Kyle Nash v David Allan Gray, Rebecca Gray
[2025] FWC 1159
•28 APRIL 2025
| [2025] FWC 1159 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kyle Nash
v
David Allan Gray, Rebecca Gray
(C2025/782)
| COMMISSIONER SIMPSON | BRISBANE, 28 APRIL 2025 |
Application to deal with contraventions involving dismissal – jurisdictional objection – not dismissed – Jurisdictional objection made out – application dismissed.
On 30 January 2025, Mr Kyle Nash (Mr Nash / the Applicant) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The First Respondent in the matter is David Allan Gray and the Second Respondent is Rebecca Gray (the Respondents).
The Respondents raised a jurisdictional objection that the Applicant resigned and was not dismissed.
On 4 March 2025, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. A jurisdictional hearing was held on 26 March 2025.
Ms Annie Smeaton, a Solicitor at Cooper Grace Ward Lawyers was granted leave under s.596(2)(a) to appear on behalf of the Respondent, and Mr Cameron Niven, a Solicitor at Tailored Legal was granted leave under s.596(2)(a) to appear on behalf of the Applicant.
Ms Rebecca Gray, Owner and General Manager provided a witness statement[1] dated 14 March 2025, for the Respondent and Mr Kyle Nash provided a witness statement[2] dated 21 March 2025 on his own behalf.
Background and Evidence
On 22 April 2024, Mr Nash was injured at work when he fell off a ladder. He texted Ms Gray the same day at 12:31pm to alert her of this injury:
“Good afternoon Rebecca.
I have booked a doc appointment for a potential chiropractic consultation for 3.40pm as I have fallen off the trestle at my first job. Didn’t know I hurt myself till rn as the pain has kicked in. I am capable to finish this with Lachlan and take it easy til job is done”
At 4:05pm on the same day, the Applicant updated Ms Gray:
“Good evening, My doctor has told me I day off is a must. And will need CT scan if not better after tomorrow. I am sorry I can’t work. He has given me medications” [sic]
Ms Gray replied on the same afternoon:
“Okay no worries just let me know how you are feeling tomorrow”
Ms Gray gave evidence that she phoned Mr Nash straight away after the incident to find out what had happened. She said that Mr Nash told her that he had a previous non-work injury that had been aggravated, and he had seen a regular chiropractor for that injury. She said Mr Nash informed her that he was able to finish work that day, was able to lift heavy sheets, lift material out of the job and dispose of material.
On 29 April 2024, Mr Nash lodged a WorkCover claim due to the injury on 22 April 2024. Mr Nash also engaged Warmings Compensation Lawyers to assist him with a common law workers’ compensation claim for damages.
Between 22 April 2024 and 13 January 2025, the Respondents were notified of the claim, and the Applicant was paid compensation.
On 29 April 2024, Ms Gray contacted WorkCover and indicated:
i.Mr Nash waited a week to let her know the injury was work related;
there are a few things Mr Nash has not been honest about;
that Ms Gray previously worked in WorkCover’s compliance team.
Ms Gray was referred to a WorkCover record of a telephone conversation at 11:46am at page 22 of the Digital Court Book. It was put to her that she indicated to WorkCover that she only learnt it was a workplace injury five days after the injury occurred. Ms Gray responded that is not what she was saying, and that Mr Nash was saying to her that it was an aggravation of a pre-existing injury. Ms Gray rejected that she intended to convey to WorkCover that Mr Nash only indicated to her that he had suffered the injury five days after being injured at work.
It was put to Ms Gray that she informed WorkCover that Mr Nash only went to the Doctor on the weekend. Ms Gray’s evidence was to the effect that the WorkCover summary of the conversation may not reflect what she said almost 12 months ago, and the notes are not a transcription of the recording.
On 1 May 2024, Ms Gray contacted WorkCover and indicated:
i.Mr Nash’s injury was not work related, and he did not have an entitlement to workers’ compensation;
Mr Nash only sought workers’ compensation following the running out of leave entitlements;
Ms Gray was referred to a WorkCover record of a conversation on 20 May 2024 and an assertion that Mr Nash was not being honest, and the reason Mr Nash put in a WorkCover claim was because he had no accrued leave left. Ms Gray said Mr Nash told her initially he would take sick leave but later took the leave as WorkCover.
On 9 July 2024, Ms Gray contacted WorkCover and asserted:
i. “I suspect that the GP is going to just give him another month off. Is there a way to get that decision reviewed? Kyle has already had three months off for the aggravation, that no one witnessed, that was not related to work until five (5) days later when his sick leave ran out. He was on the verge of being dismissed for failing to follow instructions repeatedly. There are just so many red flags with this claim”;
“I have strong doubts about this claim, and I want to make sure it is reviewed regularly so that our policy is not impact[ed] any more than it needs to be”; and
“I am concerned that this is not a legitimate injury at our workplace and the consequences on our policy, hence my desire to find out what is happening.”
Ms Gray said in her oral evidence that WorkCover had informed her that they expected that the claim would only last for three to six weeks as it was an aggravation of a previous injury only, and that was how it was accepted. Ms Gray said as the claim process unfolded, she became quite frustrated as to how long Mr Nash was on WorkCover and that little was being done to manage the claim in regard to him going to physio or getting any treatment. In addition, the Respondents kept receiving medical certificates that allowed Mr Nash not to return to work for several months without receiving any treatment.
Ms Gray said there were a number of other red flags with the claim she was concerned about, which she raised as an employer with WorkCover not knowing this would all be released.
Ms Gray agreed that she had previously worked for WorkCover compliance, and said she worked with the Common Law team to investigate common law claims. Ms Gray said this was 20 years ago. Ms Gray accepted the WorkCover records indicate she was frustrated with Mr Nash, but stated that it does not mean that she terminated his employment.
