Thea Kay Slatyer v Chevron Australia Pty Ltd
[2025] FWC 2394
•15 AUGUST 2025
| [2025] FWC 2394 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Thea Kay Slatyer
v
Chevron Australia Pty Ltd
(C2024/7425)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 15 AUGUST 2025 |
Application to deal with alleged general protections contraventions involving dismissal - jurisdictional objection raised by respondent employer - whether there was a “dismissal” within the meaning of s.386(1)(b) of the Fair Work Act 2009 - applicant a female employee engaged by the respondent as an Area Inspector on the Gorgon Liquid Natural Gas Project (located on Barrow Island off the coast of Western Australia) - applicant resigned (in writing) due to asserted concerns involving gender bias, exclusionary behaviours, toxic workplace culture, and lack of support by employer - whether applicant was forced to resign in all of the circumstances - conduct of respondent employer considered - whether options or choices objectively available to the applicant other than resignation - no forced resignation - application dismissed
Ms Thea Kay Slatyer (Applicant) has filed a general protections involving dismissal application (Application) with the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that she was ‘dismissed’ (forced to resign) by her former employer, Chevron Australia Pty Ltd (Respondent), in contravention of Part 3-1 of the Act.
The Respondent has raised a jurisdictional objection. It says that the Applicant voluntarily resigned from her employment in writing, and that it did not “dismiss” her within the meaning of s.386(1)(b) of the Act.
A hearing was conducted over two days to resolve the Respondent’s jurisdictional objection. At the hearing, the Applicant appeared for herself, and Ms Rosemary Roach, Partner, Hall & Wilcox layers, appeared (with permission) for the Respondent.[1] Post the hearing, the parties each filed written closing submissions.
Factual background
The Respondent operates as an energy company, delivering oil, natural gas, and other energy products across Australia. One of the Respondent’s key projects is the Gorgon LNG Project, located on Barrow Island, being around 60 kilometres off the northwest coast of Western Australia (Gorgon Site).
The Applicant commenced employment with the Respondent on 29 August 2023 as an Area Inspector on the Gorgon Site, in the Fixed Equipment Integrity Team, on a two week on, two week off, roster. Whilst undertaking full time employment with the Respondent, the Applicant was also undertaking full time studies in engineering at university. The Applicant is a long serving member of NSW State Emergency Services (receiving a National Emergency Medal for her role in bushfire responses), an Australian Olympian, and a former Captain of the Australian National Women’s Football Team (the Matildas).
The Applicant resigned from her employment (in writing) on 11 September 2024, providing one month’s notice. Her last day of work with the Respondent was 27 September 2024.[2] The Applicant’s letter of resignation was addressed to Ms Rebecca Ricci, Human Resources Business Partner of the Respondent, and reads:
“Dear Rebecca,
It is with regret, that I am writing to formally resign from my position as Area Inspector with CVX [the Respondent]. This decision has not been made lightly, but after careful consideration of my personal and professional circumstances, I believe it is the best path forward.
As outlined in previous communications, my time at Gorgon site has been significantly affected by ongoing workplace culture and diversity and inclusion challenges. Despite my efforts to address these issues, I feel that they continue to impact my ability to contribute fully and effectively.
Given that we haven't reached a mutually agreeable resolution or relocation within CVX [the Respondent] despite our thorough discussions, I believe that resigning at this time is the best decision for my well-being and professional growth.
I am committed to ensuring a smooth transition during this period and will do everything I can to support the handover of my responsibilities. Please let me know how I can assist with this process. However, as I have indicated I am not comfortable returning to site, and I would like to utilise leave as appropriate.
Thank you for the opportunities and experiences I’ve gained during my time at CVX [the Respondent]. I wish the company continued success in the future. Additionally, I remain open to exploring potential future opportunities with CVX [the Respondent], should the right circumstances and timing arise.
Sincerely,
Thea Slatyer”[3]
The Applicant’s reasons for resignation are set out (or summarised) in her Form F8, at Item 3.1, which reads:
“I resigned on 11 September 2024 due to ongoing issues related to workplace culture, gender bias, exclusion, and lack of support.
The issues that led to my resignation accumulated over 12 months, starting from when I joined the Area Inspector team at Gorgon, a historically all-male and ego-driven environment. The behaviours I observed and experienced in this highly male-dominated workplace left me feeling unsafe, excluded, and unsupported. I was faced with systemic exclusionary and discriminatory behaviour.”[4]
It is necessary to set out the evidence surrounding the events that culminated in the Applicant tendering her written resignation on 11 September 2024. Whilst some of the matters that the Applicant relies upon occurred as far back as December 2023, the core focus is upon the time period on and after 14 August 2024.[5] I make the findings set out in paragraphs [9] to [22] below in this regard.
On 14 August 2024, the Applicant made a complaint (by email) to Mr Jamie Hislop, Gorgon Inspector Team Lead, copying in Mr Paul Bromilow, Gorgon Inspection Team Lead & ABU Chief Remote Pilot, which reads:
“Hi Jamie,
Last swing I approached you with concerns over repeated excluding behaviours and unconscious gender bias within the CVX inspection team, which have been occurring since I started the role here.
These included persistent gender labelling references to the area inspectors as “gents” (even though we are a gender mixed team), consciously leaving me out of relevant communications when all other area inspectors are involved and overlooking me as a member of the team on a reoccurring basis.
These references, be they unconscious or out of habit, such as “fellas” and “lads”, or language that includes referencing all male colleagues except me as area inspectors, have been made by both CVX staff in FE and various other teams, and also by contractors in the past on site. These all serve as microaggressions.
Nearly all instances, I have had to continually address and confront usually alone, and each time this has been an unpleasant and an unwelcoming experience - which as I mentioned is wearing me down mentally. Last swing alone I had to correct 4 male colleagues on 5 separate occasions to include me in their language. This is even after the "Better" workplace packs have been rolled out.
I felt that we had an open conversation and perhaps you possibly didn’t fully understand the impact it has on me or why, but I felt that you heard me at the time. I appreciate your own and Paul’s notable efforts in including me since I first raised this. However, after talking with some colleagues, I was disappointed to hear that none of these concerns were relayed to the team to try to improve things.
Today, I was excluded again, which Paul witnessed, which indicates that this behaviour is ongoing and not being addressed sufficiently.
I can confidently write that this culture is a significant contributing factor to the lack of diversity in the workplace, where retaining women is a focus for Chevron.
I value my job and the team very much but I am not enjoying working in this environment and this repeated behaviour despite attempted interventions, makes me feel undervalued, undermined and excluded.
Kind Regards,
Thea Slatyer”[6]
Mr Hislop and Mr Bromilow were both supervisors of the day-to-day Inspection Team on the Gorgon Site. They both report to Mr Phillip Ligertwood, Fixed Equipment Integrity Manager (who I understand is ordinarily located in the Respondent’s Perth office). Given that the Applicant worked across two different rosters, the Applicant reported to Mr Hislop and/or Mr Bromilow, depending upon the roster she was working and the cross-over or shoulder days between one roster or swing ending, and the other beginning.[7]
Arising from the Applicant’s 14 August 2024 email complaint, Mr Bromilow’s evidence as to what occurred on 17 August 2024, reads:
“20.On 17 August 2024 at around 5.45 am, Mr Langley approached me and informed me that he was concerned about the evident tension between Ms Slatyer and Mr Zollner.
21. At 7.00 am that day I asked Ms Slatyer to have a discussion with me regarding the email she sent to Mr Hislop on 14 August 2024. During this conversation, Ms Slatyer said to me that she felt as though no one in the team was saying ‘good morning’ to her. I said that I did not think that the team was intentionally trying to exclude her. I then suggested that we have a discussion with Mr Zollner and that we also invite an independent person, being Paul Tardent, Verification & Validation Coach. I said that she could also invite an independent person as well if it would make her feel more comfortable. She was agreeable to this and informed me that she wished for Haani Beswick, HES Specialist and who was previously the Chevron Lead Medic on site, to be present.
22. At around 2.30 pm on 17 August 2024, a meeting was held with myself, Ms Slatyer, Mr Zollner, Mr Tardent and Ms Beswick present. At the meeting:
(a)Ms Slatyer stated her concerns surrounding the incident where Mr Zollner was on the phone with the vendor and forgot to mention her name and gender bias more generally used.
(b)Mr Zollner stated that he didn’t know that he had offended Ms Slatyer at the time and did not intend to and he apologised.
(c)Ms Slatyer also raised the issue that she would appreciate more technical jobs and that work was currently affecting her university studies.
(d)Ms Slatyer also stated that she did not wish to chair the morning prestart meeting with the team. This is the normal arrangement that the Area Inspectors alternate chairing the pre-start meeting.
23. This meeting went for approximately 30 to 40 minutes.
24. During her employment with Chevron, Ms Slatyer was given inspection tasks that aligned with the degree she was obtaining in civil engineering. Her tasks were mostly in relation to structural inspections which I understood to be what she preferred. Having received the feedback that she preferred more technical duties, it was agreed at the meeting on 17 August 2024 that we would provide her with more technical inspections.
