1 Fair Work Act 2009 s.365—General protections A v BANK (C2025/7887) COMMISSIONER MATHESON SYDNEY, 27 FEBRUARY 2026 Application to deal with contraventions involving dismissal [1] Ms A (Applicant) lodged an application with the Fair Work Commission (Commission) to deal with a general protections dispute which she alleged involves dismissal. The respondent to the application is the Bank (Respondent). The Respondent objected to the application, submitting that the Applicant was not dismissed from her employment but rather resigned voluntarily on 24 July 2025. [2] A person may only make an application for the Commission to deal with a dismissal dispute under s.365 of the Fair Work Act 2009 (Cth)(Act) if they have been dismissed. To determine whether the Commission has the jurisdiction to hold a conference to deal with this dispute, the question of whether the Applicant has been dismissed needed to be determined as a threshold issue. [3] Section 386 of the Act provides: (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. (2) However, a person has not been dismissed if: (a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or (b) the person was an employee: [2026] FWC 526 DECISION [2026] FWC 526 2 (i) to whom a training arrangement applied; and (ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or (c) the person was demoted in employment but: (i) the demotion does not involve a significant reduction in his or her remuneration or duties; and (ii) he or she remains employed with the employer that effected the demotion. (3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part. [4] It is not in contention that the circumstances in s.386 (2) and (3) are not present in this case. Hearing and permission to be represented [5] A hearing was held on 11 November 2025 to determine the question of whether the Applicant was dismissed. The Applicant filed submissions on 2 October 2025, the Respondent filed submissions on 28 October 2025 and the Applicant filed submissions in reply on 4 November 2025. [6] Both parties sought to be represented by a lawyer and did not object to the other party being represented. The matter involves complex factual and legal issues involving a jurisdictional objection relating to the cessation of the Applicant’s employment and I was satisfied that the matter would proceed more efficiently if the Commission was assisted by lawyers familiar with the relevant jurisprudence. As such permission for the parties to be represented by a lawyer was granted pursuant to s.596(2)(a) of the Act on the grounds that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. [7] The Applicant gave evidence on her own behalf, filing two statements of evidence dated 1 October 2025 and 4 November 2025. Ms B, the Respondent’s Head of Group Investigations, gave evidence for the Respondent and a witness statement was filed in respect of Ms B dated 28 October 2025. Evidence and submissions [2026] FWC 526 3 [8] The Applicant commenced employment with the Respondent on 18 June 2018.1 The Applicant held various roles with the Respondent including the role of Branch Fraud Analyst.2 The last role the Applicant held with the Respondent was as a Fraud Detection Analyst3 which was accountable for: • proactively identifying and mitigating insider threats and internal fraud risks across the organisation; • leading the ‘Insider Risk Program’ which involved conducting investigations into serious misconduct and internal fraud, data exfiltration and stakeholder collaboration; • providing stewardship of internal fraud risk and driving awareness initiatives to educate employees on emerging threats and risk trends.4 [9] Ms B acknowledged that prior to 14 July 2025 the Applicant had been an exemplary employee. Dismissal of the Applicant’s partner and when this came to the Respondent’s knowledge [10] In 2017 the Applicant’s partner was dismissed from a bank that they worked at (Other Bank) following allegations of fraud.5 [11] During cross examination Ms B was asked questions about when and how she learned of this. Ms B indicated that one to two weeks prior to the Applicant’s return from leave on 14 July 2025 she received an email from her team indicating that fraudulent activity had been conducted by a third party who had a joint bank account with the Applicant and who was the Applicant’s named emergency contact. Ms B was asked how she knew the information was credible. Ms B responded that the head of the Other Bank’s Fraud Department advised the Respondent that fraudulent activity had occurred several years prior and they had concerns that there was money in an account matching the name of the Respondent’s employee. During cross examination Ms B gave evidence that as soon as she received the email from her team, she sought internal legal guidance. [12] Ms B was then asked what she did to investigate the allegations. Ms B indicated that she “looked into the Applicant’s employment and any activity that had been conducted around that time”, including looking into the Applicant’s accounts held with the Respondent. Ms B confirmed that the Other Bank had advised that it had not, at that time, reported the matter to law enforcement but confirmed that fraud had occurred. 14 July 2025 meeting between the Applicant and Ms B [13] On 14 July 2025 the Applicant: • returned from a period of annual leave; • received an email invitation to attend a meeting with Ms B at 12.30pm (14 July Meeting).6 [14] The Applicant gave evidence that she attended the meeting and after brief discussion about the Applicant’s holiday and children, Ms B asked the Applicant: [2026] FWC 526 4 • if she knew a particular person, with the Applicant indicating the person was the Applicant’s partner (Partner); • if she knew her Partner had been dismissed from the bank at which they worked, to which the Applicant indicated she did; • if she knew why her Partner had been dismissed to which the Applicant responded by saying she did not know exactly what had happened but that it was related to a legal matter; • if she knew what her Partner did, to which the Applicant indicated she did not; • if her Partner had been charged, to which the Applicant indicated: o she was not aware; o she and her Partner had sought legal advice at that time and were told not to disclose to any third party; o she and her Partner had not had any further updates since then.7 [15] The Applicant gave evidence that the conversation then proceeded as follows: Ms B: “I’m really disappointed in you that you did not disclose this very serious matter.” Applicant: “This is not my case I was told not to disclose the matter to anyone by the lawyer at the time and I am not involved in the matter.” Ms B: “Well, you should have told us about your [Partner] because you are in internal fraud in the bank.” Applicant: “I don’t have all the details, and I was not involved in the matter. How can I disclose on behalf of my [Partner]?” Ms B: “I am really disappointed that you did not reach out to myself, which you should disclose this matter.”8 [16] The Applicant gave evidence that: • Ms B said she had been through the Applicant’s bank account and asked about certain transactions; • Ms B asked whether she had any bank accounts with the Other Bank and whether the Applicant could see the balance, to which the Applicant indicated she did and could see the balances; • she disclosed to Ms B that she did not find out her Partner had been dismissed until two months after his dismissal and understood ‘the fund’ had been used for gambling; • she asked if she would be losing her job to which Ms B indicated she would need to speak to the human resources and legal teams for advice to determine next steps.9 [17] Ms B gave evidence that she prepared questions and took handwritten notes of the meeting which she subsequently typed up.10 Ms B attached copies of these to her statement filed with the Commission.11 Ms B gave evidence that the during the meeting the Applicant informed her that: [2026] FWC 526 5 • her Partner was dismissed from his employment with the Other Bank in 2017 for defrauding customers’ funds;12 • she was not aware of the fraud or dismissal until some time after her Partner was dismissed and was only made aware of these matters when she was notified that a ‘fraud stop’ had been applied to the joint account she held with her Partner approximately 3 months later; • it was a difficult time for the Applicant as her Partner and another family member had gambling problems and she was caring for her children at that time; • the Applicant did not benefit from her Partner’s fraudulent activities; • when the Applicant became aware of the allegations and her Partner’s dismissal she and her Partner sought legal advice.13 [18] Ms B’s evidence suggests that: • she made enquiries of the Applicant about transactions concerning the Applicant’s personal account with the Respondent;14 and • when she asked the Applicant why she had not disclosed the information when she took up her position the Applicant told her she had received advice not to tell anyone;15 • the Applicant asked why the matter was coming up after 8 years and Ms B said she was not sure why the Other Bank was raising the matter at that time; • Ms B told the Applicant she would need to get advice about next steps. 