1 Fair Work Act 2009 s.365—General protections Johnnu Beyene v C&H Acquisition Pty Ltd (C2025/10056) DEPUTY PRESIDENT DOBSON BRISBANE, 16 MARCH 2026 Application to deal with contraventions involving dismissal – jurisdictional objection - whether Applicant was dismissed – s.386(1)(b) – whether resigned but was forced to do so because of conduct, or a course of conduct, engaged by the employer – jurisdictional objection upheld/dismissed – application dismissed or matter listed for conference [1] Mr Johnnu Beyene (Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 (Act) alleging that he was dismissed from his employment with C&H Acquisition Pty Ltd (Respondent or C&H) because he exercised a workplace right by engaging in industrial activity within the meaning of s.347(b)(iii) and (f) of the Act. [2] The Respondent raised a jurisdictional objection on the ground that the Applicant voluntarily resigned and was therefore not dismissed within the meaning of s.386 of the Act. A dismissal is a fundamental prerequisite that must be established before the Commission is able to deal with this dispute. [3] Section 386(1) of the Act relevantly provides that a person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. [4] The application was heard on 9 January 2026. Both parties were represented. [5] For the reasons outlined below, I find that the Applicant was not dismissed within the meaning of the Act. [2026] FWC 847 DECISION [2026] FWC 847 2 When is a person ‘dismissed’? [6] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli1 (Bupa), a Full Bench of the Commission examined the relevant authorities as to what constitutes ‘dismissed’ under s.386(1) which included the following: (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 probable 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. [7] In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park,2 Deputy President Sams noted the following when considering whether the applicant in that matter was dismissed: (a) Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. ‘Initiative’ is relevantly defined in the New Shorter Oxford Dictionary as: “the action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.” (b) This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd3 (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, “… a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.” (c) In Mohazab, the Full Court also said: [2026] FWC 847 3 “In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but 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.” (d) A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd said,4 “…to constitute termination at the initiative of the employer the termination must be the direct or consequential result of ‘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 ...” [Rheinburger v Huxley Marketing, 16 April 1996 per Moore J]. [8] Finally, it is the case that “considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign”.5 Permission to appear [9] Both parties sought leave to be legally represented before the Commission. [10] The Act provides that a party may be represented in a matter before the Commission only with the permission of the Commission.1 It also provides the reasons that permission may be granted.2 Previous cases determined by the Commission or superior courts give guidance as to how these reasons should be considered.3 [11] I provided the parties with an opportunity to make submissions about these issues. Neither party made any objection to leave being granted and I was satisfied, having regard to all relevant matters,4 that it would assist the Commission to deal with the matters more efficiently with the granting of the leave sought and, on that basis, leave was given to both parties on 9 December 2025 to be legally represented. The hearing [12] The matter proceeded to a hearing before me on 9 January 2026. [13] At the hearing the Applicant was represented by Mr Ian Neill SC of Counsel instructed by Mr Rohan Tate of Turner Freeman Lawyers and the Respondent was represented by Ms Michela Agnoletti of Counsel instructed by Mr Adam Lambert of KHQ Lawyers. [14] The Applicant gave evidence on his own behalf. [15] Mr Chris Doherty, Branch Manager – Brisbane Crane, gave evidence for the Respondent. [2026] FWC 847 4 [16] Both parties filed submissions and made oral closing submissions following the witness evidence and cross examination of all the witnesses. Background [17] On 21 June 2021, the Applicant commenced his employment for the Respondent as a Rigger. [18] From 6 May 2025 until 4 August 2025, the Applicant participated in protected industrial action with all other employees who are members of the Construction, Forestry and Maritime Employees Union (the CFMEU).5 [19] On both 6 and 7 May 2025, the Applicant, alongside 10 other employees, engaged in total stoppage of work as part of protected industrial action.6 [20] On 23 May 2025, the Applicant made a complaint of racial discrimination and workplace bullying.7 The Applicant made the complaint following a toolbox meeting in which acceptable workplace behaviour was discussed following allegations of inappropriate behaviour by striking employees. In his complaint, the Applicant stated that the discussion was hypocritical given behaviour he said he had experienced.8 [21] On 26 May 2025, the Respondent’s human resources department (HR) wrote to the Applicant in a letter sent by email, acknowledging the complaint and advising that they had commenced an internal investigation into the matters raised.9 [22] On 27 May 2025, HR sent an email to the Applicant