Cooper Lynch v Mcpherson Window Cleaning Pty. Ltd. & Paul McIntyre
[2025] FWC 2684
•10 SEPTEMBER 2025
| [2025] FWC 2684 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Cooper Lynch
v
Mcpherson Window Cleaning Pty. Ltd. & Paul McIntyre
(C2025/6058)
| DEPUTY PRESIDENT FAROUQUE | MELBOURNE, 10 SEPTEMBER 2025 |
General protections application involving dismissal – jurisdictional objection – whether applicant dismissed by reason of a forced resignation or resigned voluntarily – applicant resigned voluntarily – jurisdictional objection upheld – application dismissed
Introduction
The applicant Mr Cooper Lynch has applied under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a general protections dispute involving dismissal. Mr Cooper filed his Form F8 application in the Commission on 27 June 2025. The respondents to the application are McPherson Window Cleaning Pty Ltd and Mr Paul McIntyre. Mr McIntyre is an operations manager employed by the first respondent
The respondents each filed separate F8A Responses to the general protections application on 14 June 2025, in which they each raised the jurisdictional objections that the applicant was not dismissed as required by s.365(a) of the Act and that the application was filed outside the 21-day time specified in s.366 of the Act.
On 20 July 2025, I conducted a mention of the matter. At the mention, it was common ground between the parties that the cessation of the applicant’s employment took effect on 11 June 2025 which was also the last day he worked for the first respondent.
In these circumstances it was apparent that the applicant’s Form F8 was filed within 21-days and consequently the respondents did not press their objection that the application was filed outside a 21-day limit. Therefore, these reasons deal with the jurisdictional objection that the applicant was not dismissed.
A Determinative Conference was held on 24 July 2025 to hear the respondents’ jurisdictional objection that the applicant was not dismissed. The applicant represented himself and gave evidence on his own behalf orally and in a written statement entitled “McPherson Recordings”. Mr Matthew McPherson, a director of the first respondent, represented the first respondent. Mr McIntyre and Mr McPherson gave evidence in respect of the jurisdictional objection.
The respondents’ jurisdictional objection is made in circumstances where the applicant sent Mr McPherson a letter of resignation on 28 May 2025 which was in the following terms:
Hi Matt,
I’m writing to formally resign from my role at McPherson Window Cleaning, with my final day of work to be Wednesday, 11 June 2025, in line with my two weeks’ notice.
This hasn’t been an easy decision. Over the past few years, I’ve grown a lot, both professionally and personally, and I genuinely appreciate the opportunities you’ve given me. I’ve learned so much through the trust you’ve placed in me, particularly around taking responsibility, working independently, and representing the company with pride. I’m sincerely grateful for the support and experience you’ve provided along the way.
At the same time, I’ve found it harder over the past year to maintain the same energy and passion for the job. Things like late notice every day for any job, last-minute planning, and unresolved internal communication have made it difficult to keep enjoying the role the way I used to. That said, I also know I’m not perfect either, and we’re all only human. I understand that no workplace runs smoothly all the time, and I don’t expect it to.
This isn’t about pointing fingers, but about being honest with myself. I’ve done my best to raise issues respectfully and handle challenges professionally, but I’ve reached a point where I need to prioritise my own wellbeing and direction. I’ve recently been offered a new position that’s simply too good to turn down, and I believe it’s the right next step for me.
I’ll continue to do the right thing during my notice period and help with the transition in any way I can.
Thanks again for everything, you’ve backed me in many ways, and I truly do appreciate it.
Warm regards,
Cooper Lynch
As noted above, the applicant’s last day of work was 11 June 2025 which was two weeks after he gave notice of resignation 28 May 2025.
Relevant legislation
Section 365 of the Act identifies the persons who are entitled to make a general protections application involving dismissal to the Commission. Relevantly, section 365(a) establishes a requirement that the “person has been dismissed”.
Section 12 of the Act defines the term “dismissed” by reference to s 386. Section 386 is relevantly in the following terms:
386 Meaning of dismissed
[When a person has been dismissed]
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.
In Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli (Bupa)[1] a Full Bench of the Commission considered the circumstances in which a resignation by an employee may constitute a dismissal at the initiative of the employer within the meaning of 386(1). The Full Bench held as follows:
“[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 probably 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.”
In light of the applicant’s written resignation, I will consider whether the applicant was dismissed having regard the decision of the Full Bench in Bupa.
The applicant primarily contends that it was the conduct of Mr McIntyre that forced him to resign. However, the applicant does refer to some interactions with Mr McPherson which he seems to rely on as part of the circumstances that allegedly forced his resignation.
The applicant’s case amounts to an allegation that he was dismissed within the meaning of s 386(1)(b) of the Act. Consequently, the principles set out in paragraph 47(2) of Bupa are applicable to determination of this matter.
Factual Findings
The first respondent’s principal business is the cleaning of windows in commercial buildings, mainly high-rise buildings. In November 2022, the applicant commenced employment with the first respondent on a casual basis. A few months later the applicant’s employment status became part-time and then subsequently full-time. In about February 2025, the applicant was promoted to the position of supervisor. As a supervisor, the applicant would supervise a crew of between two to six workers. The applicant reported to the operations managers, being Mr McIntyre and a Mr Houlihan.
The applicant primarily claims that Mr McIntyre’s conduct forced him to resign due to Mr McIntyre’s management style, which the Applicant described as ‘micromanagement’ and ‘belittling’ in nature. The applicant said in his oral evidence that Mr McIntyre is ‘not always bad’ and that he does not say that Mr McIntyre is a terrible person. However, generalised criticism of the management style of Mr McIntyre is not sufficient to found a conclusion that the applicant was forced to resign. Consequently, it is necessary to have regard to specific incidents.
The applicant to set out in his evidence the specific incidents of Mr McIntyre and Mr McPherson’s conduct on which he relies in support of his contention that he was forced to resign.
I note that in his evidence the applicant refers to some incidents which occurred after he gave his written resignation on 28 May 2025 and before his last day of work on 11 June 2025. These are alleged incidents on 5 June 2025 and 10 June 2025. I consider that these alleged incidents are not relevant to my determination of whether or not the applicant was forced to resign, as they occurred after the applicant submitted his letter of resignation.
Unspecified Incident in 2023 or 2024
The applicant referred to an incident at some indeterminate time in 2023 or 2024, when he claims that Mr McIntyre made negative comments about another employee. The applicant was unable to recall the words used by Mr McIntyre in this alleged incident. The lack of specificity about Mr Mcintyre’s alleged conduct in this purported incident provides no proper basis for me to conclude that it was an incident which by itself, or in combination with other alleged incidents, forced the applicant to give notice of his resignation on 28 May 2025.
Gippsland Job – 2024
The applicant referred to an incident in about mid-2024 at a job in Gippsland. The applicant claims that Mr McIntyre told him and other workers to hurry up for no reason when the crew were working hard. The applicant says that he spoke to Mr Houlihan and asked him to tell Mr McIntyre to back off because he was frustrating to deal with. The applicant said that after he spoke to Mr Houlihan, Mr McIntyre did back off. The applicant believes this is because Mr Houlihan spoke to Mr McIntyre. The applicant says that Mr McPherson subsequently rang him and during this conversation Mr McPherson apologised and noted that Mr McIntyre was experiencing a serious medical condition at that time.
I accept the applicant’s evidence that Mr McIntyre told him and the other workers to hurry up and that he (the applicant) felt that this comment was unjustified. But clearly, this conduct by Mr McIntyre was not intended to bring the employment relationship to an end. Nor was his conduct on this occasion (or when viewed in combination with any other alleged incident) of a nature that the probable result of it was to bring the employment to an end because the applicant had no effective or real choice but to resign. I do not consider that Mr McIntyre’s alleged conduct at the Gippsland job, either by itself or in combination with other alleged incidents, constituted conduct which forced the applicant to give notice of his resignation on 28 May 2025.
