) Consistent with Lee C’s recommendation, on 26 July 2024, an external person was
appointed to review the Applicant’s workload claims.
f) Without objection by the Applicant, he was requested to work from home while the
investigation was underway.
g) The Applicant was twice interviewed by the external investigator.
h) On 22 August 2024 the Applicant wrote to his acting manager requesting supports
to manage priorities.52 He wrote, “Given the current restrictions and limited hours
I can commit to, I’d like to propose the following timelines…” His proposals were
agreed to.53
i) On 24 September 2024 Western Health made it clear to the Applicant that Mr Nolan
had not replaced him. Ms Hill wrote, “given that you are only able to work two days
a week at present [it] means that we can only give you some of your duties and not
all of them to be completed.”54
Did Western Health repudiate the contract of employment with Mr Rustom or otherwise
engage in a course of conduct that forced the Applicant to resign?
[35] Noting that I should not infer lightly repudiation and that the test is an objective one, I
am not satisfied that anything done by Western Health (either individually or collectively)
evinced an unwillingness or inability to render substantial performance of the Manager Role
contract.
[36] Nothing in the conduct of agents of Western Health evinced an intention to no longer
be bound by the Manager Role contract.
[37] The Applicant was clearly disgruntled with what was happening at work. However,
there was no significant diminution in the Applicant’s:
a) remuneration (it remained the same);
b) status (he remained the WeLearn Coordinator); or
c) responsibilities (all changes made to his responsibilities are explained by his ability
to work only 2 days per week).
[38] As explained by Ross J the employment relationship permits a degree of flexibility,
“some reasonable give and take”. All the changes made to the Applicant’s work arrangements
post 24 July 2024 were a part of the “reasonable give and take”. Those changes were consistent
with his inability to work more than 2 days per week and the fact that he was under
investigation. Requesting him to work from home during this period (a request he did not object
to) were all entirely reasonable.
[39] On 30 September 2024 the Applicant resigned. It cannot be said that the Applicant “had
no effective or real choice but to resign”. He did so voluntarily. It was unequivocally his own
voluntary action. It did not result from the action of Western Health objective assessed.
[40] Consequently, the Applicant was not dismissed.
[2025] FWC 115
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[41] For these reasons the Applicant’s application for an unfair dismissal remedy must be
dismissed. An order [PR785289] to this effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr Gary Dircks for the Applicant
Mr Charles Pym of Counsel, instructed by Ms Georgina Pattas of Minter Ellison, for the
Respondent
Hearing details:
8 January 2025 via video on MS Teams
Printed by authority of the Commonwealth Government Printer
PR783236
1 DTB, pg. 359; MR 1.
2 DTB, pg. 43.
3 Transcript PN217.
4 Transcript PN247.
5 Exhibit 3.2, Statement of Robyn Peel, para 14 (DTB, p 43). As accepted by the Applicant at Transcript PN491-495.
6 DTB, pg. 44.
7 Annexure RP-11 to Exhibit 3.2, Witness Statement of Robyn Peel.
8 Annexure RP-12 to Exhibit 3.2, Witness Statement of Robyn Peel.
9 Annexure RP-13 to Exhibit 3.2, Witness Statement of Robyn Peel.
10 Annexure RP-15 to Exhibit 3.2, Witness Statement of Robyn Peel.
11 Annexure RP-7 to Exhibit 3.2, Witness Statement of Robyn Peel.
12 Annexure RP-9 to Exhibit 3.2, Witness Statement of Robyn Peel.
13 Annexure RP-17 to Exhibit 3.2, Witness Statement of Robyn Peel.
14 Annexure DH-8 to Exhibit 3.1, Witness Statement of Debra Hill.
15 Annexure RP-20 to Exhibit 3.2, Witness Statement of Robyn Peel.
16 Annexure RP-21 to Exhibit 3.2, Witness Statement of Robyn Peel.
17 Annexure RP-22 to Exhibit 3.2, Witness Statement of Robyn Peel.
18 This was confirmed with the Applicant by email from Ms Hill on 29 August 2024 (Annexure DH-11 to the Statement of
Debra Hill).
AIR WORK THE FAIR OF COMMISSION THE SEAL
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[2025] FWC 115
14
19 Annexure DH-11 to the Statement of Debra Hill (DTB p 251).
20 Transcript PN447-448.
21 Transcript PN425.
22 Annexure RP-23 to Exhibit 3.2, Witness Statement of Robyn Peel.
23 Annexure RP-23 (DTB p 149) to Exhibit 3.2, Witness Statement of Robyn Peel.
24 Exhibit 6, an email from Emma Thaus to the Applicant dated 22 August 2024.
25 Annexure MR-7 to Exhibit 4.2, Witness Statement of Majd Rustom.
26 Annexure RP-3 to Exhibit 3.2, Witness Statement of Robyn Peel.
27 Transcript PN461-478.
28 DTB p 350.
29 Transcript PN541.
30 DTB, p 339.
31 DTB pg. 350.
32 Transcript PN626.
33 Transcript PN48.
34 https://www.fwc.gov.au/documents/transcripts/130613ceremonialvic.htm
35 Section 577(1)(b) Fair Work Act 2009.
36 Section 578(b) Fair Work Act 2009.
37 (2010) 26 VR 668.
38 (2010) VSC 621 (22 December 2010).
39 [2011] VSC 36.
40 Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200 at p. 205].
41 Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 (Watson VP, O’Callaghan SDP, Cargill C, 8 July 2011) at
para. 24, [(2011) 212 IR 248]; citing O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP,
Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100].
42 Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000).
43 O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23,
[(2006) 58 AILR 100].; citing Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay
C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62
IR 200]; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9
December 1996).
44 Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200 at p. 206].
45 Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at para. 30, [(2009)
185 IR 359].
46 Ibid.
47 O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23,
[(2006) 58 AILR 100].
48 Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December
1996).
49 Ibid.
50 Transcript PN414-417.
51 Transcript PN424.
52 Annexure RP-23 (DTB p 149) to Exhibit 3.2, Witness Statement of Robyn Peel.
53 Exhibit 6, an email from Emma Thaus to the Applicant dated 22 August 2024.
54 Annexure MR-7 to Exhibit 4.2, Witness Statement of Majd Rustom.
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