25. In the weeks prior to the meeting, Ms Slatyer had chaired some of the pre-start meetings with the smaller core crew while the other Area Inspectors were working on a turnaround. After I had run several of these meetings Ms Slatyer offered to help and alternately chair the meeting to which I said something like that would be appreciated and that would be a great development opportunity. From memory, Ms Slatyer chaired only one or two meetings before I finished my rostered swing, but I understand she continued chairing the pre-start meeting until the other Area Inspectors returned. Having received the feedback that she did not wish to chair these meetings, it was agreed at the meeting on 17 August 2024 that Ms Slatyer would not be required to chair pre-start meetings going forward.”[8]
On Sunday, 18 August 2024, the Applicant asked to be demobilised early (for personal reasons) from the Gorgon Site (i.e. prior to her roster swing ending).[9] In this regard, the email from the Respondent’s Medical Team Lead (Barrow Island – Gorgon LNG), Mr Drew Brbich, reads:
“Good afternoon Paul,
Thea Slatyer presented to the onsite medical centre today for review. It was a somewhat odd presentation as the doctor has described it to me, as there was no mention of a medical condition, symptoms or diagnosis of any condition as such (physiological or mental health related).
Following review and at request of the employee also, it was agreed that it would be best for the individual to be flown home for further management.
As per the site doctor’s request below, we have arranged for the team member to travel on tomorrow morning’s flight down to Perth, which you will see from the travel team’s confirmed itinerary.
In discussion with Ian Downey, as the employee is not incapacitated from work with illness, absence will need to be ratified via personal leave and it would be best to connect in with Rebecca Ricci on how that is best managed tomorrow.
Please note that the doctor did discuss the suitability of the provision of a medical certificate with the employee, but they declined and said that they were fine. Testament to this perhaps is the day worked today since consultation with the doctor this morning.
This does seem to be more of a people management matter as opposed to a health or medical item, however, please do let me know if I or any of my team are required for any further input on the issue.
I do know the employee is contemplating things further so if for any reason they decide to see the site doctor again to obtain a medical certificate, then that may alter the situation, but a certificate will only be forthcoming based on a relay of relevant symptoms to the doctor.
Best regards,
Drew Brbich, Medical Team Lead”[10]
The Applicant returned to Perth on 19 August 2024. She did not undertake any further shifts on the Gorgon Site post that date.
On 28 August 2024, the Applicant had a conversation with Ms Ricci. During that conversation, the Applicant raised concerns with Ms Ricci about repeated use of terms such as “guys” and “fellas” on-site, gender bias within her team, the allocation of work tasks, and feeling excluded and unsupported. She asked whether she could take extended leave without pay to focus upon her studies, move to another role, and/or move to another asset or site.[11] Ms Ricci advised that she would confer with management and come back to her as to what options, if any, were available.
On 5 September 2025, the Applicant was offered to work from the Respondent’s Perth office on a temporary basis (Offer).[12] The email to the Applicant in this regard reads:
“Hi Thea,
Thanks for our time on the phone.
As discussed with you, we would like to offer you the opportunity to work in the Perth
office on a temporary basis, for your next roster swing (216 hours), from 13 September
to either Monday 30/09/2024 (inclusive) or Tuesday 08/10/2024. Details of the temporary arrangement are outlined below:
a. The temporary arrangement is on an ‘hours neutral’ basis, meaning that you will complete your rostered hours, that being 216 hours. Please consider the option and let me know when you have decided.
b. You will be required to attend the Perth office, located at 1 The Esplanade, Perth, and (my preference) use the longer option of Monday to Friday so you can have the weekends off to study.
c. You will report to Michael Krachler – Gorgon Asset Integrity Lead, while you are temporarily based in Perth. Phillip Ligertwood will also be available for support and guidance.
d. For the duration of the temporary arrangement, you will retain your current site-based terms and conditions, as outlined in your Contract of Employment.
We want to support you during this time, with the aim of returning you to your site-based position for your following swing.
Could you please confirm that you agree to the above by responding to this email by
Monday 09/09/2024 CoB so I have time to adjust/cancel flights and work schedule.
As I mentioned to you on the phone, Chevron provides counselling and advice services to all employees through its Employee Assistance Program (EAP), BSS Corporate Psychology Services. Please contact them on 1800 30 30 90 should you wish to engage with this service.
In the meantime, if you have any questions or need to discuss anything further, please
feel free to contact me.
Take care and best regards
Jamie Hislop”[13]
The Applicant was dissatisfied with the Offer, and responded (via email, on 5 September 2024), as follows:
“Hi Jamie,
Thanks for your time earlier.
While I appreciate the effort to find a temporary solution, I am deeply disappointed that the company's response does not address the serious concerns I have consistently raised regarding exclusion, gender bias, and the lack of diversity at the Gorgon site. These issues have severely impacted my psychological safety, daily work, and studies, and I had hoped for a more meaningful resolution that focused on addressing these core concerns.
The temporary work arrangement does not provide any assurances that these ongoing issues will be resolved, and it instead focuses solely on fulfilling roster requirements and balancing hours owed. Additionally, as per our phone conversation there is an expectation after the temporary arrangement for me to return to the same site with no assurance that the behaviours I reported will not continue. I do not feel supported or safe in this environment, and it has become clear that the company's actions do not align with its stated values of inclusivity and diversity.
I would like to understand what action CVX [the Respondent] has or plans to take to address my complaint before I make a decision.
Thanks and regards,
Thea Slatyer”[14]
On 6 September 2024, the Applicant and Ms Ricci had a further conversation. Ms Ricci’s unchallenged evidence in relation to this conversation is as follows:
“On 6 September 2024, I had a conversation with Ms Slatyer over the phone. I reiterated the option presented regarding working in the Perth office. Ms Slatyer asked me why I had not contacted her. I replied that I had been in close discussions with Mr Ligertwood and Mr Hislop and that we had agreed that her direct supervisor was best placed to present the option to her. I stated the following to Ms Slatyer in this conversation:
(a)That she was a valued member of the team;
(b)That she was employed as a site-based Area Inspector;
(c)That the Perth office option was to provide her with some further time away from site in order to engage with Phil Ligertwood and to work through her concerns with the ultimate aim of getting her back to her role;
(d)That our primary aim was to provide support to her;
(e)That unconscious gender bias issues are an industry wide area of improvement that is going to take time and that we all need to work together to see that improvement;
(f)That if the Perth office option does not work, we can reassess and potentially discuss an option that provides a mixture of work and leave.
I also said to Ms Slatyer that she should take some time to think about the option over the weekend. I asked Ms Slayter if we could speak again on Tuesday the following week. Ms Slatyer stated that she would take some time over the weekend to think about the option.”[15]
On 10 September 2024, the Applicant and Ms Ricci had the following text message exchange:
MS RICCI: Morning Thea, will you be available around 3pm this afternoon for me to call? Thanks.
APPLICANT: Hi Rebecca sorry that doesn't work for me do you have any earlier availability today please?
If there isn't anything new to discuss and the only option remains a return to site, I don't feel that another conversation is necessary. I haven't yet seen any suggestions that address my concerns without placing the responsibility on me, when it really is the company's role to address the behaviours and culture I've raised. I'll be sending you my notice via email today, and I just wanted to give you a heads-up.
MS RICCI: Hi Thea, apologies for not responding sooner. While I don't have anything further to add following our discussion last week and email I sent, I would like to have a follow up discussion if you are available. I have time tomorrow morning between 830-9:30 if that suits? Thanks.[16]
On 11 September 2024, the Applicant and Ms Ricci had the following text message exchange:
APPLICANT: Morning Rebecca, sorry, I had a busy afternoon yesterday. No problems I'm available at that time.
MS RICCI: Hi Thea, no problem. I will call around 9. Thanks.[17]
Following that text exchange, the Applicant and Ms Ricci had a telephone conversation to the following effect:
“On 11 September 2024, I also had a conversation with Ms Slatyer over the phone. In that conversation I said to her that Mr Hislop, Mr Ligertwood and I recognised her concerns and want to support her and work through them which is why we offered the temporary Perth work to remove her from site for a bit longer. I also stated that if she felt that taking leave was more appropriate that Mr Ligertwood and Mr Hislop were supportive of that. I said that she was a valued member of the team and that we ultimately want to return her to the role of Area Inspector. I also mentioned that as for the wider cultural issues, that these would take time. Ms Slatyer responded by saying that the arrangement in Perth would mean that she would need to return to site in October and she didn't think that the culture would have changed by then and did not want to return.”[18]
Following the foregoing conversation (on 11 September 2024), the Applicant tendered her written resignation to the Respondent (see paragraph [6] of this decision).
Employees who work on site keep various personal effects (e.g. clothing, etc) in their room on-site. Upon Mr Bromilow becoming aware of the Applicant’s resignation, he moved to make arrangements for the Applicant to pack up her belongings at the Gorgon Site. However, he became aware that the Applicant had already packed up her belongings on 19 August 2024 (i.e. the day she last left site). His evidence in this regard is as follows:
“29. On or around 11 September 2024, I had a discussion with Rebecca Ricci of Human Resources who told me that Ms Slatyer had resigned.
30. Normally when an employee gives notice of resignation when they are off site, we have to make arrangements with Camp Administration and Security to pack up their room and return their personal belongings.
31. I had sent Ms Slatyer email and text messages to contact me to discuss packing up her room. As Ms Slatyer had not responded to my messages, I requested Steve Langley an Area Inspector and friend of Ms Slatyer’s to text her and ask about the things in her room. Mr Langley told me that Ms Slatyer had responded to him that the room was already packed up. Mr Langley had agreed with Ms Slatyer that he would collect the packed items from her room and organise to send to her address. I was surprised to learn that Ms Slatyer’s room was already packed as I had expected that Ms Slatyer would return to site after she left on 19 August 2024.”[19]
‘Dismissal’ under ss.12, 365 and 386(1) of the Act
Section 365 of the Act reads:
“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.”
