Miss Emily D'Andilly v The Trustee for O'Neill Family Trust Trading as Rescue Books Bookkeeping
[2025] FWC 1118
•22 APRIL 2025
| [2025] FWC 1118 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Miss Emily D’Andilly
v
The Trustee for O'Neill Family Trust Trading AS Rescue Books Bookkeeping
(C2024/7629)
| COMMISSIONER DURHAM | BRISBANE, 22 APRIL 2025 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee dismissed – employee not terminated at the employer’s initiative – employee resigned - application dismissed
On 22 October 2024, Miss Emily D’Andilly made a general protections application to the Commission under section 365 of the Fair Work Act 2009. Miss D’Andilly alleges that she was dismissed by The Trustee for O'Neill Family Trust Trading as Rescue Books Bookkeeping (RBB) on 1 October 2024 in contravention of her workplace rights.
RBB opposed the application, by way of raising a jurisdictional objection that Miss D’Andilly was not dismissed.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the Act before the Commission can exercise powers conferred by section 368.[1] It is therefore necessary to determine the jurisdictional issue raised by RBB before Miss D’Andilly’s application can proceed.
For the reasons outlined below, I find that Miss D’Andilly was not terminated on the employer’s initiative, nor did the employer’s conduct amount to constructive dismissal, and as such the application is dismissed.
Hearing of the Jurisdictional Objection
I issued directions on 2 December 2024, for the parties to file their material.
The question of whether Miss D’Andilly was dismissed was dealt with at a hearing on 18 March 2025. Materials in support were filed by both parties. Ms Melissa Demarco represented Miss D’Andilly and Mr Christopher Campbell represented RBB.
Miss D’Andilly gave oral evidence and was cross examined but did not call any witnesses. Ms Tracey O’Neill, Director of RBB, provided oral evidence and was cross examined.
Background
Employment arrangements
Miss D’Andilly commenced a traineeship with RBB on 19 April 2022. Her employment was linked to the signing of a training contract for the completion of a Certificate IV in Accounting and Bookkeeping (FNS40217) (Certificate IV). Miss D’Andilly was advised that she was a permanent part-time employee and would be required to work two days a week (Tuesdays and Thursdays), from 9:00am to 5:00pm. There is no record of a formal letter of offer or contract of employment being signed upon her appointment.
Training Contract
On 3 May 2022 the parties completed Ms D’Andilly’s training contract, the contract included the following:[2]
The traineeship was part-time
Ms D’Andilly would be required to complete 16 hours of employment/training per week
The indicative term of the contract would be 24 months
Ms D’Andilly’s training was to be provided by Training Evolutions, a Registered Training Organisation (RTO).
On 30 August 2022, Ms O’Neill received an email from Training Evolution stating that, due to a lack of available trainers, Ms D’Andilly would need to be transferred to a new RTO.[3]
On 27 September 2022, AB2 Institute of Accounting (AB2) were appointed as Ms D’Andilly’s RTO.[4]
Alleged underpayments (overtime and rate of pay)
In or around July/August 2024, after undertaking some research on the Fair Work Ombudsman’s (FWO) website, Ms D’Andilly formed the view that she was being underpaid.[5] Also around this time, she made inquiries with the Department of Employment, Small Business and Training (the Department) regarding whether training time should be paid. Mr Joe Proctor, Principal Program Officer, provided Ms D’Andilly with links to fact sheets regarding her entitlement.
On 3 August 2024, Ms D’Andilly sent a text message to Ms O’Neill asking that she look into two historical instances of her not being paid overtime. The text message attached screen shots of pay slips dated 4 December 2023 and 26 February 2024.[6]
Ms O’Neill responded to this message asking if Ms D’Andilly had submitted a request for it to be paid. Ms D’Andilly replied “yes”.[7]
Ms O’Neill suggests that she will deal with it on Monday, and states “Y ru going back and checking what is going on?”. Ms D’Andilly responds by indicating that she was checking amounts as she was doing her tax return.[8]
It is Ms D’Andilly’s evidence that on or about 7 August 2024, she raised all of her concerns regarding her rate of pay and not being paid for ‘off the job training’ directly with Ms O’Neill. Ms D’Andilly recalls that whilst they were together, Ms O’Neill visited the FWO website and having been unable to determine the appropriate rate, she had called a “HR Company” for advice.
