David Polydores v The University of Sydney
[2025] FWC 1936
•7 JULY 2025
| [2025] FWC 1936 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
David Polydores
v
The University of Sydney & Ors
(C2025/3178)
| COMMISSIONER CRAWFORD | SYDNEY, 7 JULY 2025 |
General protections dismissal dispute – jurisdictional objection alleging no dismissal – whether employee forced to resign – employee felt they were being forced to resign – employer’s conduct must be assessed – jurisdictional objection upheld – application dismissed.
BACKGROUND
David Polydores commenced a fixed term of full-time employment with the University of Sydney (University) on 25 November 2024 in the role of Proposal Assurance and Submissions Officer, Pipeline and Pre-Award. Mr Polydores claims he was berated, belittled, bullied, intimidated, and attacked by his supervisor, Nicole Richardson, during a three-hour Zoom meeting on 7 March 2025. Mr Polydores’ husband, Rodney Porter, was in the room with Mr Polydores during the discussion and agrees with Mr Polydores’ description. That meeting followed a mid-probation meeting with Ms Richardson on 5 March 2025 which Mr Polydores says was also horrific. Mr Polydores took periods of leave following the meeting on 7 March 2025. Mr Porter was hospitalised on 9 March 2025 with heart attack symptoms he says were caused by the stress of watching the Zoom meeting. Mr Polydores sent a detailed email to various senior managers of the University on 21 March 2025 raising concerns about his treatment by Ms Richardson. The subject line of the email was “Urgent Help Requested.” Mr Polydores considers his complaint was “passed around” by representatives of the University and then referred to an external party on 28 March 2025 for a “preliminary assessment.” Mr Polydores says he lost all faith in the University and formally resigned on 31 March 2025. Mr Polydores says he was “dismissed” by the University on 31 March 2025 because he was forced to resign due to conduct, or a course of conduct, by the University. This decision concerns whether Mr Polydores was forced to resign from his employment with the University.
I listed a hearing regarding the issue of whether Mr Polydores was forced to resign on 2 July 2025 via video. A schedule identifying the evidence and submissions relied on by the parties is attached at the end of this decision. I have considered all the evidence and submissions.
KEY EVENTS
Given Mr Polydores alleges he was forced to resign as a result of how the University responded to his complaint about Ms Richardson, it is necessary to closely examine the relevant events, which are captured in emails filed by the parties.
As identified above, Mr Polydores initially raised his concerns about Ms Richardson in an email sent to a group of senior managers at 9:43am on Friday, 21 March 2025. The subject line of the email was “Urgent Help Requested.” The recipients were selected by Mr Polydores and included the Vice Chancellor, Samantha Liston (Chief Human Resources Officer), and Ms Richardson. Mr Polydores’ email raises serious allegations against Ms Richardson and refers to health issues that Mr Polydores and his husband have suffered allegedly because of Ms Richardson’s actions. Mr Polydores’ email ends with the words: “Can someone please help me with this situation?”
Ms Liston replied to Mr Polydores’ email at 1:39pm on Friday, 21 March 2025. Ms Liston acknowledged receipt of the email and indicated a member of her team would make contact shortly. Ms Liston recommended that Mr Polydores contact the Employee Assistance Program to obtain support in dealing with the anxiety and depression issues raised in his email. Ms Liston stated that Mr Polydores can contact her directly for further assistance.
James Duncan (Senior HR Partner – HR Partnering) attempted to call Mr Polydores around 4:30pm on 21 March 2025 and left a voicemail. Mr Duncan then sent a follow-up email at 4:34pm on Friday, 21 March 2025. Mr Duncan indicated he is available to discuss Mr Polydores’ email and “about how to support resolution of the concerns you’ve raised.” Mr Duncan indicated Mr Polydores should feel free to contact him via phone or email at his convenience.
Mr Polydores sent an email to Ms Liston and Mr Duncan at 8:23am on Tuesday, 25 March 2025. Mr Polydores indicated he would like further assistance. Mr Polydores referred to returning to work from a period of sick and/or personal leave the following day on 26 March 2025. Mr Polydores referred to “brutal attacks” from Ms Richardson and stated he considers she is “doing everything to wear me down, to force me to resign.” Mr Polydores requested that Ms Richardson be kept away from him and referred to being sick with worry after her “attacks”.