16 [19] During cross examination Ms B: • agreed that she likely asked about transactions spanning back to 2013 before the Applicant was employed by the Respondent; • indicated there were four specific types of transactions she was specifically looking into, being: o a payment made to a law firm; o credits coming in from the Applicant’s Partner; o cash credits coming in from a third party; o deposits coming in from eBay and third party companies; • indicated that the Applicant had explained that credits coming in from her Partner were for everyday living expenses. Meeting on 21 July 2025 [20] The Applicant took leave between 15 July 2025 and 18 July 2025 and obtained a medical certificate indicating she was unfit for work. [21] The Applicant gave evidence that on 17 July 2025, Ms B called her to check in, suggest that she take the rest of the week off and to let the Applicant know she needed to arrange a meeting to go through some further questions.17 [22] On Friday 18 July 2025 Ms B sent the Applicant an invitation to a meeting to be held on Monday 21 July 202518 and sent the Applicant a text asking if she had confirmed the meeting with her support person.19 The Applicant confirmed that she had arranged for her friend to attend and asked if the meeting was a disciplinary meeting and its purpose. Ms B responded [2026] FWC 526 6 that the purpose of the meeting was “to discuss next steps in the formal HR process”.20 During cross examination, Ms B was asked what the “next steps in the formal HR process” meant and Ms B indicated it was an opportunity for the Applicant to respond and inviting her to a show cause meeting. Ms B was asked whether she had considered telling the Applicant that the meeting was a show cause meeting as the Respondent was considering terminating her employment to which Ms B responded that the Respondent was not (considering termination) at that stage and wanted to proceed to a formal meeting. Ms B was then asked what the point of this meeting was and responded that the point was “to go through next steps as to where [the Respondent] was at in relation to [its] review based on the responses [the Applicant] had provided on 14 July.” It was put to Ms B that she could have provided the Applicant with a letter standing her down and Ms B responded that the Applicant wanted to meet in person. It was also put to Ms B that she was the one who arranged the meeting and Ms B responded that she told the Applicant that she wanted to speak to her and that this could occur over the phone or in person and the Applicant said she wanted to meet in person and would like a support person there. [23] The meeting took place on 21 July 2025 with Ms B, the Applicant and the Applicant’s support person in attendance (21 July Meeting).21 The Applicant gave evidence that during the 21 July Meeting Ms B said: “You are going to be stood down and the outcome is that your employment with the bank will be terminated”22 before handing the Applicant a letter (21 July Letter).23 The 21 July Letter included the heading “Opportunity to show cause” and: • referred to the 14 July Meeting indicating that during that meeting the Applicant disclosed that her Partner was dismissed from their employment with the Other Bank in 2017 and the circumstances of that dismissal; • stated that the Respondent had considered the potential risks the Applicant’s continued employment had posed to the Respondent in light of the information the Applicant had provided; • stated that the Respondent had identified transactions in the Applicant’s accounts that suggest financial activity that did not appear commensurate with her employment; • stated: “It is [Bank’s] view that it cannot continue to have the level of trust and confidence required to continue your employment and is therefore considering termination of your employment”; • stated that prior to finalising any decision in this regard, the Applicant was invited to show cause as to why her employment should not be terminated and that any response should be provided in writing by 24 July 2025; • indicated the Applicant would be suspended from duties on full pay, pending a decision.24 [2026] FWC 526 7 [24] The Applicant gave evidence that when she read the 21 July Letter she burst into tears and asked whether Ms B was going to let her line manager know that the Applicant was being stood down to which Ms B replied: “Yes, I will need to let your line manager know. If you resign before termination, it will be recorded as a resignation, and the bank will only tell any new employer the start and the end date and your position of employment. The reason for your resignation will not be disclosed”.25 [25] The Applicant gave evidence that she asked whether she would get her bonus, to which Ms B indicated she would need to check with human resources and Ms B invited the Applicant to ask questions, with the conversation continuing as follows before the Applicant left the meeting: Ms B: “I don’t know. It could be that no one in [the Other Bank] picked up the file or team restructuring. I know that [the Other Bank] are now going to send the matter to law enforcement, and it may bring media exposure to the bank.” Applicant: “I am not involved in the fraud, and I have no link to the matter.” Ms B: “You still have a joint bank account with [Partner] at [the Other Bank]”. Applicant: “I still have both a joint bank account and a single bank account with [the Other Bank]. My single account is not subject to any restrictions.” Ms B: “I suggest that you remove your name from the [Other Bank] joint account. Your [Partner] should pay the money back to [the Other Bank]. As the bank, you know we normally chase the payment back.” Applicant: “But I’m not responsible for his debt and I cannot control my [Partner].” Ms B: “The bank will definitely chase the money back from your [Partner]. I will give you an update when I hear back from human resources on your bonus if you resign”. Applicant: “Okay”.26 [26] Ms B gave evidence that during the 21 July Meeting she: • advised the Applicant she had considered the response she had given during the 14 July Meeting and sought advice about next steps; • confirmed that during the 14 July Meeting the Applicant provided information in relation to her Partner’s dismissal from the Other Bank; • advised the Applicant that the Respondent considered the potential risks her continued employment may pose to the Respondent, especially given her position, and that it was critical that the Respondent maintain trust and confidence in its employees; [2026] FWC 526 8 • stated that the Respondent had formed the view that it could not continue to have the level of trust and confidence required to continue the Applicant’s employment in her position, or the Respondent, and was considering terminating her employment; • advised the Applicant she would be suspended on full pay and would have the opportunity to provide written reasons why her employment should not be terminated; • did not tell the Applicant that her employment would be terminated as that decision had not been made and the Respondent was considering termination pending the Applicant’s response; • provided the Applicant with the 21 July Letter.27 [27] Ms B gave evidence that during the 21 July Meeting the Applicant subsequently: • asked