Ms Bethany Rose Bryan v Red Shed Inc
[2025] FWC 2738
•15 SEPTEMBER 2025
[2025] FWC 2738
The attached document replaces the document previously issued with the above code on 15 September 2025.
Summary catchwords have been updated to include the word 'not'.
Associate to Commissioner Sloan
Dated 15 September 2025
| [2025] FWC 2738 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Bethany Rose Bryan
v
Red Shed Inc
(C2025/5334)
| COMMISSIONER SLOAN | SYDNEY, 15 SEPTEMBER 2025 |
Application to deal with contraventions involving dismissal – jurisdictional question – whether applicant was dismissed or resigned – applicant found not to have been dismissed – application dismissed
Red Shed Inc. is a not-for-profit community organisation. It was established by John Gasson and his wife in mid-2024 as a philanthropic venture. It is a community rowing facility, with an aim of providing access to rowing for all.
Bethany Bryan commenced employment with Red Shed on 29 April 2024 as Head Rowing Coach. On 16 May 2025, she tendered her resignation and her employment came to an end that day. However, Ms Bryan claims that she was forced to resign as a result of Red Shed’s conduct.
On 5 June 2025, Ms Bryan commenced proceedings in the Commission by filing an application (“Application”) under section 365 of the Fair Work Act 2009 (“Act”). She alleged that she had been subjected to adverse action by Red Shed as a result of exercising workplace rights.
Red Shed raised a jurisdictional objection to the Application. It contended that Ms Bryan was not dismissed, and denied that its conduct forced her to resign.
Section 365 relevantly provides that if a person “has been dismissed” and they allege that the dismissal contravened Part 3-1 of the Act, they may apply to the Commission to deal with the dispute. Given the language of the section, a person must have been dismissed for it to apply. If a respondent asserts that there has been no dismissal, it gives rise to a dispute as to whether the applicant is entitled to make the application. That dispute must be resolved before the Commission can exercise any of the powers the Act confers on it.[1]
This decision deals with the jurisdictional objection.
Determination
I find that Ms Bryan was not dismissed. Consequently, I have determined to uphold Red Shed’s objection and to dismiss the Application. These are my reasons.
Relevant law and principles
The Act defines “dismissed” in section 386(1). That section contemplates two scenarios.
First, a person will have been dismissed if their employment was terminated on the employer’s initiative: section 386(1)(a). A termination will be “on the employer’s initiative” if it is brought about by the employer without the employee’s agreement. The question is whether an action on the part of the employer was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment.[2]
Second, a person will have been dismissed where they resigned from their employment, but were forced to do so because of conduct, or a course of conduct, engaged in by their employer: section 386(1)(b). This reflects the common law concept of constructive dismissal.[3] The test to be applied 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.[4] The second limb of that test makes it clear that it is not necessary to show that the employer engaged in the relevant conduct with the subjective intention of forcing the employee to resign.[5]
It is the second scenario on which Ms Bryan relies.
Chronology of key events
Red Shed relied on statements by Mr Gasson, the President of the Voluntary Committee of Red Shed, and Monique Gasson (his daughter), Red Shed’s General Manager. Ms Bryan’s evidence was also contained in a statement. All of the witnesses were cross-examined.
On 28 February 2025, Ms Bryan injured her ankle in an accident at work. This resulted in her having to receive immediate and ongoing treatment for her injury, and being prescribed anti-inflammatory medication for pain management. Ms Gasson lodged a workers compensation claim the same day. Ms Bryan was initially certified as not being for work until 31 March 2025.
Between 18 and 25 March 2025, there was correspondence between Mr Gasson and Ms Gasson on the one hand, and Ms Bryan on the other, regarding her return to work, and the duties that she would be able to perform.
On 25 March 2025, Ms Bryan obtained a certificate of capacity for work stating that she was fit for modified duties from 26 March 2025 to 8 April 2025. She was restricted to working from home for three hours a day, five days a week, with no physical work or lifting. These restrictions were subsequently extended to 8 May 2025.