Ms D’Andilly sent a follow up text message to Ms O’Neill on 29 August 2024 to which Ms O’Neill responds, raising her belief that the overtime was not discussed at the time and that she has not been given any reason for it.[9] She further indicates that Ms D’Andilly will need to remind her about it on her return from oversees.[10] Ms D’Andilly does not dispute this, simply adding “Safe travels and enjoy your part business, part well deserved holiday (Smiley Face Emoji)”.
Ms O’Neill commences her travel from 30 August 2024 and does not return until 10 September 2024.[11]
Employment Contract
It is Ms O’Neill’s evidence that in order to respond to Ms D’Andilly’s concerns, she sought clarification from her HR consultant. Ms O’Neill was advised to put in place an employment contract, confirming Ms D’Andilly’s employment arrangements. Ms O’Neill’s records show that Ms D’Andilly was issued the first version of the contract on 12 August 2024. The software used to create the contract had an expiry date. Ms D’Andilly did not accept the contract by this date, so the contract was reissued on 20 September 2024 and again on 29 September 2024 but dated 30 September 2024, noting that the software presumes the contract will be signed the next day and puts the following date on the contract.[12]
The most recent version of the contract contains what Ms O’Neill believes to be the correct rate of pay and other conditions. It also limits Ms D’Andilly’s employment to the term of the traineeship. Ms D’Andilly disputes both of these points. Whilst the parties’ disagreement on these point does appear to be a factor in Ms D’Andilly’s decision to resign, it is not necessary for me to make any findings in this regard, other than noting that the parties had not resolved these issues and that the contract had not been signed by Ms D’Andilly.
Issues with the training contract
Between 13 and 25 September 2024, Ms O’Neill exchanged multiple emails with the Department and AB2 in which she clarifies that Ms D’Andilly’s traineeship is part-time, confirmed the correct completion date, and secures an extension of the current term. These discussions also result in the issuing of a new draft training plan, which incorporated paid time for training (2 hours every Thursday afternoon). It is Ms O’Neill’s evidence these discussions were taking place during Ms D’Andilly’s leave, with the expectation that they would be finalised upon her return.
Email exchanges leading up to Ms D’Andilly’s return to work
Ms D’Andilly commenced a period of annual leave from 18 to 30 September 2024. During her leave, Ms D’Andilly contacted the FWO for assistance. It is presumed this contact was to assist her consideration of the proposed contract of employment referred to above.
As provided above, during Ms D’Andilly’s leave, two further versions of the contract were issued. The last of these was issued on the evening of 29 September 2024. Ms D’Andilly asserts that this version of the contract specified that the employment arrangement was limited to the term of the training contract. I do note however that Ms O’Neill asserts that this version was identical to the second version issued 20 September 2024.
At 6:33am, the day before Ms D’Andilly was due to return from leave (30 September 2024), she sent the following email to Ms O’Neill with the subject “Follow-up on Previous Emails – Urgent Attention Required”.[13]
“Hi Tracey,
I hope you’re well.
I’m following up on the emails I sent on September 24, 2024, as I haven’t yet received a
response.Joe mentioned last week that he had spoken with you the day before We discussed the
need to get the training plan on track and I’ve scheduled a 1:1 meeting with Ab2 today to
better understand the requirements needed ongoing and with regard to the training
schedule. Additionally, I have signed the training plan and emailed it back to Nathan at
Ab2 Institute.I also wanted to inform you that unfortunately after multiple attempts to address wage
discrepancies related to additional hours worked outside my ordinary hours, I’ve been in
contact with Fair Work to assist in mediating, discussing, and negotiating the correct
entitlements and penalty rates I believe are owed to me during my employment and
traineeship with Rescue Books Bookkeeping.Per Fair Work’s request, I’ve compiled and attached for your reference, a basic
spreadsheet detailing all time worked outside my agreed ordinary hours (Tuesday &
Thuersday (sic) /16 hours per week). The spreadsheet shows the gross amounts, with the final
column reflecting the amounts I believe are owed, these figures are minus what has already
been paid at ordinary rates as you will see on the referenced spreadsheet.
If you can please review this at your earliest convenience.Regards,
Emily D'AndillyLet me know if you need any additional details or have questions regarding these
calculations.”
