1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Adam Campbell v Endeavour Group Limited T/A BWS (C2025/9819) COMMISSIONER SPENCER BRISBANE, 12 JANUARY 2026 Application to deal with general protections contraventions involving dismissal – jurisdictional objection: employee not dismissed pursuant to s.386(1)(a) or (b) – Applicant voluntarily resigned – jurisdictional objection upheld – application dismissed. Introduction [1] Mr Adam Campbell (the Applicant) filed a general protections application with the Fair Work Commission (the Commission), pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with alleged contraventions of workplace rights resulting in dismissal. Mr Campbell submitted that he had been dismissed from his employment, as a retail team member, with Endeavour Group Limited T/A BWS (the Employer/the Respondent). [2] The Employer rejected that the Applicant was dismissed within the meaning of s.386(1)(a) or (b) of the Act. The Respondent submitted that the Applicant ended the employment relationship, when he provided a letter of resignation and returned his store key. The Applicant in his evidence and submissions argued that he had no other option, but to lodge the resignation letter, due to the actions of the Respondent’s Manager. [3] The Full Court of the Federal Court’s decision in Coles Supply Chain Pty Ltd v Milford1 requires the determination of whether the Commission has jurisdiction to deal with a s.365 application. It must be decided if Mr Campbell was dismissed from his employment or whether he resigned, due to the course of conduct by the Employer. Relevant Legislation [4] Section 365 of the Act is as follows: “365 Application for the FWC to deal with a dismissal dispute If: (a) a person has been dismissed; and [2026] FWC 66 DECISION [2026] FWC 66 2 (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.” [5] Section 386 of the Act provides the meaning of “dismissed” as: “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. …” [6] This decision only deals with the jurisdictional objection whether Mr Campbell’s employment was terminated by the Employer, within the meaning of s.368(1)(a) or (b) of the Act. That is, this decision only considers the alleged conduct by the parties in the context of the jurisdictional objection. The decision does not deal with the merits of the s.365 case. [7] The matter was listed for a Determinative Conference in relation to the jurisdictional objection. Directions were issued for the parties to file evidence and submissions in relation to the jurisdictional objection. [8] Submissions were also sought on the issue of legal representation on behalf of the Applicant. The matter was given consideration and permission was granted for the Applicant to be represented pursuant to s.596(2)(b). Mr Campbell was represented by Ms Sarah Lock (solicitor) from Workplace Law Group. Ms Laura Hook, the Respondent’s Employee Relations and Advisory Manager, and Mr Ricky Kakwani, the Senior Employee Relations Manager, appeared for the Respondent. Background [9] The Applicant commenced employment with the Respondent at the Bellbowrie BWS store, as a part-time employee, on 3 November 2023. Ms Kylie Spidy on 14 July 2025, became responsible for managing the Respondent’s Bellbowrie BWS store where the Applicant had worked with a different Manager before Ms Spidy’s commencement. [10] Prior to Ms Spidy’s period in management, the Applicant stated he had consistently worked additional shifts beyond his contracted 10 hours per week. During Ms Spidy’s period of management, she undertook a required review of the store hours under the BWS policy. Consequently, as part of the implementation of the broader BWS (‘Rostering Our Way’) policy of the realignment of rostered hours and store hours, the Applicant and other Bellbowrie BWS employees were offered additional shifts less frequently. [2026] FWC 66 3 [11] In the summary terms this matters primarily relates to an event on 2 September 2025, when Mr Campbell and Ms Spidy worked together. Ms Spidy had offered an additional shift to Mr Campbell, who the Respondent stated subsequently failed to accept the rostered shift. Another employee requested the shift and Ms Spidy therefore assigned the shift to that employee. Mr Campbell approached Ms Spidy to raise a concern relating to this withdrawal of the shift. The conversation escalated to the point that Mr Campbell stated he “quit”. Mr Campbell then immediately, during his shift, left the store and went to his home. Later that day, Mr Campbell returned to the store and provided his letter of resignation and the store key to Ms Spidy. [12] The Applicant’s letter of resignation set out: “I, Adam Campbell, hereby