what payments she would receive if she was dismissed compared to if she resigned, to which Ms B responded that she would need to check with human resources; • asked what information would be given to a prospective employer, to which Ms B responded that the only information provided would be the Applicant’s role and service dates, regardless of whether she resigned or was dismissed; • said she loved her job and reiterated that the events occurred eight years ago; • asked Ms B what she thought would happen next to which Ms B indicated that the matter was serious and if the events had occurred at the Respondent, it would be referred to law enforcement which may lead to media exposure; • asked Ms B how she should protect herself moving forward with Ms B saying words to the effect that if it was her and her name was on a joint account, she would be trying to contact the Other Bank to remove herself from the account.28 [28] During cross examination Ms B said that leading up to the 21 July Meeting she had notes for the call she had with the Applicant on 17 July 2025 and the 21 July Letter setting out what she wanted to speak to the Applicant about. Ms B’s handwritten notes appear to be in two parts. The first part of the notes record the following and it is apparent they are in respect of the call Ms B had with the Applicant on 17 July 2025: • “Dale – call”, “2.49 pm” and “17/7/25” • “wellbeing check in” • “meeting to discuss next steps” • “person or over the phone”. The second part of the notes appear to be in respect of the 21 July Meeting and state: • “trust and confidence”; • “potential risks on continued employment with [the Respondent]”; • “it’s our role to minimise any risks to the group and our customers”; • “invited to show cause” • state two dates being “4pm 23 July 2025” and to the right “24/7”; • “suspend from duties, pending decision” • “confidential”. 29 [2026] FWC 526 9 During cross examination Ms B indicated that these notes were in preparation for a show cause meeting. [29] During cross examination Ms B was asked why the Applicant was being asked to show cause in circumstances where the events were alleged to have occurred eight years prior, there had been no civil or criminal proceedings and the allegations were untested. Ms B responded by saying she explained to the Applicant in the 21 July Meeting that: • the Respondent had taken her responses from the 14 July Meeting into consideration; • trust and confidence was critical; • the Respondent needed to protect customers and, in this regard, needed to assess any ongoing risk that the Applicant’s employment would expose the Respondent to. [30] During cross examination Ms B agreed with the proposition that a person with a partner who allegedly took money from a bank and gambles was a “massive risk” for the Respondent. Ms B was also asked whether a person with a partner who allegedly took money from a bank and gambles and did not disclose this meant her position was untenable to which Ms B indicated she did not agree, that there was an opportunity for the Applicant to respond but that there was definitely a risk to the organisation given the Applicant’s position. [31] During cross examination Ms B was asked whether she agreed that during the 21 July Meeting she discussed (with the Applicant) that the Respondent had formed the view that it could not continue to have the level of trust and confidence required to continue her employment. Ms B agreed and noted this was consistent with the 21 July Letter issued to the Applicant. Ms B was asked whether she agreed that it was fundamental to the employment relationship that she had trust and confidence in her employees and Ms B indicated she did agree. It was put to Ms B that trust and confidence (in the Applicant) was gone. Ms B did not directly respond but said “which is why we gave [the Applicant] the opportunity to respond”. It was put to Ms B that she had already made the decision (about the Applicant’s employment) but Ms B did not agree. It was then put to Ms B that the meeting on 21 July 2025 was merely an attempt to force the Applicant to resign but Ms B did not agree. [32] During cross examination Ms B was asked when she was first required to recall the 21 July Meeting for the purposes of preparing her statement. Ms B indicated that she took notes of the 21 July Meeting. Ms B indicated that the notes at Annexure CH-8 of her Statement were her handwritten notes from the 21 July Meeting. Those notes state “DL/Sharon Meeting”, are dated 21 July 2025 and state “Thur 24/7 4pm” but then proceeds to make reference to resignation and other matters. The notes are of little assistance and it is likely that Ms B largely relied on the content of the 21 July Letter to explain to the Applicant what was happening before the issue of resignation came up and the Applicant made enquiries about her entitlements on resignation and whether a reference would be provided. [33] Ms B maintained that a decision about the Applicant’s employment had not been made at this point. During cross examination Ms B was asked how this could be reconciled with the statement in the 21 July Letter that: “It is [Bank’s] view that it cannot continue to have the level of trust and confidence required to continue with your employment…” [2026] FWC 526 10 to which Ms B responded to the effect that the Respondent was taking the Applicant’s views into consideration before it made a decision. [34] It was put to Ms B that the Applicant was faced with a stark choice – to resign or be terminated, but Ms B did not agree. Events on 22 July 2025 [35] Ms B gave evidence that on 22 July 2025 she emailed the Applicant a copy of the 21 July Letter confirming the Applicant was invited to provide a response by 24 July 2025.30 [36] A copy of an email from Ms B to the Applicant dated 2 July 2025 was attached to Ms B’s statement31 and stated: “Thanks for your time yesterday. Please find attached a copy of the letter which I issued to you yesterday in person (password sent by SMS). Following on from your question yesterday in terms of financial payout, I have since confirmed the details with HR. I can confirm regardless of if your employment is terminated or if you resign prior, you will be entitled to 4 weeks’ notice period, plus any outstanding annual leave or leave entitlements. Please note, that you will not be entitled to your STVR annual performance related pay. … Prior to finalising any decision., you are reminded to respond in writing as to why your employment should not be terminated, no later than 4pm on 24 July 2025.” Consideration of other positions [37] During cross examination Ms B was asked whether she considered moving the Applicant to a different position outside of the fraud team to which she indicated she did have a discussion “under legal counsel” about other opportunities for the Applicant given the high risk role she held with the Respondent. Applicant’s resignation on 24 July 2025 [38] On 24 July 2025 the Applicant sent her resignation to the Respondent via email to Ms B (Resignation Email) stating: “As discussed in our meeting on 21 July 2025, I agree it would be in our best interest to bring our working relation to a close on mutually agreed terms, and I write to formally submit my resignation from my position as Detection Analyst at [Bank]. Given the circumstances of my resignation, if possible, it would be helpful if [Bank] can formalise the terms of my departure, i.e. my final entitlements and confidentiality [2026] FWC 526 11 provisions (confidential matters that not related to my performance), by way of a separation deed, a letter or otherwise. I look forward to hearing from you in this respect. In any event, I am grateful for the opportunities and experiences I have had during my time here and appreciate the support and guidance provided by you and the team. Thank you for your support and understanding.”32 [39] The Applicant gave evidence that she felt she had no choice [but] to resign because Ms B had said that the outcome would be termination and she needed to ensure she could obtain future employment as she supported her family financially.33 [40] On 25 July 2025 Ms B responded to the Applicant’s Resignation Email and stated “Thank you for your resignation dated 24 July 2025. I understand your