Carolina O'Dowd v Southern Highlands Hospitality Collective Pty Ltd
[2025] FWC 1759
•10 SEPTEMBER 2025
| [2025] FWC 1759 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Carolina O’Dowd
v
Southern Highlands Hospitality Collective Pty Ltd
(C2025/3530)
| COMMISSIONER MATHESON | SYDNEY, 10 SEPTEMBER 2025 |
Application to deal with contraventions involving dismissal
Carolina O’Dowd (Applicant) lodged an application with the Fair Work Commission (Commission) to deal with a general protections dispute which she alleged involves dismissal. The respondent to the application is Southern Highlands Hospitality Collective Pty Ltd. (Respondent). The Respondent objected to the application, submitting that the Applicant was not dismissed from her employment but rather resigned voluntarily on 7 April 2025, during her probationary period.
A person may only make an application for the Commission to deal with a dismissal dispute under s.365 of the Fair Work Act 2009 (Cth)(Act) if they have been dismissed. As such, in order to determine whether the Commission has the jurisdiction to hold a conference to deal with this dispute, the question of whether the Applicant has been dismissed needs to be determined as a threshold issue.
Section 386 of the Act provides:
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.
However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i)to whom a training arrangement applied; and
(ii)whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i)the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.
Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
It is not in contention that the circumstances in s.386 (2) and (3) do not apply in this case.
Both parties were self-represented and a determinative conference was held on 23 June 2025 in order to determine these issues.
Evidence and submissions
The Applicant alleged that she was dismissed on 11 April 2025[1] and that the reason for her dismissal was because she asked the Respondent to pay her overtime, annual leave loading and wages in respect of additional days that the Applicant and Respondent had agreed that the Applicant would work.[2] While it is not in contention that the Applicant communicated her resignation to the Respondent, during the hearing the Applicant clarified that her position is that she was forced to resign due to the Respondent’s conduct.
The Respondent submitted:
on or around 28 March 2025 there was a breakdown in communication with the Applicant and the Applicant informed the Respondent by text message that she was providing one months’ notice of resignation;[3]
as a result, the Respondent sought a meeting with the Applicant for the purposes of a hand over and to work through tasks during the notice period;[4]
the Applicant was not receptive to this process and on 7 April 2025 issued a demand to the Respondent concerning her resignation, including seeking payment in lieu of notice;[5]
the Applicant resigned on 7 April 2025 during her probationary period;[6]
on 11 April 2025 the Respondent responded to an email from the Applicant. [7] The Respondent submitted this email was sent after the last day of employment and expiry of the Applicant’s notice period but was sent because the Respondent found evidence of a breach of contract;[8]
there was a single occasion that the Respondent needed work done outside of rostered hours, being in relation to a presentation, and on this occasion Mr Robinson asked the Applicant is she was comfortable to do the work and for the ‘hours to be returned in the following week’ and the Applicant agreed;
the work in relation to the presentation needed to be undertaken outside of the Applicant’s contracted hours because she failed to meet the deadline in the previous week;[9]
if the Applicant did not resign, she was going to be dismissed once certain actions were taken for a range of conduct and performance reasons.[10]
The Respondent submitted that the Applicant’s last date of employment was 7 April 2025[11] and that the application was also made out of time.[12]
Commencement of the Applicant’s employment and working arrangements
On 22 January 2025 the Applicant met with Mr Robinson of the Respondent.[13] The Applicant gave evidence that during this meeting:
· she advised Mr Robinson of her intention to launch her own business but was happy to work with him at a reduced rate so she could use the work opportunity as a case study or portfolio client;[14]
· Mr Robinson expressed hope that she would continue to work for the Respondent even after the Applicant launched her own business.[15]
On 23 January 2025 the Applicant received a letter of offer (Letter of Offer) which set out a base salary of $40,000 plus superannuation[16] for a part-time Executive Assistant role.
The letter of offer stated that the Applicant would work 20 hours per week over 2.5 days on Wednesday, Thursday and Friday.
In the email from Mr Robinson attaching the letter of offer, Mr Robinson asked:
“Let me know what your commitments with your [child] are so that I can be aware of them and ensure that work never crosses over those times.”
The Applicant gave evidence that she advised Mr Robinson of the times of her child’s school pick-ups and sports schedule and it was agreed that she would work around these hours.[17] An email sent by the Applicant to Mr Robinson on 28 January 2025 sets out times involving the child’s commitments on Monday between 4 PM and 5 PM and Thursday between 3.45 PM and 5 PM. The email also stated that the child had out of school care in place three days per week. Mr Robinson replied to that email the same day stating that the Applicant would be off Mondays and Tuesdays and that he would ensure the Applicant could get away at 3pm on Thursdays.
The Applicant commenced her employment with the Respondent at the end of January.[18]
The Applicant’s working hours
There is some confusion as to what the Applicant’s agreed working hours were.
As noted above, the letter of offer stated that the Applicant would work 20 hours per week over 2.5 days on Wednesday, Thursday and Friday.
This is consistent with the Respondent’s submission that the Applicant’s contracted hours were:
Wednesday: 9am – 5pm
Thursday: 9pm – 5pm
Friday: 9pm – 2pm.[19]
However, the Respondent also provided an unsigned copy of an employment contract dated 30 January 2025 which stated that the Applicant would work a total of 20 hours per week, Wednesday, Thursday and Friday between the hours of 8 AM and 4 PM. The Applicant refuted that this was her employment contract.