Mornington Peninsula Job – mid-March 2025
In about mid-March 2025, the applicant and another employee were jointly supervising a cleaning job in the Mornington Peninsula. The applicant says that Mr McIntyre made the unnecessary decision to drive from Melbourne to the Mornington Peninsula each day solely to check on the crew each morning. The applicant claims that Mr McIntyre, on several occasions, would stand in the car park watching the crew from a distance and re-positioning himself to continue to observe the crew as they moved around the building. The applicant says that the crew felt as though they were being babysat rather than being supported. In his oral evidence, applicant says that Mr McIntyre regularly made remarks to the effect that the crew were going too slow, or they were not cleaning windows properly. The applicant particularly objected to Mr McIntyre’s tone when he spoke to the applicant and other members of the work crew.
Mr McIntyre says generally that he was supervising the job and denies that he spoke unreasonably to the Applicant.
I find that Mr McIntyre was actively supervising the Mornington Peninsula job. As Operations Manager, Mr McIntyre was entitled to do so. He was entitled to drive down to the Mornington Peninsula each day to supervise the job. He was entitled to watch the crew work and re-position himself to observe the crew as they worked. Mr McIntyre’s evidence was that the job involved an important commercial client. In his supervision of the applicant and other members of the crew, I find that Mr McIntyre was being very particular about quality of the work being done for a significant client. It is apparent to me that Mr McIntyre has an active management style and speaks in a strict tone and probably did so on this occasion. However, based on the evidence before me, I am not satisfied that Mr McIntyre acted unreasonably to the applicant in the manner in which supervised the job.
It is very clear that Mr McIntyre’s close supervision was not engaged in with the intention of bringing the applicant’s employment to an end, but rather was engaged in for the purpose of ensuring that the work was done to a high standard for an important client. Nor was the manner of his supervision of a nature that the probable result of it was to bring the employment to an end because the applicant had no effective or real choice but to resign. I do not consider that Mr McIntyre’s conduct at the Mornington Peninsula job, either by itself or in combination with any other incident, constituted conduct which forced the applicant to give notice of his resignation on 28 May 2025.
On the first day of the Mornington Peninsula job, the applicant says that there was a work scheduling issue which meant that the crew finished their work early on that day without first informing Mr McIntyre that they had done so. The applicant says that on the following day (about 12 March 2025) Mr McPherson confronted the crew in an aggressive and accusatory tone questioning why they had finished work early the previous day. The applicant says that the employees collectively explained the scheduling issue and their rationale for finishing work early the previous day. The applicant says that Mr McPherson insisted “there was always more work to do”, despite not understanding the workflow or constraints of the job.
Mr McPherson says generally that he was entitled to supervise the crew. I am not satisfied that Mr McPherson confronted the applicant or other members of the crew in an aggressive and accusatory tone. My assessment of Mr McPherson’s demeanour is that he is a measured personality. I find that Mr McPherson did not behave unreasonably in speaking with the applicant about the circumstances in which the crew finished early. Mr McPherson’s conduct on this occasion was not engaged in with the intention of bringing the applicant’s employment to an end, nor was his conduct such that the probable result of it was to bring the employment to an end because the applicant had no effective or real choice but to resign.
I do not consider that Mr McPherson’s alleged conduct on this occasion, either by itself or in combination with other alleged incidents, forced the applicant to give notice of his resignation on 28 May 2025.
Job in Loddon Mallee Region — 17 or 18 March 2025
On or around 17 or 18 March 2025, the applicant and another worker, were working together on a job supervised by Mr McIntyre in the Loddon Mallee Region. The applicant says the particular work was not of a type which he had previously undertaken. The applicant says that Mr McIntyre’s instructions were not clear, and it was a lot of information for the applicant to take in. The applicant says that when he and the other worker thought they had finished the job, they packed up to leave the site. The applicant says that the other worker phoned Mr McIntyre and told him they were leaving. The applicant was not a direct party to this telephone conversation. However, the applicant says that the other worker told the applicant that during the phone call, Mr McIntyre was frustrated that his orders hadn’t been followed correctly. The applicant says that Mr McIntyre’s behaviour was belittling, especially when viewed together with a subsequent conversation a few days later with Mr McIntyre referred to in paragraphs below.