need to make the best decision for you. This email is to confirm your resignation is accepted effective 24 July 2024. In line with your employment contract, we will pay you 4 weeks notice in lieu. We do not propose to enter into mutually agreed terms or without prejudice discussions in the circumstances. I will organise your resignation in the system and will give you a call regarding return of equipment and any questions you may have regarding final pay. …”34 [41] Ms B denied placing the Applicant under any pressure to resign or telling the Applicant that her employment would be terminated and gave evidence that as at the date of the Applicant’s resignation, no decision had been made in respect of the Applicant’s ongoing employment.35 Submissions [42] The Applicant submitted she was “constructively dismissed”36 and that the question for the Commission is whether the conduct, or course of conduct, engaged in by the Respondent demonstrates that the Applicant was left with no reasonable choice other than to resign.37 In this regard, the Applicant submitted that the onus is on the employee to prove that they did not resign voluntarily.38 [43] During the hearing the Applicant indicated that it sought to rely on both s.386(1)(a) and s.386(1)(b) of the Act. [44] The Applicant submitted that the matter has similarities to Mohazab v Dick Smith Electronics Pty Ltd (No. 2)39 in which an employee suspected of stealing was given the option of resigning or facing the police and resigned. In that matter the Court found: [2026] FWC 526 12 “On the finding of fact that the respondent directed the appellant to resign or have the police “called in”, it is our view that what occurred was a termination of employment at the initiative of the employer. When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee’s initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee. According to the appellant’s evidence which as we have said the Registrar accepted, and preferred where it conflicted with evidence adduced by the respondent, the respondent told the appellant that it would have the police “press charges” against him. He was placed in a situation designed to induce him into resigning on the basis that he would be relieved of having to go through the ordeal of a police investigation. An unstated consequence of benefit to the respondent was that, in turn, it would be relieved of an obligation to the appellant to conduct a procedure that gave a fair opportunity to the appellant to answer any allegation made against him before the respondent terminated the appellant’s employment if it decided so to act. It was not a real option for the appellant to respond to the respondent’s ultimatum by electing to face a police investigation where there was an operative inducement that resignation would save the appellant and his family from the embarrassment that would ensue from an investigation. In so far as the ultimatum offered the choice of resigning it was not in the circumstances a real choice”.40 [45] The Court went on to say: “The termination of the appellant’s employment was not at his initiative. It was a resignation obtained by the respondent by an ultimatum designed to achieve that objective.”41 [46] The Applicant submitted that the Applicant was forced to resign because: • she was told by Ms B “You are going to be stood down and the outcome is that your employment with the bank will be terminated”; • she was told that “if you resign before termination, it will be recorded as a resignation, and the bank will only tell any new employer the start and the end date of your employment”; • she was informed that “[Bank] will not disclose the reason for your resignation”;42 • the Applicant needed to work to financially support her family and needed to ensure she could obtain future employment.43 [47] The Applicant also submitted that the Respondent engaged in the following course of conduct that forced her to resign:44 • the Respondent asked the Applicant about her Partner’s activities and transactions in her bank account without basis; • the Respondent incorrectly assumed the Applicant must have known about her Partner’s conduct and incorrectly asserted without any foundation that the Applicant had a duty to disclose; [2026] FWC 526 13 • on 14 July 2025 the Respondent proceeded to question the Applicant about transactions in her bank account which took place eight years after the alleged conduct by her Partner at the Other Bank; • the Respondent “ambushed” the Applicant about the untested allegations concerning her Partner’s alleged conduct and her own bank transactions in circumstances where those alleged activities have never resulted in criminal or civil proceedings; • the Respondent called a further meeting on 21 July 2025 and told the Applicant that the outcome of the investigation would be termination and then discussed resignation; • the Respondent’s did not provide procedural fairness to the Applicant.45 [48] The Applicant also pointed out that in the 21 July Meeting, Ms B: • admitted that she spoke about the potential risks the Applicant’s continued employment posed for the Respondent; and • said “[Bank] had formed the view that it could not continue to have the level of trust and confidence required to continue the applicant’s employment in the Position, or [Bank] and was considering terminating her employment”.46 [49] The Applicant submitted that while there was a dispute about what was said, the better view given termination was discussed, the Respondent had formed the view that it could not continue to have the trust and confidence required to continue the Applicant’s employment and Ms B said the words claimed by the Applicant, i.e. “the outcome would be termination”.47 [50] In its closing submissions the Applicant also pointed to the statement in the 21 July Letter in which the Respondent communicated its view that it “cannot continue to have the level or trust and confidence required to continue [the Applicant’s] employment” and submitted that from this point the relationship was effectively over. In closing submissions, the Applicant also submitted that trust and confidence is at the heart of the relationship, without it there is no employment relationship and there was a repudiation of the employment contract by the Respondent. The Applicant pointed to the 21 July Letter in this respect. [51] In closing submissions, the Applicant submitted that she was faced with a “stark choice” to either resign or see her employment terminated. By way of context the Applicant submitted she had two children, needed employment and resigned because the Respondent adopted a course of conduct that forced her to do so. In closing submissions, the Applicant described that course of conduct as including “two ambushes” asking about events taking place as early as 2013 and being provided with a show cause letter for not disclosing matters her lawyer advised her not to disclose. [52] The Respondent submitted that the Applicant was not dismissed from her employment within the meaning of s.386(1) of the Act.48 The Respondent noted the Applicant was asked to show cause as to why her employment should not be terminated and rather than responding to the show cause notice, on 24 July 2024 the Applicant gave notice of her intention to resign.49 [53] The Respondent also relied on Mohazab v Dick Smith Electronics Pty Ltd (No. 2)50 and submitted that in respect of s.386(1)(a) a “forced resignation” occurs when an employee has no real choice but to resign.51 The Respondent submitted that the Applicant was not forced to [2026] FWC 526 14 resign but voluntarily chose to do so and in in this respect submitted the evidence establishes that: • Ms B did not advise the Applicant that the outcome of the disciplinary process would be termination; • during the 21 July Meeting Ms B advised the Applicant that she would be suspended from her employment on full pay and would have the opportunity to explain in writing why her employment should not be terminated; • during the 21 July Meeting the Applicant asked questions about her future employment prospects and what payments she would receive if her employment was terminated compared to if she resigned, to which Ms B advised she would need to confirm with human resources and revert; • the