At 2:21pm, Ms O’Neill sent to Ms D’Andilly’s work email address an email with the subject “Jobs to be done weekly”. It is noted that Ms D’Andilly states she did not receive this email until the following morning, when she logged into her work emails.[14]
….. “You will need to use click up for each client that you work on and mark each item when it is completed not batch it completed.
I want to know what you have done at the end of the day so that anything that is missed or
not done can be discussed and you will email this to me.You will no longer speak to clients if there is an issue you will speak to me first and I will
sort it out.You will need to scan all receipts and invoices received by clients and add them to a folder
in their file called scans and upload them into Hubdoc.If there is nothing left to do, then you can work on your studies.
You will need to reply to this email that it is understood what you need to do.”
At 4:09pm, that same day, Ms D’Andilly sent another email with the subject “Variation of part-time hours”:[15]
“Hi Tracey,
I understand that there has been some dissatisfaction on your part regarding the overtime
entitlements and the spreadsheet I provided, and I would like to address this openly and
professionally.
As part of my Cert IV Bookkeeping and Accounting traineeship, I have always aimed to meet the needs of the business while undertaking my training on top of that. However, due to correct processes and formal procedures not being appropriately followed, it has led to some upsets and complications regarding overtime entitlements owed.My intentions have always been about supporting you and doing my best at my job. I'm
hoping that moving forward, we can have clear communications around my award rate,
working hours, and that any changes are agreed upon in advance to avoid future issues. I think clarification regarding the below 3 points would be very helpful in these circumstances;
1.Working Hours and Schedule: I would like to confirm any potential changes to my current ordinary working days and hours, especially as they may relate to both my training requirements and the needs of the business.
2.Training Commitments: I would also appreciate your support in balancing my study and practical work commitments, ensuring I am able to fulfill both my work duties and traineeship requirements effectively.
3.Variation Agreement: As my employment is part of a formal traineeship, there is the need to document any variations in hours, duties, or other conditions of my
employment.
I am happy to discuss any necessary changes and complete the required paperwork to
ensure everything is up-to-date. I have attached the variation document as required to be completed and a copy stored for payroll purposes.I’m eager to continue contributing positively to the team
Thank you for your understanding. I appreciate your feedback.Regards,
Emily D'Andilly”
Shortly after, at 4:20pm, Ms O’Neill provided the following response with the subject “Contract offer”:[16]
Hi Emily,
Thanks for your email and questions.
I am attaching a copy of the original training contract that we signed and would note that both your and my obligations under that contract are outlined on page 5. Below are my responses to your two questions.1. The Traineeship arrangement and training contract are the agreement between myself, you and the RTO that covers the training/traineeship and as you can see in that contract, it lasts for the nominal duration of the traineeship. There is no guarantee of ongoing employment once the traineeship has been completed. As your employer, I am committed to seeing through the training agreement with you. It will be discussed with you closer to the completion of the traineeship whether there is an opportunity for continued employment which may also depend on operational needs at the time.
2. Pay rate - as per the training agreement and the nature of your work with me at Rescue Books, while you have completed on-line theory components as a predominantly off the job, there has also been a significant portion of on-the-job training that has been provided to you by me. Training in the practical application of all the theory you have been studying is provided by me through the guidance, direction, practice and correction (where needed) in the day to day work that you have been doing every day at Rescue Books. Therefore, the 20% discount for training being provided on the job as well as off the job, is applied to the relevant hourly rate under the Award which comes to $22.95, and your hourly rate of $26.85 continues to be above the Award.
Best Regards, Tracey O’Neill”.
Ms D’Andilly’s resignation
Ms D’Andilly returned to work on 1 October 2024. She states that she arrived around 9:00am. She contends that as soon as she arrived at the office, she attempted to log onto her computer, and it appeared that she had been locked out of the practice protect portal. Ms D’Andilly says that the only program she could access was her work email as no password was required for this.[17]
Ms D’Andilly says that when she did log onto her work email, she opened and read the email “jobs to be done weekly email” that had been sent by Ms O’Neill the day before.
Mr Campbell did cross examine Ms D’Andilly regarding what time she started work, and specifically asked when she started and whether she was late. Ms D’Andilly said she was not 100% sure when she started work and that she did not believe she was late, noting she was meant to start work at 9:00am. Mr Campbell subsequently suggested that Ms D’Andilly arrived at 9:35am which Ms D’Andilly disagreed with.
