Ms Michelle Disney v Westpac - [2025] FWC 1708

[2025] FWC 1708

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Michelle Disney
v

Westpac

(U2025/4599)

COMMISSIONER WALKADEN

SYDNEY, 18 JUNE 2025

Application for unfair dismissal remedy - whether resignation forced by employer’s conduct - extension of time – application dismissed

This decision determines two questions. One, whether Ms Michelle Disney (the Applicant) was dismissed within the meaning of section 386 of the Fair Work Act 2009 (FW Act). Two, whether Ms Disney should be granted an extension of time pursuant to section 394(3) of the FW Act to make an unfair dismissal application against her former employer, Westpac Banking Corporation (the Respondent).

The question as to whether Ms Disney was dismissed arises in circumstances where Ms Disney resigned from her employment. Ms Disney contends that she was dismissed within the meaning of section 386(1)(b) of the FW Act. The application for an extension of time was sought in circumstances where Ms Disney filed her unfair dismissal application on 14 April 2025, which was 31 days after the date that Ms Disney asserts that her dismissal took effect. Ms Disney accepts that her unfair dismissal application was filed outside of the 21 day period specified in section 394(2)(a) of the FW Act, and for her unfair dismissal application to proceed that an extension of time is required under section 394(3) of the FW Act.

On 11 June 2025, both questions were the subject of a hearing before me. Ms Disney appeared for herself. The Respondent was represented by an in-house lawyer, Ms Georgie Richardson. In accordance with section 399 of the FW Act, and after taking into account the views of the parties, the matter proceeded as a hearing because I considered that a hearing was appropriate, and the most effective and efficient way to resolve the matter. Ms Disney gave evidence and was cross-examined. The sole witness for the Respondent was not required for cross-examination. All the evidence and submissions made by the parties has been considered.

For the reasons explained below, I have determined that Ms Disney was not dismissed within the meaning of section 386 of the FW Act. Notwithstanding that finding, I have considered Ms Disney’s application for an extension of time. I have decided not to grant the extension of time. For both of those reasons, I have dismissed Ms Disney’s unfair dismissal application.

First question: whether Ms Disney was dismissed within the meaning of section 386 of the FW Act

Legislation

Section 386(1) of the FW Act provides that 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.

It was accepted by the parties that Ms Disney was not dismissed within the meaning of section…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ms Michelle Disney v Westpac

Details

AGLC: Ms Michelle Disney v Westpac [2025] FWC 1708
Case: [2025] FWC 1708
Decision Date: 18 JUNE 2025

CaseChat Overview and Summary

The case involves a dispute between Ms Michelle Disney and Westpac Banking Corporation regarding an unfair dismissal application. Ms Disney applied for an unfair dismissal remedy under the Fair Work Act 2009, claiming she was forced to resign due to Westpac's conduct. The central legal issues were whether Ms Disney was dismissed within the meaning of section 386 of the Act and whether an extension of time should be granted for her unfair dismissal application, which was filed beyond the statutory 21-day period. The Fair Work Commission, represented by Commissioner Walkaden, held a hearing on 11 June 2025, where Ms Disney testified and Westpac was represented by in-house counsel.

The Commission found that Ms Disney was not dismissed as defined by section 386(1)(b) of the Act. The decision hinged on whether Westpac's conduct forced Ms Disney to resign, which the Commission determined it did not. Westpac's actions were deemed standard for investigating serious allegations of misconduct against Ms Disney. Ms Disney's resignation was voluntary, as evidenced by her explicit statement that it was a personal decision unrelated to the investigation. Consequently, the Commission found that Ms Disney's resignation was not forced by Westpac's conduct, thus dismissing her claim of unfair dismissal.

Additionally, the Commission considered Ms Disney's application for an extension of time to file her unfair dismissal application. Despite Ms Disney's argument that she miscalculated the 21-day period, the Commission found her reason for delay unremarkable and not exceptional. Other factors, such as Ms Disney's lack of action to dispute the dismissal and the merits of her application, further weighed against granting an extension of time. Given these findings, the Commission declined Ms Disney's application for an extension of time and dismissed her unfair dismissal application.

Orders