On 17 April 2025, Ms Gasson conducted a performance review with Ms Bryan via Teams. Not all of the feedback was positive. During the meeting, Ms Gasson informed Ms Bryan that Red Shed had decided to create a new position, Head of Rowing, which would operate separately to the Head Rowing Coach position. Ms Bryan was told that she could apply for the new role.
Following the meeting, but on the same day, Ms Bryan sent an email to Ms Gasson saying that she would like to complete the performance review when she returned from the annual leave she was about to take. She also requested copies of the proposed position description for the Head of Rowing role and the proposed revised position description for her current Head Rowing Coach role. Ms Bryan and Ms Gasson exchanged further emails that day regarding the matters raised during the performance review. Mr Gasson sent a message to Ms Bryan in that regard the following day.
Ms Gasson subsequently provided Ms Bryan with the position descriptions she had requested.
At this time, Ms Bryan was on annual leave, visiting family in the United Kingdom. During her leave she applied for a position as a rowing coach at the South Australian Sports Institute.
On 8 May 2025, Ms Bryan obtained a further certificate of capacity. It relevantly stated that until 23 May 2025 she was fit to work from home five hours a day, five days a week, with no physical work or lifting.
On 9 May 2025, Ms Gasson sent an email to Ms Bryan advising her of changes that would be made to her working hours and duties.
On 15 May 2025, Ms Bryan had a meeting with Ms Gasson. In that meeting, Ms Gasson made a comment as to the need for Red Shed to “get value out of” Ms Bryan.
On 16 May 2025, Ms Bryan sent a letter to Mr Gasson, which stated in part:[6]
“I am writing to formally resign from my position as Head Rowing Coach at Red Shed, with my last working day proposed as 13th June 2025.
…
After careful consideration, I believe this is the right time for me to step away to focus on my health, well-being, and future coaching opportunities.
Although I understand that my contract requires four weeks’ notice, I would be grateful if we could agree on an earlier end date. I am committed to ensuring a smooth handover
and am happy to support in any way I can during this transition.”
Mr Gasson attempted to call Ms Bryan when he received the letter. Ms Bryan did not take the call. That day, Mr Gasson sent an email to Ms Bryan which stated:[7]
“Thank you for your letter of resignation.
I am disappointed you have arrived at this decision but understand your need for a fresh start.
Your contribution to the Red Shed start-up phase and your commitment to helping us deliver on our mission is something I will forever value. You have had such a positive impact on all those who have come through the programs as well as the other staff and volunteers at Red Shed.
I will ask Monique to follow up on the formalities and deal with the early exit of your notice period as requested.
I am happy to be a professional and character reference for any future opportunities if required.
On behalf of Jeanette and I thank you for being part of the Red Shed story. I am sure we will see you on the water.”
The same day, Ms Gasson also unsuccessfully attempted to contact Ms Bryan by telephone. She sent a text to Ms Bryan in these terms:
“Hey Beth, John shared your email. Just wanted to check something with you about bringing your last day forward before I send you a formal email, give me a buzz when you have a minute!” (My emphasis)
In a text in response, Ms Bryan suggested that they speak at 10.00am the next day, 17 May 2025.
Later on 16 May 2025, Ms Gasson sent an email to Ms Bryan in these terms:[8]
“Hi Beth,
I’m sad to hear you'll be leaving Red Shed however, I understand and wish you all the best for what’s ahead.
Please find attached a formal letter confirming our acceptance and noting today, 16 May 2025, as your final day. I tried to give you a call earlier just to check the date is mutually agreeable? If you can confirm that would be great.
Re. Collection of equipment - just let me know your preference and we can sort out next Tuesday then will process the final payroll following.” (My emphasis)
The attached letter was dated 16 May 2025 and was titled “Acceptance of Resignation”. It stated in part:[9]
“This letter confirms our acceptance of your resignation given on 16 May 2025 and the date your employment will end.
