1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Emma Salmon v Sureway Employment & Training Pty Ltd (U2025/38) DEPUTY PRESIDENT DEAN CANBERRA, 11 JUNE 2025 Application for an unfair dismissal remedy – whether applicant was dismissed or resigned – Applicant resigned – application dismissed [1] Ms Emma Salmon (Applicant) has made an application for a remedy pursuant to s.394 of the Fair Work Act 2009 alleging that she was unfairly dismissed from her employment with Sureway Employment & Training Pty Ltd (Respondent). [2] The Applicant had been employed by the Respondent as an Employment Consultant from June 2022. She worked on a full time basis from the Respondent’s Ulladulla office. [3] It is not in dispute that on 9 December 2024 the Applicant advised the Respondent by email of her resignation, giving 4 weeks’ notice. She also submitted a medical certificate on 10 December covering the whole period of her notice. She claims she was forced to resign because of unreasonable conduct by the Respondent. [4] The Respondent objects to the application on the basis that the Applicant was not dismissed within the meaning of s.386 of the Act in that she resigned voluntarily. [5] A hearing took place on 10 June 2025. At the hearing, the Applicant appeared on her own behalf and Ms A Anderson (HR Director) appeared for the Respondent. Evidence was given by the Applicant, Ms D Caddy and Ms D Wade in support of the Applicant’s case, and Ms Anderson, Mr B Whiting and Mr M Lee gave evidence on behalf of the Respondent. [6] For the reasons set out below, I find that the Applicant was not dismissed within the meaning of the Act and accordingly the application is dismissed. The case for the Applicant [7] In essence, the conduct of the Respondent that the Applicant said led to her dismissal consisted of: a. Mishandling disciplinary proceedings (not related to the Applicant) of other employees located at Ulladulla; [2025] FWC 1606 DECISION [2025] FWC 1606 2 b. Issuing an unreasonable instruction that put her wellbeing at risk; and c. Locking her out of her workplace prior to her termination date. [8] To this end she gave the following evidence: “On 9th December 2024 I was forced to resign due to unreasonable course of conduct by my employer. This conduct included the failure to provide a safe work environment in my region; the mishandling of disciplinary proceedings in my region; issuing an unreasonable instruction that put my wellbeing at risk; and effectively locking me out of my workplace prior to my termination date. My last day of employment was 3rd January 2025. I submitted a medical certificate from 10th December 2024 until 3rd January 2025 explaining that due to an escalation in workplace stress and associated physical symptoms I was left with no option but to tender my resignation due to the adverse impact on my mental health and wellbeing. My employer did not contact me that day to discuss my resignation, offer alternatives, provide any instructions for my termination, or follow up on my wellbeing. Instead I was locked out of the company intranet whilst completing my daily administration tasks, unable to contact anyone from management and left wandering what I should do with my company issued items given that I was not attending work the next day. My colleague, Debbie Wade also resigned that day and was not locked out of her workplace. My employer’s unreasonable conduct escalated on 2nd December 2024 when I was given an unreasonable direction from my State Manager, Michael Lee to handle the face to face exit of my direct manager, Deanna Caddy who had just been advised of her termination for misconduct. This direction was unreasonable as it was well outside my level of responsibility to be involved in the dismissal of my direct manager who had been unexpectedly terminated and was highly distraught. I was not given any option to refuse the direction as Deanna Caddy had already been instructed via MS Teams to attend the Ulladulla office with her company issued items and hand over to me. I was advised that she was on her way. This situation was highly confronting and upsetting. I lost my temper at Michael Lee and swore at him. I advised him that I was furious at having to deal with this situation which I thought unreasonable, and that I was having heart palpitations. As a result, I requested the afternoon off work after dealing with my instructions, as I did not feel capable of working with my clients that afternoon in such a distressed state. Due to the actions of People & Culture (HR) in other matters, I had no confidence they would support me, so I contacted my National Manager, Brett Whiting that afternoon via MS Teams to request a meeting the next day. On 3rd December 2024, I communicated serious concerns to my National Manager, Brett Whiting in a 45 minute meeting held via MS Teams. In the meeting I raised concerns regarding an unaddressed power imbalance within my team due to the inappropriate management of an initimate relationship between the State Manager, Michael Lee and a subordinate (Jasmin Skipper). This lead to unresolved bullying of a colleague in my team (Jamie-Lee Byrne) and initimidation of my Area Manager, Deanna Caddy. Both of these colleagues were also subject to an internal investigation for misconduct and have raised issues regarding the appropriate handling of this matter and their subsequent dismissals to Sureway management. I also advised Brett Whiting that I was highly distressed and agitated the day before and left work early as I was [2025] FWC 1606 3 suffering heart palpitations due to severe stress. I reported that I had not slept the night before and suffered nausea prior to attending work that morning. I stated that I had never in my 35 year career experienced this level of workplace stress. I stated that I did not think the instructions provided by Michael Lee were fair or reasonable, and that I had communicated this to him. I also disclosed that I lost my temper, swearing inappropriately and advised Michael that I was suffering heart palpitations due to this situation. At the conclusion of my meeting with Brett Whiting, I confirmed that I expected feedback from Sureway regarding my concerns about the toxic work