Ms Liston responded to Mr Polydores’ email at 10:05am on Tuesday, 25 March 2025. Ms Liston indicated she has asked Mr Duncan to speak with Mr Polydores and asked Mr Polydores to reach out to Mr Duncan for advice.
Mr Duncan sent an email to Mr Polydores at 2:15pm on Tuesday, 25 March 2025. Mr Duncan indicated he is available to meet with Mr Polydores. Mr Duncan advised Mr Polydores that he arranged for Mr Polydores to temporarily report to Nic Makoviney (Director, Pipeline and Pre-Award, DVCR), instead of Ms Richardson. Mr Duncan requested that Mr Polydores confirm that he is okay for Ms Makoviney to contact him about his return to work. Mr Duncan requested that Mr Polydores submit a formal report regarding the incident with Ms Richardson on the University’s Health and Safety reporting system (Riskware). Mr Duncan provided a link to the relevant report form and said he can arrange assistance if Mr Polydores has any issues submitting the report. Mr Duncan indicated a member of the Health and Safety team will contact Mr Polydores after he submits the report to discuss his options, including the submission of a formal complaint.
Mr Polydores was off work sick when the emails identified above were exchanged from 21 March 2025 to 25 March 2025. Mr Polydores returned to work on 26 and 27 March 2025.
Mr Polydores sent an email to Mr Duncan and Ms Liston at 8:31am on Wednesday, 26 March 2025. Mr Polydores confirmed that he wished to submit a formal complaint and that he thought he had begun this process already with his email to senior managers. Mr Polydores indicated he was confused about the process and still traumatised by the events. Mr Polydores indicated he would complete the report in Riskware. Mr Polydores stated he had been bedridden for two weeks since his meeting with Ms Richardson on 7 March 2025 and that he had already provided a detailed account of what occurred. Mr Polydores ended the email by asking for immediate help.
Mr Polydores sent an email to Karen Keith (Staff Health Support Manager – Safety – Operations) at 9:12am on Wednesday, 26 March 2025. Mr Polydores attached a copy of his completed Incident Hazard Report and confirmed he had submitted it. Mr Polydores asked that Ms Keith review the report and expedite the process, given his circumstances. Mr Polydores confirmed he wished to make a formal complaint.
Ms Keith responded to Mr Polydores’ email at 12:34pm on Wednesday, 26 March 2025. Ms Keith stated she had seen Mr Polydores’ report and asked whether Mr Polydores could speak after 4pm that afternoon.
Mr Polydores sent an email to Ms Keith at 4:03pm on Wednesday, 26 March 2025. Mr Polydores confirmed he would like to progress with the formal complaint against Ms Richardson. Mr Polydores indicated he wanted to lodge a formal complaint that day and expressed concern about the several extra steps that were required. Mr Polydores queried whether speaking about his complaint was essential given he had already set it out in a detailed email. Mr Polydores indicated speaking about the incident will cause him more stress. Mr Polydores indicated he can take a call anytime from 4:45pm if necessary. Mr Polydores had a lengthy conversation with Ms Keith that afternoon and was ultimately advised by Ms Keith to send an email to the Workplace Relations team and to complete an online form.
Mr Polydores sent an email to a University Workplace Relations Online Complaints email address at 8:57am on Thursday, 27 March 2025. Mr Polydores expressed extreme frustration about the various steps he had been required to take to make a formal complaint. Mr Polydores detailed the various steps he had taken and attached the relevant emails and attachments.
Ashlee Hidalgo (Workplace Behaviour and Conduct Advisor) sent Mr Polydores an email at 3:40pm on Thursday, 27 March 2025. Ms Hidalgo acknowledged receipt of Mr Polydores’ complaint and indicated a member of her team would be in contact early next week. Ms Hidalgo provided Mr Polydores with information about how to access staff counselling and coaching support. Ms Hidalgo stated Mr Polydores can contact her if he has any questions.
Mr Polydores replied to Ms Hidalgo’s email at 4:14pm on Thursday, 27 March 2025. Mr Polydores indicated he was confused about the process and understood his email to the Workplace Relations team was the final step. Mr Polydores queried why he now had to wait for someone to contact him next week. Mr Polydores referred to the process as convoluted with many steps. Mr Polydores requested confirmation about what the next steps would be.
Mr Polydores sent an email to Ms Makoviney providing notice he would be off work sick at 8:18am on Friday, 28 March 2025.