The Applicant gave evidence that on 28 February 2025 Mr Robinson asked what her official work hours would be and the Applicant replied:
Tuesday: 9.15 AM – 5 PM
Wednesday: 9AM – 1 PM
Friday: 9 AM – 1 PM.[20]
The Applicant also said her official hours were confirmed in a text message on 28 February 2025 to be:
Tuesday: 9 AM – 5 PM
Wednesday: 9 AM – 5 PM
Friday: 9 AM – 1 PM.[21]
A copy of a text message exchange indicates that on 28 February 2025 Mr Robinson asked what the Applicant’s work hours were and she responded:
“9.15 – 5 tues, weds & 9 - 1 Fridays”.
“I can do an extra day if you need it over a couple of weeks if that would help, but I’m also happy not to as well so I can do my own business work.
“The next couple of weeks*”
I understand this to mean that from 28 February 2025 the Applicant was agreeable to working:
Tuesday: 9.15 AM – 5 PM
Wednesday: 9.15 AM – 5 PM
Friday: 9 AM – 1 PM
However, the Applicant said she typically worked an additional 8 hours on Thursday between 9 AM and 2 PM, and 3 hours remotely and that she was underpaid in respect of this additional time.[22]
Further, the Applicant said that on 24 February 2025 she made arrangements to provide additional support on weekends and evenings and she and Mr Robinson agreed that the Applicant would work an additional day each week.[23]
The Applicant gave evidence that Mr Robinson asked her to invoice him through her business[24] in respect of the additional day[25] and submitted she is owed payment for an additional day each week between 28 February 2025 and 11 April 2025, taking into account a two week notice period.[26]
Request to work evenings and weekends
The Applicant said she regularly worked long hours, late evenings and weekends at Mr Robinson’s request and at no point did Mr Robinson instruct her not to exceed any number of allocated hours.[27]
The Applicant gave evidence that:
on 7 February 2025 she was asked to attend events in rural locations at night and on weekends to capture content but discussed with Mr Robinson that this was difficult due to the caring responsibilities for her child between 5pm and 8pm;[28]
as she could not attend in person, Mr Robinson sent her content to make social media posts on 8 February 2025, being Saturday afternoon; [29]
on Tuesday 11 February 2025 Mr Robinson asked the Applicant to perform additional duties which she completed;
she worked the following two days, being Wednesday 12 February 2025 and Thursday 13 February 2025;
she continued to receive content over the weekend to edit and was required to deal with a customer complaint that Sunday;[30]
on Monday 17 February 2025, a day on which the Applicant was not scheduled to work, she was fielding calls from the work phone, relaying messages to Mr Robinson, was asked to call a customer and tended to other requests from Mr Robinson.[31]
The Applicant said that on 20 February 2025 Mr Robinson advised her of the resignation of other staff[32] and that night:
Mr Robinson asked her to work on an urgent proposal to which she replied “Is this a paid gig?”;
Mr Robinson evaded the question and then made an inappropriate sexual comment to the effect that the Applicant’s social media photo was from when the Applicant used to be a “pornstar”;
Mr Robinson asked her to style and format the proposal by Monday, implying the task would take a couple of hours.[33]
The Applicant said that this task took significantly longer, requiring her to work on the weekend, early mornings, and late nights to meet Mr Robinson’s Monday deadline.[34] The Applicant gave evidence that she initially completed the task but changes were needed due to insufficient direction from Mr Robinson.[35] The Applicant said despite this, Mr Robinson failed to send the proposal by the deadline and she continued to work on it outside scheduled hours in the following weeks to support him.[36]
The Applicant gave evidence that:
on Friday 21 February 2025 Mr Robinson requested assistance from the Applicant in accessing a job post she had created;[37]
on 22 and 23 February 2025 she brought in products for bathroom styling and purchased alternative ones;
on 23 February 2025 she shared more content with Mr Robinson for social media, advised that she would be able to work full time until replacement staff were found but that she would need to work remotely the following week due to certain personal commitments;[38]
on 27 February 2025 Mr Robinson asked her to pick up laundry, groceries and his chef which added 40 minutes to her commute.[39] The Applicant said she was reimbursed for the purchase of groceries but not the other costs;[40]
on Sunday 2 March 2025 Mr Robinson asked the Applicant to post about a venue on Instagram;[41]
on Monday 3 March 2025 she worked on the website, discussed with Mr Robinson that a friend was interested in a role and discussed the website with Mr Robinson between 10.23pm and 11pm;[42]
on 6 March 2025 she continued working and communicating with Mr Robinson until 9.30 pm;
she made arrangements for the care of her child to be available on a Saturday morning for an event but on 7 March 2025 she was advised that the event would be handled by someone else;[43]
on 7 March 2025 Mr Robinson asked her if she was going to attend a venue despite it not being one of her scheduled working days and in a week in which the Applicant had already worked significant additional hours;[44]
on 8 March 2025 at 8pm Mr Robinson texted her with instructions and requesting a meeting on Monday to discuss priorities;
on 9 March 2025 the Applicant reminded Mr Robinson that she would be unavailable on Monday due to a personal commitment but that she would complete a task over the weekend and she did so, regularly liaising with Mr Robinson;[45]
on 11 March 2024 she worked remotely around a personal commitment and exchanged messages with Mr Robinson until 7.42pm;
she resumed working remotely at 8am on 12 March 2025[46] and at 7.38pm that day Mr Robinson asked her to come into work, requiring a 40 minute drive, to take photographs and she continued to exchange messages with Mr Robinson until 11.33pm;[47]
she messaged Mr Robinson at 6.28am on 13 March 2025 confirming she had started working, Mr Robinson acknowledged this[48] and work messages continued until 9.25pm;[49]
at 7.47am on Friday 14 March 2025 she received messages about a typographical error, she corrected the error and later connected with Mr Robinson over Google chat to review the website.[50] The Applicant said Mr Robinson was blunt and rude during these discussions;[51]
on 14 March 2025 she and Mr Robinson discussed the Applicant working remotely the following week;
the following Sunday Mr Robinson sent the Applicant text messages, including a message at 9.11pm;[52]
on Monday Mr Robinson was pushing for a catch up about an event launch, the Applicant reminded him she was not rostered to work that day, but Mr Robinson continued to message her with questions about what had or had not been done;[53]