containing questions related to its investigation. HR explained in this email that it had sent text messages to the Applicant “requesting to catch up”.10 [23] On 28 May 2025, the Applicant and nine other employees commenced an indefinite strike, which continued until 24 July 2025.11 On 11 July 2025, the Respondent commenced proceedings in the Federal Court of Australia.12 On 25 July 2025 – the day after which the strike ended – the Applicant and the other nine employees who had participated in the industrial action called in sick for work.13 [24] On the morning of 28 May 2025, HR sent another email to the Applicant requesting answers to its questions.14 [25] On the afternoon of 29 May 2025, the Applicant responded, by email, to HR’s questions of 27 May 2025 and 28 May 2025.15 Later in the afternoon, HR replied to the Applicant’s response stating that they would “start investigating this asap” and asked the Applicant a series of further questions.16 [26] On 1 July 2025, HR advised the Applicant by email that it had completed all its interviews as part of the investigation and asked again about the further questions sent to the Applicant on 29 May 2025.17 [2026] FWC 847 5 [27] On 11 July 2025, the Respondent commenced proceedings in the Federal Court of Australia against the CFMEU.18 [28] On 28 July 2025, the Applicant returned to work following an absence of 61 days. During the period of the Applicant’s absence from work, the Respondent received complaints regarding inappropriate behaviour by its employees on strike. The Respondent submits that, due to these complaints, and the length of time for which the Applicant and the other nine employees had been absent, the Respondent considered that the employees should complete “Acceptable Workplace Behaviour Training”, “Manual Handling”, “Site Induction”, and “Take 5” modules.19 The Respondent contends that this is why the employees who had taken industrial action were treated differently to those workers who had not taken strike action.20 [29] The Respondent further submits that the 10 employees who had taken industrial action were directed to complete training at one of Qube Heavy Lift’s storage yards, known as the Sandpiper yard about one kilometre from the main office on 29 July 2025.21 According to the Respondent, the Applicant initially refused to complete all his training before ultimately completing it on 5 August 2025.22 At the hearing the Applicant gave evidence he could not recall whether he objected to completing all the training or objected only to completing one module relating to workplace behaviour, however it was uncontested that there was a refusal in respect of training being completed.23 The Respondent submits that, due to the Applicant’s initial refusal, the training took him seven days, whereas if he had completed it when requested, it would have only taken a few hours or up to half a day.24 [30] On 8 August 2025, HR and Mr Doherty met with the Applicant and provided the outcome of the investigation, being that the allegations made by the Applicant were unsubstantiated. On the same day, the Respondent contacted the Applicant by email confirming the findings of its investigation in writing.25 [31] The Applicant contends that the Respondent excluded him from undertaking his usual duties and refused to provide meaningful work to him following the period of industrial action.26 [32] The Respondent claims that, between 6 August 2025 and 29 September 2025, the Applicant worked 12 days and took 22 days of various types of leave.27 [33] The Respondent also claims that, between 7 August 2025 and 17 September 2025, the Applicant worked nine days performing various yard duties, which included cleaning the crane, inspecting rigging gear, ensuring the crane’s documentation was in order, and loading trucks – all of which, according to the Respondent, was meaningful work.28 [34] During that period, on 2 September 2025, the Respondent terminated another union member.29 However, the Respondent contends this was not due to the employee’s position as a union member, but rather due to the member driving dangerously on the Port of Brisbane premises.30 The Respondent notes that there are many other union members who still work at C&H. [2026] FWC 847 6 [35] The Applicant claims that, on 7 September 2025, they became unwell and unfit for work.31 On 8 September 2025, the Applicant was to attend work but claims he was unfit to do so.32 The Applicant accepts that he failed to notify the Respondent on 8 September 2025 that he was unfit for work but argues that he was too unwell to do so.33 [36] The Applicant claims that, on 9 September 2025, he sent a text message to Mr Doherty to indicate that he was not able to attend work.34 In addition, the Applicant claims that, on 10 September 2025, he sent a further message to Mr Doherty indicating that he would not be able to attend work for the rest of the week.35 [37] By contrast, Mr Doherty claims that the Applicant sent him a text message on the afternoon of 8 September 2025 which read, “I won’t be in tomorrow at this stage Chris”, not providing any reason for his absence.36 Mr Doherty also claims that, on the afternoon of 10 September 2025, the Applicant sent him a text message which read, “I’ll be in next week at this stage Chris” – again, not providing any reason for his absence.37 Mr Doherty considered the Applicant’s failure to attend work without explanation and notice in a timely manner constituted misconduct.38 [38] Upon the Applicant’s return to work on 15 September 2025, the Respondent issued an allegations letter