We note that as per your employment contract, you are required to provide 4 weeks’ notice however you have requested for an earlier end date. The Company agrees to waive this notice period and make today your last day, should you mutually agree. Please confirm via return email.” (My emphasis)
Later that night, Ms Gasson sent a text message to Ms Bryan. (To put its terms into context, it was sent in response to Ms Bryan’s text suggesting a conversation the next day.) In her text, Ms Gasson stated:
“Sorry, been travelling. No worries I flicked you an email in the car which I was just hoping to chat and make sure it worked for you first, can call at 10am!” (My emphasis)
Ms Gasson attempted to call Ms Bryan at 12.47pm on 17 May 2025. Ms Bryan did not take the call.
Ms Gasson immediately sent another text message to Ms Bryan in these terms:
“Hi Beth, just trying to reach you so we can confirm your resignation and timeframe. If you can call back or respond to my email that would be appreciated. Thanks” (My emphasis)
Mr Gasson and Ms Gasson made further unsuccessful attempts to contact Ms Bryan on 17 May 2025. She did not take their calls or respond to their messages.
On 19 May 2025, Ms Bryan returned the Red Shed property in her possession. On that days, she sent an email to Ms Gasson, copied to Mr Gasson, in these terms:[10]
“Hi Monique,
Thanks for your email.
I’ll be honest – I would have preferred a conversation before receiving formal confirmation, as I believe it’s important to discuss these matters directly. That said, since the letter has already been sent, I feel I have little option but to accept the terms as outlined.
I can confirm that 16 May 2025 will be my final day. I’ve already handed in all equipment, so there’s nothing further needed from my end on that front.
Regards,
Beth”
On 22 May 2025, Ms Masson sent an email to Ms Bryan in these terms:[11]
“Hi Beth,
Thanks for your note and for confirming the 16 May as your final day. …
Your final payroll has been processed today. I’ve attached a copy of the payslip here for your records. Let me know if you have any questions.
Sorry we didn’t get a chance to connect by phone before you received the above email. I did try to call a few times and still happy to chat at any time now or in the future if you’d like to debrief or chat further.
Thank you for your contributions to Red Shed during our start-up phase – you helped get some great foundations in place and I’m grateful for the energy you brought to the early programs. Wishing you all the best with what’s next.” (My emphasis)
Ms Bryan’s contentions
Ms Bryan contended that she was forced to resign because of conduct, or a course of conduct, engaged in by Red Shed. In this regard, she submitted:[12]
“The Applicant submits that her resignation was the result of the bullying and exclusion conduct by the Respondent that destroyed the trust and confidence in the employment relationship and left her with no choice but to resign. The relevant conducts [sic] include:
i. a lack of support and the Respondent’s repeated challenge to the legitimacy of a valid and current Capacity to Work Certificate, issued in relation to a workplace injury;
ii. the dissemination of unfounded and defamatory statements to other employees, which caused significant damage to [her] professional reputation; and
iii. detrimental alterations to [her] role, constituting significant structural changes made in direct retaliation for [her] exercise of her entitlement to medical leave.”
Ms Bryan further contended that Red Shed’s intention to bring the employment relationship to an end was demonstrated by its decision to accept her resignation with immediate effect.
Consideration
I am satisfied that neither Mr Gasson nor Ms Gasson acted with the intention of forcing Ms Bryan to resign. Each of them gave evidence under cross-examination that they had good working and professional relationships with Ms Bryan and that they wanted her to remain with Red Shed. Ms Gasson stated that she saw Ms Bryan as a “long‑term part of Red Shed’s success”.[13] Mr Gasson and Ms Gasson spoke in complimentary terms of Ms Bryan and the contribution she had made to Red Shed. This is also reflected in Mr Gasson’s email to Ms Bryan of 16 May 2025, noting in particular his offer to act as a referee for her, and in Ms Gasson’s email to Ms Bryan of 22 May 2025. I accept that neither Mr Gasson nor Ms Gasson wanted Ms Bryan to leave Red Shed when she did.