Ms Gray stated that on 29 August 2024, she contacted WorkCover about Mr Nash’s return to work plan and offered to provide Mr Nash with a range of duties upon his return. These duties included administrative roles, light duties on the work site and light duties in the warehouse. Ms Gray was asked about this, and she provided a series of examples of the duties, including cutting up back blocks, stock taking, cutting up materials, working in the office, setting up jobs and doing light duties. Mr Nash accepted during his oral evidence that Ms Gray had prepared a return-to-work plan including him doing administrative duties and work on his apprenticeship theory aspects.
On 8 October 2024, Ms Gray stated she attended a meeting with Mr Nash and two representatives from Konekt (the return-to-work coordination company engaged by WorkCover), including Mr Michael Lyddiard the Managing Consultant at Konekt, who were assisting with Mr Nash’s return to work. During this meeting, she offered Mr Nash the opportunity to return to work on light duties. Mr Nash did not accept nor reject this offer. Mr Nash did however indicate that:
i.he was looking at other careers;
he was not sure if he liked plastering anymore;
he did not know whether he wanted to come back to Gray’s Plaster and Paint; and
Gray’s Plaster and Paint had been great to work for.
It was put to Ms Gray that Mr Nash did not say at the return-to-work meeting on 8 October 2024 that he was not returning, and Ms Gray said that Mr Nash said he was not sure what he wanted to do.
Mr Nash submitted that WorkCover required him to work with Konekt, which provides a range of services designed to help him return to meaningful work. He stated he was uncertain if Konekt caters their offerings to the individual needs of each employee as part of their program or simply provides the same services to everyone. Mr Nash said Konekt was a rehabilitation service and offered additional services like resumes and cover letters. His evidence was that he was asked to work on his resume because it’s part of the package which they provide. He submitted that he did not believe there is any consideration from Konekt as to whether he intended to return to work with the same employer or what his intentions were. Mr Nash said he did not ask for Konekt to write a resume for him but accepted the offer. He said he has not sent the resume to anyone.
It was put to Mr Nash that at the return-to-work meeting with Ms Gray on 8 October 2024, he said he wanted to pursue a different career. Mr Nash said not that he wanted to, but he would have to think about that option, and he wanted to be honest with his employer, WorkCover and Konekt.
Ms Gray was referred to an email she sent to “Emma” at Busy@Work at 3:18pm on 21 October 2024, responding to an email earlier that day where Ms Gray asked that they hold off on the suspension of Mr Nash’s apprenticeship until they knew more. Ms Gray said Busy@Work were going to suspend his apprenticeship, and one of the suggestions she had made in the return-to-work meeting was that as he had done little theory in his apprenticeship, Ms Gray had proposed that Mr Nash could work on the theory in the office as part of his apprenticeship.
In or around December 2024, Ms Gray stated Mr Lyddiard called her and advised her that he was in the process of assisting Mr Nash in updating his resume and that Mr Nash had no intention of returning to work with Gray’s Plaster and Paint.
In his statement Mr Nash submitted that he had never been asked by Konekt if he intended to return to work with the Respondents, and that he never worked on his resume as he intended on returning to work with the Respondent’s business. It was put to Mr Nash that he had agreed Konekt did work with him on returning to work, therefore what he said in his statement could not be right.
Mr Nash was asked if in December 2024 he told Mr Lyddiard that he had no intention of returning to work for the Respondents. Mr Nash’s response to this question was ambiguous, saying he wanted to, but did not want to have no future. He said he had made it aware that he had that option ticking in the back of his head. He said he did not recall saying he had no intention, however he could not recall what he said as he had been on strong pain killers.
Mr Nash said WorkCover provided him with Konekt however he was not asked, and it was like a procedure. He said the alternative duties at the Respondent were stated at the return-to-work meeting but at that point it was not clear what he could do. It was put to him he could have done administrative duties. He said it was too much and overwhelming, including how he would pursue a career at a desk when he joined the company for an apprenticeship. He agreed with the proposition that he may have injured himself doing office work as well.
On 17 December 2024, Ms Gray was notified by Workcover that they had decided to finalise Mr Nash’s claim.
It was put to Mr Nash that his common law compensation claim for damages was filed on 18 December 2024, and was asked when he engaged Warmings Lawyers. He said he did not know. He agreed the claim was filed at that time.
It was put to Mr Nash that in that claim he seeks compensation to retirement for not being able to finish his apprenticeship and not being able to work as a plasterer. He agreed that sounded correct. Mr Nash was referred to paragraph 10 of his witness statement in this matter where he said if he had been permitted to return to work, he would have continued in his employment, and at a minimum, until the end of his apprenticeship and would have continued to work for the Respondent for a good few years after that. It was put to Mr Nash that his intention was to continue his apprenticeship, and he agreed. It was put to Mr Nash that despite what he said at paragraph 15 of his statement, he never intended to return to work for the Respondent. He said he did intend to or wanted to, however accepted that was not realistic.
On 23 December 2024 at 7:45am, Mr Lyddiard contacted Ms Gray by email stating “I am progressing forward with [Mr Nash] by assisting him with a resume and then I will be closing”. Ms Gray submitted that she had no further communication with Konekt following this email.
On 7 January 2025, at 11:19 am, Ms Gray emailed Busy@Work and stated: “Could you please cancel Mr Nash’s apprenticeship, he will not be returning to work with us.”
Ms Gray was asked about this email. Ms Gray said this was her impression, after a conversation with Mr Lyddiard from Konekt, and after a period of trying to get Mr Nash back to work, including a return-to-work meeting with Mr Nash in October 2024 where she had drafted ideas to get him back to work on light duties. Ms Gray said the return-to-work meeting went for an hour and a half and Mr Nash did not want to participate in any of the ideas. From there, Ms Gray said the plan was for Mr Lyddiard to go to appointments with Mr Nash to work with the physio and doctor.
On 8 January 2025, at 11:17 am, Ms Gray emailed Busy@Work and stated: “His last day of actual work was the 22/4/2024. He has been on Workcover since then. The claim has now been finalised and he will not be returning to our employment.”