on Tuesday 18 March 2025 the Applicant was coordinating models, sponsors and a videographer in relation to a shoot when Mr Robison messaged her to do something and she declined;[54]
Mr Robinson messaged the Applicant at 5.43pm that day asking her to pick up his chef and washing the following morning and she reluctantly agreed;
on Wednesday 19 March 2025 the Applicant drove out of her way to pick up the chef and washing and then Mr Robinson asked her to pick up vacuum cleaner bags.[55] The Applicant said that work messages continued until 10.20pm that day.[56] The Applicant said she mentioned to Mr Robinson that she needed to be in one place undisturbed to get through all the work he had given her, he was reluctant to allow this but agreed that the Applicant would be on site for a shoot between Monday 24 March and Wednesday 26 March;[57]
on Thursday 20 March 2025 the Applicant had an early morning catch up with Mr Robinson and work related messages continued until 5.51pm that day;[58]
at 5.44pm on Saturday 22 March 2025 the Applicant received a message from Mr Robinson, coordinated a window cleaner and work-related messages continued until 8.58pm that day;[59]
the Applicant messaged Mr Robinson at 7.05am on Sunday 23 March 2025 and work-related messages went back and forth until 9.15pm that day;[60]
on 24 March 2025 the Applicant arrived on site at 7am to organise cleaning and injured her hand moving furniture during the day.[61] The Applicant said that Mr Robinson asked if her hand was broken and said he “didn’t need any more compo claims”;[62]
the Applicant said that due to this comment and a deadline she felt she had to ‘press on’ and continued working while icing her hand on and off;[63]
at 2pm on 24 March 2025, as the Applicant was leaving to pick up her child, Mr Robinson asked her if he could come back to work after the child finished sport.[64] The Applicant said she did not agree, explaining it would be the child’s dinner time but Mr Robinson said she could bring her child with her and the Applicant agreed.[65] The Applicant gave evidence that she returned to work with her child, and Mr Robinson gave her additional tasks and she worked until 10.30pm and did not get to bed until 11pm;
on 25 March 2025 models and a makeup artist arrived on site at 7am and while the Applicant had arranged care for her young child so she could be there, her child was tired from the night before and she had difficulty waking and getting her child ready.[66] The Applicant said when she called to let Mr Robinson know about her challenges, he was rude an unaccommodating[67] and whilst she was on her way to site Mr Robinson messaged and texted her asking where she was, highlighting that she was late;[68]
the Applicant said that at the event on 25 March 2025 a waiter was unable to attend and Mr Robinson and the creative director decided that the Applicant would need to be the second waiter.[69] The Applicant said that she objected to being filmed during the shoot because she was exhausted, had no makeup or styling and had an injured hand but that Mr Robinson was pushy and showed no concern or respect for her.[70]
The Respondent said:
the Applicant was working “when she felt like it” and the hours she claimed were her contracted hours did not add up to 20;
the Applicant was not working on site for the majority of her hours and Mr Robinson was finding it difficult to monitor her work;
the Applicant may have worked on days or at times not stipulated in her contract because Mr Robinson was working seven days per week, was extremely busy and given the Applicant’s role as his Executive Assistant he would send her jobs as they came up;
the Applicant did not mention that she was doing more hours than she was contracted to do and the first time she raised concerns about overtime was when she became disgruntled;
it agreed that the Applicant worked 11 hours of overtime in respect of the event in March.[71]
Other concerns raised by the Applicant
The Applicant said:
· on 7 February 2025 she showed Mr Robinson a concept for bathroom styling;[72]
· Mr Robinson provided his sign off for the purchase of products working within a $500 budget for which the Applicant would be reimbursed;[73]
· on 22 February the Applicant purchased the products, but Mr Robinson criticised them and instructed her to purchase products that were better quality;
· she returned the initial items and spent $337 for upgraded products and Mr Robinson did not raise any objections.[74]
The Applicant said that on 11 March 2024, Mr Robinson asked her to obtain several hundred dollars in change using her own money on a day she was not scheduled to work on site.
The Applicant also gave evidence that she asked for a payslip but was never provided with one.[75]
The Applicant’s communication of resignation
The Applicant said that while Mr Robinson seemed to understand the challenges she had as a parent, he had still required her to work until 10.30pm on 24 March 2025 and made her feel bad for being 15 minutes late for a 7am start the next morning, showing no concern for the Applicant’s wellbeing or child. The Applicant said her resignation followed shortly after this via text message.
The Applicant gave evidence that:
she resigned with notice on 28 March 2025 and made it known that she did not want to leave Mr Robinson in the lurch and would finish off projects;[76]
she pushed to confirm ending the engagement effectively immediately, but Mr Robinson confirmed he wanted the Applicant to take the week off and to then provide a handover before a discussion about when the Applicant could leave;[77]
on 29 March 2025 she emailed Mr Robinson suggesting that he get in touch with an Executive Assistant who had submitted her resume for the Applicant’s role, but Mr Robinson said he wanted to arrange a time for a chat.[78]
A copy of text messages filed by the Applicant show the following exchange between the Applicant and Mr Robinson on 28 March 2025 in which the Applicant communicated her resignation:
Applicant:“But the situation is simple - I’ve put in a lot of effort and time - a lot of overtime. I’ve yet to send you the invoice for the extra days. But essentially as I mentioned via email your needs are overtaking my own and the sense of reward / benefit hasn’t been there – ie styling of the toilets, which I sent you the concept then you were like ‘not convinced’ last min meaning another waste of time and money and effort driving and dropping off, then staying late to help you then you sweating me at 7.30 in the morning about being late with no consideration for me as a parent that it wasn’t my choice or ideal to be at work and up with [child] till 10.40 at night on a school night and it was very hard on the little [child] not getting enough sleep and getting up early and so was very difficult to deal with in the morning - but I put both mine and [child’s] needs aside for your needs, on top of working outside of hours to meet deadlines - especially when I am worth more money and doing you a favour taking less money from you. Just grinds me”.
