Majd Rustom v Western Health - [2025] FWC 115

[2025] FWC 115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Majd Rustom
v

Western Health

(U2024/12317)

COMMISSIONER JOHNS

MELBOURNE, 19 MARCH 2025

Application for an unfair dismissal remedy – jurisdictional objection – not dismissed – repudiation – forced to resign

On 16 October 2024, Majd Rustom (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by Western Health (Respondent).

On 23 October 2024, the Respondent filed a response to the unfair dismissal application. In its response, the Respondent objected to the Commission exercising its jurisdiction in relation to the application on the basis that, it submitted, the Applicant was not dismissed.

The matter was allocated to my Chambers on 22 November 2024. That same day, I issued Directions listing the matter for a jurisdictional objection hearing on 8 January 2025.

For the reasons below I have decided that the Applicant was not dismissed.

The hearing

At the jurisdictional objection hearing, I granted both parties permission to be represented. Having regard to the nature of the jurisdictional objection, I was satisfied that the matter was invested with sufficient complexity such that I would be assisted in the efficient conduct of the matter if, in the overall exercise of my discretion, I allowed both parties to be represented pursuant to s.596(2) of the FW Act.

Consequently, at the hearing on 8 January 2025,

(a) the Applicant was represented by Mr Gary Dircks, a paid agent; and
(b) the Respondent was represented by Mr Charles Pym, a barrister.

In advance of the hearing, the parties filed materials which were compiled in a Digital Tribunal Book (DTB). For completeness, I set out below the materials relied upon the parties. I have had regard to all these materials in coming to this decision:

Exhibit	Document title	Date
1	Form F2	15-10-2024
1.1	Resignation Email	30-09-2024
2	Form F3 and attachments	24-10-2024
2.1	Form F3	23-10-2024
2.2	Letter to Applicant	04-10-2024
2.3	AB2024/655 Decision	08-10-2024
2.4	AB2024/655 Order	08-10-2024
2.5	Resignation Email	Undated
3	Respondent’s Submissions	16-12-2024
3.1	Respondent’s Outline of Submissions	16-12-2024
3.2	Witness Statement – Robyn Peel (with annexures)	16-12-2024
3.3	Witness Statement – Debra Hill (with annexures)	16-12-2024
4	Applicant’s Submissions	03-01-2025
4.1	Outline of Submissions	03-01-2025
4.2	Witness Statement – Majd Rustom	03-01-2025
4.3	MR 1 – Employment Contract	29-07-2019
4.4	MR 2 – Contract variations	23-04-2021
4.5	MR 3 – Fair Work Commission Agreement	24-07-2024
4.6	MR 4 – Emails about excessive workload	Various
4.7	MR 5 – Emails outlining continued unfair treatment and breach of FWC agreement terms	Various
4.8	MR 6 – Correspondence with management about issues with allocated work	Various
4.9	MR 7 – Emails regarding LinkedIn post publicising my absence from my side	Various
4.10	MR 8 – Formal resignation from Western Health	30-09-2024
5	Respondent’s Submissions in Reply

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 115
Decision Date: 19 MARCH 2025

CaseChat Overview and Summary

Majd Rustom applied to the Fair Work Commission for an unfair dismissal remedy in respect of his dismissal by Western Health. The Respondent objected to the Commission exercising its jurisdiction on the basis that the Applicant was not dismissed. The matter was allocated to Commissioner Johns, who decided that the Applicant was not dismissed. The Applicant argued that he was forced to resign due to the Respondent's conduct, which he claimed amounted to a repudiation of his employment contract. The Respondent denied that it dismissed the Applicant and contended that he voluntarily resigned. The Commissioner found that the Applicant was protected from unfair dismissal and that the dismissal was not unfair. The Commissioner considered the events between the date of the Commissioner Lee's recommendation (on 24 July 2024) and the date of the resignation (on 30 September 2024). The Commissioner found that the Applicant continued to work 2 days per week from home, consistent with the recommendation, and that all changes made to his work arrangements were a part of the "reasonable give and take" permitted by the employment relationship. The Commissioner concluded that the Applicant voluntarily resigned and that the Applicant "had no effective or real choice but to resign". The Applicant's application for an unfair dismissal remedy was dismissed.

Orders