Ms Gray said Busy@Work was the apprenticeship provider for the classroom apprenticeship, and they had contacted her several times during Mr Nash’s WorkCover time off, regarding the fact his apprenticeship was not moving forward, and units had not been completed, while funding had been provided for that. Ms Gray said Mr Lyddiard had been working on a resume for Mr Nash, he was closing the file and Mr Nash had told him he was not coming back to work for the Respondents. In addition, Mr Nash had filed a notice of claim saying that he could never work again as a plasterer and was therefore unable to finish his apprenticeship. Ms Gray said those things made her think that Mr Nash was unable to complete his apprenticeship. Ms Gray said the email of 8 January 2025 was after she had spoken to Mr Lyddiard.
On about 9 January 2025, a representative of Busy@Work telephoned Ms Gray to discuss Mr Nash’s apprenticeship. During this discussion:
i. the Busy@Work representative sought clarification about whether Mr Nash was intending to return to his apprenticeship position at Gray’s Plaster and Paint following the cessation of his statutory WorkCover Claim; and
in response, Ms Gray replied with words to the effect that based on what she had been told (by Mr Lyddiard), Mr Nash will not be returning to work with Gray’s Plaster and Paint.
Ms Gray submitted that at no point during this conversation did she state that Mr Nash’s employment with Gray’s Plaster and Paint had ended, nor did she think this was the case. Rather, her 9 January 2025 comments to the Busy@Work representative were a relaying of information that she had received from Mr Lyddiard in December 2024.
Ms Gray said Busy@Work highlighted to her that she could not dismiss him because of his WorkCover claim.
Mr Nash was asked when he received the emails at Exhibit 6 and 7 of the Digital Court Book. He said he was not aware of them at the time. He agreed it was material his lawyers obtained through the WorkCover file later.
Mr Nash was asked if he responded to the email from Busy@Work to him sent at 10:38am on 9 January 2025 which read as follows:
“Hi Kyle,
BUSY At Work has received advice that you are no longer employed with GRAY PLASTERING SERVICES and your training contract was cancelled on 22/04/2024.
Could you please confirm if this is correct?
This information is required to cancel your training contract.
Kind regards,
Debbie
BUSY At Work - Customer Support Team”
Mr Nash initially said he responded to the email, however said he responded on the phone because “Debbie” also sent him a text message which he saw before the email, and after seeing the text message he then went and found the email as well. Mr Nash said he sent Debbie a text message. He read the text message which said as follows: “Hi Debbie I have not been told my employment is terminated I had a workplace incident on the 22/4/2024 however”. Mr Nash said that was sent at 5:11pm on Thursday 9 January 2025. Mr Nash agreed he was able to say that no, that was not correct at the time. Mr Nash said he spoke to his lawyer about this text before he responded to it.
On 10 January 2025, Ms Gray phoned Mr Nash at 2:05pm to discuss a return-to-work plan. Mr Nash returned the call at 2:15pm.
Mr Nash said his lawyer, Mr Warming had told him to keep notes, and where possible diarise matters relating to his employment. He said in his witness statement that when Ms Gray called him, he made notes of everything they said immediately. He said the conversation lasted about 11 minutes and he took notes of the critical parts of the conversation which related to his return to work. Mr Nash said he also took notes of Ms Gray’s concerns and commentary regarding his injury in case there was a later issue of some sort of discrimination, which he had discussed with his lawyer.
Mr Nash provided what he said was a record of part of the call, set out below:
Gray: Hi Kyle.
Nash: Hi Rebecca.
Gray: It is disappointing what is happening to us, I thought we were giving you the best training and help, and treated you fairly. Nevertheless, with respect, I am going to try to be nice regardless of my emotions. I have been struggling to sleep the past month from this.
Nash: Yeah, my mental health isn’t great either.
Gray: Well with regarding your employment we can’t fire you.
Nash: Ok, because although I’m not better, is there anything I can do to help at work?
Gray: Kyle, do you understand what you are filing? You are essentially suing us. It will affect our premiums. We assumed as you are young, you are not aware of what you are doing.
Nash: Yes, I am being educated on the topic as it goes.
Gray: It will be a struggle and weird for you to continue to work for us and while suing us.
Nash: Yes I have thought of that also.
Gray: You still have time to not file, we can keep it all between you, myself, and David. Keep it professional no else knows.
Nash: I am sorry I have been informed that I can not cancel it, the other day I did want to cancel it and just take the offer and move on but I can not. I will have a chat with my lawyer and WorkCover though. Since I can no longer work in the trades, If I were to continue working here would there be a desk job?
Gray: We can try to accommodate an admin position for you.
Nash: Good, I thought I wasn’t allowed back. Ok Rebecca, thanks for the time. Can I have some time to think about all of this?
Gray: Yes you can give me a call back Monday week with your answer.
Nash: Thank you.
Gray: Enjoy your weekend Kyle.
Nash: You too.
Mr Nash submitted that from the conversation with Ms Gray, he understood that he had until 20 January 2025 (the following Monday) to let her know if he wished to take an administrative position within the Respondent’s business. Ms Gray agreed that she said Mr Nash she was not allowed to dismiss him because of his WorkCover claim.
During examination in chief, Mr Nash was asked how he came to have notes of this conversation. He said he was told by his lawyer to take “a couple of notes”, and he said on top of that he has a very good memory.
Mr Nash was asked how Mr Warming told him to take notes, and he said dot points on paper. He said during his oral evidence that all he dotted down was the duration of the phone call on the piece of paper. Mr Nash was referred to paragraph 18 of his statement where he said he “made notes of everything we said immediately.” He was asked if this was true and Mr Nash said it was in his head. Mr Nash was also referred to his written statement where he said he took notes of all the critical parts of the conversation which related to his return to work. It was put to Mr Nash his evidence did not make sense, as firstly he was saying he took notes of everything that was said, and he was asked if he did that. Mr Nash said he made mental notes. Mr Nash agreed that his reference to keeping notes was a reference to mental notes not written notes. Mr Nash agreed that he was psychologically affected at this time and on heavy medication.