“It doesn’t say you appreciate me - and I can earn significantly more contracting for myself. Out of respect and professionalism I’m willing to fulfil a select number of tasks to get you set up then I will need to go my own way.”
“I won’t leave you high and dry without ample notice. But consider this one months notice.”
Mr Robinson: “Wow .. And that’s why I wanted to have a professional face to face conversation with you .. I’m not debating over text .. and half the stuff you are saying is not completely accurate..
But looks like you’ve made your mind up .. so we can leave it there …
just blows my mind that one hard week and a couple of criticisms flip you from powder [sic] EA to it’s too much work and stress .. it was a period of time. It’s not reflective of future events.. I’m not sure what you were expecting from a small business that’s trying to launch a venue … surly (sic) do you see that it is an investment of time and experience? I mean you’re using it to promote your own business so there’s some up side .. not that I approved for you to do that .. but hey I’m ungrateful and not appreciative ..
It really just comes down to commitment, willingness to be critiqued and the ability to know if what you’re investing your time into is worth it .. Money although important isn’t the only value to be had in life and work experiences ..
But if it’s not worth it then I get it .. I’m glad you share the dream…”
Mr Robinson: “I don’t want to argue with you CJ I’ve actually enjoyed having you around, you felt like the support I needed .. it’s a shame that it’s (sic) went in this direction .. I was hopeful that we would reach the other side stronger and ready to enjoy the fruits of everyone labour .. never- mind it is what it is …
just give me a handover of where you are at and go do your thing. …”
Applicant: “Cool so you don’t want me to come in this week?”
Mr Robinson: “I’m in Sydney Tuesday and Wednesday on a consultancy project so I won’t be
present so you can work from home if you like and catch up on your own work to make up for time lost”
Applicant: “Great so is this confirmation that we’re ending the engagement”
“Effective immediately”
“And all that is needed is the handover”
Mr Robinson: “that’s not what I was saying. I was saying take next week off from [coming] to work and focus on your own stuff. Give me a hand over as soon as you can so I can understand what tasks are outstanding. Then perhaps we can tie loose ends and make arrangements for you to depart.”
Applicant: “Ok cool”.
The Applicant gave evidence that:
she and Mr Robinson had various communications between 30 March 2025 and 1 April 2025 and on 2 April 2025 the Applicant let Mr Robinson know that school holidays were soon to commence, she would not be able to attend site and that she was coming down with the flu and would not be able to be in the office the coming week;[79]
on 3 April 2025 Mr Robinson asked the Applicant how she would be able to do a handover and she replied that she was not sure as he had changed login passwords and would discuss this on Tuesday the following week;[80]
the Applicant confirmed that Tuesday (8 April 2025) would be her last day because she could not work without access to her emails and Mr Robinson did not respond;[81]
Mr Robinson explained that removing the Applicant’s email access was a backup protocol to ensure the business was protected.[82]
An exchange of messages between the Applicant and Mr Robinson followed:
Applicant:“If you’re feeling that you need to be protected from me then you better change all of your passwords and access to things like dog website. Everything else like that which basically means that our engagement has already ended I don’t owe you anything. I will be sending you my invoice for the extra days worked And also for reimbursement for the additional flowers that I had to get for that last arrangement”
“Hubdoc* and your website”
“All the best with everything, Richie”
“I need the accountants details re payslips and final pay”
Mr Robinson: “Before this situation gets more complicated/ ugly then necessary could you just please explain to me what I did wrong? I’m really struggling to understand how we went from positive to negative so quickly and what was so serious that it made you resign at such an important, exciting and crucial moment in the business?
Because if I’ve done something fundamentally wrong I’d like to understand it, as at this stage I feel like it’s a spit the dummy situation ..”
Applicant:“The way you treat people and speak to them is **** - I explained to you. I pushed back on times when you wanted more work from [me] outside of my working hours as well as criticising my work which was a massive upgrade from what you had anyways. And now while you are saying I am having a dummy spit you’re the one saying you have to protect yourself from me - when I have gone above and beyond for you and you have no idea what I had in store to boost your business but you have gone ahead and said that you can’t trust me and you didn’t approve me to share your events/ content with [the Applicant’s business] when it was a strateguc (sic) move to get you further traction. I was happy to finish the site for you and get you to your launch - you’re the one who’s gone and remove access and throwing these accusations. It’s not good enough and it’s not a first. As I said in my email you have no self awareness of how you expect everything and more but you are rude and insulting. Maybe it’s just the way you talk who knows but it’s not ok. You’ve thrown the final dagger -my hands still injured incase (sic) you’re wondering - and the person you can’t trust supposedly hasn’t taken out a compo claim against you because im (sic) not that kind of person.”
“So id (sic) Appreciate if you did just actually take accountability for being rude and disrespectful and as we have an employment agreement - if you don’t want me to finish the work on the Site or other areas which I had intended to then just pay out my entitlements in one month salary for the notice including overtime for the additional hours and extra days that I worked for you so I can be on my merry way. Incidentally you have shot yourself in the foot.”