show cause process had not completed and no decision had been made in respect of the Applicant’s employment prior to receiving her resignation email on 24 July 2025.52 [54] The Respondent submitted that inviting the Applicant to show cause does not constitute conduct or a course of conduct on the part of an employer that could reasonably be considered to have forced the employee to resign.53 [55] During closing submissions the Respondent emphasised that the Commission’s remit in the matter is narrow and it is only deciding whether there had been a dismissal within the meaning of the Act and that the remit was not concerned with the process that led up to the alleged dismissal and as such the points raised by the Applicant about the “ambush” and process are only relevant insofar as they are alleged to be the course of conduct of the Respondent. [56] During closing submissions and with reference to Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli54, the Respondent submitted that the focus of s.386(1)(a) is the employee and s.386(1)(a) is concerned with resignation in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. The Respondent submitted that these circumstances usually arise in the meeting itself but in the circumstances of the current matter: • there was a meeting • two days passed • clarification was provided that payment would be the same on either resignation or termination • a further two days passed • a resignation was provided in writing clear and unambiguous terms which does not say anything about being forced • there was no evidence of emotional distress during that period that would have rendered the decision as involuntary • following the resignation there was no attempt by the Applicant to communicate that the resignation was forced or that she did not mean to resign or wanted to come back. [57] The Respondent submitted that s.386(1)(a) was not the real focus of the matter and the focus was on the conduct of the employer which is relevant to a consideration of s.386(1)(b). [2026] FWC 526 15 [58] In reply, the Applicant maintained that it relied on s.386(1)(a) and: • pointed to a report of a psychologist filed with the Commission indicating that the Applicant was very distressed;55 • submitted that the Applicant was not in a good state when the 21 July Meeting was held and 21 July Letter was provided. [59] With reference to s.386(1)(b) and Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli56, the Respondent submitted that the Respondent did not engage in conduct with the intention of bringing the employment relationship to an end. Rather, it submitted that: • some initial concerns were raised that were of interest to the Respondent in the context of an employee working in the fraud detection area and about which the Respondent was entitled to be concerned; • the Respondent brought those concerns to the attention of the Applicant in an informal manner; • Ms B provided support to the Applicant throughout the process in the form of phone calls and text messages; • notice was given of a show cause meeting as well as the option of conducting it in a less confronting manner, i.e. over the phone, but the Applicant chose the option of attending in person with a support person [60] The Respondent submitted that this is distinguishable from circumstances such as those in Mohazab v Dick Smith Electronics Pty Ltd (No. 2)57 in which there was an ambush in a single meeting, a threat made and the employer drafted the resignation without a support person in attendance. The Respondent submitted that Ms B did not engage in the conduct with the intention of bringing the employment relationship to an end but was rather raising issues of great concern to the Respondent with the Applicant, giving her an opportunity to respond and the Applicant had that opportunity but elected to resign. [61] The Respondent submitted that Commission should reject the Applicant’s evidence that Ms B said that the “outcome would be termination” during the 21 July Meeting, because: • the Applicant bears the onus on that question; • the Applicant did not call her support person as a witness; and • Ms B gave clear evidence that this did not occur. [62] In response to the Applicant’s submission that the employment relationship was effectively over when the Applicant was given the 21 July Letter in which the Respondent communicated its view that it “cannot continue to have the level of trust and confidence required to continue [the Applicant’s] employment”, the Respondent submitted the employee had an opportunity to convince the Respondent that confidence could be restored and the claim that the employment relationship had ended at that point is contrary to the process adopted. Was the Applicant dismissed? [2026] FWC 526 16 [63] It is clear that on 21 July 2025 the Respondent expressed the view that it “cannot continue to have the level or trust and confidence required to continue [the Applicant’s] employment and” was “therefore considering termination of [the Applicant’s] employment”. The Respondent invited the Applicant to show cause as to why her employment should not be terminated. While the Applicant submitted that from this point the relationship was effectively over, the Applicant remained employed at that point. It was the resignation that brought the relationship to an end when it did and the question of whether the Applicant was dismissed should be considered in that context. [64] The Applicant indicated in her submissions that the Commission needs to determine whether the Applicant was forced to resign because of conduct, or a course of conduct, engaged in by the Respondent. During the hearing the Applicant indicated that it sought to rely on both s.386(1)(a) and s.386(1)(b). [65] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli58 the Full Bench observed that the usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment.59 The Full Bench gave further consideration was to the relevant authorities and said: “[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows: (1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer. (2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign.Unlike the situation in (1), the requisite employer conduct is the essential element. [48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of [2026] FWC 526 17 resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self- represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.”60 Was there a dismissal within the meaning of s.386(1)(a) of the Act? [66] Section 386(1)(a) of the Act provides that person has been dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative. Prior to the inclusion of s.386(1)(a) in the Act, the meaning of “termination at the initiative of the employer” was considered in: • Mohazab v Dick Smith Electronics Pty Ltd [No 2]61 in which the Court said: o without formulating an exhaustive of what is termination at the initiative of the employer, that “plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship”; o “When an employee has no effective or real choice but to resign it can hardly be said that the termination of his or her employment is truly at the employee’s initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee;” • O’Meara v Stanley Works Pty Ltd62 in which the Full Bench of the Australian Industrial Relations Commission said, having considered the relevant authorities, that in its view there needed to be: “some action on the part of the employer which is either intended to bring the employment to an end or has the probably 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”. [67] Considering the decision in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli63 and the findings of the Full Bench about the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, a question arises around whether the resignation is not legally effective because it was expressed in the “heat of the [2026] FWC 526 18 moment” or whether the Applicant was in a state of emotional stress or mental confusion such that she employee could not reasonably be understood to be conveying a real intention to resign. [68] The Applicant filed a copy of a medical certificate dated 16 July 2025 that indicated she was “suffering from a medical illness” and would be unfit for work between 16 