However, that is not the end of the matter. As I have observed, it not necessary for Ms Bryan to show that Red Shed acted with the subjective intention of forcing her to resign.[14] It is sufficient for her to demonstrate that the termination of her employment was the probable result of Red Shed’s conduct such that she had no effective or real choice but to resign.[15] It is in this context that I must consider her contentions as outlined above.
Lack of support regarding workplace injury
Ms Bryan contended that following her workplace injury, she felt she was being pressured to return to work before the end of the period she had been certified unfit for work. However, the documents do not suggest any undue pressure being brought to bear.
For example, Ms Bryan relied on a text message she received from Mr Gasson on 18 March 2025. She described the message as “asking [her] to coordinate the Corporate Regatta that was being held on the 4 April 2025, only 4 days after I was due to return from sick leave”. But that does not reflect a proper reading of the message. Mr Gasson did not ask Ms Bryan to coordinate the regatta, but whether she would be able to do so. He had written:[16]
“I will also need to organise someone to coordinate the Corporate Regatta event on the 4th April which is fast approaching. Do you think you will be able to cover this?” (My emphasis)
Ms Bryan also gave evidence of a text exchange that she had with Ms Gasson on 23 March 2025 “to discuss how my medical treatment was going, when I could return to work, and the hours I would be working”.[17] She said she was feeling pressured to return to work, and so told Ms Gasson that she would be able to return to work before 31 March 2025 (the end of the period on her current certificate of capacity), albeit doing desk-bound duties. Nothing in Ms Bryan’s evidence suggests that Ms Gasson requested that of her.
Ms Bryan’s suggestion that she return to work earlier than the date indicated in her certificate of capacity puts context around two actions that she sought to impugn: Ms Gasson sending her an email on 24 March 2025 welcoming her back to work and allocating tasks and duties for her return that week, and Ms Gasson requesting on the same day that Ms Bryan provide an updated certificate of capacity. Ms Gasson explained that the email was sent as she was going to be on leave when Ms Bryan returned to work. I see it as no more than preparing the ground for that return. The request for an updated certificate of capacity was equally unremarkable: Ms Bryan had proposed returning to work earlier than her current certificate contemplated, and Red Shed needed to ensure that she was certified fit to do so. This was not a “challenge to the legitimacy” of the certificate that she then had.
In relation to a different incident, Ms Bryan stated:[18]
“On 16 April 2025, despite having a Certificate of Capacity stating the status of my injury, and that I was unfit for work, the Respondent and the insurer they held coverage who [sic] questioned the legitimacy of my injury, rejected by Certificate of Capacity dated 15 April 2025, and demanded to be provided with another updated certificate.”
However, it was Red Shed’s workers compensation insurer which rejected the medical certificate. It is not necessary to explore the circumstances in which it did so. It suffices to say that there is no evidence that Red Shed had any involvement in, or influence over, that decision.
Ms Bryan also called into question the changes to her hours and duties notified to her in Ms Gasson’s email of 9 May 2025. She gave the following evidence about that email:[19]
“The next day, on the 9 May 2025, the I [sic] received an email from the [sic] Monique informing me that:
i. my hours were to be reduced;
ii. my coach management, rostering, session planning and ‘other personnel related’ duties were removed;
iii. these duties were to be moved from myself to Monique and a coworker who had been acting in my role during my reduced capacity;
iv. I needed to complete a daily timesheet at 3pm each day and submit to John; and
v. Despite being medically cleared to work from home, I was instructed to avoid contact with coaches and proceed as if I were still on leave. There was no Certificate of Capacity which meaningfully change my work environment or work hours during this time.”
The first observation to make about this evidence is that it does not accurately reflect the email. For instance, there was nothing in the email that instructed Ms Bryan “to avoid contact with coaches and proceed as if [she] were still on leave”.
But more significantly, the way in which Ms Bryan presented the email suggested criticism of Red Shed for making the changes. However, they were designed to accommodate Ms Bryan’s injury-related restrictions. As Ms Gasson said, “it was changing to line up with her doctor’s certificate at the time”.[20] That is clear from the terms of the email. Indeed, Ms Bryan accepted as much under cross-examination:[21]
“So there are some other tasks also issued to you within that email. Isn’t it quite clear then from Monique’s email that those are temporary duties?‑‑‑Yes.