“Alternatively I can finish the site - get the mobile site up and get the programme running for the tourism boost plus marketing [plans] go with [the] grant application. You let me know which way you would like to go.”
Mr Robinson: “I’m going to reply via email because there’s a lot to respond to in these messages that can’t be done over text …”
Applicant:“Just leave it. We can discuss Tuesday”.
The Applicant gave evidence that on 7 April 2025 she provided an official resignation and requested payment of her entitlements.[83] In this regard, the Respondent filed a copy of an email sent by the Applicant to Mr Robinson and the Fair Work Ombudsman which stated:
“Dear Richard,
This email serves to formally finalize my employment with Graze Catering. I’m writing to outline the key issues that led to my decision to leave, and to address the outstanding entitlements owed to me under NSW employment law.
Regarding Pay Cycle and Expenses:
· Contrary to your assertion, the agreed-upon pay cycle was never explicitly stated as monthly, either verbally or within the employment contract.
· It is inappropriate and, in my view unethical to expect an employee on a part-time salary to cover business expenses. While I initially accepted responsibility for the bathroom styling expenses, this established a precedent that you subsequently took for granted. This included requests to purchase groceries and other items using my personal funds. The previous use of a company credit card for Zak highlights the deviation from standard practice.
Issues Leading to my Resignation:
Staff Retention: The high turnover rate at Graze Catering, with multiple resignations within my first month, indicates systemic issues with employee relations.
On-Site Demands: You frequently requested my presence on-site for tasks beyond my role, often with minimal justification. For example, your demand for me to attend the site solely to take photos of food, despite my having already been on-site multiple times that week.
Tasks Outside Role: I consistently performed tasks outside my job description, including food, staff, and laundry pickups. These tasks incurred personal expenses (fuel and time), for which I received no compensation. My willingness to undertake these duties ensure the smooth operation of your business.
Changes of Mind and Expenses: The bathroom styling project demonstrates a pattern of changing instructions and disregard for my time and expenses. Your request for me to withdraw cash from my personal account further illustrates this issue.
Wedding Content Request: Your request for me to travel to the weddings to take content, while I attempted to accommodate, was ultimately unfeasible due to my childcare responsibilities.
Work Outside Scheduled Hours: You consistently requested work outside my scheduled hours, including requests for contact details, an extensive work on the proposal for [client]. This work, including weekend and evening hours, constitutes overtime, which, based on my payslips, has not been compensated.
[Client] Proposal: I dedicated significant time, including weekend and late-night work, to format and edit the proposal for [client], at your urgent request. You subsequently failed to meet the deadline you set.
Additional Day and Contracting: Following Zac’s resignation, I agreed to increase my availability, including weekends and evenings. The subsequent suggestion that I invoiced through my business raises concerns regarding the avoidance of employer obligations (insurance superannuation, etc). I have sought legal advice I’m being advised against this arrangement, as it would negatively impact my entitlements.
Website Refurbishment: I completed the website refurbishment, working early mornings, nights, and weekends. Your communication during this process was often rude and dismissive, disregarding the work I had already done based on our initial discussions.
Hand Injury: During preparation for the shoot, my hand was crushed, resulting in an ongoing injury. You have not expressed concern for my well being in relation to this injury.
Shoot Day Absences: On the day of the shoot, arranged for Alice to cover as a waitress.
Early Start Time: My 7 am start time on the day of the shoot was outside my contracted hours and encouraged additional childcare costs.
Late Working Hours: Expecting me to work until 10:30 pm, with my child present, was unacceptable.
Unnecessary Tasks: The addition of the “oversize canvas building task” prolonged my working hours unnecessarily.
Cleaning Comments: Your comments regarding cleaning up after myself were unwarranted and disrespectful. Cleaning was not part of my job description.
Impact of Late Nights: My efforts to arrive early, despite the impact of late nights on my child, we’re not acknowledged or considered in your communications.
Summary of Entitlements: Given my employment contract, the agreement to add an additional day (commencing Monday, February 24th), and the overtime hours worked on weekends, evenings, an on scheduled days, I am owed outstanding entitlements.
Outstanding Entitlements:
Under NSW employment law, I am entitled to the following:
Payment for all accrued and untaken annual leave, including leave loading.
Payment for all accrued and untaken sick leave.
Payment for all overtime hours worked, including weekends, evenings, and days outside my regular schedule. I will provide a detailed breakdown of these hours.
Reimbursement of all incurred business expenses, including the cost of flowers purchased for the final flower ornament, and any other expenses.
One month salary in lieu of notice. I was willing to provide one months notice and work through that., but your removal of my email access prevented me from fulfilling my duties as Executive Assistant.
I request that you arrange for these outstanding amounts to be paid to me promptly”
The Applicant gave evidence that Mr Robinson then sent the Applicant an employment contract that she said she had never received along with a series of aggressive and untrue statements and accusations.[84]
The Respondent filed a copy of an email sent by Mr Robinson to the Applicant at 2.20pm on 7 April 2025 in which he responded to the issues raised by the Applicant and said:
“Your text message on the Friday 28th that you stated “consider this 1 months notice” however Your contract states that 2 weeks notice is required not 4 weeks, as you are still in the probation period of 3 months and since then you have called sick from Wednesday 2nd to weekending 12th of April (this week) I gave you last week off as pay leave to catch up [on] your own businesses (sic) work therefore all entitlements will be calculated based on this, and your official last day based on your working days is this Thursday the 10th.
My accountant is calculation final payout of which will be transferred on the next payroll date which is the 19th of April.
Further to your points above, I would like to state the following
· Given your resignation and the fact that you have called in sick during that time has left the business in a position where we need to delay the lunch of which the financial loss to the business is significant
· I would like to remind you of your non-compete clause below of which you have breached by acting as if Graze catering was your client at [Applicant’s business] as per social media video.