Ms Hidalgo sent an email to Mr Polydores at 3:45pm on Friday, 28 March 2025. Ms Hidalgo indicated the University’s complaints team works with external consultants from a business called Source. Ms Hidalgo indicated a Source representative would contact Mr Polydores the next Monday or Tuesday to commence a preliminary assessment process. Ms Hidalgo stated that Mr Polydores did not need to provide any further documentation at this stage. Ms Hidalgo referred Mr Polydores to the University’s bullying, harassment and discrimination policies and stated those documents outline the process that will be followed with Mr Polydores’ complaint. Ms Hidalgo stated Mr Polydores could contact her if he has any questions.
Mr Polydores sent an email to the same list of senior managers from the University that he had initially emailed on 21 March 2025, at 8:23am on Monday, 31 March 2025. Mr Polydores referred to being traumatised about his treatment by Ms Richardson and that he does not feel safe, even with the temporary arrangement of him reporting to Ms Makoviney. Mr Polydores referred to still being exposed to group emails including Ms Richardson. Mr Polydores referred to nine steps he says he had been required to take just to lodge a formal complaint against Ms Richardson. Mr Polydores stated that after taking these nine steps his complaint has now been referred to an external organisation for a preliminary assessment. Mr Polydores stated he was not provided with any contact details for the external organisation, and he has no idea what the process will entail. Mr Polydores stated the entire ordeal has caused him so much physical and mental pain. Mr Polydores stated that the University “has left me with no choice but to resign effective immediately, today 31/03/2025.”
Ms Liston, Mr Duncan, and Mr Polydores exchanged further emails on 2, 3, and 4 April 2025 about administrative matters, after Mr Polydores’ resignation had taken effect. Ms Liston expressed regret that Mr Polydores had felt it necessary to resign.
Mr Polydores was provided with a statement of service from Sol Towers (HR Service Centre) via email at 3:53pm on Friday, 4 April 2025. Mr Polydores was further upset by the statement of service because it identified a date of 5 April 2025, despite it being provided on 4 April 2025. Mr Polydores was also upset by a reference to his employment being recorded as “their employment”, as opposed to his preferred pronouns of “he” or “his”. These matters are not strictly relevant to the issue of whether Mr Polydores was forced to resign on 31 March 2025, which was several days before the statement of service was provided. However, the errors have clearly upset Mr Polydores and they are regrettable. The University should have ensured there were no errors in the statement of service given the events that had led to Mr Polydores’ resignation.
STATUTORY PROVISIONS
The definition of “dismissed” appears in s.386 of the Fair Work Act 2009 (FW Act) which states:
Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
Mr Polydores accepts that his employment with the University ended by way of resignation but argues he was “dismissed” within the meaning of s.386(1)(b) of the FW Act because he was forced to resign because of conduct, or a course of conduct, by the University.
AUTHORITIES
In Kylie Bruce v Fingal Glen Pty Ltd (in liq)[1](Fingal Glen), the Full Bench endorsed, with one point of clarification, an earlier summary of the principles applicable to assessing whether an employee was constructively dismissed. The Full Bench stated:
“The four authorities cited above were summarised by a Full Bench of the AIRC in O’Meara v Stanley Works Pty Ltd (O’Meara) as follows:
‘In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.’
Subject to the comments below, we accept and adopt this as a summary of the principles applicable in determining whether an employee has been forced to resign because of the conduct of the employer within the meaning of s.386(1)(b) of the Act…
First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee”. There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The “limb” of the O’Meara test relating to resignation as a probable result of an employer’s conduct should be read in this light.”[2]
A Full Bench of the Australian Industrial Relations Commission in ABB Engineering Construction Pty Limited[3] stated the following regarding the “narrow line” between a forced resignation and a discretionary choice by an employee to resign:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination.”
CONSIDERATION
The authorities identified above make it clear that the assessment required to determine whether an employee was forced to resign is focused on the conduct of the employer. That means it is the conduct of the University which must be assessed, not the subjective impact of the University’s conduct on Mr Polydores. Specifically, I am required to assess whether the University intended to force Mr Polydores to resign, and whether Mr Polydores resigning was a probable result of the University’s conduct. Mr Polydores’ subjective emotional response to the University’s conduct is not generally relevant to the required legal assessment.