Wouldn’t a person reasonably assume from that, or reasonably understand that you were not assigned all of the duties in that email on a permanent basis, and once you were fully fit you would return to your original duties when you were able to perform them?‑‑‑Correct.”
Finally, Ms Bryan relied on the assertion that Ms Gasson had called into question the value that she was bringing to Red Shed. She stated:
“On 15 May 2025, I had a meeting with Monique which primarily regarded planning and equipment purchasing for our paraplegic rowers. However, at the end of this discussion, Monique raised that it was very difficult for me to function remotely in my role. She asked: ‘in the interim and even when you return for the hours that you are, how are we going to get value out of you? Because at the moment that challenge is getting value out of you that is useful’.” (Italics in original)
Under cross-examination, Ms Gasson disputed that she had used the words attributed to her, but did not deny that she had a conversation with Ms Bryan “about getting the right value out of her”.[22] However, this was in the context of ensuring that while Ms Bryan was working from home, she was engaged in productive and useful work and “focusing on tasks which are most important”.[23] I accept that evidence.
I am not persuaded on the evidence that Ms Gasson said anything that called into question whether Ms Bryan herself was adding value to Red Shed or otherwise doing “useful” work. As I have already observed, the evidence overwhelmingly reveals that Mr Gasson and Ms Gasson held Ms Bryan in high regard and recognised the contribution she was making to Red Shed.
Having regard to these matters, I am not satisfied that Red Shed failed to properly support Ms Bryan in respect of her workplace injury. To the contrary, the evidence reveals an employer trying to meaningfully engage with an injured employee and giving them appropriate work to do as they recover their fitness.
The dissemination of unfounded and defamatory statements to other employees
Ms Bryan’s case in this regard came down to the following assertions:
She was contacted by a member of Red Shed’s gym on 28 March 2025, who told her that they had heard other employees discussing her injuries, stating that “it was only a sprained ankle”.[24]
At a meeting on 1 April 2025, Ms Gasson had told her that some coaches had questioned why she could be travelling on Instagram but not be online for the business.
Ms Gasson told her in the same meeting that she had heard that Ms Bryan was looking for another job.
I fail to see how any of these statements could have been defamatory, much less have caused “significant damage to [Ms Bryan’s] professional reputation”. There is no evidence of such damage.
More particularly, though, none of the comments are attributed to Ms Gasson, Mr Gasson or anybody else with authority to speak on behalf of Red Shed. Under cross-examination, Ms Gasson denied ever indicating to any staff member that Ms Bryan may have been either faking her injuries or the injury was not as severe as she was indicating. The evidence simply does not support Ms Bryan’s contention.
Detrimental alterations to Ms Bryan’s role
To the extent that this contention rests on the changes to Ms Bryan’s hours of work and duties from 9 May 2025, I have addressed that above. I do not accept that those changes were “detrimental” in the way in which Ms Bryan now seeks to portray them. The changes were not made “in direct retaliation for [her] exercise of her entitlement to medical leave”; they were actions taken to accommodate her doing so.
The other matter on which Ms Bryan relied in this regard was the proposal by Red Shed to introduce a “Head of Rowing” position. Ms Bryan stated being told about proposal during the performance review meeting on 17 April 2025 made her concerned about her job security. She contended that at the least the new role would assume many of the responsibilities that she currently had, such that she would effectively be demoted.
The evidence does not support the proposition that Red Shed intended to replace the Head Rowing Coach position with the Head of Rowing one. Ms Gasson gave evidence that when Red Shed decided to create the Head of Rowing position, she drafted a position description for the role. She also updated the Head Rowing Coach position description to more accurately reflect the duties that Ms Bryan was performing than were described in her original position description. There was no suggestion that the roles would merge.