environment in my region and stated that I would be willing to provide a written complaint if required to assist with the grievance process. No one from Sureway management or the People & Culture team contacted me to follow up on my complaints or my wellbeing during my last week at work.” [9] The Applicant’s resignation was in the following terms: “Dear Brett, Thank you for agreeing to meet with me last Tuesday regarding the termination of Deanna Caddy. To summarise, during our 45-minute discussion I highlighted specific instances that cause me serious concern, broadly including: - • The lack of genuine adherence to the company’s stated core values within the organisation. • The failure to provide a safe and healthy work environment for all staff within the NSW-DES team (Abuse of power, bullying & intimidation). • The failure to follow standard best practice during disciplinary proceedings regarding recent terminations in the Shoalhaven region. As a result, I’ve experienced significant stress over the past 12 months, which has escalated in the last week. I have suffered nausea, insomnia, and anxiety for which I am seeking medical treatment. Given this situation, I am left with no option but to tender my resignation as I can no longer work under these conditions due to the impact on my mental health and wellbeing. Yours sincerely, Emma Salmon” [10] The Respondent accepted the Applicant’s resignation by return email the same day. The case for the Respondent [11] The Respondent said that in the months leading up to December 2024 there was an investigation conducted relating to inappropriate conduct by other employees, including some employees in the same team as the Applicant. [2025] FWC 1606 4 [12] The Respondent said it was obliged to protect the privacy of employees and so there was limited information that could be shared with the Applicant and other employees about the nature of the matters the subject of the investigation. [13] The Applicant’s manager was dismissed on 2 December 2024 as a result of the investigation and was asked to return her company property to the office. The Applicant was asked, and agreed, to take possession of property in the possession of her manager. [14] On 3 December 2024 the Applicant spoke with Mr Whiting and raised concerns regarding the conduct of investigation and the outcome of the investigation. She also raised concerns about the workplace culture. Mr Whiting says he told the Applicant he would find out what he could do to ensure she felt supported in the workplace. [15] Three days later the Applicant resigned. She had not raised any grievance with the Respondent’s HR team prior to her resignation. [16] The Respondent said it had taken no action to bring the employment relationship with the Applicant to an end. When is a person dismissed? [17] The meaning of ‘dismissed’ is defined in s.386(1) of the Act which states: (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. [18] 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. [2025] FWC 1606 5 (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. [19] In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park2 Deputy President Sams noted the following when considering whether the applicant 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 Ltd (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: ‘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, ‘… 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]. [20] 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”.3 Consideration [2025] FWC 1606 6 [21] Having considered the evidence and submissions, I find that the Applicant was not dismissed within the meaning set out in s386(1) of the Act, in that she was not dismissed at the initiative of the Respondent, nor was she forced to resign because of conduct engaged in by the Respondent. [22] The conduct the Applicant complains of that occurred prior to her resignation involved an instruction to take possession of company property her manager was returning after her manager’s dismissal, and the Applicant’s dissatisfaction with the outcome of a disciplinary process involving her manager and other employee who was dismissed. I am not satisfied that either matter could objectively be said to constitute conduct by the Respondent that was intended to bring the employment relationship to an end. [23] The Applicant raised concerns with Mr Whiting, who agreed to find out what support could be put in place for her, however the Applicant resigned only 3 days later. Two things flow from this. First, I do not consider that Mr Whiting would have offered to follow up with options for supporting the Applicant if he wanted her to resign. Second, 3 days is a short period of time in which to expect a response. The Applicant could have given Mr Whiting a reasonable opportunity to respond to her concerns, but he was not given that opportunity. [24] Much of the Applicant’s complaint involves events that occurred after her resignation and therefore could not possibly have been a reason for her resignation. I accept the Respondent’s evidence in relation to the removal of the Applicant’s access to its IT system was because she had provided a medical certificate confirming she was unfit to work for the entirety of her notice period. The Respondent reasonably concluded that she would not be performing any work from then on. Similarly, any lack of follow up by the Respondent after the Applicant’s resignation may have been distressing for the Applicant but clearly cannot be considered conduct that forced the Applicant to resign. [25] The Applicant has not discharged her onus to demonstrate that she had no real, effective or meaningful option but to resign in these circumstances. As a result, I am not satisfied that she was dismissed within the meaning of the Act. This application is therefore dismissed. DEPUTY PRESIDENT Appearances: Ms E. Salmon, the Applicant. [2025] FWC 1606 7 Ms A. Anderson, Human Resources Director, appearing for the Respondent. Hearing details: 2025 10 June Via Microsoft Teams Video Printed by authority of the Commonwealth Government Printer <PR788099> 1 [2017] FWCFB 3941. 2 [2012] FWA 2473. 3 Sathananthan v BT Financial Group Pty Ltd [2019] FWC 5583.