officially provide you my immediate resignation from BWS Bellbowrie effective immediately. The reason for my resignation is as follows Reduction of hours Workplace bullying Illegal removal of published rostered hours without prior communication Toxic work culture since current Manager took over store As I hand in this notice I am returning the following items BWS store key I have enjoyed working for BWS Bellbowrie for the past 18 months, with Rob as the store manager. However since the new management has taken over, the workplace has not been a pleasant environment to work in.” [13] The Applicant argued in accordance with s.386(1)(b) of the Act, that he resigned from his employment, but it was a constructive dismissal. The Applicant’s case, in summary terms, was that his employment was rendered so intolerable that he had no choice but to resign. It was argued, on behalf of the Applicant, that the resignation was as a result of a course of hostile conduct by Ms Spidy, combined with her reduction in the Applicant’s work hours (and therefore income). [14] In response, the Respondent did not concede that the Manager had engaged in hostile conduct but recognised that the working relationship between the Manager and the Applicant had become strained. However, there was no evidence that the Manager’s conduct was targeted, repudiatory, or intended to force the Applicant’s resignation or that resignation would be the probable result in response. The Manager’s conduct was at all times lawful, contractually permissible and the Applicant provided no evidence of examples of behaviour by the Manager that directly led to his resignation or justified such. Summary of the Applicant’s Evidence and Submissions [15] The Applicant filed a witness statement in this matter and was cross-examined by the Respondent. [2026] FWC 66 4 [16] Mr Campbell gave evidence that he had had several negative interactions with Ms Spidy during her tenure as Manager throughout July and August 2025. The negative episodes included discussions when he had personal obligations, which prevented him from working additional Saturday shifts. He stated that he had arranged coverage for these shifts and had confirmed this with Ms Spidy. Under cross-examination, Mr Campbell confirmed he had not worked a Saturday shift since some months before Ms Spidy, started managing the store: “PN440 When Ms Spidy was the relief store Manager – well, she was a relief store Manager prior to her becoming permanent – did you work any Saturdays?---Prior to her coming in and filling in, yes. PN441 No, so during when she was the relief store Manager?---During? I don't recall, no. PN442 So the timesheets show that the last Saturday you worked was on 10 May 2025. Do you agree that this is some two months before Ms Spidy started managing the store in full capacity?---Yeah, but not before she was filling. She was filling in not long after that.” [17] Mr Campbell also submitted that he was not being offered additional shifts on Mondays and on the occasions where employees from other BWS stores were rostered at Bellbowrie BWS. Mr Campbell interpreted his reduction in work hours as representations of his poor relationship with Ms Spidy, and more broadly as taking away shifts that were normally worked by the Bellbowrie BWS employees. Under cross-examination, Mr Campbell confirmed he had not raised any of these concerns with Ms Spidy or otherwise with the Employer: “PN421 Mr Campbell, at any time that these alleged events had occurred, did you ever raise any complaints or speak to anyone about your concerns, including your area Manager, your senior people partner being Human Resources, or raising your concerns to team services?---No, I did not. PN422 So at no point did you raise these complaints?---No, I did not. PN423 That as you've outlined them, are quite serious?---Yes. PN424 And why did you not raise your concerns?---I didn't think it'd go anywhere. PN425 You didn't think it would go anywhere?---No, and I was afraid to, to be honest, if Kylie found out. [2026] FWC 66 5 PN426 You were afraid. Okay. Noting you are aware that there is team services, which does have an employee relations function that is completely independent from the operational side of the business, you still didn't think that it was important to raise these concerns. I note you have outlined throughout your statement the alleged impact that these alleged incidents had. You didn't think it would be important to raise those complaints so they were dealt with?---No, I didn't think it'd – I didn't think anything would happen if I spoke about it. And yeah, I didn't think anything would happen, and I was still scared to. PN427 So to be clear, the only time that you have raised these concerns or complaints is after you resigned from your employment with BWS?