regarding the Applicant’s failure to provide notice on 8 September 2025 that he was unable to attend work.39 Here, the Respondent notes that similar letters were issued to other employees.40 [39] On 16 September 2025, the Applicant responded to the Respondent’s allegations claiming that he had contracted bacterial gastroenteritis which had caused him to become forgetful.41 In support of this claim, the Applicant attached a medical certificate dated 15 September 2025 certifying that on 15 September 2025, the doctor considered that the Applicant was unfit to perform his normal duties from 8 September 2025 to 12 September 2025.42 On 17 September 2025, the Respondent issued to the Applicant a warning letter regarding the Applicant’s failure to provide notice on 8 September 2025.43 The letter set out its reasons and what its expectations of the Applicant were moving forward.44 [40] The Applicant alleges that his constructive dismissal took effect from 29 September 2025.45 On the same day, the Applicant provided a resignation letter to Mr Doherty, detailing five reasons for his decision, including that: (a) he alleges he was segregated from other employees who did not take industrial action after he took industrial action;46 (b) he made a complaint about racism that was not appropriately investigated;47 (c) he was provided with no meaningful work after he returned from taking industrial action noting that prior to taking the industrial action he performed rigging work;48 (d) he was disciplined for being too unwell to contact his employer as opposed to his employer conducting a welfare check;49 and [2026] FWC 847 7 (e) he observed another union member, Mr Jeremy Richardson, had been dismissed, and predicted that he would also be targeted.50 [41] In response, the Respondent claims that: (a) the reason Mr Beyene was treated differently was only because he and other striking employees had not performed work for a significant period (2 months),51there ‘had been a number of complaints about inappropriate workplace behaviour by the employees who were on strike’,52 that the Respondent determined that employees should complete training in Acceptable Workplace Behaviour, Manual Handling, Site Induction and Take 5 modules before returning to work.53 Further that Mr Beyene had refused to complete the training on Acceptable Workplace Behaviour until 5 August 2025;54 (b) that the Applicant’s complaint was “diligently” investigated and closed on 8 August 2025,55 being two months prior to the Applicant’s resignation on 29 September 2025;56 (c) that between completing the training from 6 August 2025 to 29 September 2025, the Applicant performed 12 days of work and took 22 days of various forms of leave, including 9 days of working performing yard duties and included being asked to build a crane at the Sandpiper yard and an igloo shelter at the Whimbrel Street yard and, that had the Applicant completed the tasks he was requested, he would have been allocated crane work or other yard duties as required;57 and (d) the other union member to whom the Applicant refers, Mr Richardson, was dismissed on 2 September 2025 for reasons that included driving dangerously.58 [42] Mr Doherty of the Respondent advised the Applicant that the Applicant could leave immediately and that he would be paid out for the notice period.59 [43] The Applicant’s application was filed within the required 21-day period on 1 October 2025. The case for the Applicant [44] The Applicant submits that the Commission can and should be satisfied that he was dismissed within the meaning of s.386(1)(b) of the Act, as the section applies whenever a “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”. [45] According to the Applicant, he resigned from his employment on 29 September 2025 by means of an email that attached correspondence stating that he “had no choice but to resign”. [46] In a statement to the Commission dated 9 December 2025, the Applicant summarised why he felt forced to resign as follows: [2026] FWC 847 8 (a) after taking industrial action, the Applicant was separated from other workers who did not take industrial action; (b) an investigation into a complaint into racism which found that he was called a “pirate” did not action his complaint and found there were no issues in the workplace even though he was called a pirate; (c) he was provided no meaningful work, which was rigging work prior to taking industrial action, until 23 September 2025; (d) he was disciplined for being so unwell that he could not contact his employer, noting that, although it was the “sickest [he had] ever been”, the employer disciplined the Applicant as opposed to conducting a welfare check; and (e) Mr Jeremy Richardson – a union delegate and part of the proceedings against Qube for having adverse action taken against him because he took industrial action – was terminated from his employment, and the Applicant felt that any minor infraction would lead to him being “sacked”, such that he felt he had to resign so that he would not be terminated, particularly after he was “disciplined for being sick”.60 The Applicant’s characteristics [47] Submissions filed on behalf of the Applicant highlight three of the Applicant’s characteristics relevant to this application. [48] Firstly, the submissions note that the Applicant is a man of Ethiopian descent whose parents came to Australia as refugees from Ethiopia. The submissions assert that, given the Applicant’s racial background, he was more vulnerable to C&H’s conduct than other workers without this background. [49] Secondly, the submissions