Aside from consent arbitration, the Commission’s only role in a general protections involving dismissal application made under s.365 of the Act is to conduct a conference between the relevant parties (so as to assist them in attempting to resolve their dispute by agreement), or issue a certificate if a resolution is unable to be agreed (a certificate is a prerequisite to being able to progress a claim onto an eligible court for judicial determination). That said, the power to conduct such a conference and issue a certificate is provided for under the Act, and the Commission has no jurisdiction to conduct a conference, or issue a certificate post that conference (where resolution is unable to be reached), unless a ‘valid’ (or within jurisdiction) general protections involving dismissal application has been made. It is for the Commission to resolve any disputes or issues as to its jurisdiction in this regard for itself.[20]
Consistent with case law, I agree that the meaning of the term “dismissed” under s.365(a) of the Act is to be defined in accordance with the meaning of that term under s.12 and s.386(1) of the Act, and the applicable case law authorities in respect of same.[21]
Section 386(1) of the Act reads:
“(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.”
Voluntary resignations, and heat of the moment resignations
In normal circumstances, where unequivocal words of resignation are used or conveyed by an employee, an employer is entitled to immediately acknowledge the resignation (without further question) and act (or move on) accordingly.[22] Where a contract provides for resignation on notice, and a resignation is provided on notice, there is no requirement for an employer to ‘accept’ the resignation before it takes effect, i.e. a contractual right to bring a contract to an end on notice is exercisable unilaterally.
Once proffered, a resignation may not be withdrawn unilaterally by an employee; it may only be withdrawn with the mutual consent of the employer. In other words, a resignation cannot be proffered by an employee and then unilaterally withdrawn – the employer must always consent to its withdrawal.[23]
A communication of a resignation may not be legally effective (and instead be a “dismissal” within the meaning of s.386(1)(a) of the Act) where the resignation is made by an employee in a state of stress (or in the heat of the moment), and acted upon by an employer without confirmation of the employee’s intention within a reasonable time. [24]
‘Forced’ resignation – s.386(1)(b) of the Act
Under s.386(1)(b) of the Act, a forced resignation essentially occurs where an employee has no other realistic choice but to resign. The onus is upon an employee to prove that their resignation was ‘forced’ by their employer.[25] In other words, an employee must be able to prove on the balance of probabilities that his or her employer took relevant action/s with the intent, or objectively probable result, of bringing the employment relationship to an end.[26] The fact that a resignation may have been foreseeable, or a reasonable response to the actions of an employer, is not the test. Rather, the focus is upon whether the employee’s resignation was the “objective”[27] probable result of his or her employer’s action/s having regard to, or in light of, other avenues or options equally open or available to the employee (i.e. other than resignation).
In relation to case law principles that apply when considering whether or not a resignation falls within s.386(1)(b) of the Act, the Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd v Tavassoli[28] (Bupa) stated:
“It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in Liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.”[29]
In Wray v Essential Personnel,[30] the Full Bench of the Australian Industrial Relations Commission (AIRC) stated:
“No attack was made on Duncan DP's adoption of the principle crystallised in Mohazab. That principle is that for a resignation from employment to be conceived to be a termination of employment at the initiative of the employer, it is necessary that the act or conduct of the employer results directly or consequentially in the termination of the employment, and that the employment relationship is not voluntarily left by the employee. Notwithstanding the voluntary character of a resignation, the termination may be taken to be at the initiative of the employer if, had the employer not taken the action it did, the employee would have remained in the employment relationship, and if, because of the action or conduct of the employer, the employee had no effective or real choice but to resign.”[31]
In Doumit v ABB Engineering Construction Pty Ltd[32] (Doumit), the Full Bench of the AIRC stated:
“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.”[33]
In Rheinberger v Huxley Marketing Pty Ltd,[34] Justice Moore stated:
“However it is plain from these passages [in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200] that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct”.[35]
Whilst in O’Meara v Stanley Works Pty Ltd,[36] the Full Bench of the AIRC stated:
“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... 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.”[37]
After examining in detail the case law underpinning s.386(1)(b) of the Act, the Full Bench of the Commission in Bupa stated:
“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 probabl[e] 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.”[38]
As to the issue of s.386(1)(a) or (b) of the Act encompassing the concept of “constructive dismissal” (essentially based upon the acceptance of repudiatory conduct) the Full Bench in Bupa said:
“[49]We do not consider it is particularly helpful in applying s.386(1) to refer to the concept of “constructive dismissal” - an expression nowhere used in the FW Act. In saying this, we acknowledge that the expression has been used in a number of the authorities and also in the passage from the explanatory memorandum earlier quoted. However, as explained by Greg McCarry in his 1994 article “Constructive Dismissal of Employment in Australia”, the concept of “constructive dismissal” in UK law was not a development of the common law, but rather a description of a statutory extension to the ordinary meaning of dismissal to encompass a situation where “the employee terminates the contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct”. That is a much wider concept than just “forced” dismissal and is conducive of confusion, as McCarry warned:
‘If the forced resignation is now to be regarded as a dismissal, at least under some statutes, then so be it. But it is not and should not be called a “constructive dismissal”, nor should that term come to be regarded as a separate concept in its own right, as may be happening. To regard “dismissal” as including constructive dismissal without the aid of a definition of extension is reading a lot into a statute by English and Australian standards of statutory interpretation, although as we shall see American courts have had no trouble doing just that. Moreover, unnecessary or loose use of the phrase “constructive dismissal” brings with it the inevitable, and erroneous, tendency to draw on English judicial pronouncements and examples which arise in the quite different situation adverted to earlier. Given the way the extended definition in England is to be interpreted, all kinds of breaches of contract and repudiatory conduct, as determined by the common law rules, can legitimately come within the statutory extension. There are good reasons for arguing that similar definitions should be inserted into our statutes, but at the moment they are not there. So care is needed that decisions on the English regime are not misunderstood or misapplied.’
[50] In the different statutory context of the NSW unfair dismissal scheme in the Industrial Relations Act 1991, a Full Bench of the Industrial Relations Commission similarly warned in Allison v Bega Valley Council, in relation to forced dismissal,that the term “constructive dismissal” could “deflect attention from the real inquiry ... Did the employer behave in such a way so as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?” In the current statutory context of s.386(1), the breadth of the concept of “constructive dismissal” may cause confusion and deflect attention away from whether a dismissal within the meaning of paragraph (a) or paragraph (b) is being considered. That occurred in this case.”[39]
The foregoing conclusion of the Full Bench is consistent with the principle that a finding as to a forced resignation under s.386(1)(b) of the Act need not necessarily involve a repudiation, or even a breach of contract. As was stated by Anderson DP in Mariam Jarouche v Lipa Pharmaceuticals[40] (upheld on appeal in Lipa Pharmaceuticals v Mariam Jarouche[41]):
“Conduct or a course of conduct forcing a resignation is not required to be repudiatory or unlawful. It could, depending on the circumstances, simply be conduct such that, in an objective sense, it forced the employee’s resignation.”[42]
Applicant’s submissions on ‘forced resignation’
The Applicant says that during her employment she raised various concerns in relation to gender bias (around the use of gendered language),[43] exclusionary behaviour (such as being excluded from critical work communications, meetings, and handover documents),[44] being assigned ‘non-complex’ work,[45] her name being the only one not listed when her colleague named her entire team (the Area Inspector team) whilst speaking to a client,[46] and the ineffective implementation of the Respondent’s “Better” program (which was aimed at, and supposed to, improve workplace culture).[47]
She says that the foregoing concerns were ignored, not dealt with appropriately, and never properly addressed or rectified by the Respondent, over a period of 12 months. According to the Applicant, the failure of the Respondent to address her concerns was conduct, or a course of conduct, that ultimately ‘forced’ her to resign on 11 September 2024. In short, the Applicant’s position is that she resigned because she could no longer tolerate working in a ‘toxic’ and dysfunctional working environment,[48] where the Respondent had no plan for improving workplace culture, no commitment to training or education for those involved, and no tangible action plan to prevent future or similar incidents from occurring.[49] Put simply, the Applicant says that she had no ‘viable’ alternatives but to resign so as to remove herself from the Respondent’s workplace.[50]
Post the conclusion of the hearing, the Applicant (relevantly) made the following written closing submissions:
“Emergence of Hostile and Discriminatory Behaviour
Beginning in late 2023, I noticed persistent use of gendered language by my colleagues—words such as “gents,” “fellas,” “brothers,” and similar terms—used in email salutations, meetings, and day-to- day interactions. This biased language directly excluded me as the only female Area Inspector (or one of very few women) in the inspector teams. More critically, I was omitted from important tasks, communications, and project discussions, undermining my professional standing, over the course of my 12-month employment.
From December 2023 onward, I reported these issues to supervisors (including Mr Hislop and Mr Bromilow) and Employee Relations (including Mr Grace) and HR contacts (including Ms Ricci). Despite these reports, the behaviour continued. My repeated requests for management to issue group reminders of inclusive language, or to hold those responsible accountable, went largely unheeded, and there has been no record to support that [the Respondent] responded adequately to prevent the behaviour from continuing. In July and August 2024, the situation escalated when I was routinely excluded from critical team communications and team tasks and subjected to repeated references like “NDT brothers”, “gents”, “fellas”, “lads” for site-based teams, further marginalising me.
My Claim of Constructive Dismissal - No Real Choice but to Resign
[The Respondent] contends that I resigned unilaterally for personal reasons, including study commitments. However, the documentary and testimonial evidence demonstrates that I persistently attempted to remain employed and sought a safe, respectful, and inclusive environment. I repeatedly informed both my supervisors and HR that:
·I felt unsafe returning to the same site conditions (emails and texts between 28 August and 6 September 2024).