Further, Ms Gasson gave evidence that Red Shed had no intention to reduce the responsibilities of the Head Rowing Coach. She described the Head of Rowing as being more of a strategic, high level role than the Head Rowing Coach position. She stated under cross-examination:[25]
“The head of rowing is a different role. We’re a pretty new organisation, we only opened the doors last year and, to be honest, at the time we opened the organisation we probably only expected to need one or two full‑time staff. It’s grown a lot faster and better than we could have imagined and, as part of that, having the head of rowing role was a really strategic decision to increase our rowing from kind of dawn till dusk, rather than just beginning and end of the day, like it had been happening so far.”
Regarding her duties and responsibilities, Ms Bryan stated that the Head of Rowing position description largely reflected the work she was already doing and the responsibilities she already had as Head Rowing Coach. She regarded the revised Head Rowing Coach position description as demonstrating a diminution in her position.
Under cross-examination, Ms Gasson was taken through the position descriptions in some detail. She disagreed with the suggestion that Ms Bryan was at the time performing “a good portion” of the duties in the Head of Rowing position description[26]. She stated that of the 17 “key responsibilities” in the position description, there were four or five that Ms Bryan “was doing partially”.[27] Ms Gasson also disagreed that the revised position description for the Head Rowing Coach reflected a lesser role than that which Ms Bryan had been performing until that time.
I accept Ms Gasson’s evidence. I am not persuaded that the introduction of the Head of Rowing position would have had the detrimental effect on Ms Bryan’s position, status and responsibilities that she asserts.
It is relevant in this regard that Ms Gasson had made it clear to Ms Bryan that she could apply for the Head of Rowing position. Under cross-examination, she stated that she saw Ms Bryan as a potential candidate for the position and expected her to apply. Ms Gasson said that had she done so, she would have been genuinely considered for the role.
For these reasons, I am not persuaded that there were any detrimental alterations to Ms Bryan’s role in the manner she alleged.
The acceptance of the resignation
Ms Bryan took issue with Red Shed accepting her resignation with immediate effect. She stated:[28]
“Although I requested for an earlier termination date, however, did not mean that I wanted to leave on the day of. Given my injury and the time, I have worked with Red Shed, I did not expect for my request to leave early to be accepted and asked to leave on the day of. I would have liked at least a week if not two to clear out my work, ensure proper handover and support and maintain a proper relationship with the rest of my colleagues. I was shocked to receive this email terminating me immediately, as Monique and I had agreed to have a meeting tomorrow, 17 May 2025 to discuss when I would want to finish before anything was formalised.”
Ms Bryan submitted:[29]
“The Applicant expressed openness to continued discussion and instead was met with the abrupt waiver of her notice and immediate termination.”
I do not accept that submission. It flies in the face of the contemporaneous evidence.
In the outline of the factual context above, I have deliberately described in some detail the correspondence that Ms Gasson sent to Ms Bryan between 16 and 22 May 2025. The portions that I have highlighted in italics reveal that Ms Gasson made repeated efforts to engage with Ms Bryan regarding her departure date, but Ms Bryan did not respond.
Ms Bryan said that she was unable to respond as she “wasn’t very well”.[30] She otherwise described herself as being “pretty broken” and “mentally unwell”[31], a “shell of a person”[32], and “distraught”.[33] There is no medical evidence to corroborate those assertions. In any event, the evidence does not support a conclusion that Red Shed was responsible for any mental health issues from which Ms Bryan was suffering at the time. It does raise a question, though, as to why, in her email of 19 May 2025, Ms Bryan would rebuke Ms Gasson for not having had a conversation with her, when on her own evidence she was unable to participate in one.
A question might arise as to why Red Shed would have assumed that Ms Bryan would want to depart Red Shed immediately. Ms Gasson explained that she had been informed that Ms Bryan had applied for and succeeded in getting a job at the South Australian Sports Institute. She was told this by the person whose job Ms Bryan would be taking. She said:[34]
“Because I’d heard about the job in Adelaide I presumed she was keen to finish pretty much straight away.”
To a similar effect, Mr Gasson stated:[35]
“She asked for an early termination, so I assumed she had a good reason to terminate early.”
