Ms Mariah Boon v Deadly Community Connections Pty Ltd
[2025] FWC 2201
•29 JULY 2025
| [2025] FWC 2201 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Mariah Boon
v
Deadly Community Connections Pty Ltd
(C2025/3259)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 29 JULY 2025 |
Application to deal with alleged contraventions involving dismissal – jurisdictional objection by respondent - whether applicant dismissed for the purposes of s.365 of the Act – objection upheld – application dismissed
Introduction
Ms. Mariah Boon (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act) alleging that she was dismissed by Deadly Community Connections Pty Ltd (Respondent) in contravention of Part 3-1 of the Act. The Respondent has objected to the application on the basis that the Applicant was not dismissed by them but voluntarily resigned her employment on 1 April 2025 (jurisdictional objection).
The question as to whether an applicant under s.365 has been ‘dismissed’ within the meaning of that term in s.365 is one that must be determined before the Fair Work Commission is able to deal with dispute under s.368 of the Act.[1]
For the reasons that follow, I have concluded that the Applicant was not dismissed from her employment by the Respondent on 1 April 2025.
Procedural background
Directions were made on 3 June 2025 for the filing of material by both parties to deal with the Respondent’s jurisdictional objection. The Applicant did not file anything in response to the directions and did not appear at the hearing of the matter on 28 July 2025. The Respondent filed a copy of the employment contract between the parties and five witness statements. The Respondent attended the hearing and the material provided by the Respondent was received into evidence.
Facts in brief
The facts of the matter can be briefly stated. The Applicant was employed by the Respondent on a permanent part-time basis as a senior youth worker from 4 February 2025. Issues began to arise between the parties in March 2025. On 26 March 2025 the Applicant had a telephone conversation with the Respondent’s Chief Executive Officer, Mr. Egan, to discuss email correspondence that had been sent by the Applicant. A meeting was arranged for 1 April 2025 with Mr. Egan and others from the Respondent to further discuss issues raised by the Applicant. The Applicant attended the meeting online.
The meeting commenced at approximately 12.40pm on 1 April 2025 and quickly degenerated. According to the Respondent’s witnesses, the Applicant was combative and rude and spoke over the top of others. Mr. Egan brought the meeting to an abrupt end after approximately 15 minutes. The Respondent’s evidence was that the Applicant said at the meeting that she would be resigning. I accept that evidence.
At 1.37pm on the same day the Applicant sent an email to the Respondent which included the following:
I am writing to formally give notice of my resignation. Please let me know how the timeframes work. This decision has not been made lightly, but it follows the serious concerns, issues, and safeguarding matters I have raised. I attended the meeting during my day off and took the time to present these matters, as you had requested. Despite this, I was met with a resistant and dismissive approach, which I found both disappointing and disheartening…
…
I can no longer remain in an environment where raising safeguarding and operational concerns is met with defensiveness instead of meaningful action…… Please ensure that my pay is calculated accurately, including tax, any outstanding hours, entitlements, personal and holiday pay owed.
I genuinely wish the young people, and the staff who remain dedicated to their care, all the very best moving forward.
After approximately one hour, the Respondent replied to the Applicant’s email by further email which included the following:
This email is to formally acknowledge and accept your immediate resignation from your position at DCC, effective today.
While we respect your decision to resign, it is essential to address the nature and manner in which this was communicated. Your resignation letter and behaviour during the meeting were both highly inappropriate, unprofessional, and combative…
…Your final payment, including any outstanding entitlements (personal leave, holiday pay, and hours worked), will be processed today. A payslip reflecting this will be sent to your personal email for your records.
We wish you all the best in your future employment and hope that you continue to develop your understanding of the Australian child protection system, legislation and responsibilities.
The contract of employment required the terminating party to give the other party one weeks’ notice. In the case of employee-initiated termination, the employee was required to give notice and work out the notice period. The Applicant did not work after 1 April 2025 and received her final pay for the period 31 March to 6 April 2025 from the Respondent on 8 April 2025.
According to the application filed by the Applicant, the Applicant did not intend to resign with immediate effect on 1 April 2025. The Applicant claimed in the application that she had been locked out of work accounts and systems shortly after the meeting ended and that the dismissal had been “framed as an immediate acceptance of (the Applicant’s) resignation.” The Respondent submitted that the resignation and termination was on the Applicant’s initiative and that they had not given the Applicant notice of termination or otherwise engaged in conduct that had the effect of dismissing the Applicant.