---I did speak to Rob Clarke, but he said - - - PN428 Yes. No, go on?---And you said area Manager or team services and other things like that, not Manager. PN429 So when you did have that conversation with your previous store Manager, he did encourage you to contact your area Manager or team services about these concerns?---I believe so, yes. PN430 But you did not?---No, I did not.” [18] Mr Campbell approached Ms Spidy on 2 September 2025. Mr Campbell stated he asked why he was not rostered for the upcoming shift. He stated he viewed Ms Spidy’s response as dismissive and defensive. Mr Campbell alleged Ms Spidy made negative comments about his work ethic and performance. He stated that Ms Spidy also said that she knew he did not intend to work the shift that had been reassigned, and that she was aware that he was looking for work elsewhere. [19] Mr Campbell approached Ms Spidy again later that shift and confronted her, saying that he did not believe she was allowed to remove him from the shift on short notice. Ms Spidy did not agree, noting he had not confirmed the offer of the additional shift. The Applicant then considered her responses to be hostile. Under cross-examination, the Applicant confirmed he understood, he needed to attest to shifts and that he had not confirmed the shift in question: “PN370 Now, when an additional shift is offered to you through the UKG Pro system you are required to either accept, i.e. attest, or reject that shift; is that correct?---Yes, that is correct. PN371 And you understood that process?---Yes. But there was no emphasis on it at all. [2026] FWC 66 6 PN372 But you understood that is how shifts were accepted or attested or rejected?---The new Manager said to me that you had to attest the shifts to be able to work them. PN373 So you were never at any point told that you needed to accept those shifts in UKG to ensure that the store Manager knew that the team member was going to be working those shifts as you would do if you needed to reject it. You are saying that at no point it was never an expectation of you to do that?---They asked me to, but they didn't say it was completely necessary to ensure the shift. No. PN374 So to clarify, you had been told to do that?---Not to ensure a shift, no. PN375 Could you please clarify? I feel like you first said you haven't been told to do that in the past but then you have later then stated that you have been told, you were told by Managers that you did need to do that?---No, I wasn't told to do something as a directive. They asked me to do it, and they didn't put any emphasis on it, no. PN376 So they did ask you to accept those shifts in UKG if you were going to work them?---They asked me, yeah. … PN499 Yes, and Mr Campbell, did you accept the shift in UKG?---No, I did not.” [20] The Applicant stated that his number of rostered hours had been reduced, and he did not view the discussion made it likely to restore the offer of the additional shift. Accordingly, in response, he resigned verbally to Ms Spidy. Mr Campbell subsequently walked out of the workplace and went home and later returned to the store with his resignation letter and store key. Under cross-examination, the hours of work were further discussed: “PN509 Did you plan to resign on 2 September 2025 prior to starting your shift?---No, I did not. PN510 You did not. You have stated throughout your statement that the reduction of hours caused you financial anxiety, and it caused 'your attitude to change'. Is it accurate to say that your increasing anxiety and frustration were primarily linked to the loss of the expected income, as outlined in paragraph 39, rather than the hostile comments that you have alleged to have occurred?---No, none of my emotions I guess dictate how I act. PN511 None of your emotions dictate how you act, is that what you're saying?---Well, obviously they do sometimes, but not prior to the 2nd, no. [2026] FWC 66 7 PN512 So to clarify, you're stating that you weren't anxious about the financial aspect?---No, no, I was, I just didn't let that affect my work. PN513 Okay. You describe your interactions with Ms Spidy on 2 September 2025. At no point in time did Ms Spidy try and pressure you into quitting at the moment. Is that correct, Mr Campbell?---I wouldn't say she pressured me, no. PN514 You wouldn't say she pressured you. So you came to the decision to resign yourself?---Yeah, because of her treatment of me, yeah. … PN535 MS HOOK: Mr Campbell, when Ms Spidy immediately accepted your resignation and requested your key, you would agree that she was simply accepting the decision that you had made in the heat of the moment?