Mr McIntyre says that he had two telephone conversations with the other worker on that day. Mr McIntyre says that about 11:00am he received a phone call from the client complaining that the applicant and his colleague had not finished the job properly and were leaving the site. Mr McIntyre says that he spoke to the colleague and walked him through the job again. Mr McIntyre says that later that day, shortly after 2:00pm, he received a phone call from the other worker who told him that they were packed up and leaving the site. Mr McIntyre said that he ascertained from the other worker that the job had not been completed as instructed. Mr McIntyre said that he could hear the applicant in the background saying that he wouldn’t stay to complete the job because he had another commitment. Mr McIntyre says that the job was not completed by the applicant and the other worker and that the first respondent had to subsequently send another crew out to complete the job.
On either the applicant’s or Mr McIntyre’s account of this incident, there is no basis to consider that Mr McIntyre’s conduct, either by itself, or in combination with any another incident, forced the applicant to resign ‘on 28 May 2025. On the applicant’s own account, Mr McIntyre spoke with the other worker and not the applicant. The matters raised by Mr McIntyre in the conversation with the other worker were entirely reasonable. I do not accept that Mr McIntyre’s behaviour was belittling. I accept Mr McIntyre’s account that the client had spoken to him and complained that the job had not been completed properly. In these circumstances, Mr McIntyre was entirely within his rights to speak to the other worker about the status of the job. Again, it is very clear that Mr McIntyre’s conduct on this occasion was not engaged in with the intention of bringing the applicant’s employment to an end. Nor was the probable result of Mr McIntyre’s conduct the termination of the applicant’s employment because the applicant had no effective choice but to resign.
Mulgrave Warehouse Incident – 19 March 2025
In the Loddon and Mallee Region job referred to above, the applicant and the other worker had used Mr McIntyre’s tools.
On 19 March 2025, the applicant and other employees attended the first respondent’s warehouse in Mulgrave for training. The applicant says that as soon as he saw Mr McIntyre, Mr McIntyre accused the applicant of taking or losing the tools which Mr McIntyre had provided. The applicant acknowledges that Mr McIntyre was not shouting during this conversation. The applicant says that he gave Mr McIntyre the tools then in his possession and informed him that he did not know where the rest of Mr McIntyre’s tools were, indicating that either the other worker had them or they were left on the site. The applicant says that after he gave Mr McIntyre the tools, the conversation with Mr McIntyre ended. The applicant says that he was embarrassed and humiliated by this conversation as it occurred in front of other employees.
In his oral evidence, the applicant acknowledged that he did not complain about Mr McIntyre’s conduct on this occasion. The applicant gave oral evidence that Mr Houlihan, who was a witness to the conversation, made a comment to him that the conversation was pretty heated.
I accept the applicant’s account about this incident as set out above. It seems apparent that Mr McIntyre was heightened in his interaction with the applicant about the matter of the tools. It would have been prudent for Mr McIntyre to make a simple inquiry about the whereabouts of the tools in a private conversation or other communication with the applicant or the other worker.
However, I find that Mr McIntyre’s conduct on this occasion was not engaged in with the intention of bringing the applicant’s employment to an end. Nor was Mr McIntyre’s conduct of such gravity that the probable result of it was the termination of the applicant’s employment because the applicant had no effective choice but to resign. I do not consider that Mr McIntyre’s alleged conduct at the warehouse on 19 March 2025, either by itself or in combination with any other incident, constituted conduct which forced the applicant to give notice of his resignation on 28 May 2025.
Meeting at Mulgrave Warehouse – 27 March 2025
On the morning of 27 March 2025, the applicant and a work colleague called Mr McPherson and asked to meet with him the following week to discuss their contracts and pay. Mr McPherson indicated that he was not able to meet the following week but was able to meet that afternoon. The applicant and his colleague had intended to speak to Mr McPherson about the calculation of overtime pay and also Mr McIntyre’s management style. However, in the phone call to Mr McPherson, they made no mention that they wanted to speak to him about Mr McIntyre’s management style.