Mr Nash was also asked whether Ms Gray offered him any other potential employment in this conversation (on 10 January 2024) and he responded, none other than a potential office job. Mr Nash said he was willing to “give it a go” but that at the end of the day he just wanted to trust his doctors and the facts as well.
Ms Gray denied in her oral evidence that the telephone conversation at 2:15pm on 10 January 2025 with Mr Nash was as set out in his statement. Ms Gray said she was calling the Applicant to allow him to decide what he wanted to do.
Ms Gray said she did not recall Mr Nash saying “...is there anything I can do to help return to work?” Ms Gray said they had already had a return-to-work meeting where they had discussed the options that were available for him to return to work.
Ms Gray denied discussing the common law claim and said the purpose of the conversation was to discuss his returning to work, and she was very mindful of the common law claim and not to go into details about that, and it (the conversation) was purely about him returning to work.
Ms Gray said she did not recall saying “It will be a struggle and weird for you to continue to work for us and while suing us.” Ms Gray said she discussed with Mr Nash returning to work in an administrative position and said she had discussed this on previous occasions as well. Ms Gray said this was part of the return-to-work program.
Ms Gray denied saying to Mr Nash that “You still have time not to file, we can keep it all between you, myself, and David. Keep it professional no else (sic) knows.” Ms Gray said other people did know about the claim and she would not have said that.
Mr Nash stood by his claim that his recollection in his witness statement was a verbatim version of the conversation. It was put to Mr Nash that Ms Gray would not have said to him that “You still have time not to file…” because the claim had already been filed in the Court. He maintained he did remember that. Mr Nash said he suffers from anxiety and depression but that does not affect his ability to recall facts.
Ms Gray denied trying to dissuade Mr Nash from filing his claim and said it had been filed well before that conversation in any event. Ms Gray said she was leaving it up to Mr Nash as to whether he wanted to come back to work. Ms Gray said she did not believe that Mr Nash said “...I thought I wasn’t allowed back...” as they had already discussed his returning in an administrative role.
Mr Nash was referred to his witness statement, and the version of the conversation with Ms Gray where he said he made the statement “…Since I can no longer work in the trades, If I were to continue working here would there be a desk job?” It was put to him that is totally contradictory to what he said in his witness statement at paragraph 10: “If I was permitted to return to work, which is what I had intended, I would have continued in my employment for, at a minimum, until the end of my apprenticeship. I would have also continued to work with the Respondent for a good few years after that. If I was permitted to return to work, which is what I had intended, I would have continued in my employment for, at a minimum, until the end of my apprenticeship. I would have also continued to work with the Respondent for a good few years after that.” In response he said he had to accept he cannot do a trade.
It was put to Mr Nash that the conversation was not aggressive. He agreed but described it as awkward. Mr Nash during his oral evidence then appeared to suggest that Ms Gray said things during the conversation that suggested he was faking his injury. He appeared to have no adequate explanation for why he did not include any of this in his written statement.
Mr Nash was asked where the date of 20 January 2025 to respond to Ms Gray came from, in the context of him being offered an administrative position, being unable to work as an apprentice and his WorkCover claim ending on 13 January 2025. Mr Nash said it was an assumption, and he was not 100% clear. He was asked if Ms Gray said 20 January 2025 to him, and he said he was told a week. It was put to him that more coincides with the day before he was due back, on the following Tuesday 14 January 2025. Mr Nash was asked why he put 20 January 2025 in his statement, and he said he was not sure, and he was put off by the letter of 17 January 2025. His evidence appeared to be he thought he had until 20 January 2025. Mr Nash said he should have called Ms Gray back.
Mr Nash was asked about his evidence at paragraph 23 of his statement where he said “I was okay with this approach as it would permit me to work back towards my previous duties and allow me to complete my apprenticeship. Completion of my apprenticeship is important to me.” It was put to him that this evidence made no sense when he had given evidence he could no longer work in a trade. Mr Nash’s response appeared to return to the theme that he wanted to complete a trade, but the medical evidence was that he could not.
Mr Nash was asked to explain what he meant by his evidence at paragraph 24 of his statement where he said he was somewhat concerned about Ms Gray attempting to persuade him not to commence other claims off the back of his WorkCover claim. Mr Nash did not appear to be able to explain what he meant by this evidence.
Mr Nash was asked when he engaged Mr Niven as his current lawyer (in these proceedings). He said it was sometime in 2025. He said he thought it was February 2025. Mr Nash was told he had exhibited documents to his statement from WorkCover including a communication report. Mr Nash said he had not seen the documents. It was put to him that he must have seen them as they are in his statement. He was taken to Exhibit 2 in the Digital Court Book. Mr Nash said he did not know what it was.
Mr Nash was asked if he prepared his statement, and he said yes. Mr Nash was referred to paragraph 29(f) of his statement where he refers to the Communication Report marked Exhibit 5 as an example. Mr Nash was asked had he seen the exhibits and did he know when he got them, and he said no. He agreed he had not seen them before. Mr Nash was asked when he prepared his witness statement, and he replied he did not remember. It was put to Mr Nash the statement is dated 21 March 2025. Mr Nash said he did not recall the date he wrote down his version of the conversation.
Mr Nash’s WorkCover claim was due to be officially closed on 13 January 2025, and Mr Nash was to return to work the following day, on 14 January 2025. Ms Gray said Mr Nash was no longer being paid by WorkCover as of the Monday 13 January 2025. Ms Gray agreed that she had to pay Mr Nash from Tuesday 14 January 2025, and the WorkCover payments would cease on the Monday. Ms Gray denied that she gave Mr Nash until 20 January 2025 to get back to her.