note that the Applicant is a young man who started his employment at C&H – his first “adult” job – when he was 21 years old and was only 25 years old when he was reportedly forced to resign. The submissions contend that, given the Applicant’s young age, he was more vulnerable to C&H’s conduct than other workers without this attribute. [50] Thirdly, the submissions point out that the Applicant was a union member who participated in industrial action. According to the submissions, due to the Applicant’s industrial activity, C&H took steps to target him by segregating him and other workers from other employees who did not take industrial action, and by failing to provide to him “meaningful work”. The Applicant does not accept the Respondent’s contention that the Applicant was provided with a week of meaningful work. [51] The Respondent argues that the Applicant was not forced to resign and that the Respondent did not engage in a course of conduct which would mean that his employment was at risk. By contrast, the Applicant submits that his employment was threatened on two occasions, in the forms of: [2026] FWC 847 9 (a) a threatened redundancy process after the Applicant engaged in industrial action, which was later rescinded; and (b) the instigation of a disciplinary process and a warning issued by Mr Doherty in circumstances where the Applicant had informed C&H, as soon as he was able, about his illness and fitness to work. [52] The Applicant claims he was unable to immediately advise his employer as to his fitness for work as he: (a) was experiencing diarrhoea at least every hour, sometimes constantly; (b) was unable to keep any fluids down and was chronically vomiting at least every hour and every time he attempted to have fluids or eat food; and (c) was fatigued and not thinking properly and, if he was not on a toilet, was in bed. The Applicant’s reasons as to why he felt forced to resign [53] With respect to the Applicant’s reasons as to why he felt forced to resign articulated at [40] of this decision, submissions filed on behalf of the Applicant provide further explanation. [54] Concerning (a) and (c) – that the Applicant was separated from other workers and provided with no meaningful work – the submissions note that the Applicant is party to a proceeding where it is alleged that the Respondent’s conduct constituted adverse action due to the Applicant’s engagement in industrial action. The Applicant contends that the Respondent’s conduct was part of a course of conduct calculated and engaged in by the Respondent to place “maximum pressure” on the Applicant to cause him to resign. [55] Regarding (b) – that an investigation into the Applicant’s complaint about racism did not action the complaint – the Applicant submits that the investigation was not “diligent”. According to the Applicant, the Respondent substantiated that the Applicant was called a “pirate” but took no steps in respect of this finding. In addition, the Applicant submits that the Respondent failed to properly investigate whether the Applicant, as he alleged, was called a “useless cunt”, as the Respondent did not interview witnesses nominated by the Applicant. [56] Further, the Applicant’s submissions note that the term “pirate” was deeply offensive to the Applicant and, given that he is of African descent and was, at the relevant time, wearing a durag, the connotation was that the Applicant was an “African pirate”. [57] Regarding (d), the Applicant submits that he provided an update regarding his absence as soon as he was able. [2026] FWC 847 10 [58] Foremost, the Respondent submits that the Commission lacks jurisdiction because the Applicant was not “dismissed” within the meaning of the Act. Section 365 permits an application only where a person “has been dismissed”. Before any power under s.368 can be exercised in relation to an alleged contravention of the general protections provisions, the Commission must first be satisfied that the Applicant was an employee who was dismissed. [59] The Respondent submits that s.386(1) is not engaged as the Applicant’s employment was not terminated at the Respondent’s initiative and the Applicant tendered a written resignation on 29 September 2025. [60] The Respondent further submits that s.386(1)(b) is not engaged as the agreed facts do not support a characterisation of the dismissal as one forced by conduct, or a course of conduct, engaged in by the employer. [61] The Respondent submits that the Applicant had a choice to remain employed and, but for his voluntary resignation, there is no evidence that his employment would not have continued. The Respondent notes that the Applicant’s resignation email dated 29 September 2025 annexed a letter setting out his stated reasons for resigning. Further, the Respondent suggests none of the state reasons, whether separately or cumulatively, meet the requisite standard for a “forced dismissal”. Each is addressed below. [62] The Respondent identified and presented in its favour the Full Bench’s test in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017], being whether “the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign”. [63] In accordance with the Bupa test, the Respondent submitted that its conduct was that which would reasonably be expected by an employer in its position and entirely appropriate to the circumstances. Alleged segregation and lack of meaningful work [64] The Respondent submits that the Applicant’s assertion – that following his return to work on 28 July 2025 (after an extended period of industrial action) he was segregated