Keely Roff v Peninsula Australia Pty Ltd - [2025] FWC 2876

[2025] FWC 2876

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Keely Roff
v

Peninsula Australia Pty Ltd

(C2025/4806)

DEPUTY PRESIDENT LAKE

BRISBANE, 22 OCTOBER 2025

Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal – whether applicant resigned – applicant did not resign – jurisdictional objection dismissed – application to proceed to conference

Ms Keely Roff (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 23 May 2025. The Applicant claims that adverse action was taken against her by Peninsula Australia Pty Ltd (the Respondent) under ss.340 to 343, s.351 and s.352 of the Fair Work Act 2009 (Cth) (the Act).

The Respondent raised a jurisdictional objection that the Applicant was not dismissed under s.386 of the Act as the Applicant resigned from her employment on 5 May 2025. The Applicant contests the objection. Firstly, the Applicant argues that there was no resignation on 5 May 2025. Alternatively, the Applicant argues that if she did resign on 5 May 2025, it was a resignation in the heat of the moment and was not subsequently affirmed.[1]

Directions were issued and the matter was listed for hearing on 30 July 2025. The Applicant was represented by Mr Shane Wescott of WWC Lawyers. The Respondent was represented by Mr Troy Plummer of Irwell Law. Representation was granted on the basis that there would be no unfairness between the parties.

Background

On 3 March 2020, the Applicant commenced employment with the Respondent. At the time of her dismissal, the Applicant was employed in the position of ANZ Sales Coach.

The Respondent is a company which provides human resources advice and work, health and safety advice.

The Respondent has previously accommodated the Applicant’s relocation from Brisbane to Sydney and from Sydney to Perth.

Since mid-last year, the Applicant has been working towards opening her own business providing sales training, which she described as a “side hustle”.[2] The Applicant said she was open with the Respondent regarding this ambition.

In late March 2025, the Applicant was informed that her mother had been diagnosed with cancer. The Applicant texted her manager, Mr Jermaine Mitchell on 21 March 2025:
I'll be in tomorrow. I'm not flying to QLD just yet. Today was to discuss with the family what's likely going to happen in the next month, Mums cancer is back and will be having a double mastectomy on April first. We'll take it from there. Family is still reeling from huge losses in the last few years, (My son in Utero, my sister and Grandfather) and this hit hard for everyone.
Just needed a day to make a plan and handle things for mum.

April 2025

The Applicant took leave from 7 April 2025 to 11 April 2025.

On 14 April 2025, the Applicant sent a message to Mr Mitchell on Microsoft Teams as follows:

Afternoon. Could we catch up about my option on paying out my notice period?…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 2876
Decision Date: 22 OCTOBER 2025

CaseChat Overview and Summary

Keely Roff (the Applicant) lodged a general protections application with the Fair Work Commission (the Commission) against Peninsula Australia Pty Ltd (the Respondent). The Applicant claims that she was dismissed in contravention of the Fair Work Act 2009 (Cth) (the Act). The Respondent argued that the Applicant had resigned and, therefore, was not dismissed. The Applicant contested this objection. The Commission needed to decide whether the Applicant had resigned or been dismissed.
The Commission found that the Applicant did not resign. The Applicant’s words to the effect of “I don’t care” regarding her career or what the Respondent thought of her did not rise to the level of a clear and unambiguous intention to resign. Although the Applicant had indicated that she did not care about her job and that she wanted to work on her business, inferring that one wants to leave their job is different to an employee actually stating that they are leaving. The Applicant had not clearly or unambiguously stated that she resigned. The Respondent’s decision to “accept” the Applicant’s resignation on 5 May 2025 was a dismissal within the meaning of s.386(1) of the Act. The Applicant’s employment was ended at the initiative of the Respondent. The Commission dismissed the jurisdictional objection and the matter will be scheduled for a conference in accordance with s.368 of the Act.

Orders