The applicant and his colleague went to the Mulgrave warehouse to meet with Mr McPherson that afternoon. When they arrived, they met with Mr McPherson, Mr McIntyre and Mr Houlihan. Mr McPherson had evidently arranged for Mr McIntyre and Mr Houlihan to be present. The applicant says that he and his colleague raised an issue about overtime not being calculated properly and allowances not being paid by the first respondent. The applicant says that Mr McPherson indicated that he believed that the first respondent had been overpaying overtime and that the applicant and his colleague might have been overpaid and owe the company money. The applicant says that he and his colleague then raised the issue of Mr McIntyre’s management style, complaining that he was micromanaging them, didn’t trust them in their ability to run jobs and spoke down to them.
The applicant says that ‘[r]ather than taking this feedback on board, Paul [McIntyre] became defensive and tried to shift the focus by calling out [the colleague] for being late to work one day the week prior’. The applicant says that he considered this defensive and a tactic to try and deflect the genuine issues being raised. In his oral evidence, the applicant acknowledged that his colleague had been late to work the previous week but said that this sometimes happens. In his oral evidence, he acknowledges that Mr McIntyre did not make any comment targeted at him in response to the issues raised about Mr McIntyre’s management style. The applicant elaborated in his oral evidence that he and his colleague complained that Mr McIntyre did not trust them to run jobs even though they knew how to run the jobs very well. The applicant’s evidence was that Mr McIntyre said in response that they should tell him to “f... off” if he was annoying them. The applicant acknowledged in his oral evidence that Mr McIntyre was giving the applicant and his colleague license to push back at Mr McIntyre, but says further that this was not a realistic suggestion. The applicant says that Mr McPherson assured he and his colleague that they were trusted by the management. The applicant says that he and his colleague also raised an issue about more notice being given by the first respondent about rostering jobs so that employees would not have to unnecessarily remove equipment from a site at the end of a day if they were going to return to the same site the following day. The applicant says that in response to raising this issue, the management participants in the meeting indicated that they would try and fix the issue so as to give employees more rostering notice. The applicant accepts that it can be difficult for management to give notice.
In his written statement, the applicant says that the meeting left him feeling ‘unsupported, unheard, and even more discouraged about trying to resolve issues internally’.
In his oral evidence, the applicant says that after the meeting, Mr McPherson phoned him and asked him to send through details of the overtime claim and any calculations. The Applicant also said that he understood this request by Mr McPherson to indicate that Mr McPherson was going to assess the applicant’s underpayment claim and then, subject to the assessment, address the issue.
Based on the applicant’s own evidence about the 27 March 2025 meeting, I do not consider that that the conduct of Mr McIntyre or indeed Mr McPherson on 27 March 2025 (either on its own or in combination with any other alleged incident), was conduct which forced the applicant to resign.
In relation to Mr McPherson’s comment about an overpayment of overtime and a potential repayment, I consider that any perception that the applicant had during the meeting that this comment was some sort of threat or was dismissive, was entirely superseded by the applicant’s understanding after the phone call referred to in paragraph 40 above.
In relation to how Mr McIntyre’s responded to the complaint made by the applicant and his colleague that he was micromanaging and didn’t trust them, I make the following findings. Firstly, on the applicant’s own account, Mr McIntyre did not make any responsive comment targeted to the applicant. Rather, to the extent that Mr McIntyre made any targeted comment, that comment was directed to the colleague, and merely to the effect that the colleague had been late to work the previous week. This was hardly a comment of great gravity or of significant censure. It was a comment of a trivial nature, at worst displaying minor defensiveness by Mr McIntyre in circumstances where he had no prior notice that the applicant and his colleague intended to raise complaints at the meeting about Mr McIntyre’s management style. Mr McIntyre’s lack of prior knowledge that his management style was to be raised at the meeting was because the applicant and his colleague did not inform Mr McPherson that this was a subject they intended to raise. Furthermore, I consider that Mr McIntyre’s response at the meeting indicated that he was, in some colourful terms, giving the applicant and his colleague licence to push back at him if they felt he was not showing trust and overmanaging their jobs. I also note that Mr McPherson, as managing director, assured the applicant and his colleague that they were trusted by management. Moreover, I note that in response to the issue raised about notice of rostering for jobs, the applicant and his colleague were told that the first respondent would try and fix the issue.