At 9.50am that same day, Ms D’Andilly emailed her resignation to Ms O’Neill as follows:[18]
“Tracey,
I have no way to even access the practice protect portal !? I was more than happy to come to work and start fresh but I feel as though this has been made into nothing but a hostile environment. I'm sorry but this is not in any way an appropriate work environment nor good for my own mental health. I wish you all the best but as of right now I am giving you my resignation and will not be returning so I adhere to the awards term regarding termination.”
On the same day, Ms O’Neill responded as follows:[19]
“Hi Emily,
I did not get the chance this morning to re—instate your access to the practice protect portal before you returned from leave. Disabling the access is a security measure when you are on a longer period of leave in order to protect confidential client data.
I am disappointed that you feel that this is a hostile environment and I thought we were having a fresh start as well, now that we have your agreed Training Plan. I wanted to put in place a clear structure and documented expectations of work and processes that would be done to support your traineeship and that if/when there was not client work that you would be able to use that work time to do online studies. It was my intention to make sure I was giving clear guidance on what is required so that I can provide appropriate training relevant to the structured course.
If you still wish to resign, I will accept your resignation. Under the Award, 2 weeks notice is
required to be given, otherwise monies can be withheld from a final pay where sufficient
notice is not given. There is also the capacity for the employer and employee to agree to
shorten the notice period.Therefore I need to clarify the following things from your email stating you are resigning
and not returning, so can you please reply back to confirm whether:a) do you still wish to resign from your position?
b) if so, are you requesting that we mutually agree that the 2 weeks notice period be
waived?I would also like to say that I only got your Fair Work complaint yesterday and I am
currently working through that, I will review the calculations and come back to you in due
course.Can you please reply as soon as possible confirming your intentions regarding your
resignation.”
On 3 October 2024, after receiving no response, Ms O’Neill sent a further email as follows:[20]
“Hi Emily
Please see below email sent to you on Tuesday Oct 1.
Can you please clarify your intentions as outlined in the email below by responding to me by 2.00pm today Thursday 3 October 2024.
If I haven’t heard back from you by 2.00pm today regarding your intentions, then I will assume that your resignation stands.
Additionally, as you haven’t returned to work since your resignation email on Tuesday, that you wish to waive the required 2 weeks’ notice period and have your employment end effective Tuesday 1 October 2024, which I am happy to agree to.
In this case, I will process a final pay within 7 days of that date. Please let me know by 2.00pm.”
On the same day, Miss D’Andilly responded as follows:[21]
“Thank you for your email seeking clarification. I can confirm that I do still wish to resign from my position, effective immediately. Additionally, I would appreciate it if we could mutually agree to waive the two-week notice period, as mentioned in your email.I am grateful for the opportunity to have been part of the team and wish the company continued success.”
Respondent Submissions
RBB submit that there can be no dispute that Ms D’Andilly resigned by way of email to Ms O’Neill on 1 October 2024.[22] Further, they contend that Ms D’Andilly was not forced to resign because of the conduct, or a course of conduct, engaged in by her employer.
Issues with the training contract, pay rate and overtime
It was Ms O’Neill’s evidence that she was actively involved in having Miss D'Andilly’s traineeship extended to 2026 by way of contact with the training provider and a Department representative. Further, during Miss D’Andilly’s period of annual leave, Ms O’Neill negotiated a draft training plan.
RBB do not dispute that Miss D’Andilly had raised questions about her rate of pay, overtime, and study time, but argue that these matters were being worked through. It was Ms O’Neill’s evidence that during the period of Ms D’Andilly’s leave, she had continued to sort through the traineeship matters including the training plan and the extension of time of the training completion for 2026, with the intent to sort through Miss D’Andilly’s issues after she had returned from annual leave. RBB further submit if there are genuine issues relating to the rate of pay, or overtime paid, such matters can be dealt with more appropriately outside of this application, noting that should any underpayments be confirmed, they would be addressed.
Relationship between the parties
RBB contend that Miss D’Andilly and Ms O’Neill had a very good and personal relationship, noting Ms O’Neill would regularly transport Miss D’Andilly to and from the work office as Miss D’Andilly had lost her driver’s licence.