…
This will be the last correspondence I will be sending on this subject, I will send payout summery (sic) and pay slip on the 19th as previously stated”
The Applicant said she sought advice from the Fair Work Ombudsman, on 11 April 2025 she sent a letter of demand with documented overtime hours and while the matter with the Fair Work Ombudsman was escalated to conflict resolution, Mr Robinson was unwilling to participate.[85]
The Respondent filed a copy of an email from the Applicant dated 11 April 2025 which set out a chronology and included the following:
“Post-Resignation: You have indicated that my final pay (which does not include the additional day per week, overtime, reimbursement for additional flowers, and reimbursement for travel to collect your chef) will be paid on April 19th. However, the Fair Work Act 2009 s.90 mandates that an employer must pay all money owing to the employee within 7 days of their last day of work. My last day of work was two weeks ago.
This letter serves as my final attempt to resolve this issue with you regarding the termination of my employment. As per the Fair Work Act, you are required to pay me all outstanding amounts within seven days of my last day of work, which was two weeks ago. As previously mentioned, this matter, along with all supporting evidence, has now been reported to the Fair Work Ombudsman.
…
I expect immediate payment of all outstanding amounts to avoid further action. Fair work have been notified and is cc’d in this email. Failure to remedy this situation will initiate further action by the Fair Work Ombudsman.”
The Applicant gave evidence that on 11 April 2025 Mr Robinson sent a communication in response and a copy of that indicating that he had not received an official resignation, suggesting that the Applicant had not been turning up to work and purporting to terminate the Applicant’s employment effective immediately “due to misconduct, being absent from work without leave and soliciting and attempting to steal property of the company”.[86]
The Respondent filed a partial copy of Mr Robinson’s communication of 11 April 2025 which states, among other things:
“On the 26th of march you sent me a CV for a admin position, asked jokingly if you were replacing yourself, you said “it would be a good option so I can do more of my own stuff”
I asked you to clarify what you ment (sic), I.e where (sic) you saying you are leaving or are you trying to get me someone that can take some of your hours
then you send me a email saying my life and dreams where (sic) taking over yours and you don’t feel appreciated, and I told you that I do appreciate you and it’s just a high pressure stressful time.
You said you weren’t quitting and you were just tired and we could have a discussion another day
And I said I would like that
On the 29th I text you and asked how you were going .. trying to see if you had calmed down and if we could arrange a face to face meeting, of which you ignored and then went on a rant
Still no opportunity for a face to face meeting
You asked if I was ending your engagement effective immediately and I said “no” what I was saying was “take the week off, and catch up on your own business” so that was me returning any extra hours…
…
I asked you to create a handover document (which I have still not received) and once I received that we could talk about you leaving the business
…
To be clear I have not actually received a official or written resignation from you, we were still trying to work that out, therefore you are still officially employed until this point. So if you want to resign you will need to send me a letter or email stating the fact that you are resigning, because at this stage you have just not been turning up for work…”
The Respondent filed a copy of:
an email from the Applicant to Mr Robinson sent at 11.34pm on 11 April 2025 stating “Finalising my employment email on 7th April” and including an extract from the Applicant’s email of 7 April 2025;
an email from the Applicant to Mr Robinson sent at 11.43pm on 11 April 2025 stating “1 months Notice via text” and including a copy of the earlier text message exchange between the Applicant and Mr Robinson on which the Applicant said “I won’t leave you high and dry without ample notice. But consider this 1 months notice”.
The Respondent submitted that the Applicant’s last date of employment was 7 April 2025, pursuant to the Applicant’s resignation seeking payment in lieu of notice.[87]
The Respondent submitted that the communication on 11 April 2025 was sent after the Applicant’s last day of employment because the Respondent found evidence of a serious breach of contract.[88]
Consideration
In a lengthy text message to Mr Robinson on 28 March 2025 the Applicant raised a range of concerns including, by way of summary:
that she had put in extra effort, time and overtime;
Mr Robinson’s needs were overtaking her own;
she did not feel a sense of reward or benefit;
there was no consideration of her needs as a parent, having worked late on a school night and being criticised for being late at 7.30am in the morning;
she considered she was worth more money and was doing Mr Robinson a favour for taking less money.
The Applicant concluded by saying:
“It doesn’t say you appreciate me - and I can earn significantly more contracting for myself. Out of respect and professionalism I’m willing she fulfil a select number of tasks to get you set up then I will need to go my own way.”
“I won’t leave you high and dry without ample notice. But consider this one months notice.”
The Applicant said she gave notice when she resigned and made it known that she did not want to leave Mr Robinson in the lurch and would finish off projects.[89] The evidence does not establish that the Applicant did not intend to resign and nor did the Applicant submit this to be the case. I consider that the communication on 28 March 2025 did amount to a resignation and the Applicant intended her communication to have the effect of bringing the employment relationship to an end at the conclusion of a one month notice period.
It is clear that Mr Robinson did not want the Applicant resign, stating in his response:
“Wow .. And that’s why I wanted to have a professional face to face conversation with you .. I’m not debating over text .. and half the stuff you are saying is not completely accurate..
But looks like you’ve made your mind up .. so we can leave it there …
just blows my mind that one hard week and a couple of criticisms flip you from powder
[sic] EA too it’s too much work and stress .. it was a period of time. It’s not reflective of
future events….”
In the chain of communications, the Applicant sought confirmation that the engagement would be ending and that all that was required awas a handover however Mr Robinson indicated that she was to take a week off and complete a handover and stated “then perhaps we can make arrangements for you to depart” to which the Applicant responded “Ok cool”. This left open the way in which the Applicant was to leave her employment but there was no indication in any of the messages that the Applicant wished to retract her resignation or remain employed by the Respondent. To the contrary, she appeared to want to conclude her employment.