July 2025 and 18 July 2025. The Applicant was also provided access to the Respondent’s employee assistance program around this time. The Applicant filed a copy of a psychologist’s report dated 26 September 2025 which states, among other things, that: • the Applicant was “recently forced to resign from her work under some circumstances that did not warrant resigning, and which she is trying hard to come to terms with”; • the Applicant “is extremely distressed”; and • “the impact of [the Applicant’s] dismissal has been very severe as she feels it being totally unjust”; and • the Applicant “has not been able to get a job which might distract her a little from the sever impact of recent events”. [69] However the Applicant was aware of the matters in the 21 July Letter from the time of the 21 July Meeting and was emailed a copy of the 21 July Letter on 22 July 2025 as well as an explanation about what her entitlements would be on resignation as she had requested. In seeking clarification about her entitlements on resignation as compared to dismissal, it is apparent that the Applicant was considering resignation in the period between 21 July 2025 and 24 July 2025. The Applicant had until 24 July 2025 to provide a written response as to why her employment should not be terminated but decided to resign instead. The Applicant’s resignation email is clear and unambiguous about the Applicant’s intention to resign, and the Applicant did not attempt to withdraw the resignation. The Applicant concludes in her Resignation Email: “In any event, I am grateful for the opportunities and experiences I have had during my time here and appreciate the support and guidance provided by you and the team. Thank you for your support and understanding.” [70] While I accept the circumstances would have caused some stress for the Applicant and the psychologist report suggests the Applicant has experienced distress following the cessation of her employment, the evidence does not establish that the resignation was given in the “heat of the moment” or that her mental state was such that she could not reasonably understood to be conveying a real intention to resign. [71] I find there was no dismissal within the meaning in in s.386(1)(a) of the Act. Was there a dismissal within the meaning of s.386(1)(b) of the Act? [72] The next question for determination is whether the Applicant was “forced” to resign from her employment by conduct, or a course of conduct, engaged in by the Respondent. As noted above, the Full Bench in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli64 considered the relevant jurisprudence and stated that the test to be applied is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s [2026] FWC 526 19 conduct such that the employee had no effective or real choice but to resign. This is expressed in slightly different terms than the formulation in O’Meara v Stanley Works Pty Ltd65 that “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”, (emphasis added) however it is apparent that Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli66 was summarising the authorities in the context of resignation and there is nothing in the decision suggestive of an intention to depart from the principle in substance. [73] The Commission and Australian Industrial Relations Commission have previously considered cases in which an applicant has alleged dismissal in the content of resignation during a disciplinary process. In Pacific National (NSW) v Ashley Charles Bell67, a Full Bench of the Australian Industrial Relations Commission found that an employee’s resignation was voluntary and that he was not terminated at the initiative of the employer when: • the employee made his decision after discussion with his union delegate and seeking the advice of the union Secretary; • the employee confirmed his resignation in writing and did not withdraw it; • the employee signed a “Termination of Employment & Confidentiality Form” showing “Resignation” as the reason for termination;68 • the employee understood from the outset that his action in falsely signing a timesheet potentially put his employment in jeopardy;69 • no one from his employer either directly or indirectly told the employee that it intended to terminate his employment,70 but rather said that “it’s serious business” and the employment “may be terminated”.71 [74] In Moore v Woolworths Group Limited T/A Big W72 an employee resigned after they had become aware of an unsigned, draft termination letter through the unauthorised actions of a manager acting outside of proper procedure.73 Commission found that the applicant was not dismissed pursuant to s.386(1)(b) of the Act in circumstances where: • the show cause process undertaking by the respondent had not come to a conclusion; • the respondent had not implemented any decision regarding the applicant; • the applicant had not become aware of the unsigned, draft termination letter through any formal channel that could be considered as the applicant being advised of the respondent’s final decision.74 [75] In that matter Deputy President Lake found that there was no reliable evidence that the respondent engaged in conduct that involved compulsion and proceeded to say: “…It would be a perverse outcome to consider an objectively fair investigation and show cause process as imposing forcibly upon the Applicant that they must resign.” 75 [76] I agree with this statement. In many show cause processes, the probable result may indeed be dismissal, including in circumstances where an investigation has been undertaken and findings of misconduct have been substantiated that are of a very serious nature. In such circumstances an employee may understandably seek to resign to exercise control over the way [2026] FWC 526 20 in which their employment concludes. It cannot have been intended that an employee who resigns during a disciplinary process should always be considered to have been dismissed if the termination of their employment is the probable result of that process. [77] Even where an employee holds concerns that an investigation or disciplinary process is procedurally flawed and tenders their resignation on that basis, it may not necessarily result in a dismissal when the conduct of the employer is considered objectively. In Piakis v KDR Victoria Pty Ltd T/A Yarra Trams76 an employee was suspended and informed there would be an investigation into allegations of unsafe driving and that if the allegations were substantiated the conduct constituted serious misconduct.77 The employee attended a meeting to respond to the allegations and on 9 July 2025 was informed that the allegations had been substantiated and that the employer was considering termination of his employment.78 The employee participated in a show cause meeting in which he read from a prepared statement indicating that he felt the investigation was flawed, rushed, prejudiced and pre-determined and that he believed he had been treated unfairly, discriminated against and victimised and was suffering distress and mental anguish.79 The meeting was adjourned so the manager could consider the information provided by the employee, during that break the decision was made to terminate the employee’s employment and when the meeting resumed management advised the employee that there was “no alternative but to terminate [his] employment”.80 The employee’s representative from the union then proposed alternatives to termination which were rejected and there was a further adjournment of the meeting so the union representative could speak to the employee.81 When the meeting resumed the employee asked if he could be allowed to resign instead of being terminated.82 The same day the employee resigned and the resignation was accepted. The employee indicated he resigned as he believed the investigation was so flawed and prejudiced that his employment was no longer tenable, that his employer sought to force him out of his job and because by resigning would preserve his travel pass entitlement and would not tarnish his employment record.83 [78] In that matter Commissioner O’Neill, as she was then known, found: • the option of resigning was not raised by the employer but was raised by the employee’s representative;84 • although the employee may have genuinely believed