In closing, Mr Campbell made submissions regarding Ms D’Andilly’s use of the word “hostile”, in her statement to describe the work environment. Mr Campbell submitted that Ms O’Neill’s conduct did not appear to be hostile, noting the steps taken by Ms O’Neill to resolve the above issues during Ms D’Andilly’s leave and that Ms O’Neill brought Ms D’Andilly a gift whilst overseas. None of these actions, it is argued, are demonstrative of a hostile working environment.
Change of passwords
Ms O’Neill states that due to an alert received whilst working on her computer at home that advised the passwords had been compromised, she had reset the passwords for the practice program portal on the weekend prior to Miss D’Andilly’s return but had forgotten to advise Miss D’Andilly. Ms O’Neill stated that Miss D’Andilly still had access to her Microsoft Office account and her work emails. Further, she notes that Ms D’Andilly did not make any attempt to call, text or email her regarding her access. The first Ms O’Neill knew of the issues, was when she received Ms D’Andilly’s resignation, referring to a “hostile environment”.
Confirmation of resignation
Additionally, Ms O’Neill had attempted to give Miss D’Andilly the opportunity to withdraw her resignation and maintain her employment by way of Ms O’Neill’s follow up emails on 1 and 3 October 2024 asking for Miss D’Andilly to confirm that she wished to resign. Ms O’Neill also notes that after seeking clarification from Ms D’Andilly, she agreed to waive the two weeks’ notice period, even though Ms D’Andilly sought that her resignation be affected immediately without the notice period being served.
Relevant Authorities
RBB drew my attention to a range of relevant authorities, including the recent decisions of Mr Craig Brown v Port Produce Pty Ltd[23] and Ms Vanessa Walker v Workcon (Qld) Pty Ltd[24], in which they say, the Commission has succinctly summarised the key principles which have emerged from the body of case law on the meaning of section 386(1), noting that in both decisions, the Commission made the following identical observations:[25]
“…..the general principles to be applied are well settled. Stated succinctly, they
include:·the question as to whether the resignation was forced within the meaning of
the Act is a jurisdictional fact that must be established by the applicant;
·a termination at the initiative of the employer involves the conduct (or course of
conduct) engaged in by the employer as the principal constituting factor leading
to the termination. There must be a sufficient causal connection between the
conduct and the resignation such that it ‘forced’ the resignation;·the employer must have engaged in some conduct that intended to bring the
employment relationship to an end or had that probable result;
·conduct includes an omission;
·considerable caution should be exercised in treating a resignation as other than
voluntary where the conduct of the employer is ambiguous, and it is necessary to determine whether the employer’s conduct was of such a nature that
resignation was the probable result such that the employee had no effective or
real choice but to resign; and·in determining the question of whether the termination was at the initiative of
the employer, an objective analysis of the employer’s conduct is required.”
Applicant Submissions
Miss D’Andilly submits she had been constructively dismissed by RBB pursuant to s. 386(1)(b) of the Act. In the alternative, she submits that her dismissal was on the initiative of RBB pursuant to s. 386(1)(a) of the Act. Miss D’Andilly states that on 1 October 2024, she came to work “looking for a fresh start” however she arrived to find she had been locked out of the portal, and when she accessed her emails, she found the weekly tasks email Ms O’Neill had sent the day before. These actions had made the workplace a “hostile environment” that was “impacting on her mental health”.
Legal Principles
Ms D’Andilly drew my attention to several relevant authorities, particularly noting that the test to be applied in determining whether a resignation was “forced” within the meaning
of s 386(1)(b) of the Act is whether the employer engaged in the conduct with the intention
of bringing the employment to an end or whether termination of the employment was the
probable result of the employer’s conduct such that the employee had no effective or real
choice but to resign.
Relationship between the parties
Ms D’Andilly submits that RBB failed to pay her the correct rate of pay, overtime and for study time from 19 April 2022 to 1 October 2024. She believes that in response to raising these concerns, RBB attempted to pressure her into executing a new employment contract which would change her conditions of employment. Her frustration with RBB’s failure to resolve her issues led her to seek further advice from the FWO during her leave. As a result of her inquiries with the FWO, she sent Ms O’Neill several emails and spreadsheet that she hoped would assist in resolving the issue.
Ms D’Andilly submits that her interactions with Ms O’Neill changed after her initial inquiries and provides several examples of interaction she says were hostile or retaliatory. Further, she believes that it was her contact with the FWO and her emails during her leave that resulted in her being locked out of RBB’s security systems, leaving her unable to perform her duties.