for approximately 1.5 weeks and was not provided with meaningful work until 23 September 2025 – cannot constitute a forced resignation. [65] Further, the Respondent suggests that even on the Applicant’s version, he had been receiving meaningful duties and working alongside other employees for at least a week before resigning. Complaint of racism [66] The Respondent submits that the Applicant’s complaint about racism was diligently investigated and closed out by early August 2025, nearly two months prior to his The case for the Respondent [2026] FWC 847 11 resignation, and that the Applicant’s contrary assertion is not supported by evidence and cannot sustain a finding of forced resignation. Warning letter dated 17 September 2025 [67] The Respondent submits that the warning issued on 17 September 2025 for failing to notify an absence was lawful and proportionate. The letter stated that further disciplinary action may be taken if there were further incidents or other serious matters arose. The Respondent further submits that proper management of this kind does not, without more, amount to conduct leaving an employee with no option but to resign. Dismissal of another employee [68] The Respondent submits that the dismissal of another union member, Mr Jeremy Richardson, on 2 September 2025 for reasons including dangerous driving on the Port of Brisbane premises, is irrelevant to the Applicant’s employment. The Respondent further submits that it made no allegations that the Applicant engaged in any similar conduct, and Mr Richardson’s dismissal cannot rationally support a belief that the Applicant would be targeted. [69] To the extent the Applicant suggests he had no choice but to resign because he was a union member who had engaged in industrial action, the Respondent submits that contention is untenable. The Respondent highlights that it continues to employ four employees who are union members and who participated in the same industrial action. Reasoning behind the case for the Applicant [70] The Applicant submitted that the Commission was required to consider s.386(1)(b). The Applicant contended that the relevant test was whether the employee had no choice but to resign, and that there is no requirement to establish circumstances in which the employee objectively had no choice. [71] What mattered, the Applicant argued, was that the Commission determine whether the employee held a belief that he had no choice but to resign. The Applicant submitted that whether that belief was reasonable or not was a matter going to the merits of the case, not the jurisdictional objection. The Applicant relied on the High Court’s authority in BHP Coal in support of the proposition that the state of mind of the employee, and the subjective reasoning for his decision, were relevant to determining whether he was forced to resign. [72] The Applicant said he had formed the view that his employment would be terminated because of the protected industrial action he had engaged in and that he would be humiliated and suffer ramifications for his future employment. He said he was a young man, this was his first adult job, he was not “sophisticated”, and he believed the employer had targeted him for dismissal and that the pressure on him was not stopping. [73] The Applicant submitted that there were five classes of conduct, each of which had a cumulative effect on his mind and bore upon his assessment of his situation. First, the Applicant said he was segregated from other workers who had not taken industrial [2026] FWC 847 12 action. The Respondent claimed this segregation was for operational reasons, but the Applicant said this was never explained to him. [74] Second, the Applicant referred to the requirement for him to undertake training. He contended that Mr Doherty never explained that the training was required because of complaints made, nor that it was because he had been out of the workplace for a period of time. [75] Third, the Applicant referred to racist treatment about which he had previously complained. It was found that the Applicant had been called a “pirate”, which he found offensive, and he said the Respondent did nothing about it. [76] Fourth, the Applicant said he had no meaningful work to do. While yard work included rigging duties, the Applicant submitted that, putting aside the two days of rigging work performed in September prior to his resignation, he considered the work to be materially different from the work he performed prior to the industrial action. [77] Fifth, the Applicant submitted that the warning letter was disproportionate. He said that his failure to notify his absence on 8 September was a one‑off incident, that he had been seriously unwell and unable to notify the employer, and that the reasons given in the warning letter about the impact of his conduct were not real. He submitted that it was heavy‑handed to suggest that one incident could completely destroy trust. He also submitted that the warning letter threatened his ongoing employment if he made one more mistake, and that it was not unreasonable for him to form the view that he had no choice but to resign because, if the employer terminated his employment, it would affect his future employment prospects. [78] In reply, the Applicant accepted that other choices were always available besides resignation, and that there is always a choice to stay. He submitted, however, that this did not alter the legal test. The Applicant referred to paragraph 49 of Sydney Water and to paragraphs 50 and 51 of Perry v Bupa, and said these authorities supported