---Yeah, but I would've liked to have spoken to her about it. PN536 Did you request to speak to her about it?---No, but I thought she would've initiated the conversation with her being the Manager. PN537 Right. Okay. So did you intend to resign during that conversation?---When I was giving my resignation letter. PN538 So not at the time of the conversation did you intend to resign?---No. Do you mean when I was giving my resignation letter to her? PN539 No, the initial conversation when you said that you were resigning, and then you left the store?---The initial conversation as in before I left the store? PN540 Yes, correct?---Did I intend to resign before that? PN541 No, during that conversation. Was it your intention to resign from your job?---When the conversation concluded, yeah. PN542 But not at the time?---Right before I left, yes. [2026] FWC 66 8 PN543 Okay. Later when you calmed down, you wrote out a resignation letter confirming your decision to resign, and returned to the store to provide it to Ms Spidy; is that correct?---Yes. PN544 And you stated that some of the reasons that led to your resignation, and that is I quote from your earlier responses, 'Not worth it working there anymore.' You made this choice on your own accord; is that correct?---Yeah, from how she was treating me, yes.” [21] Mr Campbell stated that he took “some time to calm down”,2 and then determined to write his letter of resignation, including his assessment of his reasons for ending his employment. Mr Campbell then returned to the store to provide his letter of resignation and the store key to Ms Spidy. He stated that she was at the front desk speaking to someone else and that he placed the letter and store key on the desk without talking to her. Summary of the Evidence of Ms Spidy and the Respondent’s Submissions [22] The Respondent filed a witness statement from Ms Kylie Spidy (the store Manager), and she was cross-examined by the Applicant’s legal representative. [23] Ms Spidy stated that when she became responsible for managing the Bellbowrie BWS store, she identified that the store was using its employees for more work hours than the store was allocated. Ms Spidy stated she undertook a review of the store hours and reduced the number of additional shifts offered to part-time employees, including the Applicant. She stated this was undertaken to maintain the budget of the store, and did not take into consideration the impacts on individual employees: “PN191 MS LOCK: Would you say that their hours reduced, representing a 30 per cent loss of income?---I'm not sure of the percentage, but all shifts were changed. The Sunday shifts were changed, the Monday shifts. Every shift across the whole week was changed. So, yes, I'm sure whoever used to work the 8.45 to 5.45 on a Sunday was, yes, affected by the shift changes. Yes. PN192 THE COMMISSIONER: So do you not take into account the impact on each individual when you're changing or reducing the store hours? Do you not have regard how it might impact individual employees?---I was bringing the store hours in line to the business's requirements. PN193 Yes. So is that, 'No, I don't', I just reduce the hours as to what the business requires, even though it might significantly reduce the hours by individual employees, or one more so than other employees?---Like I said, the hours were reduced across the store. Yes, it is unfortunate that hours were cut from the store. … [2026] FWC 66 9 PN195 Well, I don't know what - you don't seem to be answering the question?---Well, it's not that I didn't think about - of course reducing hours in a store, that was - that was overusing hours, yes, of course it has an impact and of course I think about that. Yeah.” [24] Ms Spidy stated that the Applicant had not accepted the upcoming additional shift in question which had been offered. Another employee had then spoken to Ms Spidy requesting the shift. Ms Spidy gave evidence that the other employee stated that Mr Campbell had asked if they could cover the shift. As the Applicant had not accepted the shift, Ms Spidy inferred that the other employee’s statement was accurate and Mr Campbell did not intend to work the shift. As such, she assigned it to the other employee. [25] Ms Spidy gave evidence that on 2 September 2025, Mr Campbell attended work and during his shift, he asked her why he was no longer offered the shift. Ms Spidy stated words to the effect of “I heard you wanted someone to work it and you hadn’t attested to it anyways”. Ms Spidy stated that it was at this time that the Applicant stated to her that he intended to resign and left the store. Under cross-examination, Ms Spidy stated that the Applicant left the store mid-conversation and mid-shift: “PN241 Now, I'll take you to, roughly, the end of the conversation on 2 September, when Mr Campbell said, 'I quit'. What was your immediate response to this?