Adam Dundas-Taylor v The GTG Broadbeach No.2 Pty Ltd
[2025] FWC 2197
•18 AUGUST 2025
| [2025] FWC 2197 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Adam Dundas-Taylor
v
The GTG Broadbeach No.2 Pty Ltd
(C2025/3694)
| DEPUTY PRESIDENT LAKE | BRISBANE, 18 AUGUST 2025 |
Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal – forced resignation – Applicant on WorkCover for two and a half years – alleged gaslighting and psychological pressure – conduct of the employer considered – no forced resignation – jurisdictional objection upheld – application dismissed.
Mr Adam Dundas-Taylor (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 6 May 2025. The Applicant claims that adverse action was taken against him by the GTG Broadbeach No.2 Pty Ltd (the Respondent) under ss.340, 341 and 343 of the Fair Work Act 2009 (Cth) (the Act).
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 16 April 2025. 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.
Directions were issued and the matter was listed for hearing on 26 June 2025. Both parties were self-represented.
Background
Between 2021 and 2022, the Respondent’s predecessor company, a related entity, underwent a corporate restructure. The Applicant, who was employed as a Group Executive Chef at the time, describes this as a “hostile takeover” through which “psychological pressure and bullying tactics” were employed on senior personnel, including the Applicant.[1] The Applicant alleges that he was subjected to coercive tactics including by the then-HR manager for the corporate group, Ms Michelle Phillips.[2]
ASIC records show that there was a change of company name and change of officeholder on 24 August 2022 and 29 August 2022, respectively.
On 21 September 2022, the Applicant submitted a WorkCover claim for anxiety secondary to workplace bullying. That claim was accepted, and the Applicant remained on WorkCover for two and a half years.
On 29 March 2023, the Applicant received a letter from Ms Phillips stating that there were changes to the company name and he would be now employed by the Respondent.[3] The Applicant was advised that he would receive an updated employment contract.[4]
In or around March 2023, the Applicant contacted the Respondent through his union representative intending to exit the business for health reasons and seeking a deed of settlement.[5] A deed was drafted and issued in August 2023 but settlement did not eventuate.[6]
The Applicant’s rehabilitation consultant, Mr Jonas Carmichael, spoke with Ms Phillips on 22 February 2024 regarding the roles available for Applicant if he were to return to work.[7] Mr Carmichael stated in an email:
Michelle advised that due to your level of experience it would be difficult to offer you something similar (to the role you had). She also advised it would be difficult to bring you back to the employer due to some of the comments made towards senior staff members and others in the kitchen who were still employed with the business at the time. She advised the only role they had at that time was a basic level cook position at their property on South Stradbroke Island. She indicated the business didn't have a need for the Head Executive Chef position anymore.[8]
As this evidence relates to Mr Carmichael’s recollection of a telephone conversation over a year ago, and as neither Mr Carmichael nor Ms Phillips was called to give evidence under oath, I place appropriate weight on this evidence.
On 1 March 2024, the Applicant emailed Ms Phillips a letter seeking clarity over his employment status. That letter states:
Dear HRM Michelle Phillips,
I hope this message finds you well. I am writing to seek clarification regarding my current employment status and future role within the company, given the recent developments communicated to me by my recovery case manager.
As you may know, I have been receiving workers' insurance compensation due to a psychological injury resulting from workplace bullying. Throughout this period, I have been dedicated to my recovery, and recent updates from my Workcover case manager—that the individuals responsible for my injury are no longer working at the restaurant where I was based—have bolstered my hope and anticipation of returning to my role as Group Executive Chef once I am medically cleared to do so.
Last week I was informed by my recovery case manager Joey Carmichael, that my position as Group Executive Chef is reportedly no longer required by the company. Additionally, it was mentioned that I have been offered a new role as a Short Order Cook, a skill set much below my current role, located hours from my residence. This information has come as a surprise, I seek to understand the company's stance and the official communication regarding these changes.
Given the absence of formal notification regarding termination, redundancy, or any formal job offer detailing the new position, I respectfully request the following clarifications:
Employment Status: Could you please confirm my current employment status? If my role as Group Executive Chef has indeed been deemed redundant, I would appreciate official documentation outlining the reasons and any associated entitlements.
New Job Role: Regarding the mentioned role as a Short Order Cook, could you provide formal details of this offer, including the job description, location, hours, and how it aligns with my experience and capabilities as a Group Executive Chef?