that the employer had conducted a flawed investigation with a pre-determined outcome to terminate his employment, that did not mean his resignation was forced;85 • whilst the employer had told the employee that it had decided to terminate his employment, the employee made the decision, having taken advice from his representative, that it was better to resign than to be dismissed; • the employee made the decision so that his future employment prospects would not be tainted and so he could obtain a free travel pass;86 • while the employer had decided to terminate the employee’s employment, his decision to resign resulted in the employer agreeing not to give effect to its decision and there was no conduct of the employer that, considered objectively, was such that either resignation was the probable result or that the employee had no effective or real choice but to resign.87 [79] In Piakis v KDR Victoria Pty Ltd T/A Yarra Trams88, the Commissioner observed that the case had some similarities with the case of Cozaris v Emirates.89 In Cozaris v Emirates the [2026] FWC 526 21 employee was advised that her employer had decided to terminated her employment following an assessment as to whether she would be able to return to work following an injury that was not work related and resigned after speaking to her union representative. The employee submitted that: • the actions of her employer led to the termination of the employment and had she not resigned, her employment would have been terminated; • “the actions of the employer must be such that the employee had no other option than to resign such that their refusal to do so would have only resulted in their employment being terminated by the employer” and in these circumstances the termination was at the initiative of the employer;90 • her decision to resign, whilst having some perceived benefits, was made on the basis that she had no alternative as she would have had her employment terminated anyway.91 [80] In Cozaris v Emirates92 Deputy President Gooley found that: • there was no evidence that the employer had any intention to force the employee to resign and that the proposal to resign was put by the employee’s representative on the employee’s initiative;93 • the employer had terminated the applicant’s employment however with the employee’s agreement that termination was revoked to enable the employee to resign; • the employee resigned under the misunderstanding that if her employment was terminated she would lose certain benefits but this was not sufficient to alter the fact that the employee was not forced to resign.94 [81] Despite the above cases the Commission has in other cases found that dismissal has occurred based on an objective consideration of an employer’s conduct during a disciplinary procedure in the circumstances of the particular matter. For example, in Carter v Metro Trains Sydney Pty Ltd95 Deputy President Cross found that there was a dismissal in accordance with s.386(1)(b) of the Act in circumstances where extremely serious allegations were made about the applicant and at least part of the factual outline put in substance was demonstrably false. The Deputy President found that: • the factual misstatements were put with the intention of bringing the applicant’s employment to an end, either pursuant to the probationary period or by resignation; and • the applicant’s fear of having to continue under pressure at work and under what she described as the threat of further fabrications and falsehoods in the future, put her in the position where she felt she had no alternative but to resign.96 [82] As the cases above demonstrate, section s.386(1)(b) requires an objective analysis of the employer’s conduct. In ABB Engineering Construction Pty Limited97 a Full Bench of the Australian Industrial Relations Commission said: “Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow [2026] FWC 526 22 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”. [83] The Respondent’s conduct in this matter is distinguishable from the conduct in Mohazab v Dick Smith Electronics Pty Ltd (No. 2)98 in which the Court found that the “critical action” in that matter “was the threat of the respondent that unless the appellant resigned the respondent would ask the police to charge him with an offence” and that “the resignation was obtained via the respondent’s ultimatum designed to achieve that objective”. In the present case, no such “ultimatum” was presented to the Applicant, and I am not persuaded that the actions of Ms B were designed or intended to induce her into resigning. [84] I prefer the evidence of Ms B that it was the Applicant that had raised resignation in the 21 July Meeting and not Ms B nor anyone else from the Respondent. Ms B had prepared for the matters she was to discuss with the Applicant on 21 July 2025, and the Applicant’s resignation was not among those matters. Rather, it appears that the possibility of resignation caught Ms B off guard when the Applicant raised it in the 21 July Meeting as she needed to seek clarity about what the Applicant would be paid if she resigned compared with what she would be paid if she was dismissed. Ms B confirmed on 22 July 2025 that the Applicant would be entitled to 4 weeks’ notice plus outstanding leave entitlements regardless of whether her employment was terminated or she resigned prior, and that she would not be entitled to her performance related pay. [85] While I accept that Ms B may not have used the express words during the 21 July Meeting that “the outcome is that your employment with the bank will be terminated”, I accept that the Respondent’s communications to Applicant on 21 July 2025 would have reasonably given the Applicant the impression that termination of her employment was likely. This is because the evidence establishes that: 1. Ms B had expressed concern that the Applicant had not disclosed events concerning her Partner; 2. Ms B stated that the Respondent had formed the view that it could not continue to have the level of trust and confidence required to continue the Applicant’s employment in her position, or the Respondent, and was considering terminating her employment;99 [2026] FWC 526 23 3. consistent with Ms B’s statement in the 21 July Meeting, the 21 July Letter very clearly communicates the Respondent’s its view that it “cannot continue to have the level or trust and confidence required to continue [the Applicant’s] employment”. [86] While the Applicant submitted that from this point the relationship was effectively over, it was not over and at that point. The Applicant remained employed by the Respondent and the claim that the employment relationship had ended at that point is contrary to the process adopted. In particular, after the Applicant asked for clarification about her entitlements in the event of resignation, Ms B provided such clarification on 22 July 2025. The Applicant was also invited to show cause as to why her employment should not be terminated by 24 July 2025. [87] The Applicant decided not to provide reasons as to why her employment should be terminated but instead resigned in circumstances where: • some concerns were raised that were of interest to the Respondent in the context of the Applicant working in the fraud detection area and which related to allegations involving the Applicant’s Partner with whom she held a joint bank account; • Ms B brought those concerns to the attention of the Applicant on 14 July 2025 when she returned from leave and likely took the Applicant by surprise in doing so, particularly as she was not given prior notice of what was to be discussed and the alleged events took place a very long time ago; • the Applicant disclosed to Ms B that she knew her Partner had been dismissed from the bank at which she worked but did not find out until two or three months after their dismissal; • the Applicant told Ms B she understood ‘the fund’ had been used for gambling; • the Applicant told Ms B she was advised by her lawyer not to tell anyone; • the Applicant was given the 21 July Letter which stated: “It is [Bank’s] view that it cannot continue to have the level of trust and confidence required to continue your employment and is therefore considering termination of your employment” and that prior to finalising any decision