---I asked him for a resignation letter and for his keys to the store. PN242 Did you make any attempt at all to ask him to reconsider his resignation?---He was walking out the - he was out the door. He was going. He was literally out the door when he said that he quit. He left mid shift. PN243 When he said 'I quit' and walking out the door, what was his demeanour like?---Angry. PN244 Was he upset?---No. I would say angry. PN245 We say that he came home in a state and was extremely upset, crying and you're saying that you did not see that when he left the store?---No. PN246 So you didn't suggest taking a break and discussing the matters when emotions settled down?---He had already left the store. He literally said, 'I quit', and was walking out the door. He was two steps out the door when I asked him for his keys. [2026] FWC 66 10 PN247 So why did you accept his resignation immediately then, if potentially it was in the heat of the moment?---If it was in the heat of the moment he wouldn't have come back to me with the resignation letter.” [26] Later that day, following the verbal communication of his resignation, as set out, the Applicant returned to the store and provided his resignation letter and returned the store keys. Final Submissions [27] The parties both sought to make further submissions after the Determinative Conference, to emphasise their arguments and matters arising from the evidence. A summary of relevant extracts are provided. Summary of Applicant’s Final Submissions [28] In their final submissions, the Applicant’s representative submitted that the evidence of Ms Spidy established that the Applicant was constructively dismissed and that given the course of conduct engaged in by the store Manager, the Applicant was left with no real choice but to resign. [29] The Applicant’s representative argued that the Respondent in their final submissions had attempted to re-characterise a sustained pattern of bullying harassment and punitive treatment as legitimate, operational decisions and reasonable management action. However, it was argued on behalf of the Applicant that this assessment is fundamentally inconsistent with the evidence and fails to address the cumulative effect of Ms Spidy’s conduct over approximately two months. [30] It was argued on behalf of the Applicant that the evidence established a sustained pattern of adverse conduct by the Applicant’s Manager, Ms Spidy, from July 2025 until the Applicant’s resignation. It was refuted that the resignation stemmed from a single incident regarding roster attestation. The Applicant’s representative argued that any attempt to reduce this matter to procedural non-compliance with a roster affirmation, ignores the extensive course of conduct that preceded the final confrontation. That is conduct that created the context in which the Applicant’s resignation occurred. [31] The Manager’s purported hostile and condescending treatment of the Applicant was referred to, which it was alleged included the Manager consistently speaking to the Applicant in a condescending manner and ignoring the Applicant’s greetings and behaving in an openly hostile manner towards him. For example, it was stated that the Manager berated the Applicant for approximately 10 minutes about timekeeping issues of other employees, which were matters outside the role of the Applicant and therefore the Applicant felt unfairly blamed for such. [32] However, when providing evidence, the Applicant was asked for examples of the Manager’s inappropriate conduct, specific incidents were referred to by him with regard to the Manager’s casual treatment of another employee's water bottle and the matter of the Applicant smoking in the BWS business drive-through. The Applicant’s representative submitted that the Respondent was restructuring the context of prior conduct, in suggesting that there was no [2026] FWC 66 11 bullying or harassment based on these limited examples referred to by the Applicant. The Applicant’s representative claimed that this excluded the full scope of Ms Spidy’s actions during the two-month period. Further, the Applicant’s representative argued that this approach does not recognise the cumulative impact on the Applicant of the ongoing, condescending interactions by the Manager towards the Applicant. [33] The Applicant’s representative acknowledged that the Applicant agreed that the two incidences referred to above were not condescending. However