The relationship between the Applicant and Mr Robinson appears to have worsened when her email access was removed. A series of communications between the Applicant and Mr Robinson followed in which:
the Applicant sought the accountant’s details in respect of her payslips and final pay;
Mr Robinson queried what he had done wrong and what was “so serious that it made [the Applicant] resign at such an important, exciting and crucial moment in the business”;
the Applicant raised concern about Mr Robinson not having self awareness and sought that he take accountability for being rude and disrespectful;
the Applicant sought to be paid her entitlements, one month in lieu of notice and overtime for additional days worked if he did not want her to finish the work on the site or other areas she had intended to finish.
I have earlier found that the Applicant intended to resign but if there was any doubt about this, the Applicant’s email of 7 April 2025 addressed this when she said:
“This email serves to formally finalize my employment with [the Respondent]”.
[57] The Applicant herself characterised this as an “official resignation”.[90]
It is also clear that events overtook the resignation on 28 March 2025 such that the Applicant believed her employment came to an end earlier than the conclusion of the one month notice period provided in that email. In particular, on 3 April 2025 the Applicant indicated that her last day would be the following Tuesday, 8 April 2025, suggesting she could not work without email access. However, in her email of 11 April 2025 the Applicant indicates that her last day of work was two weeks prior, being 28 March 2025. While there is some ambiguity concerning the Applicant’s official last day of work, there is no dispute that the Applicant’s employment did come to an end.
In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[91] the Full Bench observed that the usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment.[92]
The Full Bench went on to consider case law and authorities dealing with circumstances in which an ostensible resignation may not operate as an effective resignation capable of acceptance by the employer and found:
‘[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(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 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.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[93]
[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.’
During the hearing the Applicant clarified that her position was that she was forced into resigning because of the Respondent’s conduct.
The Applicant’s email of 7 April 2025 sets out the reasons for the Applicant’s resignation in a detailed and considered way. By way of summary these reasons included:
that the Applicant considered it to be inappropriate and unethical to expect a part time employee to cover business expenses, noting that a former employee had a company credit card for such expenses;
poor staff retention by the Respondent;
that Mr Robinson frequently requested the Applicant’s on site presence for tasks that she considered to be beyond her role;
that Mr Robinson’s instructions changed, resulting in additional time and expense for the Applicant;
an unfeasible request for the Applicant to travel to weddings to make content;
that Mr Robinson consistently requested that the Applicant work outside her scheduled hours which had not been paid as overtime;
that the Applicant dedicated significant time, including on weekends and late at night, to urgently format and edit a proposal for a deadline that Mr Robinson did not meet;
a suggestion that the Applicant invoice the Respondent for additional time through her business;
that Mr Robinson had been rude and dismissive about work she did in refurbishing the website, including on early mornings, nights and weekends;
that Mr Robinson did not express concern for the Applicant’s well being when she injured her hand at work;
that she had been requested to start at 7am on 25 March 2025 which was outside of her contracted hours, encouraging additional childcare costs;
that she had been expected to work until 10.30pm with her child present on 24 March 2025 and was given unnecessary tasks that evening;
that Mr Robinson made disrespectful comments about the Applicant cleaning up after herself when cleaning was not a part of her job;
that the Applicant’s efforts to arrive early after working late at night with impacts for her child were not acknowledged;
she was owed outstanding entitlements for overtime hours.
It was apparent that Mr Robinson did not want the Applicant to resign and did not know the extent of the concerns she harboured about her working conditions when the Applicant submitted her resignation. There were also certain practices that crept in to the working relationship between the Applicant and Mr Robinson. For example, in relation to the Applicant using her own money for business expenses, in her email of 7 April 2025 the Applicant stated that while she initially accepted responsibility for purchasing bathroom products, this established a precedent and Mr Robinson then asked her to purchase groceries and other items using her personal funds. While the Applicant described Mr Robinson’s request for her to travel to weddings to take content as “ultimately unfeasible” due to her child care responsibilities, the Applicant had attempted to accommodate the request.
The Applicant was transparent about her desire to balance her caring responsibilities with work during the recruitment process and Mr Robinson was not always sensitive to the Applicant’s carer’s responsibilities given the nature of the requests he made of her. It was particularly unreasonable to ask the Applicant to bring her child to work until 10.30pm on the evening of 24 March 2025 with the expectation that the Applicant, who is a single parent, would commence work at 7am the following morning. It is apparent that the Applicant did sometimes work late in the evening and on weekends and I accept that this would have been challenging for the Applicant who had initially taken on a part time role working 20 hours per week to balance her responsibilities to care for her child as a single parent and whilst attending to her own business that was in its establishment phase.
However, confusion arises in determining what the Applicant’s actual working hours were as there were various iterations of the Applicant’s agreed hours in the evidence as well as a period in which the Applicant indicated she would work full time. Further, following the resignation of another staff member the Applicant agreed to increase her availability and the Applicant’s email of 7 April 2025 suggests this agreement extended to “weekends and evenings”.
The Applicant’s reasons for resigning were multifaceted. In the circumstances, including that certain practices had been permitted to ‘creep in’ to the relationship and agreed working hours were unclear, the Applicant could have had discussions with Mr Robinson in an effort to establish clearer personal and professional boundaries before making the decision to resign, including:
securing alignment on the Applicant’s working hours, availability, willingness to work outside these hours and pay arrangements in respect of additional hours;
securing clarity around when the Applicant would be required to perform work on site and when she could perform he work remotely;
discussing access to a company credit card or an alternative process for purchasing products for work;
securing greater clarity in relation to work expectations to minimise wasted effort.