Return to Work: Assuming my role as Group Executive Chef is no longer available, what are the proposed directions for my return to work? I am keen to understand how my skills and experience can be best utilized within the company, considering my commitment and contributions to our shared success over the years.
Next Steps: What are the immediate next steps in this process? I am eager to engage in discussions to find a mutually beneficial solution as I continue my recovery.
I understand these are complex issues, and I appreciate your time in addressing my concerns. My aim is to return to work in a capacity that acknowledges my skills, experience, and the unfortunate circumstances that have led to my current situation.
Thank you for your understanding and support. I look forward to your prompt response.
On 8 March 2024, Ms Phillips replied to the Applicant’s email:
Dear Adam,
Thank you for reaching out and expressing your concerns regarding your employment status and future role within the company. I understand the importance of clarity in such matters, and I appreciate the opportunity to address them.
Regarding your inquiries, I do hope below provides you a deeper understanding about next steps.
1. As per your attached letter, you have provided the statement that the individuals responsible for your injury are no longer working at the restaurant where you were based. We would like to confirm that the individuals listed by you during the WorkCover claim decision in 2022, should this be the individuals you’re referencing, then they are still part of this company, therefore this statement is incorrect. This being said, we believe the changes that have been made over the past 1.5 years of your absence would resolve any concerns you may have.
2. We understand there have been no communications to you around the offer of a Short Order Cook position and want to assure you that we have not contacted you as you requested to Workcover that we go through them directly regarding any further information. The company’s stance follows the Workcover and Safe Work Australia return to work scheme, in line with the recommendations provided from your medical professional. As this is in the first stage discussions with yourself regarding return to work, please take this as official communication regarding these changes.
3. There is no requirement for formal notification as you have not been terminated nor made redundant.
4. Employment Status: You are currently still employed with us at The GTG Broadbeach No.2 Pty Ltd as part of The Good Time Group Holdings. We retained and kept your position open during your Workcover claim as required to do so as your employer, however due to the length of time you have been on worker’s compensation, there is no requirement for us as an employer to retain and keep open your position beyond 12 months. As you claim is now at 1 year and 6 months, the duties of this position have been absorbed by current employees due to your absence and we feel as though there is no longer a requirement in the business for this position. I can appreciate that you believe this may be deemed as a redundancy, however that assumption is incorrect.
5. New Job Role: Within all return-to-work claims, it is in the best interest as an employer, and in line with your return to work coordinator to ensure that once you have full sign off from your medical professional to return to the workplace that we provide an environment that is free from harm and further injury. As you are aware before your claim, we successfully acquired The Beach Hotel at Stradbroke Island. Within all of our venues at this point in time, the only available position is a cook level on Stradbroke Island. Whilst we appreciate it is not local to where you are currently residing, this is the only opportunity available for a return to work for you, in a way where we can utilise your skills and experience.
6. Return to Work: We are committed to finding a suitable role for you within the company. As we continue to navigate through the next steps of your claim, we are continuing to explore options for your return to work in a capacity that is conducive to both yourself as the employee and insures that as the employer we have the resources and tools to assist you in this return. We are open to explore alternative opportunities and can discuss these further with you and your return-to-work coordinator once we have further understanding of your medical recommendations and capacity in duties.
Furthermore, we would like to receive further clarity from yourself regarding your intention to return to the workplace. I am sure you can appreciate that in March 2023, you emailed our Executive Director, Tony Hazell confirmation that for health reasons you must separate from the company and management as soon as possible. We then heard back from you in July & August 2023 via your union representative who reached out to us on your behalf with a Deed of Settlement, in turn with your offer of resignation. Whilst this Deed was offered to you and not accepted, with your intention of resignation, can you please provide further clarity in terms of your genuine intentions to return to the workplace, keeping in mind multiple points you were going resign as an employee.
In line with WorkSafe Australia and WorkCover, we want to ensure we focus on your long-term well-being and recovery. Next steps are your doctor signs off to return to work, as well as provide any further recommendations for your ongoing medical care and treatment. This is often called a return-to-work plan where a plan is formulated to support you in a gradual return to work, balancing your health needs with work duties.
Adam, whilst we understand your claim was accepted on the basis of workplace bullying leading to anxiety, we would also like to understand any further clarity on your health concerns raised in your recent medical certificates not related to anxiety. As your employer, we would like confirmation from your doctor and return to work coordinator if these conditions may affect your return to work, and most importantly your continued recovery.