Consideration
Section 365 of the Act provides as follows:
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 386 of the Act sets out when a person is taken to have been dismissed for the purposes of s.365. It provides, relevantly:
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.
As the Applicant did not file evidence or submissions, it is unclear as to which of the forms of dismissal referred to in s.386(1) above are relied upon. Nonetheless the Respondent’s submission was that neither of subsections 386(1) applied to the present circumstances. I agree with that proposition.
There is no basis in the evidence to conclude that the Applicant’s employment was terminated on the Respondent’s initiative within the meaning of s.386(1)(a). The evidence shows that the Respondent attempted unsuccessfully to deal with the Applicant’s concerns through direct discussion. The Respondent did not take proactive steps to bring the employment of the Applicant to an end. It did not issue the Applicant with a notice of termination. The application suggested that the Applicant had been locked out of work systems immediately after the meeting came to an end but in the absence of evidence about that, the matter can be taken no further. Further, according to the application, the Applicant sent her resignation email just 34 minutes after the meeting had ended. This is consistent with what the Applicant said at the meeting about resigning her employment. The Applicant took the initiative and moved to formalise the termination of the employment relationship without any further discussion about her status after the meeting.
To the extent it might be said that the Applicant had not resigned by the email of 1 April 2025 and that the Respondent initiated the termination by accepting the correspondence as a resignation with immediate effect, I reject that proposition. Although the email said “Please let me know how the timeframes work” I do not think that, read in context, this changes the character of the email or the events that followed such that an employee-initiated termination became a dismissal. The Applicant was conveying that she was bringing the relationship to an end. Her inquiry as to how the timeframes worked was answered by the Respondent by accepting the resignation and implementing the terms of the contract of employment. Clause 13(e) of the contract provides that the employer may pay out the employee in lieu of the required notice period (being the 1 weeks’ notice required to be given by the employee under clause 13(b)) by paying a termination payment that includes an amount equivalent to the remuneration the employee would have been paid if they had worked the required notice period. The Respondent said the resignation was accepted and final payments would be processed immediately. The resignation took effect on 1 April 2025. Consistent with the contract, the payment in lieu of the notice period was paid shortly thereafter.
I am also of the view that the decision of the Applicant to resign could not be characterised as a ‘heat of the moment’ resignation as discussed in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v. Tavassoli.[2] This is because on the evidence, although the meeting was unpleasant if not acrimonious, I do not think that the Applicant was in such a state of emotional stress that the Applicant could not reasonably be understood as conveying a real intent to resign. The Applicant had also previously and relatively recently, expressed her intention to resign to the Respondent because, as the Applicant had put it, she did not ‘morally feel (she) could continue to be part of something that operates in this way.’ The Respondent said that the Applicant had, on 26 March 2025, commenced her shift at a later time because she was undertaking an induction with another agency/employer. The Applicant had in my view been contemplating (and acting on) a proposed resignation for some days before it was given.
There was nothing done by the Respondent which resulted directly or consequentially[3] in the termination of the Applicant’s employment. I reject the argument that the Respondent terminated the Applicant’s employment on the Respondent’s initiative. Section 386(1)(a) does not apply here. I turn then to consider whether the resignation on 1 April 2025 was a forced resignation for the purposes of 386(1)(b).
In Bupa the Full Bench described the test to be applied under s.386(1)(b) as follows:
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 (sic) 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.[4]
I am not of the view that the employer engaged in conduct with the intention of bringing the Applicant’s employment to an end. The evidence does not support such a conclusion.
I also do not think that termination of the employment was the probable result of the employer’s conduct such that the Applicant had no real or effective choice but to resign. The Respondent had convened a meeting in an attempt to constructively work through the Applicant’s issues. The attempt was not successful, but this did not mean that the Applicant had no other choice but to resign. The Applicant was not forced to resign by the conduct or a course of conduct engaged in by her employer.
The Applicant was not ‘dismissed’ within the meaning of s.386(1)(b).
The Applicant was not dismissed by the Respondent and the prerequisite to a valid application under s.365 has not been established. The Respondent’s jurisdictional objection is upheld and the application is dismissed.
DEPUTY PRESIDENT
Appearances:
No appearance by the Applicant.
Ms Curtin for the Respondent.
Hearing details:
By video using Microsoft Teams at 10am AEST on Monday, 28 July 2025.
[1] Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591.
[2] [2017] FWCFB 3941.
[3] Mohazab v. Dick Smith Electronics Pty Ltd [1995] IRCA 625.
[4] Bupa op cit at [47].
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