consideration of the cumulative application of conduct. [79] The Applicant submitted that the tone and content of the warning letter of 27 September 2025 were grossly disproportionate to what he had done, and that it was open for him to form the view that his employment was going to be terminated. He submitted that the behavioural training had never previously been imposed on anyone again in such a short period of time. [80] He also contended that the Respondent’s submissions about the yard work failed to address his evidence that the yard work he performed in August and September was materially different from the work he performed before. While he accepted that he performed some rigging work in the two shifts before the termination, he said it was not enough. In response to the Respondent’s reliance on the investigation letter, the Applicant contended that the matters raised were not significant issues. [81] He also made submissions about the use of cameras without audio, which he ultimately did not press when challenged. The Applicant submitted that when he said that the [2026] FWC 847 13 resignation was voluntary, he meant only that it was he who tendered the resignation, and that this did not address the legal test of why he made that decision. The case for the Respondent [82] The Respondent submitted that the issue of reasonableness must be considered in determining whether the employee had formed a reasonable belief that he had no option but to resign. The Respondent contended that if an employer could be held responsible simply because an employee formed a belief, it would lead to an extraordinary and absurd outcome. If that proposition were accepted, it would mean that if an employee formed a belief that their employment contract had been repudiated, then the contract would be repudiated merely because of that belief. The Respondent submitted that this does not make sense and that the employee’s belief has to be reasonable. [83] The Respondent submitted that the Applicant resigned because he received a warning letter, and that the other classes of conduct relied on by the Applicant were not connected. They were not connected in time, and Qube did not terminate people because they had taken protected industrial action. Mr Richardson, who was referred to by the Applicant, was terminated because of misconduct involving a traffic incident, and the Applicant acknowledged that his belief that Richardson was terminated because of protected action was not reasonable. No other people who took protected industrial action were terminated. [84] The Respondent submitted that the evidence the Applicant was too sick to notify his absence only emerged during these proceedings. The only information before the decision‑maker at the time was that the Applicant had not notified his absence because he was forgetful. The Applicant was told in the warning that he needed to follow the process. There was no threat to his employment in that letter, and the Respondent submitted that the Applicant’s belief that his employment was at risk was wholly unreasonable. The Respondent also submitted that because the Applicant had always previously notified of his absences, it was not an unreasonable requirement to expect him to notify absences moving forward. The Respondent said the authorities are clear that reasonable management conduct does not result in a forced resignation, and the Respondent submitted that its conduct was reasonable management action. [85] The Respondent noted that when Mr Beyene was asked whether the resignation was voluntary, he said “yes”, and he gave evidence to that effect. In respect of the training, the Respondent submitted that the Applicant had been absent for 61 days, and that the training would only take a few hours to half a day to complete. The Applicant accepted that he was required to be across the policies. He also accepted that there were other options available to him besides resignation, for example utilising the dispute resolution clause, and that just because he did not know the exact wording of the clause did not mean that he did not understand that other options were available if he disagreed. The Applicant conceded he had previously performed yard duties, and that the two shifts prior to his resignation constituted rigging work at a client yard. He also gave evidence that the other yard duties he performed in the relevant period included rigging paperwork, cleaning, and inspecting work for crane jobs to occur. [2026] FWC 847 14 [86] In relation to the workplace bullying complaint, the Respondent submitted that the Applicant’s claim that no proper investigation had occurred was not correct. The Respondent submitted that after receiving the outcome, the Applicant did not take any steps to raise concerns at the time he received the complaint findings. The evidence, the Respondent submitted, was that a diligent investigation was conducted, with the complaint received on the Friday and action taken the following Monday. The Respondent relied on this in reply. Conclusion as to dismissal [87] The only matter the Commission is required to determine is whether the Applicant was dismissed within the meaning of s.386(1)(b). That is whether 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. [88] The onus is on the Applicant to prove that he had no real or effective choice in the circumstances but to resign because of the Respondent’s conduct either with respect to each of the circumstances upon which he relies or whether with respect to the cumulative effect of those circumstances. [89] In this