On 21 March 2025, over a year later, Mr Carmichael contacted Ms Phillips.[9] Ms Phillips was no longer employed by the Respondent and provided the contact details of the Respondent’s Chief Financial Officer, Mr Damien Noyes.
Mr Carmichael called Mr Noyes and requested the contact details for the Applicant to provide a resignation. Mr Noyes called back later that day and advised that he was the best person for the Applicant to send a resignation letter to.[10] It is unclear whether this conversation occurred on 24 March 2025 or 26 March 2025, as both dates are referred to in the evidence. I do not regard the discrepancies in dates as being material, as both parties agree the conversation occurred. Mr Carmichael wrote in an email to the Applicant on 24 June 2025:
Yes, I then contacted Damien on 26/3/25 under the impression you were intending to resign and asked for the best email address to send the resignation letter through to (as this is what you and I had discussed on 19/3/25). Damien provided his email address and I passed this on to you.[11]
On 26 March 2025, the Applicant emailed Mr Noyes at approximately 3:00pm as follows:
Hi Damien,
I am writing to formally request clarification regarding my current employment status and any associated outstanding entitlements.
To date, I have not received any formal notice of termination or redundancy from my position as Group Executive Chef, although Michelle Phillips has bought me that I’m no longer in this role.
In the absence of such documentation, I must assume that my employment in this capacity remains unresolved.
I found it unusual to have been offered a short order cook position on Stradbroke Island,
particularly without any prior formal communication confirming a change to, or closure
of, my existing role.I would appreciate a written response outlining my current employment status and confirming any entitlements that remain outstanding — including unpaid Time in Lieu, as noted in the attached payslip.
I have included the most recent correspondence with Michelle Phillips below.
While it’s disappointing how staff were treated in the past, it’s encouraging to hear the company is on a better path under Tony’s leadership. I’ve always respected both Tony and Greg.
I look forward to your response.
On 3 April 2025, Mr Noyes replied by email:
Hi Adam,
Thank you for reaching out, and apologies for the delay in getting back to you.
I had the pleasure of speaking with Joey Carmichael from Recover last week, who I believe is assisting you with return to work services.
He expressed that you were looking to tender your resignation and may require a letter of separation.
If this is correct, please advise and I will be happy to assist you with this process.
With regards to your current employment status, the advice provided by Michelle Phillips in the email chain below remains comprehensive and correct.
There has been no change to your existing employment status, and therefore there has been no requirement to provide any update.
For clarity, as outlined in the below email chain from Michelle Phillips, you have not been terminated nor made redundant.
I can confirm your Annual Leave Entitlement balance remains at 105.77hrs, which equates to $7,360.51 gross wages.
To my understanding your query regarding ‘Time in Lieu’ has been previously answered by Michelle.
Whilst I understand ‘Time in Lieu’ payments may have been processed to your benefit previously – these payments were made solely out of goodwill from the business and were not a contractual obligation within your employment contract.
This is supported by the following wording in your employment contract; “The Employee acknowledges that an allowance for reasonable additional hours is incorporated in the Employee’s base salary and no further payment or compensation will be made in respect of additional work hours.”
Furthermore, your claim for Time in Lieu was considered by the Fair Work Ombudsmen who advised you on 13th December 2022 the matter had been finalised.
On 4 April 2025, the Applicant emailed Mr Noyes:
Hi Damien,
I’m not aware of the details of your conversation with Joey.
What I’ve requested, and continue to request, is a FORMAL LETTER ON COMPANY LETTERHEAD confirming whether or not I am still employed as Group Executive Chef, and clearly stating what my current position is within the company.
Your email refers to my employment status generally, but it does not address my specific role or provide the written confirmation I’ve asked for on multiple occasions.
Please provide this in writing at your earliest convenience.
Adam Dundas-Taylor
The Applicant stated that he attempted to call Mr Noyes and did not receive a reply.[12] The Applicant also stated that he contacted the CEO of the Respondent five times and did not receive a reply.[13]
Mr Noyes stated in his witness statement:
Internally, I then prepared a further written response reiterating Mr. Dundas-Taylor’s employment status clearly outlined by Ms. Phillips, but this was not yet issued due to pending internal consultation about possible suitable duties and his ongoing ability to return to work.
