1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Mr Anthone Withers v Closed Ai Pty Ltd (C2024/6148) DEPUTY PRESIDENT ROBERTS SYDNEY, 3 FEBRUARY 2025 General protections – jurisdictional objection – whether applicant dismissed – non-payment of wages over extended period – termination on employer’s initiative – resignation – whether resignation forced by conduct engaged in by employer - objection dismissed [1] This decision concerns an application by Mr. Anthone Withers (Applicant) under s. 365 of the Fair Work Act 2009(Cth) (Act) in which he alleges that he was dismissed by his former employer Closed AI Pty Ltd (Respondent), in contravention of the general protections provisions contained in Part 3-1 of the Act. [2] The Respondent raised an objection to the Commission dealing with the dispute, namely, that the Applicant was not dismissed by them but rather resigned his employment voluntarily. That is a matter that must be determined before the Commission can proceed to deal with the dispute by conducting a conference under s.368 of the Act1. [3] The procedural background to the matter is as follows. Directions were made for the parties to file material and both parties did so in the latter part of 2024. The matter was first listed to be heard on 15 October 2024. Prior to the original hearing date, the Commission received a request from Mr. Twomey, a director of the Respondent, to adjourn the hearing of the matter on the basis that Mr Twomey was the only person able to appear and represent the Respondent and that he was medically unfit to do so. The adjournment application was supported by a medical certificate and granted. Thereafter, multiple further adjournment applications were made and granted for similar reasons. [4] Following correspondence from my Chambers, Mr. Twomey indicated in December 2024 that he was arranging for legal representation for the Respondent in the matter. The hearing was ultimately listed for 29 January 2025 and Mr. Twomey was put on notice that the matter would proceed on that date. The Respondent did not appear at the hearing. My Chambers confirmed with the legal firm that Mr. Twomey had specified would be acting for the Respondent prior to the commencement of the hearing that they had no instructions to act for the Respondent. The matter was heard in the Respondent’s absence. [2025] FWC 290 DECISION Unknown 2 [5] The evidence from the Applicant was that he was employed by the Respondent as a general manager through a secondment agreement with another company in March 2024. He said that from the period commencing 15 May 2024 until his employment came to an end on 9 August 2024 his wages were not paid by the Respondent. The Applicant said he made numerous requests and complaints to the Respondent about unpaid wages and eventually, by letter dated 6 August 2024, he made a final demand that all unpaid wages be paid by 9 August 2024, or he would commence legal proceedings for recovery. The amount of the wages said to be outstanding was significant. [6] The Applicant said he was asked by Mr. Twomey to provide a resignation to the Respondent’s Head of Operations and that that person would organise the payment. The Applicant did not provide the requested resignation. The Applicant also confirmed in evidence that he did not provide a verbal resignation to the Respondent at any stage. [7] On 9 August 2024 the Respondent wrote to the Applicant and said that the Applicant’s employment was to end on 9 August ‘due to your resignation’. The letter said the final pay, including accrued entitlements, would be paid by electronic transfer on 16 August 2024. On 14 August 2024 the letter was signed by the Applicant acknowledging confirmation of final pay as described and returned to the Respondent. The monies were never paid. The Applicant did not perform any work for the Respondent after 9 August 2014. [8] Section 386 of the Act sets out the circumstances in which a person is taken to have been “dismissed” for the purposes of s.365. That section provides, relevantly, as follows: 386 Meaning of dismissed (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. [9] The Applicant submitted that he was dismissed by the Respondent because he was unable to continue working in circumstances where he had not been paid for months. The non- payment was causing extreme financial and personal hardship. He said he was left with no option but to sign the letter that referred to his ‘resignation’ in the hope that this would result in the back-payment of his outstanding wages. He said that the letter was given to him under the false pretence that the monies would be paid. [10] I accept the evidence of the Applicant. In my view the Respondent’s actions in failing to pay the Applicant for many months2, providing the letter to indicate he would be paid when he confirmed the amounts and signed the document and ultimately not paying anything, resulted ‘directly and consequentially’ in the termination of the employment of the Applicant3. This was action by the employer that intended to bring the relationship to an end or had that probable result4 and was the principal contributing factor resulting in the termination5. If I am wrong about that then to the extent that the letter signed by the Applicant might be considered a resignation, I regard it as a forced resignation within the meaning of s.386(1)(b). I think the Unknown 3 conduct engaged in by the Respondent was little more than a contrivance that intended to bring the employment relationship to an end. The Respondent’s conduct left the Applicant with no effective or real choice6 but to ‘resign’ by signing the letter. [11] The Applicant was dismissed by the Respondent within the meaning of s.386 of the Act. The Respondent’s jurisdictional objection is dismissed. [12] The matter will be relisted for conference under s.368 of the Act on a date to be fixed. DEPUTY PRESIDENT Appearances: Mr A Withers, Applicant No appearance for the Respondent Hearing details: 29 January 2025 Printed by authority of the Commonwealth Government Printer < PR783917 > 1 Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche [2023] FWCFB 101. 2 Hobbs v Achilleus Taxation Pty Limited ATF The Achilleus Taxation Trust and another [2012] FWA 2907, Wood v.Tricon Security Pty Ltd [2023] FWC 1901; cf Bruce v. Fingal Glen Pty Ltd [2013] FWCFB 5279. 3 Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), (1995) 62 IR 200. 4 Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769. 5 Khayam v. Navitas English Pty Ltd [2017] FWCFB 5162 at [75]. 6 Bupa Aged Care Australia Pty Ltd v. Tavassoli [2017] FWCFB 3941 at [47].