The totality of these circumstances, on 27 March 2025, cannot be characterised as conduct by Mr McIntyre, or in fact Mr McPherson, engaged in with the intention of bringing the applicant’s employment to an end. Nor was the conduct of Mr McIntyre or Mr McPherson of such a nature on that occasion that the probable result of it was the termination of the applicant’s employment because the applicant had no effective choice but to resign.
I note that Mr McPherson indicated that he spoke with the office of Fair Work Ombudsman on 28 & 29 March 2025 about award compliance obligations in relation to overtime. I accept his evidence in this regard.
Phone Call from Mr McIntyre - 27 May 2025
That applicant gave evidence that on 26 May 2025, he was regularly checking the online company roster to see whether his job for the next day had been posted. At about 9:30pm, the applicant discovered that he had been rostered the next day for a job in Torquay. The applicant usually works in Melbourne and was surprised that he had been rostered in Torquay as he had an important personal commitment in Melbourne on the afternoon of 27 May 2025. The applicant messaged Mr Houlihan and indicated that it was difficult for him to accommodate a job at Torquay. The applicant says that he received no response from Mr Houlihan. I accept the applicant’s evidence about these matters.
On the morning of 27 May 2025 at 6:36am, Mr McIntyre called the applicant.
The applicant’s evidence about the phone call was as follows. Mr McIntyre was aggressive, saying words to the effect of “you should be halfway to Torquay.” The applicant says that he expressed his frustrations to Mr McIntyre in response. The applicant says that he told Mr McIntyre that he had not been given 24 hours’ notice or a message about the job before the end of the previous workday. In his oral evidence, the applicant says that he said words to the effect of “It’s not my fault you guys can’t plan jobs properly, like without giving proper notification” and Mr McIntyre responded by saying “I don’t give a shit.” The applicant says that during this phone call, his own tone was tense.
Mr McIntyre’s evidence was to the following effect. Mr McIntyre says that on 26 May 2025, whilst scheduling work for the following day, a change of weather in Melbourne meant that it was not possible to do abseiling work in Melbourne. A late job in Torquay came in, which was ground work and hence was not affected by bad weather. Mr McIntyre says that the scheduling was done at about 4:00pm but that he did not immediately message the applicant and acknowledges that he should have. Mr McIntyre says at about 6:30am on 27 May 2025, Mr Houlihan phone him and informed him that the applicant was not going to the Torquay job. Mr McIntyre immediately called the applicant and asked him if was on the way to Torquay. The applicant said he was not and Mr McIntyre asked the applicant if there was a reason. The applicant said that he had not been given enough notice. Mr McIntyre told the applicant that weather conditions in Melbourne were bad and there was no abseiling work in the city and that the Torquay job had come in late. The applicant told him that the company did not respect his time. Mr McIntyre denies that he was aggressive or confrontational in the phone call but acknowledges that he was being direct. Mr McIntyre denies that he used the expression “I don’t give a shit.” Mr McIntyre says that that the applicant explained that he had a medical appointment in the city the following afternoon. Mr McIntyre says that he told the applicant that if he went to Torquay, the first respondent would make sure that he left in time to be back in the city for his appointment. Mr McIntyre says that the applicant continued complaining that his time outside work was not being respected.
The applicant says that he did attend at the Torquay job on 27 May 2025. The applicant also says that from 28 May 2025 onward, the work roster for the following day would be issued by the first respondent at 12 noon and each employee would be texted to inform them of their work location the following day.