Ms D’Andilly states she returned from leave into a “hostile environment” which impacted on her mental health, and it was clear that any attempt to reach a resolution with RBB was ineffective and she had no reasonable option open to her but to resign.
Constructive dismissal
It was Ms D’Andilly’s evidence that the last straw for her was being unable to do her work and Ms O’Neill not being there to assist her on 1 October 2024. As such, Miss D’Andilly felt she had no choice but to resign and notified Ms O’Neill of her resignation, which she suggests was accepted that same day.
Ms D’Andilly contends that RBB’s actions intended to bring the employment relationship to an end or had that probable result. Specifically, she believes it was RBB’s:
ongoing failure to address her concerns regarding her pay and training arrangements,
continued pressure to accept a new employment contract, and
removing her access to the computer system
which resulted directly or consequentially in the termination. These she says, were deliberate decisions, made with the intention of forcing her to resign. Consequently, she does not believe the employment relationship was left voluntarily because, if not for Ms O’Neill’s actions, she would have remained in the employment relationship.
Relevant Legislation
Section 365 of the Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal” for these purposes (and other purposes of the Act) is defined in section 386(1), which provides:
“386 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.”
Consideration
Although applied under the previous Act, the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd remains relevant to the consideration of section 386(1) of the Act:
“[21] In this Commission the concept have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
‘[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.’
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
‘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. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.’
[23] 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 to 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.” (footnotes omitted).
The Full Bench in Tavassoli also considered the legal principles pertaining to section 386(1) of the Act. Having examined what it described as “a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee’s initiative”, the Full Bench stated:[26]
“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
Was the employment terminated on the employer's initiative?
I have considered section 386(1)(a), as to whether Miss D’Andilly’s employment was terminated on the initiative of the employer in the manner articulated in Tavassoli. Essentially, when judged objectively, did Miss D’Andilly intentionally resign from her employment.
It is clear from Ms D’Andilly’s resignation email and subsequent confirmation email, that she resigned. There is no evidence to suggest that this decision was unintentional. Ms D’Andilly’s resignation was not ambiguous or unclear, nor did it give any indication that it was a rushed or rash decision noting her evidence was that she arrived in the office at 9:00am on 1 October 2024 and did not send her resignation email until 9:50am. In fact, Ms O’Neill subsequently sought confirmation after Miss D’Andilly emailed her resignation on 1 October 2024, which was subsequently confirmed on 3 October 2024 by Miss D’Andilly.
Was the employee forced to resign because of the employer’s conduct?
In this matter, the onus is on Miss D’Andilly to prove that she did not resign voluntarily. To do this, she must establish that RBB forced her resignation.
Though Miss D’Andilly concedes that she resigned from her role with RBB, she submits that RBB’s actions intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end, essentially leaving her no choice but to resign.
Whilst I appreciate Miss D’Andilly’s sense of frustration with Ms O’Neill in addressing the pay queries she raised, the relevant conduct that needs to be established by Ms D’Andilly is whether the actions of RBB amounted to conduct, or a course of conduct, that forced her resignation. Put another way, did RBB engage in conduct that was either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.
To that end, after reviewing the evidence provided, I find the relevant alleged conduct to be further considered pursuant to s 386(1)(b) is:
·Failure to address concerns with her pay and her training
·Locking her out of the work system
·Hostile working environment
Failure to address pay and training concerns
Having considered all of the submissions and evidence in this matter, I accept that Ms O’Neill had taken steps to address Miss D’Andilly’s concerns with respect to the training arrangements. Further, I have seen no evidence to suggest that Miss D’Andilly was at any stage advised that any final position had been taken with respect to the pay queries. Ms O’Neill had sought independent advice regarding the appropriate pay and conditions and was attempting to resolve the issues through the drafting of an employment agreement.
It is common ground that Ms O’Neill did not agree with Miss D’Andilly’s claim regarding her rate of pay, however it seems to me that she was open to further discussion. It is also important to note that Ms O’Neill has maintained throughout this process that she remains willing to resolve any outstanding issues in this regard.
Whilst I accept that Ms O’Neill did not resolve these issues as quickly as Miss D’Andilly would have liked, I find that the discussions were ongoing and had not been finalised. I further accept that it was Ms O’Neill’s intention to continue discussions once Miss D’Andilly returned to work. I therefore do not consider her actions were a course of conduct engaged in for the purpose of forcing her resignation.