·I required real, substantive change on Barrow Island to address the team’s ongoing sexist and exclusionary culture. I repeatedly sought clarity which was ignored, as in my 5 September email to [the Respondent], where I asked, 'I would like to understand what action Chevron has or plans to take to address my complaint?’.
·A short break in the Perth office without any plan in place to address the issues, followed by a forced return to the same environment with no remedial action, was not a genuine solution.
By 10–11 September 2024, I had been made aware via text message from HR’s Ms Ricci, (refer evidence page 148 of DHB) and in the 9.00am phone call with Ms Ricci, (11 September) that no other option or workable arrangement would be offered by [the Respondent]. When I raised again that I could not safely or reasonably return to Barrow Island under the same circumstances, [the Respondent’s] HR confirmed verbally “you have to do what’s right by you,” effectively conceding no practical changes were in place. Consequently, I submitted my resignation on 11 September 2024, which was immediately accepted on 12 September with no further discussion or follow-up. Contrary to [the Respondent’s] claims that “alternatives were offered”, there is no evidence to support this.
Employer’s Conduct Causing the Resignation
Under Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941, an essential question is whether the employer’s conduct was of a nature likely to cause the end of the employment relationship. In my case:
·Systemic Gender Bias: [The Respondent] tolerated persistent use of gendered language, with supervisors and male colleagues regularly excluding me from relevant tasks or ignoring my role as an Area Inspector.
·Failure to Take Remedial Action: Despite multiple complaints - written, verbal, and escalated through both line management and HR - [the Respondent] did not investigate, discipline, or meaningfully re-train employees. “Things take time” was the repeated management refrain, but no interim measures to protect me or rectify the culture were introduced.
·Inadequate Alternatives: The only “alternative” was an offer of two weeks in the Perth office, then a return to site with the same teammates and no guaranteed improvement. My request for either a longer period away or a different rotation was refused or dismissed as “not commercially viable.”
[The Respondent] failed to offer any genuine alternatives beyond returning to site under the same conditions, demonstrating a lack of responsibility in addressing the reported issues. Despite repeated concerns and multiple proposed solutions, no alternative options were provided. I had explicitly stated in an email that I did not feel safe returning to site, yet [the Respondent] disregarded this and expected me to return without any assurances of change. This demonstrates that [the Respondent] was neither taking accountability for the issues raised nor recognising the serious impact on my wellbeing. Examples of reasonable steps that were available but not taken by [the Respondent] include:
·A formal response acknowledging receipt of complaints in July to August 2024 and outlining the next steps.
·Group communication to all inspectors reinforcing company expectations of professional language and behaviour.
·An investigation by HR or Employee Relations into complaints of gendered exclusion.
·Implementation of workplace inclusivity training or corrective actions.
·Commitment to policy enforcement, disciplinary actions, or cultural changes.
Taken together, these failures rendered my ongoing employment untenable. As the Commission has observed in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200, an employer’s inaction or inadequate action can, over time, create precisely the kind of coercive environment in which an employee sees no viable choice but to resign.
Hearings and Inconsistencies in [the Respondent’s] Defence
·During the hearings on 15 January and 30 January, [the Respondent’s] representatives displayed inconsistencies and provided conflicting statements about the company’s workplace standards and practices for respect. For example, during the hearings, I was typically addressed only by my first name, underscoring a subtle disregard compared to others being referred to respectfully in professional titles in the court such as Ms or Mr.
·Additionally, although [the Respondent’s] representatives claimed that a former contractor was banned for using gendered language, they simultaneously downplayed or overlooked similar ongoing behaviour exhibited by [the Respondent’s] employees. This stark inconsistency undercuts [the Respondent’s] claim to have acted promptly and appropriately in response to reports of sexist language and exclusion.
·[The Respondent] repeatedly relies on hearsay and verbal “discussions” in their statements to claim it acted appropriately or offered me alternatives, yet it has provided no documentary evidence to support these assertions. In contrast, the evidence submitted—emails, text messages, and other written records—shows the opposite: there was no prompt response or genuine set of options presented to me.
·[The Respondent] repeatedly claims that I refused or declined to make a formal complaint, which I vehemently deny. The available evidence clearly shows that I lodged multiple complaints - both verbally and in writing - to the FE Site Inspection team supervisors, Employee Relations, and HR in relation to the ongoing workplace behaviour. Despite these efforts, there is no indication that any formal investigation took place. In fact, while Employee Relations initially expressed an intention to investigate, they later withdrew from the process and deferred to HR, effectively abandoning any inquiry into my complaints.
The High Threshold for Constructive Dismissal Has Been Met
I acknowledge that constructive dismissal is not established lightly. The Commission has reiterated in cases like Davidson v The Commonwealth of Australia [2011] FWAFB 6265 that an employee must show there were no real, effective alternatives. I tried to work within [the Respondent’s] internal processes:
·Raising Complaints: I did so from December 2023 through August 2024, verbally and in writing.
·Attending Meetings: I participated in multiple meetings with supervisors, HR, and Employee Relations, hoping to see genuine action or a safer environment.
·Requesting Adjustments: I asked for a workable arrangement - longer time off, a rotation change, or a different assignment in which I would not face the same sexist attitudes.
[The Respondent] either dismissed or trivially addressed these requests, leaving me with the same toxic environment. Accordingly, I had no realistic path but to resign in September 2024. The Commission has recognised that an employee is “forced” to resign under s.386(1)(b) if an employer’s continued inaction or inadequate response to harassment, discrimination, or bullying makes continued employment intolerable (Adriana Zanoni v INA Operations Trust No.1 [2024] FWC 2737 also highlights the significance of the employer’s inaction over time).
Ongoing Repeated Behaviours as Bullying
Section 789FD of the Act defines workplace bullying as repeated unreasonable behaviour toward a worker that creates a risk to health and safety. By allowing repeated sexist remarks, failing to respond to formal complaints, and failing to implement effective anti-harassment measures, [The Respondent] subjected me to a pattern of bullying. In turn, it created a direct risk to my health, evidenced by stress, headaches, loss of sleep, and frequent medical consultations.
Despite clear medical evidence, including certificates confirming my condition uploaded to HR, HR refused to take action to protect my wellbeing. Instead, I was given an ultimatum: return to the same hostile environment or effectively forfeit my role.
Unconscious Bias and its Impact on My Wellbeing and Professional Standing
Over the final months on Barrow Island, I faced repeated unconscious bias.
Unconscious bias refers to attitudes or stereotypes that unconsciously affect our understanding, actions, and decisions. In my situation, the persistent use of gendered language (e.g., “gents,” “brothers,” and so forth) and the exclusionary attitudes I encountered demonstrate that unconscious - yet still discriminatory - bias was operating in the workplace, creating a hostile environment contrary to [the Respondent’s] own policies and the Fair Work Act.
·A key example of unconscious bias in my workplace came from my supervisor, Mr Hislop, who repeatedly downplayed my professional expertise—even after I clarified my qualifications during a 2024 performance meeting. Despite holding equal or greater credentials than male team members who were consistently held in higher regard, I felt compelled to keep re-proving my ability. Each time I reminded Mr Hislop of my background in corrosion engineering and pressure equipment inspection; he dismissed or minimised it. In his January 15 hearing testimony, he claimed I was mostly skilled in abseiling and climbing—contradicting both my CV (which he confirmed reading prior to hiring me in August 2023) and Mr Bromilow’s acknowledgment during the hearing, that I had substantial and relevant process plant inspection experience. This stark inconsistency underscores a persistent, unconscious bias that mirrored the lack of complex tasks I was assigned, forcing me to repeatedly justify my professional standing.
Over the final months on Barrow Island, other instances of hostility I faced included:
·Being spoken over or ignored in pre-start meetings.
·Failing to be assigned any high-value or more complex tasks, leading to stalling of my professional growth. I raised this with Mr Hislop in my performance meeting in 2024.
·Persistent microaggressions, such as male colleagues disclaiming, they were “the only Area inspectors” in the room and in the team, despite my presence.
·Persistent choice of gendered language in group emails by male staff, including the team lead Mr Hislop, where I was excluded by use of the terms “Gents”.
·Persistent use of verbal, gendered exclusionary language by male staff when addressing a group I was present in, such as “brothers”, “fellas”, “boys”, “lads”.
Such conduct directly contributed to my deteriorating mental and emotional well-being, undermining my confidence and capacity to perform. In essence, the environment was incompatible with my rights under the Act to a workplace free from discrimination and harassment.
***
Conclusion: Why the Commission Has Jurisdiction and Should Proceed
In my case, I contend that I satisfy the “balance of probabilities” threshold because:
·I made multiple complaints about ongoing exclusionary behaviour and gendered language, yet [the Respondent] did not take genuine or adequate steps to remedy the culture or protect me from further harm over the course of my employment. The sole “option” offered - returning to the same site after a short break - failed to address the core issues, leaving me with no reasonable or practical alternative to departure.
·[The Respondent’s] failure to investigate, discipline, or take corrective action against those responsible for repeated misconduct was a direct and material factor in my forced resignation.
·Taken together, these facts demonstrate that it is more likely than not that the conditions created by [the Respondent], through its conduct and omissions, were the decisive factors compelling me to resign—thus meeting the balance of probabilities standard under section 386(1)(b) of the Act.”