I find that the phone conversation between the applicant and Mr McIntyre on the morning of 27 May 2025 was a tense conversation. Mr McIntyre was frustrated that the applicant had not left to go to Torquay as rostered. The applicant was frustrated at the late notice of the job. Each of them expressed their frustrations to the other. No doubt each of them spoke to other in a direct, frustrated and tense tone. Even if I were to accept the applicant’s account that Mr McIntyre’s used terminology to the effect of “I don’t give a shit”, it is clear from the applicant’s own evidence that this was in response to the applicant’s somewhat testy comment about the first respondent. I accept that Mr McIntyre sought to explain to the applicant about the weather conditions in Melbourne affecting scheduling. I accept that Mr McIntyre told the applicant that the first respondent would make sure that he left the Torquay job with sufficient time to be back in Melbourne to attend his appointment the following day.
The applicant says that on 27 May 2025, he messaged Mr McPherson and complained about the way Mr McIntyre spoke to him. In that message, the applicant indicated to Mr McPherson that he had not responded in the best way and that he took responsibility for his response, that his response came from frustration at how the situation was being handled, particularly not being given notice of a regional Torquay job and that he expected an apology from Mr McIntyre. Mr McPherson responded by indicating that the work was organised in Torquay because of the weather and that he would prefer not get involved until he knew what was going on. The applicant says that Mr McPherson called him later that day and acknowledged that the applicant should get more notice and that it was fair enough that he wanted an apology from McIntyre. Mr McPherson does not disagree with the applicant’s account of this conversation.
I do not consider that Mr McIntyre’s conduct in the phone call on 27 May 2025 was done with the intention of bringing the applicant’s employment to an end. Nor was the conduct of Mr McIntyre during this phone call of a nature, either on its own or assessed in combination with any other incident, such that the probable result of it was the termination of the applicant’s employment because the applicant had no effective choice but to resign.
On 27 May 2025, the applicant contacted another window cleaning company and inquired about available employment. On the evening of 27 May 2025, the applicant wrote the letter of resignation set out in paragraph 6 above. However, at that time the applicant says he had not finally decided to send the letter of resignation.
Discussion at Flinders Street Job – 28 May 2025
On the morning of 28 May 2025, the applicant attended a job on Flinders Street in Melbourne. The applicant says that when he arrived, Mr McIntyre was on the phone. The applicant says that Mr McIntyre was on his phone, and when he saw the applicant, he turned to him and said words to the effect “Oh, sorry for not giving you enough notice, mate.” The applicant says that he regarded Mr McIntyre’s remark as sarcastic and dismissive. The applicant says that after Mr McIntyre got off the phone, he commenced giving directions to the applicant and his colleague about the job. The applicant says that in front of a work colleague, he asked Mr McIntyre whether he had anything to say. The applicant says that Mr McIntyre said that he was not apologising. The applicant says that he and Mr McIntyre went across the road and then had a heated conversation. The applicant says he told Mr McIntyre that he wasn’t looking for excuses and just wanted him to take accountability for the sway he spoke on the phone. The applicant says that there was “some back and forth” and then Mr McIntyre apologised. The applicant again says that he regarded Mr McIntyre’s apology as being insincere. However, the applicant also said in his oral evidence that the conversation ended on a good note.
Mr McIntyre says that when the applicant arrived at the Flinders Street job, he (Mr McIntyre) did apologise but this apology was about the late notice of the Flinders Street job of that day, because parking around that area was difficult. Mr McIntyre says that in the presence of a co-worker, the applicant asked him whether he had something to say. Mr McIntyre says that he understood the applicant was chasing an apology for the previous day. Mr McIntyre said that he told the applicant that they would chat about it later. This was because Mr McIntyre was not minded to discuss the issue with the applicant in the presence of another worker. Mr McIntyre said that after giving some instructions about the work at the Flinders Street job, he and the applicant went across the road and had a discussion. Mr McIntyre says that he told the applicant that his issue with their phone call the previous day was that he thought the applicant was out of line in the way he spoke. Mr McIntyre says that the applicant agreed with this and explained he had not slept well that night. Mr McIntyre says that the applicant apologised. Mr McIntyre says that he apologised if he came across abruptly as well. Mr McIntyre says that he believed that the conversation was a good one.