Locking her out of the system
It was Miss D’Andilly’s evidence that upon arrival at work on the 1 October 2024, she had been locked out of the system and was effectively unable to perform any work. During cross examination, Miss D’Andilly was asked what she did to raise this concern with Ms O’Neill, and why she did not attempt to call, text or email her to clarify what was going on.
The first time this issue was raised with Ms O’Neill was in the resignation letter. Ms O’Neill responded promptly, explaining what had happened, and clarifying her view that it was a simple oversight, not an intentional act. It is relevant that in this same email, Ms O’Neill sought clarification from Miss D’Andilly regarding her intention to resign. I do note an inconsistency between Ms O’Neill’s evidence and the email explanation given to Miss D’Andilly with respect to the reason the password was changed. However, notwithstanding this, viewed objectively, it seems unlikely that Ms O’Neill would have sought clarification of Miss D’Andilly’s intention to resign had she locked Ms D’Andilly out of the system purposefully, with the intention of forcing her to resign.
During cross examination Miss D’Andilly was asked why she had not reached out to Ms O’Neill to attempt to resolve the password issue before she sent the letter of resignation. Miss D’Andilly’s evidence was that there was no reception in the office and that she was advised not to use her personal phone while at work, noting that the work mobile phone had been removed from the office. When questioned whether there was reception outside of the office, Miss D’Andilly said “I guess so, yes.”, she was subsequently asked why she did not avail herself of this option to contact Ms O’Neill. Miss D’Andilly did not answer this question but instead responded stating “Why wasn’t Ms O'Neill at the office when she was intended to be there.”
Having considered the evidence and submissions of the parties, I prefer Ms O’Neill’s evidence and accept that had Miss D’Andilly taken the time to call, email or text Ms O’Neill, she would have been provided with an explanation and Ms O’Neill would have set about restoring Miss D’Andilly’s access. The reality of the situation was perhaps best explained by Miss D’Andilly, who suggested that the last straw was being unable to do her work and Ms O’Neill not being there to assist her on 1 October 2024.
Viewed objectively, I do not consider Ms O’Neill’s conduct was purposeful or engaged in for the purpose of forcing Miss D’Andilly to resign.
Hostile working environment
The assessment of conduct in this matter must be viewed objectively. I accept that Miss D’Andilly may have felt that the once close personal and working relationship she shared with Ms O’Neill had become strained. This is not uncommon in the workplace, particularly when parties are dealing with sensitive issues such as pay disputes.
I accept that Miss D’Andilly may have been surprised to find the “tasks to be completed weekly” email upon her return to work however, on balance, I do not consider any of the conduct that Miss D’Andilly experienced was so egregious that it forced her to resign.
Was resignation the only option?
I acknowledge Miss D’Andilly’s evidence regarding her experience with RBB, however I note the following in Celia O'Keefe v Ramsay Health Care Australia Pty Limited:[27]
“Resignation to escape a difficult or unpleasant situation in a workplace will not amount to dismissal where the employee has other options besides resignation. This is so even where the situation in a workplace is objectively difficult or unpleasant or where the options are to resign or be subject to an investigation or disciplinary process, as distinct from resign or be dismissed. Here the Applicant opted to resign to remove herself from a situation which she perceived to be unfair and from conduct she perceived to be bullying. While some of the Applicant’s concerns were valid, on balance the conduct the Applicant complains of was not such that I could be satisfied that the Applicant was forced to resign. The Applicant had options other than resignation and it cannot be said that the conduct or a course of conduct she complains about had the intended or probable effect of ending her employment. Finally, I consider that even if all the conduct described by the Applicant occurred, it is not a course of conduct that objectively, was so egregious, that it gave the Applicant no real choice but to resign. While I do not underestimate the difficulties the Applicant would have faced if she remained at work, and the adverse impact upon her of resigning from her employment with the Respondent, I do not accept that she was forced to resign by a course of conduct engaged in by the Respondent.”
I have found that Ms O’Neill had taken steps to address Miss D’Andilly’s concerns and was not closed to continued discussion. It is also clear that whilst Miss D’Andilly did not react well to being unable to log in to the practice portal on her return from leave, or to the “weekly tasks email”, she did not take steps to resolve these issues in advance of taking the significant step of resigning.