Respondent’s submissions on ‘forced resignation’
In rejecting the Applicant’s assertion that she was forced to resign, or left with no choice but to resign, the Respondent submits (in summary):
a) the Respondent has always been, and continues to be, committed to providing a safe and inclusive workplace for all employees;[51]
b) the Respondent at all times responded promptly, appropriately, and sensitively to the Applicant’s concerns,[52] including by:
i)taking steps to rectify any concerning behaviours that came to its attention (e.g. directing staff to use gender neutral language);[53]
ii)assigning the Applicant more technical (as opposed to structural) work (i.e. despite the Applicant’s work having been assigned to her on the basis of her qualifications, and not for other reasons)[54];
iii)by proposing suitable alternatives to the Applicant when she did not wish to return to site (i.e. by offering the Applicant the opportunity to relocate to the Perth office whilst continuing discussions about her concerns, with a goal of returning her back to site);[55]
c) the Applicant did not meaningfully engage with the offer to relocate (temporarily) to the Perth office. Indeed, her rejection of this offer was inconsistent with her overall position that she was forced to resign;[56]
d) despite the Applicant choosing to resign, the Respondent made genuine attempts to have her reconsider and reverse her decision (by providing further alternatives to keep her on). These proposals were rejected by the Applicant, reflecting that her decision to resign was voluntary. The Respondent thus had no alternative but to acknowledge the Applicant’s (own) decision to resign; and
e) the Applicant cannot show that her resignation was the objective probable result of the Respondent’s conduct, having regard to, or in light of, other options equally available to the Applicant other than resignation.[57]
Post the conclusion of the hearing, the Respondent (relevantly) made the following written closing submissions (footnotes omitted):
“General principles
14. The onus rests with Ms Slatyer to prove, on the balance of probabilities, that [the Respondent] took action with the intent, or with the objectively probable result of bringing the employment relationship to an end. The focus must be on whether the Resignation was the objective probable result of [the Respondent’s] conduct, or course of conduct, having regard to, or in light of, other options available to Ms Slatyer rather than resignation.
15. In determining whether termination was at the initiative of [the Respondent]:
(a) the Commission is required to undertake an objective analysis of [the Respondent’s] conduct to determine whether it was of such a nature that resignation was the probable result or that Ms Slatyer had no effective or real choice but to resign;
(b) regard must be had to what other options were available to Ms Slatyer rather than resignation; and
(c) where the decision to resign is based largely on the perceptions and subjective response of an employee made unilaterally, considerable caution should be exercised in treating the resignation as involuntary. What matters is what each party by their words and/or conduct, would have led a reasonable person in the position of the other party to believe at the time of the Resignation.
***
Concerns raised by Ms Slatyer during her employment
23. During her employment, Ms Slatyer raised concerns in relation to what she described as unconscious gender bias, the use of gendered language in the workplace and feeling excluded.
24. During cross-examination, Ms Slatyer confirmed that the evidence of examples of her experience in the workplace were those set out in her Response. Ms Slatyer asserted that there were other examples, but failed to provide any evidence of those examples.
25. As such, the relevant concerns were:
(a) concerns in relation to the use of gendered language in emails, with examples provided by Ms Slatyer;
(b) a concern in relation to Mr Eamon O’Hare regarding the use of gendered language in December 2023;
(c) a concern in relation to Mr Jay Waterhouse regarding the use of gendered language in August 2024; and
(d) a concern in relation to Mr Ashley Zollner in August 2024, which included [verbally] excluding her name from a list of Area Inspectors, the allocation of work, and alleged conduct at unspecified pre-start meetings.
Concerns in relation to gendered language in emails
26. Prior to resigning, Ms Slatyer collated emails in support of her contention that she was subjected to the systemic use of gendered language in the workplace.
27.The emails provided by Ms Slatyer, as evidence of Ms Slatyer being subjected to the systemic use of gendered language in the workplace:
(a) contained emails that were sent prior to the commencement of her employment with [the Respondent];
(b) were addressed to men and not women, and neither sent to Ms Slayter directly nor copied to her. Mr Hislop’s evidence in this regard was not challenged under cross-examination; and
(c) do not postdate March 2024, some six months before Ms Slatyer’s resignation.
28. Ms Slatyer’s contention that she was subjected to systemic use of gendered language in emails during her employment cannot be sustained.
Concern in relation to Eamon O’Hare
29. Ms Slatyer contends that her complaints were often left unresolved and ignored. The evidence shows that Ms Slatyer’s supervisors took prompt and reasonable steps in response to the concerns raised.
30. In an email dated 18 December 2023, Ms Slatyer raised an incident involving Mr Eamonn O’Hare in relation to what she says was Mr O’Hare’s ‘persistent use of gendered language.’ The email is titled ‘FYI discussion today - no action required’.
31. In cross-examination, Ms Slatyer agreed that on 18 December 2023 Mr Hislop replied to this email and Mr Bromilow replied to the email on 19 December 2023. Ms Slatyer further agreed that in their emails, both Mr Hislop and Mr Bromilow indicated that they would talk to Mr O’Hare in relation to the issues she raised.
32. Further, Mr Hislop’s unchallenged evidence was that he had a discussion with Mr O’Hare in relation to the issues raised by Ms Slatyer and that there were no further instances of Mr O’Hare using such language.
Concern in relation to Jay Waterhouse
33. The evidence shows that Ms Slatyer’s supervisor took prompt and reasonable steps in response to the concern in relation to Jay Waterhouse using the term ‘NDT Brothers’.
34. Ms Slatyer acknowledges that Mr Waterhouse apologised to her directly in relation to his use of the term ‘NDT Brothers’. Ms Slatyer denies that during this conversation with Mr Waterhouse she said words to the effect ‘It’s your white male privilege’. However, the steps taken by Mr Hislop to address the situation, were otherwise unchallenged.
Concern in relation to Ashley Zollner
35. In further support of her contention that Ms Slatyer’s complaints were left unresolved or ignored, Ms Slatyer alleges that she sent an email to Mr Bromilow and Mr Hislop on 14 August 2024 and that she did not receive a response from either Mr Hislop or Mr Bromilow.
36. Ms Slatyer provides no evidence of her raising any concerns in relation to Mr Zollner prior to 14 August 2024 other than to say that her concerns were raised ‘verbally’. The raising of such verbal concerns was not put to Mr Bromilow or Mr Hislop in cross-examination. Mr Bromilow’s evidence and Mr Hislop’s evidence was otherwise unchallenged in respect of when issues in relation to Mr Zollner were first raised.
37. During cross-examination, Ms Slatyer agreed that she attended a meeting on 17 August 2024, convened by Mr Bromilow and attended by herself, Mr Bromilow, Mr Zollner, Mr Paul Tardent and Ms Hanni Beswick. She further agreed that Mr Bromilow addressed the issues raised in Ms Slatyer’s email of 14 August 2024, although in her view it did not resolve them.
38. Ms Slatyer also conceded that there were multiple conversations between 14 August 2024 and 17 August 2024 in relation to the issues that she had raised. She further conceded that she was aware that Mr Hislop was not working during this period.
39. Similarly, Ms Slatyer stated in her Response that one of the ways that she was experiencing ‘exclusion’ was through not being assigned more technical jobs. During cross-examination, Ms Slatyer agreed that she had been allocated modular inspections prior to her resignation. In relation to modular inspections, Ms Slatyer explained that they are ‘a lot more complex. You’re inspecting the entire module on every level. You’re looking at all of the pressure equipment and auxiliary equipment, and all the supports, tubing, everything’ Ms Slatyer also agreed that at the meeting on 17 August 2024, it was agreed that she would be allocated tasks of a more technical nature.
40. Ms Slatyer was advised that she could make a formal complaint in relation to Mr Zollner. Ms Slatyer confirmed that she did not put in a formal complaint. Ms Slatyer’s evidence was that she said to Ms Ricci in relation to the offer to put in a formal complaint, not at this stage’
Other contentions in relation to the workplace
41. Ms Slatyer made a number of other assertions during the hearing that were not otherwise supported by any evidence filed by her, and contradicted by other evidence. For example, Ms Slatyer asserted that Mr Hislop was involved in the behaviours that she raised and that he contributed to the issues as to why Ms Slatyer left site. However, Ms Slatyer provided no evidence in support of this assertion. To the contrary, Ms Slatyer acknowledged in writing and orally the support that Mr Hislop had provided. In this regard it is noted:
(a) in her email of 14 August 2024 to Mr Hislop, Ms Slatyer stated:
‘I appreciate your own and Paul’s notable efforts in including me since I first raised this.’;
(b) she had said to Ms Ricci that her supervisors had been very supportive.
42. Ms Slatyer stated in her Response that ‘there was no plan for improving workplace culture, no commitment to training or education for those involved, and no tangible actions to prevent future incidents. Ms Slatyer agreed in cross-examination that this was her opinion. When asked whether she attended any BETTER training programs aimed at promoting gender inclusivity, among other topics, she confirmed that she had attended all of them.
43. Throughout her materials Ms Slatyer variously references a toxic workplace, bullying and that she was not ‘culturally safe’. Ms Slatyer has failed to provide any objective evidence to support such assertions. Ms Slatyer’s evidence cannot give rise to a finding of a workplace with systemic issues, a toxic workplace, or of bullying or of a workplace where she was not culturally safe as alleged.”
On the question of whether or not the Applicant had choices, at the time she resigned, other than resignation, the Respondent submitted:
(a) this was not a resign or be sacked scenario;
(b) the Applicant never made a ‘formal’ complaint with the Respondent about her concerns (under the Respondent’s written policies), despite being offered the opportunity to do so;[58]
(c) the Applicant had the ability to make an external complaint (or lodge an external claim, e.g. with the Fair Work Commission) about her concerns, but never did so; and
(d) the Applicant rejected the Respondent’s offer to work in the Perth office for a temporary period to facilitate more direct discussions with Mr Ligertwood about her issues and work towards a solution that would see her return to site. This was despite the Applicant being told on multiple occasions that she was a valuable team member, and that her supervisors wanted her to remain employed in her role on site.