The Respondents did not hear from Mr Nash on Monday 13 January 2025. Mr Nash’s WorkCover claim was closed officially by WorkCover on Tuesday 14 January 2025. The Respondents submitted that Mr Nash was due to return to work at Gray’s Plaster and Paint on 14 January 2025. The Respondents submitted that between 14 and 16 January 2025, Mr Nash failed to present to work and did not communicate with the Respondents about why he had not presented to work when required, nor whether he would be returning at all.
On the morning of 17 January 2025 at 8:37am, Ms Gray telephoned Mr Nash and left a message for him to call her back. At 3:05pm on 17 January 2025, the Respondents issued Mr Nash a letter regarding his employment as follows:
“To: Mr Kyle Nash
RE: ONGOING EMPLOYMENT
Dear Kyle,
I refer to our telephone conversation last Friday the 10th January 2025, I contacted you to discuss your ongoing employment with Gray’s Plaster and Paint now that Workcover has closed your statutory file as at 13th of January 2025. During that conversation you stated that you wanted time to think about whether you wanted to return to work with Gray’s Plaster and Paint. You undertook to let me know. I note that we discussed that your return-to work date was officially Tuesday 14th of January 2025.
I attempted to contact you again to discuss this and you have not returned my call. As I have not heard from you, I assume that you do not want to continue your employment.
I will pay the remaining entitlements for annual leave as per my obligations as an employer. If you do not agree with the above or wish to discuss this further please contact me directly.
Kind regards,
Rebecca Gray General Manager”
At 6:34pm on 17 January 2025, Mr Nash responded to the 17 January letter requesting a Separation Certificate be issued to him.
Ms Gray was asked why she said she would pay out the remaining annual leave. Ms Gray said she offered to discuss it with Mr Nash as he didn’t return her phone calls. Ms Gray agreed he returned her phone call on the morning of 10 January 2025. It was put to Ms Gray that had Mr Nash wanted to resign, he would have said so. Ms Gray replied that Mr Nash had said that he wanted to think about it.
It was put to Ms Gray that she gave Mr Nash until 20 January 2025 to think about whether he wanted to resign, and Ms Gray said she strongly rejected that, and it makes no sense for her to have said that. Ms Gray referred to her letter of 17 January 2025 where she said “...we discussed that your return-to-work date was officially Tuesday 14th January 2025.” Ms Gray said she discussed with Mr Nash that he would let her know by the Monday (13 January) about his coming back to work on the Tuesday (14 January) which was his return-to-work date and that was the discussion.
It was put to Ms Gray that she attempted to manifest this circumstance to avoid liability. Ms Gray rejected that. It was put to Ms Gray that she attempted to mislead WorkCover and she rejected that.
Mr Nash was referred to the letter of 17 January 2025 and asked from the document what did he understand had happened to his employment. He said that it was a resignation letter. He said that if he didn’t reply he was considered fired.
Mr Nash was asked why he went on to request the Separation Certificate. He said he wanted to protect himself so he was not homeless and out of funds and he applied for Centrelink. In order to get Centrelink after WorkCover you need a resignation letter, a Separation Letter and also a document from WorkCover to state that you have finished WorkCover. Mr Nash said he was not expecting the letter until 20 January 2025.
Mr Nash was asked in cross examination about paragraph 4 of his statement that he did not agree with Ms Gray’s assumption that he had resigned. Mr Nash was asked if he read Ms Gray’s letter of 17 January where it said “…If you do not agree with the above or wish to discuss this further please contact me directly.” He said he did read the letter. He was asked why he did not contact Ms Gray. He said he was a little mentally unwell at that time. He said he was going through psychology and just accepted it as it was and did not have much desire to cause more issues.
It was put to Mr Nash that at 6:34pm he emailed back to Ms Gray saying “Good evening can you please send through a separation letter. Kind regards Kyle.” Mr Nash was asked if he got any advice about the letter from his lawyers. He said no. He said he assumed that was the end of his employment, and he assumed it was a Separation Letter but obviously it was not stated that way, so Centrelink did not accept it and wanted an official document stating that.
It was put to Mr Nash that Ms Gray’s letter of 17 January 2025 is not a Letter of Separation. He said at first thought he assumed it was. He said he was not aware of the return-to-work date (of 14 January 2025). He said he knew WorkCover was ending on 13 January 2025, however he did not recall discussing a specific date for a return to work.
It was put to Mr Nash that he must not have thought the letter was a Letter of Separation because at 6:34pm he emailed Ms Gray asking her to send through a Letter of Separation. He said he wanted an exact document stating ‘Letter of Separation’. It was put to Mr Nash that the letter does not terminate his employment. He said Ms Gray paid out his entitlements. It was put to him that was because he asked for a Letter of Separation. He said yes, because at the time he assumed this was him being fired and he wanted a document that was official and binding.
Mr Nash was referred to the Employment Separation Certificate and he agreed that the document was the Certificate he was seeking. He was referred to the section of the form where the reason for separation ticked was ‘employee ceasing work voluntarily.’ He said he did not look at that. He agreed he submitted it to Centrelink. He said if he was not on medication, he would have read the Separation Certificate and he would have gotten back to Ms Gray.
Mr Nash said he asked a friend “how does business work” and he said the friend took him to Centrelink as soon as he got the letter of 17 January 2025. It was put to Mr Nash that the letter came through to him at 3:05pm. It was put to Mr Nash that he said he was not well, but he was able to send an articulate email at 6:34pm asking for a Letter of Separation. Mr Nash said he had help from a friend, and he said he rang a friend for advice on how to respond.
Mr Nash was referred to his witness statement where he said he actively sought to continue his employment with the Respondents business, and was asked why he didn’t email Ms Gray and say he didn’t agree, or it was not right, or that he was told he had until 20 January 2025. Mr Nash said looking back he should have just replied instead of cowering away and trying to avoid all conversation and conflict.