On 11 April 2025, Mr. Jonas Carmichael attempted to call me, but I was unavailable at the time. I returned the call on 14 April 2025 and again on 15 April 2025, at which point I was able to speak with him directly. During our conversation, Mr. Carmichael advised that Mr. Dundas-Taylor was applying pressure on him to obtain a response to his most recent email dated 4 April 2025. I advised Mr. Carmichael that the matter was being reviewed internally, and I assured him that a formal response would be issued by the end of the week.[14]
On 16 April 2025, the Applicant resigned via an email sent direct to Mr Noyes:
Hi Damien,
I writing to formally resign, effective immediately.
As my WorkCover is ending, I’ve attempted to communicate with you and the company to clarify what my role is, but I have not been given a clear answer. Many of my emails have gone unanswered, and phone calls aren’t returned, and I’ve received no guidance on whether there is any position available to return to.I feel I’ve been left with no real option but to resign due to the ongoing lack of support and communication.
For the purposes of the separation certificate, please note that my resignation is due to the absence of any clear information or direction regarding my employment status, at the ending of my workcover compensation claim.
Please co form when you will proceed with the payout of my accrued entitlements and issue the separation certificate.
The Applicant’s evidence is that at the time he sent the email on 16 April 2025, he had 2 weeks left before his WorkCover claim would end.[15]
On 16 April 2025, the Respondent sent the Applicant a letter confirming receipt of his resignation. A separation certificate was issued on 23 April 2025.
Was the Applicant forced to resign under s.386(1)(b) of the Act?
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.[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.
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.[17] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[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.[19] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[20]
All the circumstances – including the conduct of both the employer and employee – must be examined.[21] 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.”[22]
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.
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.”[23]
Furthermore, in Pawel v Australian Industrial Relations Commission,[24] the Full Bench noted:
“Mere “causation” or “motivation” will not satisfy the requirement that the termination be at the initiative of the employer.”
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;[25]
a ‘critical action’ or ‘critical actions’ of the employer which was intended to bring the employment relationship to an end;[26]
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;[27] 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.[28]
Consideration
The fact that the Applicant subjectively believed that the Respondent was trying to force him to resign does not, by itself, establish forced resignation. The Commission is required to examine the Respondent’s behaviour in totality and determine whether, on a reasonable view, the employer’s conduct left the Applicant with no choice but to resign.
The Applicant’s argument is that he was forced to resign after a pattern of “sustained psychological abuse, structural mismanagement, coercion, and a deliberate effort to push me out.”
I have difficulty with the Applicant’s submissions.
On one hand, the Applicant presented as an honest and truthful witness during the hearing. I observed that he appeared visibly upset. I am sympathetic to the Applicant.
On the other hand, there is an air of unreality to the Applicant’s written submissions. He described all of the Respondent’s management staff as being “untrustworthy and deceiving”.[29] He accused the Respondent’s representative, Ms Elizabeth Shobolov, of providing false or misleading statements to the Commission as an “intentional effort” to shield the business from liability.[30] It goes without saying that allegations of that kind should be firmly founded in evidence. The Applicant claimed that the Respondent’s representative “deliberately” noted the wrong ABN on his separation certificate so that he would make a claim in the Commission which noted the wrong company, “invalidating” his claim.[31] Again, there is no evidence to support the accusation that the Respondent was “deliberately” trying to thwart his claim.
In considering the Applicant’s submissions, I will first note the evidence which I consider to be of little assistance in supporting the argument of forced resignation.
Firstly, I note the Applicant’s claims relating to the original WorkCover application are for bullying stated to have occurred approximately three years ago. There is a weak temporal connection between this conduct and the resignation. The Applicant admits that the three people named in his WorkCover application, including Ms Phillips, no longer work for the Respondent.[32] I struggle to accept an argument that bullying behaviour which occurred over three years ago, by persons no longer associated with the company, and following which the Applicant was absent from the workplace for two and a half years, could have contributed to the Applicant’s resignation in April 2025. I understand that the Applicant is making an argument of structural, pervasive, workplace bullying and gaslighting which continued until 2025. However, I do not find that the behaviours complained of during the Applicant’s WorkCover period amount to bullying or gaslighting. Rather, the Applicant had formed the view that the Respondent was trying to get rid of him. Therefore, he viewed innocuous conduct by the Respondent’s employees as being bullying intended to force him out.
Further, I note that the Applicant refers to without prejudice negotiations for him to exit the company in 2023 in his evidence. I do not consider without prejudice discussions, which ultimately failed, as being indicative of an intention to force the Applicant to resign.