In relation to the first exchange when the applicant arrived on site, I am not satisfied that Mr McIntyre’s apology, whether directed to the telephone call the previous day or any late notice of the Flinders Street job, was given in a sarcastic manner.
In relation to the second conversation which occurred across the road, the applicant says that the conversation ended on a good note. I find that in the second conversation, both parties ventilated their differences to each other about their telephone conversation early on the morning of 27 May 2025 regarding the Torquay assignment. I find that each gave the other an apology and about the way they had dealt with the call and each apology was genuinely given. The applicant by his own account says that that the conversation ended on a good note.
I do not consider that Mr McIntyre’s conduct on 28 May 2025 was intended by him to bring the applicant’s employment to an end. Nor was the conduct of Mr McIntyre on 28 May 2025, of a nature that the probable result of it was the termination of the applicant’s employment because the applicant had no effective choice but to resign.
Letter of Resignation
In his written statement, the applicant said as follows about his decision to send the resignation letter on 28 May 2025 with the “exchange” referred to be being the conversation between the applicant and Mr McIntyre at the Flinders Street job:
This exchange was a tipping point for me. The conversation I had with Paul that morning – and the way it was handled – was one of the main reasons I decided to resign. Shortly after this interaction, I submitted two weeks’ notice to Matt [McPherson].
As I have set out above, the applicant drafted the letter on the evening of 27 May 2025. However, his decision to actually hand in the resignation letter was made on 28 May 2025. The resignation letter was emailed to Mr McPherson and gave two weeks’ notice, expressly noting that his last working day would be 11 June 2025.
The applicant then worked out the two weeks’ notice and ceased employment on 11 June 2025 pursuant to the resignation letter.
Conclusion
I consider that the applicant gave his resignation voluntarily.
The resignation letter makes some reference to difficulties the applicant perceived in terms of notice for jobs, planning and internal communication and these matters impacting on his enjoyment of his role. However, it has the character of a resignation freely given. In the letter, the applicant is reflective and insightful of his experience of the workplace, including referring to his own imperfection and making acknowledgement that no workplace runs smoothly all the time. The applicant is complimentary of Mr McPherson personally, expressing genuine appreciation of the opportunities he had been given. Indeed, the applicant thanks Mr McPherson in somewhat effusive terms. The applicant notes in the letter that he has been offered another job that is too good to turn down and expresses the view that it is “the right next step”. The applicant also notes that he had reached the point of prioritising his own well-being.
The resignation letter is redolent of the applicant having made a considered and voluntary decision that he would better enjoy work elsewhere. The letter is not at all consistent with a forced resignation.
Clearly, the applicant found working with Mr McIntyre difficult and made an assessment that it would be best for his own well-being to resign. However, having regard to the terms of the resignation letter and the findings I have made above in relation to the specific incidents the applicant relies on, I do not consider that the applicant’s resignation constituted a dismissal within the meaning of s 386 of the Act. The first respondent, through Mr McIntyre or Mr McPherson, did not engage in conduct with the intention of bringing the employment to an end. Further, the first respondent’s conduct, through Mr McIntyre or McPherson, was not such that the applicant had no effective or real choice but to resign.
The applicant was not forced to resign. The applicant voluntarily chose to resign as he considered it would be in his best interests. He was entitled to do that. But that does not constitute a dismissal.
The application made under s 365 of the Act must therefore fail for want of jurisdiction.
A separate order dismissing the application will be issued.
DEPUTY PRESIDENT
Appearances:
Mr Cooper Lynch, applicant
Mr Matthew McPherson, for the first respondent
Mr Paul McIntyre, second respondent.
Determinative Conference details:
2025.
Melbourne (by video using Microsoft Teams):
24 July.
[1] [2017] FWCFB 3941; (2017) 217 IR 245.
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