It is clear that Miss D'Andilly had options available to her prior to resigning from the role. As such this does not weigh in favour of a finding that she had no real or effective choice but to resign.
In the matter of Neil Ashton v Consumer Action Law Centre[2010] FWA 9356 at [59] Commissioner Bissett relevantly observes:
“It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.”
Perhaps the most telling evidence is Ms O’Neill’s email of 1 October 2024 in which she clearly asks Miss D’Andilly if she was sure that she wanted to resign. I accept RBB’s contention that this was opening up the opportunity for her to reconsider — again, this is not conduct consistent with Miss D’Andilly being forced to resign.
Ms D’Andilly did not respond immediately. It was not until two days later, on 3 October 2024 that she confirmed her resignation.
Having considered the facts of this case, I find that Miss D’Andilly had real options available to her to address her concerns, but that she did not avail herself of these.
Considering all of the evidence and relevant case law objectively, I do not accept that Miss D’Andilly’s dismissal was at the initiative of RBB, nor have I been convinced that RBB engaged in conduct that left Miss D’Andilly with no option other than to resign.
Conclusion
Miss D’Andilly resigned and did so voluntarily, as is clearly reflected in her resignation email. That email was not at the initiative of RBB and there is no evidence before me that convinces me that RBB’s acceptance of it somehow took place in a situation such that Miss D’Andilly could not reasonably be understood to be conveying a real intention to resign.
Miss D’Andilly nonetheless says she was ‘forced’ to resign but has provided no evidence that convinces me this is the case. Granted Ms O’Neill’s communication in dealing with Ms D’Andilly’s queries was at times lacking and unclear, however I have not been convinced that her actions were unreasonable in the circumstances, particularly noting her 1 October 2024 explanation of the system “lock-out” and her request for confirmation that Miss D’Andilly did in fact intend to resign. On the limited evidence before me, RBB’s conduct does not rise close to the level of constituting a forced resignation noting the options available to Miss D’Andilly.
Given my findings, Miss D’Andilly has not been dismissed within the meaning of the Act, the jurisdictional objection is upheld.
As a result, the application is therefore dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
M. Demarco for the Applicant
C. Campbell for the Respondent
Hearing details:
2025
Brisbane (by video via Microsoft Teams)
18 March
[1] [2020] FCAFC 152.
[2] P. 6 to 22 of the DCB – Apprentice/Traineeship Training Contract.
[3] P. 88 of the DCB – Email dated 30 August 2022.
[4] P. 51 of the DCB – Statement of Emily D'Andilly.
[5] P. 52 of the DCB – Statement of Emily D'Andilly.
[6] P.118 to 119 of the DCB – Text Messages from 3 August 2024.
[7] P.118 to 119 of the DCB – Text Messages from 3 August 2024.
[8] P.119 of the DCB – Text Messages from 3 August 2024.
[9] P.120 of the DCB – Text Messages from 29 August 2024.
[10] P.121 of the DCB – Text Messages from 29 August 2024.
[11] P.205 of the DCB – First Statement of Tracey O'Neill.
[12] P.324 to 325 of the DCB – Second Statement of Tracey O'Neill.
[13] P.154 of the DCB – Email dated 30 September 2024 from Emily D'Andilly at 6:33am.
[14] P.158 of the DCB – Email dated 30 September 2024 from Tracey O'Neill at 2:21pm.
[15] 155 of the DCB – Email dated 30 September 2024 from Emily D'Andilly at 4:09pm.
[16] 156 to 157 of the DCB – Email dated 30 September 2024 from Tracey O'Neill at 4:20pm.
[17] P. 59 of the DCB – Statement of Emily D'Andilly.
[18] P.186 of the DCB – Applicant’s Resignation Email.
[19] P.315 to 316 of the DCB – Email Chain (TON-21).
[20] P.314 of the DCB – Email Chain (TON-21).
[21] P.314 of the DCB – Email Chain (TON-21).
[22] P.186 of the DCB – Applicant’s Resignation Email.
[23] [2024] FWC 3109 at [50].
[24] [2024] FWC 1386 at [74].
[25] Respectively [2024] FWC 3109 at [50]; [2024] FWC 1386 at [74].
[26] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [47].
[27] [2021] FWC 4796 at [151].
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