The Applicant also refers to second-hand evidence of Mr Carmichael. Mr Carmichael stated in an email that he spoke to Ms Phillips on 22 February 2024 and she expressed that it would be “difficult” to bring the Applicant back to work as some of the people the Applicant had made comments about still worked for the Respondent.[33] The Applicant claims that this is evidence that the Respondent had no intention of encouraging his return to work. I do not accept that Ms Phillips’ statement that it would be “difficult” for the Applicant to return to work means the company had no intention of facilitating his return. It is simply an honest assessment of the situation.
Additionally, the Applicant refers to several emails to the Respondent’s CEO which he said went unanswered. I have not received evidence of those emails from prior to the resignation. In any event, it appears there were of a without-prejudice nature.
I note also that neither the Ms Shobolov nor Mr Noyes were employed by the Respondent when the Applicant started on WorkCover. It is unclear how or why these employees would want to deliberately punish the Applicant.
The Applicant claimed that his resignation was because of “financial necessity”, as his WorkCover claim was ending and he would have no income and needed to be paid out his entitlements.[34] He also claimed that he had no “reasonable choice” but to resign.[35] Both of these statements, in my view, exhibit a misunderstanding of what the test for forced resignation is.
The Applicant claims:
Throughout my WorkCover period, I attempted to clarify my employment status. These efforts were either ignored or met with vague and evasive responses. I was informed that I was no longer the Group Executive Chef, that my role had been absorbed by other staff, that I was not entitled to redundancy, and yet paradoxically, that I was still employed.[36]
The Applicant’s claims that the Respondent “ignored” his “repeated” requests to clarify his employment status are misconstrued. Ms Phillips emailed the Applicant seeking clarity about whether he would return to work on 8 March 2024. Ms Phillips informed him of the next steps involved in a return-to-work plan, including obtaining a clearance certificate form his doctor. The Applicant did not reply to that email until over 12 months later. In the Applicant’s reply, at no stage did he engage with the Respondent’s question about whether he planned to return to work. The Respondent had raised concerns about the Applicant’s capacity to work and requested a clearance from his doctor.[37] These concerns are entirely reasonable, given the Applicant’s lengthy absence from the workplace. At no stage in the Applicant’s reply did he confirm whether he would obtain a clearance certificate. The Applicant claimed “[n]o proper return-to-work assessment was undertaken” despite having never confirmed, on the evidence before me, that he would return to work.[38]
The Applicant argued that he should have been made redundant from his role of Group Executive Chef and that the position was “closed” without formal notification. It is unclear whether the Applicant expected the Respondent to keep the position open for two and a half years while he was on WorkCover. That would have been entirely unreasonable.
As the Applicant pointed out, an employer should offer suitable duties when an employee returns to work after a long period of medical leave. It would not be unusual in these circumstances, after such an extended period, that a return-to-work program would be initiated and the employee would not immediately return to the same role they had before they left. I note that the Applicant indicated his role as an Executive Chef that it was a high stress role and this contributed to his illness.
Ms Phillips had stated in March 2024 that the Respondent would engage with the Applicant to find a suitable role for him to return to. The Applicant noted in his submissions that the Short Cook position was untenable because of the distance from his house, the poor quality of the accommodation and because of his caring responsibilities.[39] However, I see no evidence that he clearly expressed those concerns to the Respondent. He instead requested a written response “outlining my current employment status and confirming any entitlements that remain outstanding”. When Mr Noyes replied in writing, exactly as the Applicant had asked, confirming that the Applicant had not been terminated or made redundant and that there was no change to his employment status, that response was apparently rejected by the Applicant and he then demanded that a letter be issued on company letterhead.
The Applicant claimed that the Respondent ignored him between 4 April 2025 and 16 April 2025, and that this “exhibited patterns of avoidance, silence, and manipulation closely mirrored the same bullying behaviours identified in my original WorkCover claim. The new leadership did not correct this culture—they replicated it”.[40] The Applicant also referred to the behaviour as being “stonewalling” and “psychological pressure”.[41]
I appreciate that this may be the Applicant’s honest view of that occurred, but it is simply not borne out in the objective evidence. There is no evidence that Mr Noyes deliberately ignored the Applicant’s email of 4 April 2024 immediately because he wanted to force the Applicant out. I accept the evidence that the company was internally drafting a response. Mr Noyes’ email to the Applicant of 3 April 2025 was polite and respectful. Mr Noyes did not ask if the Applicant was resigning because he wanted to force the Applicant to resign – he asked because the Applicant’s rehabilitation consultant had said the Applicant wanted to provide a resignation letter.