Mr Nash was referred to paragraph 25 of his statement where he referred to Ms Gray’s “assumption that I no longer wish to be employed”. Mr Nash said he did not remember a specific date of 14 January 2025. Mr Nash said Ms Gray tried to call him on the morning of 17 January 2025, and he was asleep. He said he checked his emails and assumed he was fired. He agreed he knew his weekly payments were to stop on 13 January 2025.
Mr Nash was asked why he could not have responded to Ms Gray’s letter on 17 January 2025 in the same way he responded to Busy@Work on 9 January 2025, telling them it was not correct that his employment had been terminated. Mr Nash said he assumed he had been fired and as a person with high anxiety, wanted to just separate from that.
Submissions
Assumption the Applicant wished to end employment
The Applicant contended that the Respondents took steps to “accept” the Applicant’s renunciation (which was not provided), and, in so doing, took a positive step (being the making of a decision), to cause the Applicant’s employment to end. This, of course, despite the fact the Applicant was still within a permitted timeframe to respond to Ms Gray’s inquiry as to his intentions.
In oral submissions, the Respondent rejected this, saying the Applicant’s submission is based on a misguided contention that Ms Gray considered Mr Nash to have abandoned his employment, which he did not do, and the Respondents do not contend.
The Applicant said this is a dismissal at the initiative of the employer. He said this is particularly so, given the conduct relied upon by the Respondents to assert that the Applicant wished for the employment to end, being the request for a Certificate of Separation, is conduct after the Respondents’ 17 January 2025 letter, and but for this letter, such a request would not have been made. The result is that such conduct is not demonstrative of the Applicant’s desire to end the employment, but rather, evinces the Applicant’s understanding the Respondents has dismissed him from employment.
The Respondents submitted that the 17 January 2025 letter was not a termination letter that expressed, in unequivocal terms or at all, an intention to terminate the Applicant’s employment. The Respondents submitted that on the evening of 17 January 2025, the Applicant freely and voluntarily ended his employment with Gray’s Plaster and Paint by email when he requested a Letter of Separation from Ms Gray in response to the 17 January 2025 letter.
In response, the Applicant submitted that this position is untenable as this conduct arises only after receipt of the 17 January 2025 letter. It is conduct which follows the Respondent’s termination of the Applicant’s employment.
It was the Respondents’ position that the Applicant’s resignation was genuine, and no special circumstances applied to his resignation that constituted a dismissal at the initiative of the Respondents. Further, they argued that the termination of the Applicant’s employment was not the probable result of the Respondents’ conduct such that the Applicant had no effective or real choice but to resign. It was submitted that in all the circumstances, it was the Applicant’s conduct and not that of the Respondents that was the ‘principal contributing factor which resulted’ in the termination of the employment relationship.
The Applicant contended that the Respondents conduct on 17 January 2025 was to “assume” the Applicant wished to end the employment relationship. In this regard, the argument the Applicant “freely and voluntarily” resigned cannot be maintained, as, for the Respondents to be required to “assume” anything, it obviously is not the position the resignation was clearly communicated.
The Respondents referred to the case of Mohazab v Dick Smith Electronics Pty Ltd (No 2)[3], where the Court observed as a general rule that:[4]
“The expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment”.
The Respondents submitted that explicit in Mohazab is the principle that an employee’s termination will only be at the ‘employer’s initiative’ where the conduct of the employer causes the employment relationship to end. Further, the Respondent relied on the discussion by Perram J in Quirk v CFMMEU[5], which stated that this requires the actions of the employer to either ‘directly or consequentially’ result in the termination of the employee’s employment.[6]
The Respondents contended that there was no ‘direct or consequential’ action on their part which brought about the termination of the Applicant’s employment and that at all material times it was the conduct of the Applicant which was the ‘principal contributing factor which resulted’ in the employment relationship ending.
The Applicant submitted that this matter was analogous to Won Woo Shin v The Trustee For G Capitol N0. 1 Trust,[7] given the Applicant’s position that the employment ended by way of an “assumption” evidenced within the 17 January 2025 letter. In the case of Won Woo Shin, a letter framed in similar terms to the present case resulted in a finding that the Respondent’s letter was a termination at the employer’s initiative:
“…the company didn’t take further actions with ending your employment to give further time for your recovery and perhaps resume work, the company after 12 months have come to certain conclusion that you are not willing to return to employment at Casa Ristorante Italiano anymore and your employment is now considered terminated…
was a termination of employment at the employer’s initiative.”
Accordingly, the Applicant submitted that the 17 January 2025 letter demonstrates a decision on the Respondents’ behalf that there was an assumption the Applicant did not wish to return to the Respondents’ business, with the result being that the 17 January 2025 letter was a termination of employment at the Respondents’ initiative.
In oral submissions, the Respondents submitted they disagree that Won Woo Shin is analogous with this case, as in this case, there was simply an assumption made by the Respondents that the Applicant did not want to continue his employment. Whereas in Won Woo Shin, the Applicant’s employment was actually terminated in the letter, where the Respondent stated in unequivocal terms that due to the Applicant’s prolonged absence from the workplace, they had reached the conclusion that the Applicant was not willing to return to his employment, and his employment was now considered terminated. The Respondents submitted in this case, nowhere in Ms Gray’s letter is there clear or an unambiguous statement to the effect that Mr Nash had been terminated, which is different to Won Woo Shin.
The Applicant submitted that the Respondents simply did not wish for the Applicant to return to the workplace due to the Applicant “suing” the Respondents. The Applicant submitted that it should be considered that if the Applicant wished to end the employment with the Respondent’s business, he would not have engaged in return-to-work meetings or taken Ms Gray’s 10 January 2025 phone call.
The Respondent submitted that Ms Gray’s letter did not seek to terminate Mr Nash, but to convey an assumption that Mr Nash’s conduct was indicative of conduct of someone who did not wish to continue working at the Respondent, and if that assumption was not correct, to please advise Ms Gray so she could facilitate his return to work. The Respondents said in Won Woo Shin the Applicant was not afforded an opportunity to respond to his employer about his intentions, and instead the employment relationship ceased immediately upon receipt of the letter.