decision, I have summarised the evidence before the Commission in addition to the submissions made. In reaching these conclusions I have considered all the material, evidence and submissions before me, whether or not it is explicitly noted in this decision. [90] In considering the reasons for which the Applicant contends this to be the case, I conclude as follows: [91] I accept the Respondent’s evidence that it directed the Applicant to undergo training as a consequence of his extended absence, coupled with concerns regarding complaints by other staff in respect of inappropriate workplace behaviour believed to have been taken by the workers who took industrial action. This is a reasonable response to the situation and, indeed, the Respondent had a duty of care to both the Applicant and its other workers to take these steps. I am satisfied that there was a further delay caused by the Applicant’s own refusal to do the inappropriate workplace behaviour training. Once the Applicant completed that training, I am satisfied that the work he performed was reasonable in all the circumstances, including the duties that he performed which included building a crane and an igloo as well as taking a number of days off work. [92] I find that the investigation into the complaint of racism raised by the Applicant, was conducted in a manner that was not at all unusual. It was taken seriously, it was acted upon promptly and the Applicant was kept informed of its progress. Whilst the investigation by the Respondent may have made a finding that the Applicant’s complaint was unsubstantiated despite the Applicant claiming that he had been called a pirate, I note that it was open to the Applicant to make a further complaint internally or externally in a number of jurisdictions.61 The Applicant did neither. I further find that the findings of the Respondent’s investigation were provided to the Applicant almost 2 months before he decided to resign and therefore it was inherently unlikely that there [2026] FWC 847 15 was any nexus between the complaints, its investigation or findings and the Applicant’s choice to resign nearly 2 months later. Further, I do not accept the Applicant had no other choice but to resign when there were clearly other options open to him which he failed to take. I also reject any suggestions that the Applicant was ignorant of his right to take any of these actions either in relation to this compliant or other concerns he held, in circumstances where he could have sought the advice or assistance of his union as he appears to have done numerous times. [93] In regard to the disciplinary action taken for his failure to notify his employer of his sick leave, I accept that a failure to notify of an intended absence has an impact on the Respondent’s ability to fulfil its obligations to its clients and it is not unreasonable to have a policy in place that employees are required to comply with. The Respondent followed an appropriate process and provided the Applicant with a warning. It was open to the Applicant to dispute that warning, seek advice from his union or lodge a dispute about it with the Fair Work Commission. I do not accept that any potential ignorance about the Enterprise Agreement, if that existed at all, eliminates the fact that the Applicant had a number of options open to him to resolve the matter which he failed to take. I reject the contention that the warning letter given to the Applicant was disproportionate, given the impact on the Respondent a warning was appropriate. I also reject the contention that by virtue of the warning letter putting him on notice that one more mistake could cause his employment to come to an end and that this might impact on his future employment prospects. This reasoning does not negate the requirement that the Applicant needed to demonstrate that there was no other option but to resign. The Applicant could simply have ensured he complied with the direction of the Respondent ant notified of future absences accordingly or he could have lodged a complaint about the warning. He did not do so. [94] Having considered the issue of whether another union delegate’s loss of employment meant that the Applicant should believe he was to be targeted next, I find this unlikely especially in circumstances where I accept the evidence of the Respondent that the person who was terminated was terminated for another very serious reason related to safety and not because of industrial action. Further, I accept the evidence that the other 8 or 9 employees who took industrial action all remained employed by the Respondent. In all the circumstances, I do not accept there was action taken by the Respondent that would force a resignation by the Applicant. In the case of the employee who was terminated, that termination occurred as a consequence of that employee’s actions, not the Respondent’s. [95] I am not satisfied that any of the Applicant’s complaints, individually or collectively, meet the threshold of leaving the Applicant with no real or effective choice but to resign. In summary, I accept the evidence of the Respondent’s witnesses in relation to each of the key events relied on by the Applicant, including those concerning the allegations of an improperly conducted investigation, that the Applicant was segregated, that the Respondent withdrew meaningful work from the Applicant, that a warning letter was issued, and that, as a union member, the Applicant was targeted. Each of these matters was adequately explained in the evidence of the Respondent’s witnesses and in its submissions. [2026] FWC 