In these circumstances I do not accept that the Respondent engaged in the conduct with the intention of bringing the employment to an end or that termination of the employment was the probable result of the employer’s conduct such that the Applicant had no effective or real choice but to resign.
Accordingly, I find that the Applicant’s employment was not terminated on the Respondents’ initiative and that the Applicant was not forced to resign because of conduct, or a course of conduct, engaged in by the Respondent. I find that the Applicant was not dismissed in accordance with s.386(1) of the Act and as such the Commission does not have the jurisdiction to deal with the Application. Based on my conclusion that the Applicant was not dismissed within the meaning of the Act, I dismiss the application.
I observe that in her application the Applicant indicated that she was seeking payment of wages that she said are owed to her.[94] Should the Applicant continue to have concerns about underpayment she may wish to continue her discussions about this with the Fair Work Ombudsman, being the regulator that deals with underpayment of wages.
COMMISSIONER
Appearances:
Ms C. Jimenez O’Dowd on her own behalf.
Mr R. Robinson for the Respondent.
Hearing details:
2025.
23 June.
Sydney, by video using Microsoft Teams.
[1] Applicant’s Form F8 application, response to q. 1.4.
[2] Applicant’s Form F8 application, response to q. 2.2.
[3] Respondent’s Submissions at [1].
[4] Respondent’s Submissions at [2].
[5] Respondent’s Submissions at [3].
[6] Respondent’s Form F8A response, response to q. 1.2.
[7] Respondent’s Submissions at [4].
[8] Respondent’s Submissions at [4].
[9] Respondent’s Form F8A response, response to q. 2.1.
[10] Respondent’s Form F8A response, response to q. 3.1.
[11] Respondent’s Submissions at [5].
[12] Respondent’s Submissions at [6].
[13] Applicant’s Submissions, p. 1; Applicant’s Statement at [1].
[14] Applicant’s Submissions, p. 1; Applicant’s Statement at [1].
[15] Applicant’s Statement at [1].
[16] Applicant’s Statement at [2].
[17] Applicant’s Statement at [3].
[18] Applicant’s Form F8 application, response to q. 1.2.
[19] Respondent’s Submissions, p. 3.
[20] Applicant’s Statement at [24].
[21] Applicant’s Submissions, p.3.
[22] Applicant’s Submissions, p.3.
[23] Applicant’s Submissions, p.2.
[24] Applicant’s Submissions, p.2.
[25] Applicant’s Statement at [25].
[26] Applicant’s Statement at [28].
[27] Applicant’s Statement at [109].
[28] Applicant’s Statement at [5].
[29] Applicant’s Statement at [5] – [6].
[29] Applicant’s Submissions, p.1.
[30] Applicant’s Statement at [8].
[31] Applicant’s Statement at [9].
[32] Applicant’s Statement at [10].
[33] Applicant’s Submissions, p.2.
[34] Applicant’s Submissions, p.2.
[35] Applicant’s Statement at [18].
[36] Applicant’s Submissions, p.2; Applicant’s Statement at [18] – [19].
[37] Applicant’s Statement at [14].
[38] Applicant’s Statement at [17].
[39] Applicant’s Statement at [22].
[40] Applicant’s Statement at [22].
[41] Applicant’s Statement at [30].
[42] Applicant’s Statement at [31] – [32].
[43] Applicant’s Statement at [36].
[44] Applicant’s Statement at [37].
[45] Applicant’s Statement at [40].
[46] Applicant’s Statement at [44].
[47] Applicant’s Statement at [49].
[48] Applicant’s Statement at [50].
[49] Applicant’s Statement at [52].
[50] Applicant’s Statement at [53].
[51] Applicant’s Statement at [53].
[52] Applicant’s Statement at [55].
[53] Applicant’s Statement at [57].
[54] Applicant’s Statement at [58].
[55] Applicant’s Statement at [60].
[56] Applicant’s Statement at [61].
[57] Applicant’s Statement at [61].
[58] Applicant’s Statement at [62].
[59] Applicant’s Statement at [63].
[60] Applicant’s Statement at [64].
[61] Applicant’s Statement at [65].
[62] Applicant’s Statement at [66].
[63] Applicant’s Statement at [67].
[64] Applicant’s Statement at [68].
[65] Applicant’s Statement at [68].
[66] Applicant’s Statement at [71].
[67] Applicant’s Statement at [71].
[68] Applicant’s Statement at [72].
[69] Applicant’s Statement at [73].
[70] Applicant’s Statement at [74].
[71] Respondent’s Submissions, p.3.
[72] Applicant’s Submissions, p.1; Applicant’s Statement at [4].
[73] Applicant’s Submissions, p.1.
[74] Applicant’s Submissions, p.2.
[75] Applicant’s Statement at [23] and [15].
[76] Applicant’s Statement at [76].
[77] Applicant’s Statement at [86].
[78] Applicant’s Statement at [78].
[79] Applicant’s Statement at [87] – [91].
[80] Applicant’s Statement at [92].
[81] Applicant’s Statement at [93].
[82] Applicant’s Statement at [95].
[83] Applicant’s Statement at [100].
[84] Applicant’s Statement at [101].
[85] Applicant’s Statement at [106].
[86] Applicant’s Statement at [108].
[87] Respondent’s Submissions at [5].
[88] Respondent’s Submissions at [4].
[89] Applicant’s Statement at [76].
[90] Applicant’s Statement at [100].
[91] [2017] FWCFB 3941.
[92] [2017] FWCFB 3941 at [35].
[93] [2017] FWCFB 3941 at [35].
[94] Applicant’s Form F8 application, response to q. 3.1.
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