I can certainly understand why Mr Polydores is upset and frustrated about the end of his employment with the University. If what Mr Polydores and Mr Porter say about how Ms Richardson spoke to Mr Polydores in a Zoom meeting on 7 March 2025 is correct, the experience would have been extremely traumatic and upsetting for Mr Polydores and Mr Porter. I obviously cannot determine what occurred during the meeting on 7 March 2025 because I have not heard evidence from Ms Richardson. It is likely Ms Richardson would have a different view about what happened at the meeting. However, what is clear is that Mr Polydores and Mr Porter perceived that Mr Polydores was treated very poorly by Ms Richardson and this has upset them both substantially. Mr Porter ended up in hospital due to stress in the days following the meeting. Mr Polydores has been severely impacted and is still unfit for work as I write this decision.
I consider Mr Polydores’ trauma and distress following the meeting on 7 March 2025 has understandably impacted his assessment of how the University responded to his complaint about Ms Richardson. While the University’s response is not beyond criticism, it is clear when the emails which record the chronology of events are analysed, that the University treated Mr Polydores’ complaint seriously and acted promptly to try and resolve his concerns.
Mr Polydores first raised his complaint in an email to several senior managers on Friday, 21 March 2025. Mr Polydores was off work sick at this time and had submitted a medical certificate which confirmed he would be unfit until Wednesday, 26 March 2025.[4] Ms Liston and Mr Duncan started communicating with Mr Polydores about his complaint later in the day on 21 March 2025, within four hours of Mr Polydores sending his email.
By the time Mr Polydores was fit to return to work on Wednesday, 26 March 2025, the University had agreed to allow Mr Polydores to report to Ms Makoviney, instead of Ms Richardson. The University took this step despite no finding having been made at that time that Ms Richardson had acted inappropriately. The prompt taking of this step by the University provides a strong indication that the University was taking the matter seriously and was attempting to assist Mr Polydores in returning to work, while also dealing with his complaint.
Mr Polydores returned to work on Wednesday, 26 March 2025 and Thursday, 27 March 2025, reporting to Ms Makoviney.
I accept Mr Polydores was required to undertake reasonably painful bureaucratic steps to progress his complaint on 26 and 27 March 2025. Mr Polydores was requested to submit a report in the University’s Riskware system only to be told that he then had to submit a complaint to the University’s Workplace Complaint Line. I agree that these steps should not really have been necessary given the extent of detail Mr Polydores provided in his email to senior management on 21 March 2025. However, I also appreciate that the University is a very large organisation that needs to have policies and procedures to ensure issues are dealt with consistently. No doubt the University would be criticised if it starts adopting ad hoc complaint-handling processes that vary depending on how serious somebody views a particular complaint. In any event, Mr Polydores had managed to navigate the University’s procedures by Friday, 28 March 2025 and his complaint had made its way to the external organisation utilised by the University to assist in handling workplace complaints. That was within a week of the complaint being raised initially by Mr Polydores.
Mr Polydores was clearly further agitated on Friday, 28 March 2025 when he was informed by Ms Hidalgo that his complaint had been referred to an external organisation for a “preliminary assessment.” Mr Polydores referred to the University having ample internal resources at its disposal and objected to the details of his complaint being unnecessarily shared with an external party. Mr Polydores also argued it was unprofessional for Ms Hidalgo to not provide any contact details for the external organisation when she communicated that they would be assessing Mr Polydores’ complaints. This communication appears to have been the final straw for Mr Polydores, and he resigned via email on the following Monday morning, 31 March 2025.
I consider this is a further example of Mr Polydores’ trauma and distress from the 7 March 2025 meeting impacting his assessment of steps taken by the University in relation to his complaint. There is nothing overly remarkable about an organisation utilising an external party to assist in managing workplace complaints. It can be helpful in some cases to involve external people who do not work directly with the parties involved in the complaint. I also have no doubt the University would have appropriate legal arrangements in place to ensure that the external organisation manages information which has been provided to it confidentially and appropriately.
Based on the documentary evidence outlined above concerning the steps taken by the University in response to Mr Polydores’ complaint, I do not think it is possible to conclude on the evidence that the University intended to force Mr Polydores to resign.