847 16 [96] In consideration of the collective impact of these incidents, I have also considered the mindset contended to be weighing on the Applicant. Those contentions included that the Applicant would be humiliated and suffer ramifications for his future employment given this was his first job, he was young, unsophisticated and he believed he was being targeted in a manner that would not stop. The Applicant contended that there is always a choice to stay, however, that such a choice does not alter the legal test and further that authorities such as Sydney Water and Peary supported consideration of the cumulative application of conduct. However, in this present case, unlike in Sydney Water,62 where the Full Bench found that it was difficult to conclude what other outcome other than resignation might have been expected, there are a number of other outcomes that could have been expected. The Applicant acknowledges that he had a number of avenues available to him to make complaints. Many of these avenues were available to him without needing to resign and therefore support a finding that the Applicant had options available to him other than resignation. [97] In further considering the issues in contest, I note the caution urged by the Full Bench in Doumit v ABB Engineering Construction Pty Ltd (Doumit),63 when they said as follows: “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.” (emphasis added) [98] This approach is consistent with Commissioner Spencer’s recent decision in Harnett v Hands On People Pty Ltd,64 where the Commission reiterated that subjective perceptions of unfairness or distress, without objective evidence of conduct intended to cause resignation or likely to do so, cannot satisfy s.386(1)(b). [99] I reject the Applicant’s interpretation of the High Court authority in BHP Coal that what mattered was that the Commission should determine whether the Applicant held a reasonable belief that he had no choice but to resign. It is nonsensical that that this [2026] FWC 847 17 should be accepted as the test. If it were, it would not matter what the Respondent did at all if an employee simply believed unilaterally that they had no choice but to resign. In my view, that argument is misconceived and must fail. Doumit, as highlighted in the preceding paragraph, further supports this view. [100] For these reasons, I find based on an objective assessment of all of the circumstances, that the Applicant’s resignation was not the probable result of the Respondent’s conduct. [101] The Applicant has not discharged his onus to demonstrate that he had no real, effective or meaningful option but to resign in these circumstances. As a result, I am not satisfied that he was dismissed within the meaning of the Act. The Respondent’s jurisdictional objection is upheld and this application is dismissed. [102] I order accordingly. DEPUTY PRESIDENT Appearances: Mr Ian Neill SC of Counsel instructed by Mr Rohan Tate of Turner Freeman Lawyers on behalf of the Applicant. Ms Michela Agnoletti of Counsel instructed by Mr Adam Lambert of KHQ Lawyers on behalf of the Respondent. Hearing details: 9 January 2026 In person Brisbane Printed by authority of the Commonwealth Government Printer <PR797661> 1 Fair Work Act 2009 (Cth) s.596(1) (the FW Act). 2 Section 596(2) of the FW Act provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if: (a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or (b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or [2026] FWC 847 18 (c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter. 3 The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act (see the decision in Warrell v Fair Work Australia [2013] FCA 291). The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted (see the decision in Warrell v Fair Work Australia [2013] FCA 291). 4 Including s.596(2) (a)-(c) and both Note (a) and (b) of the FW Act. 5 Digital Court Book (DCB) p.25 at [13]. 6 DCB p.113; See also p.327. 7 DCB p.328. 8 DCB p.84 at [29]; See also p.113. 9 DCB pp.116-118. 10 DCB pp.119-122. 11 DCB p.327 at [8] and [10]. 12 DCB p.327 at [9]; See also QUD450/2025. 13 DCB p.82 at [21]. 14 DCB p.125. 15 DCB pp.130-134. 16 DCB p.86 at [38]; See also p.136. 17 DCB p.136. 18 DCB p.327 at [9]; See also QUD450/2025. 19 DCB p. 82 at [22]. 20 Ibid. 21 DCB p.82 at [23]; See also p.25 at [26]. 22 Ibid at [24]; See also p.328 at [15]. 23 Ibid. 24 Ibid at [25]. 25 Ibid p.86 at [40]-[41]; See also pp.139-142. 26 DCB p.25 at [20]. 27 DCB p.83 at [26]. 28 DCB p.84 at [27]. 29 DCB p.88 at [49]-[50]; See also p.32. 30 DCB p.88 at [49]-[50]. 31 DCB p.25 at [21]-[22]. 32 DCB p.26 at [23]. 33 Ibid. 34 DCB p.26 at [24]. 35 DCB p.26 at [25]. 36 DCB pp.86-87 at [43(b)]. 37 DCB p.87 at [43(c)]. 38 DCB p.87 at [44]. 39 DCB p.87 ay [45]; See also pp.144-145. 40 DCB p.87 ay [45]. 41 DCB pp.147-148. 42 DCB p.148. 43 DCB pp.150-151. 44 Ibid. 45 DCB p.23 at [9]. [2026] FWC 847 19 46 DCB p.25 at [12(a)]. 47 Ibid at (b). 48 Ibid at (c). 49 Ibid at (d). 50 Ibid at (e). 51 DCB p.82 at [22]. 52 Ibid. 53 Ibid. 54 DCB pp.82-83 at [22]-[26]. 55 DCB pp. 139-142. 56 DCB p.327 at [4]-[5]. 57 DCB pp.83-84 at [26]-[27]. (Some of which the Applicant contests at pp.26-27 at [43]-[45]. 58 DCB p.88 at [4]-[50]. 59 DCB p.327 at [6]. 60 DCB p.25 at [12]. 61 Queensland Human Rights Commission, Australian Human Rights Commission or Fair Work Commission. 62 Sydney Water Corporation v Reem Yelda [2022] FWCFB 67 at [49]. 63 Doumit v ABB Engineering Construction Pty Ltd Dec 1609/96 S Print N6999. 64 Naomi Harnett v Hands On People Pty Ltd [2026] FWC 636 at [75].