While it is unfortunate that the Respondent was delayed for over a week in replying to the Applicant, such delays are not unusual in the workplace. It is also ironic for the Applicant to argue that a 12-day period of silence, while he was on medical leave, caused him to feel forced to resign. The Applicant had previously had his rehabilitation consultant contact the Respondent rather than speaking to the Respondent’s HR Staff directly while he was on WorkCover.[42] Further, I note the Applicant took over 12 months to reply to Ms Phillips’ email. I do not view the conduct of the Respondent between 4 April 2025 and 16 April 2025 as being bullying.
The Applicant had a disproportionate reaction to Mr Noyes’ failure to reply to his email in a timely manner.
The Applicant has not satisfied me that he was forced to resign. The Applicant resigned of his own volition. There is no evidence, on a reasonable view of the Respondent’s conduct, that the Respondent compelled the Applicant’s resignation or intended to do so.
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.
I Order accordingly.
DEPUTY PRESIDENT
Appearances:
A Dundas-Taylor
E Shobolov for the Respondent
Hearing details:
26 June
2025
Via Microsoft Teams
[1] Email from Applicant to Chambers, 25 June 2025 at 3:30pm “Constructive Dismissal Statement”.
[2] Ibid
[3] “Attention: Company Name Change”, letter from the Respondent to the Applicant dated 29 March 2023.
[4] Ibid.
[5] Constructive Dismissal Statement”, email from Applicant to Chambers, 25 June 2025 at 3:30pm; “Email from Michelle Phillips to Applicant dated 8 March 2024.
[6] Ibid.
[7] Email from Applicant to Chambers, 25 June 2025 at 3:22pm, forwarding email from Jonas Carmichael to the Applicant, 24 June 2025, 8:04am.
[8] Ibid
[9] Email from Applicant to Chambers, 25 June 2025 at 3:22pm, forwarding email from Jonas Carmichael to the Applicant, 24 June 2025, 8:04am.
[10] Ibid
[11] Email from Applicant to Chambers, 25 June 2025 at 15:22 forwarding email from Jonas Carmichael to the Applicant, 24 June 2025, 8:04am.
[12] Constructive Dismissal Statement”, email from Applicant to Chambers, 25 June 2025 at 3:30pm
[13] Constructive Dismissal Statement”, email from Applicant to Chambers, 25 June 2025 at 3:30pm
[14] Applicant email of 25 June 2025.
[15] Applicant Response to Respondent Timeline.
[16] Fair Work Act 2009 (Cth) s 386(1)(b).
[17] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.
[18] Ibid
[19] 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.
[20] 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].
[21] Whirisky v DivaT Home Care[2021] FWC 650 at [77].
[22] 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].
[23] (1996) PRN6999.
[24] (1999) FCA 1660 at 58.
[25] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.
[26] Boulic v Robot Building Supplies[2010] FWA 6905, [16].
[27] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (1995) 62 IR 200, 205-206.
[28] Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].
[29] “Company Restructuring – Misrepresentation by HR Director” Email from Applicant to Chambers dated 25 June 2025
[30] “Company Restructuring – Misrepresentation by HR Director” Email from Applicant to Chambers dated 25 June 2025
[31] Constructive Dismissal Statement”, email from Applicant to Chambers, 25 June 2025 at 3:30pm
[32] Ibid.
[33] Email from Applicant to Chambers regarding correspondence with Jonas Carmichael, 25 June 2025 at 3:22pm.
[34] Legal Analysis Email Chain; Email from Applicant to Chambers 25 June 2025 at 3:53pm “Damien Noyes Employment Failure Analysis”
[35] Applicant Form F8 Item 2.2
[36] “Constructive Dismissal Statement”, email from Applicant to Chambers, 25 June 2025 at 3:30pm
[37] Michelle Phillips emails dated 8 march 2024.
[38] Applicant email to Chambers of 25 June 2025.
[39] “Constructive Dismissal Statement”, email from Applicant to Chambers, 25 June 2025 at 3:30pm
[40] Ibid
[41] IBid
[42] Email from Applicant to Chambers, 25 June 2025 at 3:26pm.
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