In support of the foregoing submissions, the Respondent’s written closing submissions read (footnotes omitted):
“52. In her Response, Ms Slatyer stated that the option of working in the Perth office for two weeks, was unacceptable to her because it would have required her to work seven days per week, in a new role while preparing for end of semester exams In cross-examination it was put to Ms Slatyer that Mr Hislop’s email to her dated 5 September 2024 stated, ‘you will be required to attend the Perth office and, my preference, use the longer option of Monday to Friday so you can have the weekends off to study.’ Ms Slatyer admitted in cross-examination that this constituted a ‘longer option’ and that more than one option had therefore been presented to her during this period.
53. Further, Ms Slatyer submitted in her Response that she resigned due to the ‘absence of options presented to [her]’. However, during her cross-examination, she agreed that, in discussions with Ms Ricci prior to her resignation, Ms Ricci raised that additional leave could be explored if deemed appropriate, directly contradicting her earlier claim. Despite this, when Ms Slatyer cross examined Ms Ricci, she again asserted that ‘there was no option to take leave without pay’. This back-and-forth inconsistency in her testimony undermines the reliability of her evidence.
54. Despite rejecting the offer to have her allegations against Mr Zollner investigated, Ms Slatyer contends that it was unreasonable for [the Respondent] to not put her on the opposite swing to Mr Zollner, and claims that this would have been an option she would have taken instead of resigning. Not only was this not a commercially viable option for [the Respondent], this assertion contradicts her consistent position that she did not want to return to site at all as well as her claims that the issue involved multiple people onsite, not just one.
55. A forced resignation requires there to be ‘no other option’. The evidence shows that Ms Slatyer had multiple options available to her with the aim of retaining her employment.
Careful consideration and timing of resignation
56. Where there has been careful consideration prior to resignation, the resignation cannot be a dismissal for the purposes of s 365 of the Fair Work Act, as the employee has clearly made a decision to resign.
57. A resignation following careful consideration, consultation, or made at the employee’s own initiative is generally regarded as voluntary, and if the resignation was not immediate but occurred after such deliberation, it further supports this conclusion
58. In Adamson v Spotless Facility Services Pty Ltd ([2024] FWC 2341, at [14]), Commissioner Harper-Greenwell concluded that Ms Adamson’s resignation:
‘was not a dismissal at the initiative of the Respondent. There was a significant period of time that had passed between the events relied on by Ms Adamson and the date her resignation occurred. It is my conclusion that the termination was not done in haste but with careful consideration. Ms Adamson made the considered decision to resign from her employment. I am not satisfied that Ms Adamson had no other option but to resign as a result of the Respondent’s conduct. It is however understandable given her other unrelated mental health issues and the complex issues which had arisen during the employment relationship, Ms Adamson no longer had a desire to remain in her employment.’
59. There is a significant period of time between the events relied on by Ms Slatyer to support her contention that her continued employment was untenable and the date of her resignation:
(a) all evidence Ms Slatyer has provided of gender-based language used in emails are from no later than March 2024;
(b) Ms Slatyer’s concern in relation to Mr O’Hare was raised on 18 December 2023, She made no further complaints about this individual after December 2023; and
(c) Ms Slatyer concerns in relation to Mr Zollner or Mr Waterhouse were raised in August 2024. She did not then resign from her employment until 11 September 2024.
60. In cross-examination, Ms Slatyer agreed that there were thorough discussions between herself and [the Respondent] prior to her making the decision to resign from her employment.
61. Ms Slatyer has indicated at various points in her evidence that she was taking the time to make a decision or ‘make plans’. Namely:
(a) During cross-examination, Ms Slatyer admitted that on 5 September 2024, she forwarded an email to her personal email address ‘because [she] had a sense that [she] might not have access to [her] emails for much longer because [she] was considering resigning’.
(b) On 4 September 2024, Ms Slatyer sent a text message to Ms Ricci which stated; ‘Hi Rebecca, Any updates for me? I would really like to know where I stand so I can make plans if needed’; and
(c) On 5 September 2024, Ms Slatyer sent an email to Mr Hislop in which she states: ‘I would really like to understand what action CVX [the Respondent] has of plans to take to address my complaint before I make a decision.’
62. During questions from the Deputy President, Ms Slatyer confirmed that in her text message dated 4 [September] 2024 and email dated 5 September 2024 she was referring to making the decision of whether or not to resign. These communications were sent five and six days prior to her submitting her resignation.
63. Further, this decision was not made in haste or under the pressure of the employer. [the Respondent] had put before Ms Slatyer a proposal which she conceded was an attempt to keep her at work.
64. In her resignation letter, Ms Slatyer, referencing [the Respondent], wrote:
‘Despite our thorough discussions, I believe that resigning at this time is the best decision for my wellbeing and professional growth.
Conclusion
65. Ms Slatyer has failed to demonstrate any action on the part of [the Respondent] which could be objectively said to have put her in a situation where she had no choice but to resign. To the contrary, during her employment:
(a) Ms Slatyer was supported, including by being provided with flexibility to manage commitments outside of work;
(b) Ms Slatyer knew that she was a valued member of the team;
(c) [The Respondent] had in place measures to support its commitment to providing a safe, inclusive and respectful workplace;
(d) Ms Slatyer’s supervisors took prompt and appropriate steps to address concerns that were raised by her; and
(e) [The Respondent] presented Ms Slatyer with options as an alternative to resignation.
66. Instead, after careful consideration, Ms Slatyer decided to bring her employment to an end. The fact that Ms Slatyer was not satisfied with the options available to her, does not give rise to a finding of some conduct on the part of [the Respondent] which brought about her resignation.
67. For the reasons set out above, the Commission should be satisfied that it has no jurisdiction to exercise its powers under s.368 of the Fair Work Act.
68. As such, the Application should be dismissed.”
Consideration
The resolution of these proceedings requires focus upon the Respondent’s conduct, as against the Applicant’s concerns or complaints, so as to determine whether or not, in all of the relevant circumstances of this case, the Respondent had an intention to bring the Applicant’s employment to an end, or the Respondent’s conduct (acts or omissions) placed the Applicant in a position such that she had no real or effective choice but to resign.
Given the word “forced” is included in s.386(1)(b) of the Act, the test is not one that is based upon or around the concept of a ‘constructive dismissal’. Rather, the core focus is upon whether or not the employer’s conduct was ‘objectively’ the real and effective initiator of the relevant employee tendering their resignation (i.e. based upon other ‘choices’ equally available or open to the employee ‘at the time’ that they resigned). This is to be contrasted with an employee who is simply fed-up with an employer or the workplace that they find themselves in (for whatever reason), who determines to leave and move on to what are (ideally or hopefully) greener pastures somewhere else. In other words, the relevant employee has a choice to stay on (despite their dislike of management, colleagues, culture, or terms and conditions), or leave (including for their own personal, health (including mental health), family, lifestyle, or remuneration reasons). The ultimate negation of “choice” (that an employee must prove) is a high bar or threshold for an employee to cross. It is not to be concluded lightly, or via subjective considerations. As was stated in the case of Doumit:
“it is important that [this] 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.”[59]
Considered in further context, an employer has no ability (or power) to stop an employee resigning, i.e. an employer can only put forward suggestions or options for an employee to consider instead of resigning, with such suggestions or options ordinarily grounded or advanced by the employer based upon its own operational, and business, objectives and priorities. The important point being that any suggestions or options put forward to an employee at or around the time of their resignation go directly to, or cut across, whether or not it is to be objectively concluded that the relevant employee had no choice but (or was forced) to resign at the ‘time’ that they did.
I do not accept that the facts and circumstances of this case give rise to a finding as to an ‘intention’ by the Respondent to bring the Applicant’s employment to an end. Rather, the evidence as to the Respondent’s intentions is to the contrary. It follows that I must determine whether or not the Respondent’s conduct (or course of conduct) in this case gave rise to the Applicant having no real or effective choice but to resign. In resolving this question, my findings need to be based upon the objective (as opposed to subjective) evidence, with particular focus upon the ‘time’ that the Applicant resigned (i.e. as at the specific ‘time’ that the Applicant resigned (in this case, 11 September 2024), did she have no real or effective choice but to do so).
In my view, the evidence discloses that the Applicant raised legitimate concerns around her treatment in the workplace by some of her colleagues, and made relevant complaints about same. In advancing her case as to forced resignation, the Applicant contends that her concerns (raised consistently but sporadically over a 12 month period) were ignored, not adequately addressed, and/or were not followed up with appropriate corrective action by the Respondent. In relation to these contentions by the Applicant (grounded upon issues related to workplace culture, gender bias (conscious and unconscious), exclusion, and lack of support), I make the following findings:
(a) The evidence does not support a finding that the Applicant’s complaints as to conscious or unconscious gender bias were ignored, or were “dismissed or trivially addressed”. Nor does it support a finding that Mr Bromilow and/or Mr Hislop were unsupportive of the Applicant, or the concerns she raised with either of them. The evidence of Mr Bromilow and Mr Hislop (the Applicant’s supervisors) is that they took on board the Applicant’s concerns, and sought to ensure (to the extent they could) that further instances were not repeated.[60] The fact that the Applicant encountered further instances of unconscious gender bias (because certain individual employees unintentionally used gendered language during further workplace interactions), cannot (on the evidence before me) be sheeted home to the Respondent as a foundation (or part of a foundation) for a forced resignation. To be clear, the evidence does not support the Applicant’s contention that her concerns, requests or complaints were ignored, or dismissed, or only trivially addressed.