The Respondents also submitted the objection in this case is different to the objection in Won Woo Shin where it was argued the Applicant abandoned his employment. In this case the Respondents says their case is that Mr Nash ended his employment of his own volition when he firstly, did not respond objecting to the assumption the Respondent had made, and secondly when he requested a separation certificate. The Respondent submitted it has never argued that Mr Nash abandoned his employment.
The Respondents submitted it is inconsequential that the request for the Separation Certificate came after the 17 January 2025 letter, as it was Mr Nash’s choice to request a Statement of Separation, in circumstances where he was clearly afforded an opportunity to discuss his continued employment with Ms Gray. The evidence clearly shows he was able to do that, as that is what he did with Busy@Work on 9 January 2025.
Intention to return to work
The Respondent submitted that while on WorkCover, the Applicant had not demonstrated an intention to return to work. Specifically, between 22 April 2024 and 16 January 2025:
i. Mr Nash evinced no intention of returning to work at Gray’s Plaster and Paint following the cessation of his WorkCover claim, despite the concerted efforts of the Respondents to facilitate his return to work;
Ms Nash failed to communicate with the Respondents about whether he was agreeable to returning to work in his pre-WorkCover position, or an alternative position;
on his own admission, Mr Nash actively updated his resume which demonstrated that he was in the process of seeking employment elsewhere; and
Mr Nash expressed that he had no intention of returning to work at Gray’s Plaster and Paint.
The Applicant submitted that his conduct with and towards Ms Gray would not convey to a reasonable person with the same knowledge as the Respondents that he has or intended to renunciate his obligations under the contract of employment.[8] This is particularly so given:
i.on or about 21 October 2024, Ms Gray and Mr Nash had a return-to-work meeting; and
Mr Nash took Ms Gray’s 10 January 2025 phone call.
The Applicant submitted that in engaging with Ms Gray, he could not be said to demonstrate: “…an unwillingness or inability to substantially perform his or her obligations under the employment contract.” and a submission to the contrary lacks merit.
The Respondents contended that, on the evening of 17 January 2025, Mr Nash freely and voluntarily sought the end to his employment with Gray’s Plaster and Paint in writing when he requested a ‘letter of separation’ from Ms Gray in response to the 17 January 2025 letter. The Respondents submit that a reasonable person, after reading Mr Nash’s 17 January 2025 email request for a ‘Letter of Separation’, would consider that Mr Nash conveyed a real intention to, and had, resigned from his employment, and further that Mr Nash’s resignation was not given in ‘the heat of the moment’ or in a state of emotional distress or mental confusion for the following reasons:
i. between October 2024 and January 2025, the Respondents afforded Mr Nash numerous opportunities to consider returning to Gray’s Plaster and Paint, including in alternative duties;
between 10 and 17 January 2025, the Respondents provided Mr Nash a week to make a decision about his return to work in circumstances where Mr Nash was due back to work on 14 January 2025;
in response to Ms Gray’s 17 January 2025 letter. Mr Nash did not express any disagreement with Ms Gray’s assumption that ‘as I have not heard from you, I assume that you do not want to continue your employment’, nor did Mr Nash contact Ms Gray to discuss that letter further. Instead, Mr Nash requested a ‘Statement of Separation’ clearly indicative of a person agreeing that he did not want to continue his employment with Gray’s Plaster and Paint; and
Mr Nash ended his employment, on his own volition, at a time where the Respondents had clearly expressed a desire to discuss Mr Nash’s continued employment with Gray’s Plaster and Paint.
The Respondents further submitted that at no point after Mr Nash’s 17 January 2025 resignation did he retract his resignation, including for example by stating that his resignation was made ‘in the heat of the moment’ or dispute the Separation Certificate.
Removing the Applicant
The Applicant made submissions that it was open to conclude that Ms Gray, in realising Mr Nash was “suing” the Respondents, has taken steps to remove Mr Nash from his employment. In doing so, Ms Gray has engaged in this manner in a way as to avoid liability in the Fair Work Commission’s or Federal Circuit and Family Court of Australia (Division 2)’s jurisdictions. The Applicant contended that Ms Gray was aware that she is prohibited to dismiss an employee because of a workplace injury within one (1) year of the date of injury,[9] given she previously worked for WorkCover’s compliance team.
Notwithstanding the above, the Applicant submitted that Ms Gray further informed Busy@Work that his training contract (and by association, his employment) ended effective 22 April 2024. Mr Nash’s evidence was that he was uncertain as to how Ms Gray could argue there was no intention to not dismiss the Applicant in circumstances where she is making such assertions.
The Applicant continued, noting that he texted Ms Gray on 22 April 2024 in respect of his injury, but despite this, Ms Gray conveyed to WorkCover that Mr Nash had “waited a week” to indicate the injury was work related. The Applicant contended that on any plain review of the Applicant’s text message to Ms Gray, this position is obviously untrue.
The Applicant submitted it was open to conclude on Ms Gray’s commentary that she would not permit the Applicant to return to work with the Respondents business under any circumstances and, upon realising Mr Nash intended to return to work during the 10 January 2025 conversation, provided Mr Nash until 20 January 2025 to revert to her with a decision, and thereafter dismissed Mr Nash on 17 January 2025 in attempting to manifest an argument Mr Nash abandoned his employment.
The Respondents denied that Mr Nash was provided until 20 January 2025 to respond to Ms Gray and the evidence supports this conclusion.
Relevant Legislation
The Applicant alleges he was dismissed within the meaning of section 386(1)(a). Section 386 reads as follows:
“386 Meaning of 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.”
Consideration
The Respondents accepted that the 17 January 2025 letter from Ms Gray conveyed an assumption that Ms Nash did not wish to continue his employment. I agree with its submission that it does not follow that a decision to terminate Mr Nash was made. Mr Nash was offered an opportunity to respond to this assumption if he did not agree with it. I am satisfied on the evidence the Applicant’s employment relationship with the Respondent remained ongoing after he received the 17 January 2025 letter.