It is perhaps not coincidental that Ms Bryan accepted a job with the South Australian Sports Institute on the same day as she resigned from Red Shed.
In the circumstances, I see nothing nefarious in Red Shed proposing an immediate departure for Ms Bryan. It did not seek to impose that outcome on her. It is clear that it was open to a discussion regarding an early termination, and repeatedly asked Ms Bryan to engage in that regard. I do not accept Ms Bryan’s suggestion in her email to Ms Gasson of 19 May 2025, and in these proceedings, that she had “little option but to accept the terms as outlined”.
Other matters
Ms Bryan asserted that she had been bullied in her employment. The evidence does not demonstrate bullying.
For example, Ms Bryan described the performance review on 17 April 2025 as having been “a kick in the teeth”.[36] However, other than being upset that her performance had been called into question, Ms Bryan did not establish that the feedback was unbalanced or unfounded. The communications which followed as a result of that review, including from Ms Bryan, were professional and courteous in tone.
I also do not accept that Ms Bryan was “excluded” from the workforce. This assertion seems to arise from the contention that in her email of 9 May 2025, Ms Gasson instructed her to avoid contact with coaches. I have already dealt with this.
Conclusion
Ms Bryan resigned from her employment with Red Shed. For the reasons set out above, I am not persuaded that she was forced to do so because of conduct, or a course of conduct, engaged in by Red Shed. She did not contend that her employment had been terminated on Red Shed’s initiative. It follows that she was not dismissed within the meaning of section 386(1). Consequently, she was not entitled to make the application under section 365. The only appropriate order is that the proceedings be dismissed.
Order
The Application is dismissed.
COMMISSIONER
[1] Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [67]. See also Lipa Pharmaceuticals Ltd v Mariam Jarouche (2023) 324 IR 375; [2023] FWCFB 101 at [4].
[2] Saeid Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [75], citing Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
[3] Explanatory Memorandum for the Fair Work Bill at par 1530; City of Sydney RSL & Community Club Limited v Roxana Balgowan[2018] FWCFB 5 at [9] and [13]
[4] Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245; [2017] FWCFB 3941 at [47]
[5] Kylie Bruce v Fingal Glen Pty Ltd[2013] FWCFB 5279 at [23]
[6] Statement of Bethany Bryan, 18 July 2025, Annexure BB18
[7] Statement of Monique Gasson, 11 July 2025, Annexure MG-11
[8] Statement of Monique Gasson, 11 July 2025, Annexure MG-14
[9] Statement of Monique Gasson, 11 July 2025, Annexure MG-15
[10] Statement of Bethany Bryan, 18 July 2025, Annexure BB20
[11] Statement of Monique Gasson, 11 July 2025, Annexure MG-19
[12] Applicant’s Outline of Submissions on Jurisdictional Objection, par 3
[13] Transcript, PN167
[14] Kylie Bruce v Fingal Glen Pty Ltd[2013] FWCFB 5279 at [23]
[15] Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245; [2017] FWCFB 3941 at [47]
[16] Statement of Bethany Bryan, 18 July 2025, Annexure BB-4
[17] Statement of Bethany Bryan, 18 July 2025, par 12
[18] Statement of Bethany Bryan, 18 July 2025, par 28
[19] Statement of Bethany Bryan, 18 July 2025, par 48. The email is Annexure BB-16 to that statement.
[20] Transcript, PN274
[21] Transcript, PN494-PN495
[22] Transcript, PN285
[23] Transcript, PN287
[24] Statement of Bethany Bryan, 18 July 2025, par 17
[25] Transcript, PN154
[26] Transcript, PN241
[27] Transcript, PN243
[28] Statement of Bethany Bryan, 18 July 2025, par 65
[29] Applicant’s Outline of Submissions on Jurisdictional Objection, par 32
[30] Transcript, PN588
[31] Transcript, PN521
[32] Transcript, PN530
[33] Transcript, PN577
[34] Transcript, PN304
[35] Transcript, PN88
[36] Statement of Bethany Bryan, 18 July 2025, par 38
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