(b) The Applicant says that she was was “routinely excluded from critical team communications and team tasks”. The primary evidence surrounding this issue concerns the complaint made by the Applicant about Mr Zollner in mid-August 2024.[61] The evidence of Mr Bromilow is that he engaged with the Applicant’s concerns about Mr Zollner directly.[62] The fact that the Applicant remained unsatisfied, post 17 August 2024, about Mr Zollner (or his attitude, behaviour, or conduct), cannot (on the evidence before me) be sheeted home to the Respondent as a foundation (or part of a foundation) for a forced resignation.
(c) The Applicant contends that she was not assigned any high-value or more complex tasks, leading to the stalling of her professional growth. The only evidence in this regard, and of the Applicant raising the issue prior to her resignation, arises from a meeting on 17 August 2024, and it does not support the Applicant’s contentions.[63] As Mr Bromilow states: “[The Applicant] was given inspection tasks that aligned with the degree she was obtaining in civil engineering. Her tasks were mostly in relation to structural inspections which I understood to be what she preferred. Having received the feedback that she preferred more technical duties, it was agreed at the meeting on 17 August 2024 that we would provide her with more technical inspections.”[64] The short point here is that given the Applicant demobilised from site on 19 August 2024, the Applicant’s complaints about the allocation of tasks do not give rise (on the evidence) to a foundation (or part of a foundation) for a forced resignation. In other words, if the Applicant had remained employed by the Respondent and returned to site, there is no evidence to suggest that the Applicant would not have been allocated more technical inspections per Mr Bromilow’s evidence.
(d) The Applicant’s contentions as to a lack of support to deal with her concerns are not borne out on the evidence. The evidence of Mr Bromilow and Mr Hislop identifies that any concerns or complaints raised with them by the Applicant were respectfully considered, and engaged with. Whilst the Applicant does not accept that Mr Bromilow and Mr Hislop appropriately deal with her concerns or complaints, I do not consider that the evidence supports the view taken by the Applicant in this regard.
The Applicant has put forward examples of actions that could or should have been (reasonably) taken by the Respondent to resolve her concerns, as follows:
· A formal response acknowledging receipt of complaints in July to August 2024 and outlining the next steps.
· Group communication to all inspectors reinforcing company expectations of professional language and behaviour.
· An investigation by HR or Employee Relations into complaints of gendered exclusion.
· Implementation of workplace inclusivity training or corrective actions.
· Commitment to policy enforcement, disciplinary actions, or cultural changes.
The Applicant does not indicate whether or not the taking of these steps would have resulted in her not resigning. At a more specific level, I find that the objective evidence discloses that during her employment with the Respondent:
(a) the Applicant’s concerns or complaints did not go unacknowledged by the Respondent, and steps were taken to attempt to deal with the issues raised by her;
(b) the Applicant did not make a request for a formal investigation to occur, by human resources, or anyone else.[65] It is therefore not clear as to the basis upon which any disciplinary action against other employees could be initiated or maintained;
(c) there were communications to other employees on-site around the use of non-gendered language;[66]
(d) the Respondent did put on training, that required employee attendance at same, around improving workplace culture;[67] and
(e) whilst the Applicant did not consider it satisfactory, the evidence discloses that the Respondent repeatedly reiterated its commitment to the maintenance and enforcement of its policies and procedures amongst employees.
It follows from my findings in the foregoing paragraph that the Applicant’s examples of actions that could or should have been (reasonably) taken by the Respondent to resolve her concerns do not give rise (on the evidence) to a foundation (or part of a foundation) for her forced resignation.[68]
I make the following findings in relation to the ‘time’ that the Applicant tendered her resignation on 11 September 2024:
(a) the Applicant’s concerns centre upon her working (or continuing to work) on the Gorgon Site. The Applicant demobilised from the Gorgon Site on 19 August 2024 (pursuant to a request made by her (to Mr Bromilow) on 18 August 2024, and prior to her roster being completed). This was over three weeks before she tendered her resignation on 11 September 2024. At the time that she demobilised from site, she packed up and removed her personal belongings from site, indicating (as at 19 August 2024) that she did not (herself) consider that she would be returning to the Gorgon Site. Further, this was prior to the Applicant raising any of her more recent concerns with Ms Ricci of Human Resources;
(b) consistent with the Applicant’s view that she would not be returning to the Gorgon Site, on 28 August 2024, the Applicant requested Ms Ricci consider whether she could take extended leave without pay (to focus upon her studies), move to another role, and/or move to another asset or site;
(c) the Applicant’s suggestions of moving to another role, moving to another site, or moving to a different roster on the Gorgon Site (such that she would not come into contact with her existing supervisors) were not considered by the Respondent to be viable for its operations (at least, as at August/September 2024);
(d) the Applicant was offered an option to work from the Perth office for two to three weeks, and return to work on the Gorgon Site thereafter. It was envisaged that further solutions would be discussed and considered during this time in the Parth office with Mr Ligertwood. The Applicant was also advised that if the Perth office option does not work for her, a further discussion and reassessment could occur with an option that provides a mixture of work (on the Gorgon Site) and leave. These options were considered unsatisfactory to the Applicant as she did not wish to return to the Gorgon Site on her existing roster;
(e) the Applicant’s decision to resign was one that was under active consideration by her at least six to seven days before she actually resigned;
(f) the Applicant’s decision to resign involved consideration (at least in part) by her of her own personal circumstances concerning her on-going studies at university;[69] and
(g) the Applicant’s letter of resignation makes reference to her decision to resign being arrived at “after careful consideration of [her] personal and professional circumstances” and her belief that “it is the best path forward”, which “despite our thorough discussions” resignation “at this time is the best decision for my well-being and professional growth”.
Ultimately, the Applicant’s case as to forced resignation centres upon her desire not to return to work at the Gorgon Site, or to only return to work on the Gorgon Site if she was allocated a roster that did not involve her being supervised or otherwise interacting with Mr Hislop and Mr Bromilow (as she did not feel supported by them).[70] She considers that the Respondent was required to accommodate one of these options given her on-site experiences, and the complaints she made about same, which (again) in her view were not adequately addressed or otherwise resolved, and that there was no ‘plan’ in place for them to be resolved moving forward. In short, post being demobilised from the Gorgon Site, and prior to submitting her resignation, the Applicant was engaging in ‘negotiations’ with the Respondent around how she considered her employment arrangements with the Respondent would continue. The ‘counter offers’ from the Respondent in this regard were not acceptable to the Applicant, and she chose to end further negotiations around her continuing to remain in the Respondent’s employ, and resign (providing notice in accordance with her contractual obligations).
I find that the options reasonably (and objectively) available (or open) to the Applicant other than resignation (as at the time that she submitted her resignation on 11 September 2024) were:
(a) take up the Respondent’s offer of two to three weeks in the Perth office, and have further discussions as to options (other than return to the Gorgon Site) with Mr Ligertwood during that time. Whilst these discussions may have resulted in no further or alternative options being presented, there was also the possibility that other options would be identified (whilst she remained off-site);[71]
(b) engage in further discussions with the Respondent (through Ms Ricci, or others), in relation to a mixture of work and leave beyond what the Respondent was offering her as at 10/11 September 2024;[72]
(c) request a formal investigation occur, pursuant to the Respondent’s written policies and procedures, around her treatment and concerns with specific individuals at the Gorgon Site (or elsewhere);[73] and/or
(d) lodge an external complaint with a federal or state employment, discrimination or human rights (or alike) tribunal. In other words, State and Federal Parliaments have enacted a vast array (or a whole raft) of statutory provisions and protections for employees to utilise when they consider their work environment, or their treatment at work to, for want of better terms, to be ‘unfair’ or ‘unlawful’. Such statutory provisions and protections (in one form or another) are available for all employees to access via tribunals and/or courts. The ability to access same is not to be disregarded when considering whether (objectively) an employee had (or has) no other choice but to resign at the specific time they do. As at the time that she resigned (on 11 September 2024), there is no evidence of anything at all preventing the Applicant from making an external claim to an external body (that a relevant State or federal government has empowered and funded for such purposes).
In all of the circumstances of this case, as disclosed on the objective evidence, I find that the Applicant voluntarily resigned from her employment with the Respondent. In my view, the fact that the Applicant was not satisfied with the options available to her as at the time she resigned on 11 September 2024, does not give rise to a finding that:
(a) the Respondent engaged in any repudiatory conduct;
(b) the Applicant was placed under any duress to resign;
(c) the Respondent’s conduct, or the course of conduct engaged in by the Respondent, forced the Applicant to resign (within the meaning of the term “dismissal” under s.386(1)(b) of the Act); or
(d) the Applicant had no other options or choices, other than resignation, reasonably available to her.
Given that the Applicant was not “dismissed” by the Respondent, the Commission has no further jurisdiction to deal with the Applicant’s Application. An Order [PR790733] has been issued contemporaneously with this decision, dismissing the Applicant’s case.
DEPUTY PRESIDENT
Ms Thea Kay Slatyer (Applicant), appeared on her own behalf.
Ms Rosemary Roach, Partner, Hall & Wilcox lawyers, appeared with permission on behalf of the Respondent.
[1] See email from Chambers to the parties, granting permission for the Respondent to be legally represented generally in the proceedings, dated 22 November 2025; Transcript PN5-PN6.