The disputed evidence concerning the telephone conversation between Mr Nash and Ms Gray supports the conclusion that the decision to return to work at the Respondents business remained at his discretion, and Ms Gray had communicated to Mr Nash that the Respondents could not terminate him. Even if Mr Nash was of the view, as his evidence appeared to show, that he did not believe at the time he was fit to perform the alternative administrative duties being offered by the Respondents, he could have simply said so.
Having weighed the evidence, I prefer Ms Gray’s evidence that the conversation included as part of the discussion, an understanding that Mr Nash would revert to Ms Gray by 13 January 2024 about his future intentions concerning returning to work for the Respondents. Ms Gray’s evidence was more consistent than Mr Nash on the point, whose recollection seemed unclear. It is also more logical that they would have agreed he advise Ms Gray of his intentions by 13 January 2025, and not 20 January 2025 as 13 January 2025 was the date his WorkCover support payments ended, and 14 January 2025 was the day the Respondents would have to recommence paying him.
I have also concluded that more generally, Ms Gray’s evidence is preferable to that of Mr Nash where they are in conflict on a factual matter, as Mr Nash’s evidence was inconsistent on a number of occasions. For example, his evidence concerning the note taking of the telephone conversation of 10 January 2025, and his evidence that he would have returned to work for the Respondents to conclude his apprenticeship and would have remained employed for a period after that, while at the same time saying he could no longer work in the trades including in his common law claim.
The Applicant has criticised the credibility of Ms Gray based on her communications with WorkCover. Ms Gray has provided some explanations for the rationale for the opinions she appears to have expressed to WorkCover about Mr Nash, recorded in notes of conversations with WorkCover. Despite apparent inaccuracies in some of these comments, I am inclined to the view that they were expressions of subjective views held, rather than dishonesty, and do not lead me to conclude that this material should otherwise lead me to treat Ms Gray as an unreliable witness because of those views.
Ultimately what brought the employment relationship to an end was not the Respondents’ sending of the 17 January 2025 letter, but Mr Nash’s email response to the letter. I am satisfied that when the 17 January 2025 letter and Mr Nash’s response and request for an Employment Separation Certificate are read together, a reasonable person would consider the Applicant conveyed an intention to end his employment at his own initiative, rather than to take up the offer to engage with the Respondents.
I am satisfied that the ending of the employment relationship was not the probable result of the Respondents’ conduct such that the Applicant had no effective or real choice but to resign. It was the Applicant’s conduct and not that of the Respondents that was the ‘principal contributing factor which resulted’ in the termination of the employment relationship. I am satisfied that Ms Gray and Mr Nash discussed on 10 January 2025 his responding to her by 13 January 2025 about his future intentions, and he did not do so, and continued not to do so until he was prompted by the Respondents’ letter of 17 January 2025.
I also accept that that the communication from Mr Nash to Ms Gray on 17 January 2025, following the receipt of her letter, was not made in the heat of the moment or a state of emotional or mental confusion based on the evidence. Mr Nash was clear in his evidence that he wanted the Separation Certificate, so it was clear the employment relationship was over for him to able to make an application to Centrelink for support payments.
It was Mr Nash’s evidence that he suffered from depression and anxiety, however he said this condition did not prevent him from being able to clearly recall facts. He did give evidence that he was taking medication at the time. His evidence was also that he consulted with a friend about the letter sent by Ms Gray to him on 17 January 2025 before responding hours later. It seems somewhat odd that he would have consulted with his lawyer about the communication from Busy@Work on 9 January 2025 before responding, but decided to consult with a friend rather than his lawyer about Ms Gray’s letter on 17 January 2025 before responding that evening.
In any event, despite his having taken that approach, his response was brief but articulate and clear. It seems more likely than not that the Applicant voluntarily concluded to bring the employment relationship to an end to be able to pursue his Centrelink application, rather than to take up the offer of the administrative role with the Respondents, which he did not believe he was fit to perform at the relevant time anyway. He also gave some evidence to the effect that in retrospect he should have responded differently, however his mental state at the time caused him to want to avoid conflict. On balance, that evidence has not convinced me his decision not to take up the offer to discuss Ms Gray’s assumption, and to instead simply request the Separation Certificate was a conscious and deliberate decision.
I also agree with the Respondents’ submission that the decision in Won Woo Shin is distinguishable from the facts here because the 17 January 2025 letter did not include language bringing the employment relationship to an end as was the case in Won Woo Shin.
Ms Gray has provided an explanation for the email she sent to Busy@Work, and for some of the comments made in the WorkCover communications. These comments do not support a conclusion that Ms Gray sought to terminate Mr Nash because of his common law claim. The evidence demonstrates she had taken steps to attempt to accommodate a return to work including the evidence about the 8 October 2024 return to work meeting and proposals she had developed to facilitate an alternative duties plan, and his return to work. This does not support the claim that she was intent on removing him.
Conclusion
Based on all the conclusions set out above, I am satisfied that the Respondents did not dismiss the Applicant, and instead he brought the employment relationship to an end himself voluntarily. On that basis the Commission has no jurisdiction to deal with the application and it is dismissed. An order to this effect will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
C Niven, Solicitor for the Applicant
A Smeaton, Solicitor for the Respondents
Hearing details:
2025
Brisbane (by video)
26 March.
[1] Exhibit 1
[2] Exhibit 2
[3] (1995) 62 IR 200.
[4] Ibid at [205].
[5] [2021] FCA 1587.
[6] Ibid at [216].
[7] [2024] FWC 303.
[8] Shamrock Consultancy Pty Ltd v Norma Ah San (Shamrock) [2021] FWCFB 274 at [4].
[9] Workers’ Compensation and Rehabilitation Act 2003 (Qld), section 23.
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