in this regard, the Applicant was invited to show cause as to why her employment should not be terminated and that any response should be provided in writing by 24 July 2025. [88] The Applicant gave evidence that she felt she had no choice [but] to resign because Ms B had said that the outcome would be termination and she needed to ensure she could obtain future employment as she supported her family financially.100 [89] In considering the Respondent’s conduct, I accept that the process that Ms B adopted was poor, particularly as she: • invited the Applicant to meetings on both 14 and 21 July 2025 to discuss serious matters alleged to have occurred a long time ago and that may have impacted the continuation of the Applicant’s employment without putting the Applicant on notice of this; and [2026] FWC 526 24 • provided a show cause letter that is quite unclear about the specific reasons the Respondent had formed the view that it could not continue to have the level of trust and confidence required to continue the Applicant’s employment. [90] While there are deficiencies in the Respondent’s procedure and its statement to the effect that it could not continue to have the level of trust and confidence required to continue the Applicant’s employment suggests that termination of the Applicant’s employment was the likely outcome because it held that view at that time, as noted above the 21 July Letter states that the Respondent was still “considering” terminating the Applicant’s employment, indicating it had not made the final decision to terminate. The Respondent provided the Applicant with an opportunity to show cause as to why her employment should not be terminated. In these circumstances resignation was not the Applicant’s only choice. The Applicant could have responded to the 21 July Letter and in doing so it would have been entirely reasonable for her to raise her concerns about the process and the view expressed by the Respondent. The Applicant could have sought to persuade the Respondent that trust and confidence could be restored. I also note that the Respondent is a very large employer of which Ms B was not the only employee and the Applicant could have raised any concerns she held about the process adopted by Ms B with higher management or human resources. [91] The Explanatory Memorandum to the Fair Work Bill 2009 (Cth) states: ‘1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations: • where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or • where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign’. [92] It appears that it was intended that s.386(1)(b) capture in at least some way the concept of constructive dismissal in the context of a resignation. The Applicant sought to rely on Spencer v Dowling101 in which Hayne JA, as his Honour then was, said that the fundamental question in “constructive dismissal” cases was “whether the employer has evinced an intention to no longer be bound by the contract of employment, i.e. whether the employer has repudiated the contract of employment”.102 As noted above, during the hearing the Applicant submitted that trust and confidence is at the heart of the relationship, without it there is no employment relationship and that there was a repudiation of the employment contract by the Respondent. The Applicant pointed to the 21 July 2025 in this respect. It is not entirely clear from the Applicant’s submissions as to what term or terms of the employment contact are said to exist and which it is said were breached by the Respondent via its conduct. To the extent that it can be taken from the Applicant’s submission during the hearing that the alleged breach relates to an implied term of trust and confidence, the Applicant did not develop its argument in a way that grappled with relevant authorities, including the decision of the High Court in Commonwealth Bank of Australia v Barker.103 [93] When the Respondent’s conduct is considered objectively as a whole, I am not persuaded that resignation was the probable result of the Respondent’s conduct such that the [2026] FWC 526 25 Applicant had no effective or real choice but to resign. I find that the Applicant resigned from her employment and was not forced to do so because of conduct, or a course of conduct, engaged in by the Respondent. I find that the Applicant was not dismissed within the meaning of s.386(1)(b) of the Act. [94] Having found that the Applicant was not dismissed within the meaning of either ss.386(1)(a) or (b) of the Act, the application is dismissed. I Order accordingly. COMMISSIONER Appearances: Mr. D. Mackay of Counsel for the Applicant. Mr. M. Foran of Counsel for the Respondent. Hearing details: 2025. 11 November. In person, Sydney. Printed by authority of the Commonwealth Government Printer <PR796908> 1 Applicant’s Affidavit at [10]. 2 Applicant’s Affidavit at [11] – [13]; Ms B statement at [10]. 3 Applicant’s Affidavit at [14], Annexure B; Ms B Statement at [8] – [9], Annexure 1. 4 Applicant’s Affidavit at [15]. 5 Applicant’s Affidavit at [7]. 6 Applicant’s Affidavit at [17]; B Statement at [13]. 7 Applicant’s Affidavit at [18]. 8 Applicant’s Affidavit at [18]. 9 Applicant’s Affidavit at [18]. 10 Ms B Statement at [16]. 11 Ms B Statement, Annexures CH-2 and CH-3. 12 Ms B Statement at [18], [19]. 13 Ms B Statement at [19]. [2026] FWC 526 26 14 Ms B Statement at [21] 15 Ms B Statement at [23] 16 Ms B Statement at [25]. 17 Applicant’s Affidavit at [23]. 18 Applicant’s Affidavit at [24]. 19 Ms B Statement, Annexure CH7. 20 Ms B Statement, Annexure CH7. 21 Applicant’s Affidavit at [27]; Ms B Statement at [35]. 22 Applicant’s Affidavit at [27]. 23 Applicant’s Affidavit at [28], Annexure I. 24 Applicant’s Affidavit, Annexure I. 25 Applicant’s Affidavit at [28]. 26 Applicant’s Affidavit at [29]. 27 Ms B Statement at [36]. 28 Ms B Statement at [37]. 29 Ms B Statement, Anexure CH-6. 30 Ms B Statement at [38]. 31 Ms B Statement, Annexure CH-10. 32 Applicant’s Affidavit, Annexure K. 33 Applicant’s Affidavit at [32]. 34 Applicant’s Affidavit, Annexure L. 35 Ms B Statement at [42]. 36 Applicant’s Submissions at [1]. 37 Applicant’s Submissions at [9]. 38 Applicant’s Submissions at [6] with reference to Australian Hearing v Peary (2009) 185 IR 359 at [30]. 39 (1995) 62 IR 200. 40 (1995) 62 IR 200, 206. 41 (1995) 62 IR 200, 207. 42 Applicant’s Submissions at [10]. 43 Applicant’s Submissions at [11]. 44 Applicant’s Reply Submissions at [3]. 45 Applicant’s Reply Submissions at [2]. 46 Applicant’s Reply Submissions at [6]. 47 Applicant’s Reply Submissions at [6]. 48 Respondent’s Submissions at [4]. 49 Respondent’s Submissions at [7] – [8]. 50 (1995) 62 IR 200. 51 Respondent’s Submissions at [12]. 52 Respondent’s Submissions at [14]. 53 Respondent’s Submissions at [15]. 54 [2017] FWCFB 3941 at [47]. 55 Applicant’s Second Affidavit, Annexure A. 56 [2017] FWCFB 3941 at [47]. 57 (1995) 62 IR 200. [2026] FWC 526 27 58 [2017] FWCFB 3941. 59 [2017] FWCFB 3941 at [35]. 60 [2017] FWCFB 3941 at [47] – [48]. 61 (1995) 62 IR 200 62 [2006] AIRC 496 at [19] – [23]. 63 [2017] FWCFB 3941. 64 [2017] FWCFB 3941 at [47]. 65 [2006] AIRC 496 at [19] – [23]. 66 [2017] FWCFB 3941 at [47]. 67 [2008] AIRCFB 555 68 [2008] AIRCFB 555 at [31]. 69 [2008] AIRCFB 555 at [34]. 70 [2008] AIRCFB 555 at [33]. 71 [2008] AIRCFB 555 at [36]. 72 [2020] FWC 963. 73 [2020] FWC 963 at [34]. 74 [2020] FWC 963 at [34]. 75 [2020] FWC 963. 76 [2021] FWC 6048. 77 [2021] FWC 6048 at [6]. 78 [2021] FWC 6048 at [7] – [8]. 79 [2021] FWC 6048 at [10]. 80 [2021] FWC 6048 at [10]. 81 [2021] FWC 6048 at [10] – [11]. 82 [2021] FWC 6048 at [12]. 83 [2021] FWC 6048 at [15]. 84 [2021] FWC 6048 at [26]. 85 [2021] FWC 6048 at [27]. 86 [2021] FWC 6048 at [28]. 87 [2021] FWC 6048 at [29]. 88 [2021] FWC 6048. 89 [2016] FWC 2596. An appeal against this decision was dismissed; see [2016] FWCFB 5256. 90 [2016] FWC 2596 at [22]. 91 [2016] FWC 2596 at [23]. 92 [2016] FWC 2596. An appeal against this decision was dismissed; see [2016] FWCFB 5256. 93 [2016] FWC 2596 at [30]. 94 [2016] FWC 2596 at [39]. 95 [2023] FWC 379 at 96 [2023] FWC 379 at [79]. 97 Print N6999, 9 December 1996 at [35]. 98 (1995) 62 IR 200. 99 Ms B Statement at [36]. 100 Applicant’s Affidavit at [32]. 101 (1997) 2 VR 127. 102 (1997) 2 VR 127 at 160. 103 [2014] HCA 32.