[2] Form F8A, Item 1.2, at [5]-[6], Digital Hearing Book (Court Book (CB), p.47.
[3] CB, p.32.
[4] Ibid, p.24.
[5] APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ), at p.5: ‘‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’’ (cited with approval in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200, at 206)
[6] Ibid, p.65. See also Bromilow Statement, at [18], CB, p.59, and Hislop Statement, at [38], CB, p.73.
[7] Hislop Statement, at [8], CB, p.70. Bromilow Statement, at [8], CB, p.58. Transcript, PN579.
[8] Bromilow Statement, at [20]-[25], CB, p.60.
[9] Bromilow Statement, at [26]-[28], CB, pp.60-61.
[10] CB, pp.79-80. I note that there was some discussion (or dispute) during the hearing as to whether or not, and/or when, the Applicant provided a medical certificate in relation to her demobilisation. I do not consider this issue relevant in that the Respondent has not called into question the Applicant’s demobilisation from site, or her reasons for doing so. See Transcript, PN606-PN624.
[11] Ricci Statement, at [16]-[18], CB, pp.90-91. See also Ricci Reply Statement, Annexure RR-12, CB, pp.257-259.
[12] Ricci Statement, at [22], CB, p.91. See also Ricci Reply Statement, Annexure RR-12, CB, pp.257-259.
[13] CB, pp.146-147.
[14] Ibid, p.146.
[15] Ricci Statement, at [25], CB, pp.91-92. See also Ricci Reply Statement, at [9], and Annexure RR-12, CB, pp.255-259.
[16] CB, pp.148-149.
[17] Ibid.
[18] Ricci Statement, at [28], CB, p.92. See also Ricci Reply Statement, Annexure RR-12, CB, pp.257-259. Transcript, PN625-PN645.
[19] Bromilow Statement, at [29]-[31], CB, p.61.
[20] See the decision of the Full Federal Court in Coles Supply Chain v Milford [2020] FCAFC 152, at [74]-[75], and Lipa Pharmaceuticals Ltd v Mariam Jarouche[2023] FWCFB 101, at [3]-[4], and [23].
[21] In relation to the application of s.386 of the Fair Work Act 2009 (Act) to general protections involving dismissal claims, see Coles Supply Chain v Milford (2020) 300 IR 146, and Fair Work Ombudsman v Austrend International (2018) 273 IR 439. See also the discussion in Morris v Allied Express Transport [2016] FCCA 1589, at [116] and [117], and Searle v Moly Mines Limited [2008] AIRCFB 1088; (2008) 174 IR 21, at [17].
[22] Birrell v Australian National Airlines Commission (1984) 5 FCR 447; [1984] FCA 378. See also Ngo v Link Printing Pty Ltd (1999) 94 IR 375, Print R7005, AIRCFB (McIntrye VP, Marsh SDP and Harrison C), 7 July 1999, and the authorities cited at 377-378, [12]-[16]; Koutalis v Pollett [2015] FCA 1165; (2015) 235 FCR 370, at [44], citing Sovereign House Security Services Limited v Savage [1989] IRLR 115, at 116; Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245, at [35]; Mohazab v Dick Smith Electronics (1995) 62 IR 195, at 198.
[23] Birrell v Australian National Airlines Commission (1984) 5 FCR 447, at 458. See also Saddington v Building Workers Industrial Union of Australia (1993) 49 IR 323, at 336-337; Emery v Commonwealth [1963] VR 586; Australian Wool Selling Brokers Employers’ Federation v Federated Storemen and Packers Union of Australia (1976) 176 CAR 884.
[24] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245, at [35] (see also at [36]-[47]).
[25] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245. See also Bruce v Fingal Glen Pty Ltd (in Liq)[2013] FWCFB 5279, and Australian Hearing v Perry [2009] AIRCFB 680; (2009) 185 IR 359, at 367-368.
[26] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245, at [44] and [47]; Kylie Bruce v Fingal Glen Pty Ltd (in Liq)[2013] FWCFB 5279; Pawel v Advanced Precast Pty Ltd AIRC (FB), Print S5904 (12 May 2000).
[27] McGregor v Melbourne Equine Veterinary Group[2012] FWA 6712, at [37]; Morley v Intelitec Pacific Pty Ltd[2015] FWC 3168, at [40].
[28] [2017] FWCFB 3941; (2017) 271 IR 245.
[29] Ibid, at [34], footnotes omitted.
[30] [1996] AIRC 1880, Print N5682 (Munro J, Harrison, Lawson C, 14 October 1996). This print does not contain page or paragraph numbers.
[31] Ibid.
[32] Unreported, Print N6999 (Munro J, Duncan DP, Merriman C, 9 December 1996). This print does not contain page or paragraph numbers.
[33] Ibid.
[34] (1996) 67 IR 154, 31 December 1996.
[35] Ibid, at 160-161.
[36] AIRC Print PR973462 (11 August 2006).
[37] Ibid, at [23]. The references to the extracts from cases such as Rheinberger, Pawel, Mohazab and ABB Engineering are found at [19]-[22] of O’Meara v Stanley Works Pty Ltd.
[38] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245, at 269, [47(2)].
[39] Ibid, at 269-270, [49]-[50], footnotes omitted. See also Phillip Knight v Wattyl Australia Pty Ltd, PR974876, Deegan C, 8 December 2006, at [47]-[49], noting that s.386(1)(b) is intended to reflect case law applying prior to the Work Choices amendments, and MariamJarouche v Lipa Pharmaceuticals[2023] FWC 493, at [106] (upheld on appeal in Lipa Pharmaceuticals v Mariam Jarouche[2023] FWCFB 101).
[40] [2023] FWC 493.
[41] [2023] FWCFB 101.
[42] [2023] FWC 493, at [106]. See also Annette Megna v No 1 Riverside Quay (SEQ) Pty Ltd[2006] AIRC 519 (PR973785), 24 August 2006, at [16].
[43] Applicant’s Form F8 Application CB pp 33, 65, 173, 183-185; Transcript PN144, PN543.
[44] Applicant’s Form F8 Application; CB p 34.
[45] Ibid, CB, p.35. See also Transcript PN551.
[46] Ibid, CB, p.35.
[47] Ibid, CB, p.33.
[48] Transcript, PN59-60.
[49] Applicant’s Outline of Submission’s, at [16]; CB, pp. 171-172; Transcript, PN61-67.
[50] Applicant’s Outline of Submissions at [15]; CB, p.171.
[51] Respondent’s Outline of Submissions at [20](f)(iii); Witness Statement of Rebecca Ricci, at [9]-[10]. Transcript, PN695.
[52] Respondent’s Outline of Submissions at [5]; Witness Statement of Jamie Hislop, at [16]-[17], [26]-[30], [33]-[36], [42]-[43]; Witness Statement of Paul Bromilow dated 26 November 2024, at [15], [17]-[26].
[53] Witness Statement of Jamie Hislop, at [17], CB p.71.
[54] Witness Statement of Paul Bromilow, at [24], CB p.60.
[55] Witness Statement of Jamie Hislop at [42]-[43], Annexure JH-5; CB, p.82; Witness Statement of Paul Bromilow at [13]; CB, p.59; Witness Statement of Jamie Hislop at [18], [26], [28]; CB, pp.71-72.
[56] Respondent’s Outline of Submissions at [20](d); CB pp 56-57.
[57] Respondent’s Outline of Submissions at [16]; CB p 55.
[58] Transcript, PN184-PN185, and PN222.
[59] Cited at paragraph [33] of this decision.
[60] Bromilow Statement, at [12]-[25], CB, pp. 58-59, and 63-65. Hislop Statement, at [16]-[18], [26]-[30], and [33]-[36], CB, pp.71-73.
[61] Transcript, PN126-PN127.
[62] Bromilow Statement, at [17]-[25], CB, pp.59-60. Bromilow Reply Statement, at [7]-[12], CB, pp.216-217. Hislop Reply Statement, at [18]-[24], CB, p.220. Transcript, PN128.
[63] I do not consider that the Applicant’s contention as to the allocation of work tasks, made at CB, pp.35, 164, 175, and 195, are sufficiently particularised to warrant engagement by the Respondent beyond what is has done on the evidence it has tendered in these proceedings (see Bromilow Statement, at [17]-[25], CB, pp.59-60. Bromilow Reply Statement, at [7]-[12], CB, pp.216-217. Hislop Reply Statement, at [18]-[24], CB, p.220). Note also, Transcript, PN132 and PN136.
[64] Bromilow Statement, at [17]-[25], CB, pp.59-60. Bromilow Reply Statement, at [7]-[12], CB, pp.216-217. Hislop Reply Statement, at [18]-[24], CB, p.220. Transcript, PN129.
[65] See, for example, Transcript, PN184-PN185.
[66] Hislop Statement, at [44], CB, p.73-74, and at [51-[52], CB, p.74 and 88-89. Bromilow Statement, at [19], CB, pp.59-60. See also, CB, pp.250-253.
[67] Ibid.
[68] I equally concur with the Respondent’s Closing Reply Submissions, at 13 March 2025, at [5]-[13] (with footnote references to evidence and transcript), in this regard.
[69] Transcript, PN163-PN164.
[70] CB, p.148, and Ricci Statement, at [28], CB, p.92.
[71] Transcript, PN740.
[72] CB, p.259.
[73] CB, pp.105-109, and 131-142. Transcript, PN185, PN333, PN375, PN449, and PN800-PN811.
Printed by authority of the Commonwealth Government Printer
<PR790731>
0
19
0