The only University employee I consider could possibly be said to have had that intention would be Ms Richardson, but that would only be if Mr Polydores’ account of what occurred during the Zoom meeting on 7 March 2025 is accepted. As previously stated, I am not able to determine what happened at the meeting on 7 March 2025 because I have not heard Ms Richardson’s account. In any event, even if Mr Polydores’ account is correct, I do not consider the alleged conduct by Ms Richardson could be said to have been authorised by the University as Mr Polydores’ employer. If Mr Polydores’ allegations were substantiated, the University would likely have been compelled to take disciplinary action against Ms Richardson for breaching her obligations as an employee. It cannot be the case that any time an employee is mistreated by another employee, the legal test for a forced resignation is satisfied. That would extend the meaning of “dismissal” well beyond that intended by the FW Act, based on the authorities referred to above.
Beyond the allegation against Ms Richardson, I consider there is no evidence that the University intended to force Mr Polydores to resign from his employment because of the way it handled his complaint. The University took several steps to try and ensure Mr Polydores remained employed, particularly by allowing him to report to Ms Makoviney. Although Mr Polydores says he still had some contact with Ms Richardson via group emails, removing Ms Richardson as his supervisor would have substantially reduced any risk of further issues between Mr Polydores and Ms Richardson. Although this was a temporary step, if the University’s investigation concluded Mr Polydores’ complaint was substantiated, it is highly unlikely the step would have remained temporary. I cannot conclude that the somewhat painful steps that Mr Polydores was asked to take in relation to his complaint demonstrate that the University intended to force him to resign.
For similar reasons, I do not consider the evidence outlined above demonstrates resignation was a probable result of the University’s conduct, when it is viewed objectively.
The evidence suggests the University had every intention of fully investigating Mr Polydores’ complaint while he remained an employee of the University. There is no evidence that any employee of the University involved in dealing with Mr Polydores’ complaint suggested that Mr Polydores should consider resigning from his employment.
I also consider an objective assessment leads to the conclusion that there were several other realistic options available to Mr Polydores, instead of resigning. These options included:
· Taking paid or unpaid leave until the investigation process was concluded. Mr Polydores was protected from being dismissed by the University for at least three months due to a temporary absence caused by injury or illness under s.352 of the FW Act.
· Mr Polydores could have filed an application for anti-bullying orders in the Commission.
· If Mr Polydores was fit, he could have worked under Ms Makoviney’s supervision until the investigation process concluded. If Mr Polydores was not satisfied with the outcome of the investigation process, he could then have initiated a dispute with the University in accordance with the relevant dispute resolution procedure.
I consider this is an unfortunate case where Mr Polydores’ trauma and distress caused by his meeting with Ms Richardson on 7 March 2025 made Mr Polydores feel like he was being forced to resign by the University via the way his complaint was handled. I do not consider that was the case based on an objective assessment of all the evidence. I found Mr Polydores to be a credible witness and have no doubt he felt like he was being forced to resign on 31 March 2025. However, Mr Polydores’ emotional response to the University’s conduct is not what I am required to assess. My assessment is directed at identifying whether the University intended to force Mr Polydores to resign, and whether the University’s conduct, assessed objectively, meant that resignation was a probable result. I do not consider Mr Polydores was forced to resign based on either of these assessments.
I find Mr Polydores was not “dismissed” within the meaning of s.386(1)(b) of the FW Act. I uphold the University’s jurisdictional objection.
Mr Polydores’ application is dismissed.
COMMISSIONER
Appearances:
Mr D Polydores representing himself with assistance from Mr R Porter.
Ms J Wright and Mr M Dean representing the University of Sydney.
Hearing details:
2025.
Sydney (via video).
2 July.
Evidence
Mr Polydores
A1 Witness statement of Rodney Porter dated 29 May 2025 with a hospital discharge certificate attached.
A2Witness statement of David Polydores dated 29 May 2025 and various attached documents. Mr Polydores provided all relevant emails regarding his resignation, medical documentation, and other documents relating to his employment.
University
R1 Witness statement of Samantha Liston (Chief Human Resources Officer) dated 13 June 2025 and attached documents.
Submissions
Mr Polydores
Mr Polydores and Mr Porter provided oral submissions at the end of the hearing.
University
The University filed a written outline of submissions dated 13 June 2025.
Ms Wright provided oral submissions at the end of the hearing.
[1] [2013] FWCFB 5279.
[2] Ibid at [18], [19] and [23].
[3] AIRCFB (1996) S Print N6999.
[4] Exhibit A2, page 111 of the DHB.
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