it was emphasised that this mischaracterises the evidence and that when viewed in isolation, these individual incidents may appear minor, however the Applicant was relying on the assessment of the cumulative course of conduct. In addition to these two incidents, the reduction in Mr Campbell’s hours from 33 hours to 23 hours per week was relied on as being punitive and targeted. The Applicant’s representative also referred to an assessment that the Manager considered the Applicant would not work the additional shifts based on past experience and that it was known that the Applicant was looking for another job. [34] The Applicant’s representative dismissed the Respondent’s operational justification for the reduction in the Applicant’s hours. In doing so, it was argued that the Manager had not consistently applied the ‘Rostering Our Way’ policy for the review of the store hours, and in turn the reduction in the employees’ hours. The Applicant’s representative was critical of the lack of documentation presented by the Respondent to verify a uniform application of the review of the hours. However it is noted that limited cross-examination was pursued by the Applicant’s representative on this issue with the Manager. Summary of Respondent’s Final Submissions [35] The Respondent’s final submissions were also reviewed. The parts of the Respondent’s final submissions that have been adopted as accurately reflecting the correct assessment of the evidence have been addressed in summary form below: [36] The Applicant relied heavily on the atmosphere created by Ms Spidy and the Respondent being "difficult or unpleasant". Importantly, when Mr Campbell was asked to provide an example of conduct from Ms Spidy which was “inappropriate for a Manager as opposed to simply being a management direction instruction”, including conduct that was “condescending or critical”. The Applicant had submitted that the examples provided were: • A request by Ms Spidy to “throw out a water bottle” of another team member, which the Applicant himself agreed was in fact not condescending or critical; and • A direction by Ms Spidy to the Applicant not to smoke in the drive-thru of the workplace. The Applicant agreed this was not condescending or critical. [37] The Applicant was otherwise unable to specify conduct of Ms Spidy which would reasonably be considered to have made the employment of the Applicant so intolerable that he must resign. [38] The Applicant also confirmed that he did not raise any complaints or concerns through the Respondent’s available channels, including via his Area Manager, Senior People Partner (Human Resources), or Team Services (the Respondent’s Employee Relations Function). This [2026] FWC 66 12 is despite being alerted to these options and encouraged to by his previous Store Manager Rob Clarke. The Applicant had described his working relationship with to be “great”. [39] The Respondent in addressing the Manager’s reduction of store hours, referred to the terms of the Applicant's employment. The Applicant’s employment contract, signed by the Applicant on 3 September 2024 and the BWS Agreement 2019, explicitly set his contracted hours at 10 per week. These agreed contracted hours were the ordinary hours per week, the Respondent was required to provide to the Applicant (as a part-time employee). As a part-time team member, the Applicant was afforded the opportunity to work additional hours in addition to working his contracted hours as per his standard roster in accordance with clause 8.4.1 of the BWS Agreement 2019, the Applicant could work (when he was available). However, the clause stated these additional hours “may change with operational needs and are not guaranteed to be offered”. The Applicant provided standing consent to work additional hours, with full knowledge of this clause. [40] The Applicant confirmed that throughout his employment with the Respondent, his hours of work fluctuated between 23 to 37 hours per week. The Respondent also referred to the rostered periods prior to Ms Spidy being appointed, when he worked less than his alleged average hours. [41] In his evidence, the Applicant confirmed that he understood that: • those 10 hours were not his minimum hours, rather they were his guaranteed hours as agreed upon between the Applicant and BWS; • any hours worked above those 10 hours were considered “additional hours offered on a voluntary basis”; and • variations to those hours were based on shifts available at the time. [42] The reduction of the Applicant's hours maintained the core terms of the contract. Further, the Respondent emphasised that the Applicant was rostered at times for more than double his guaranteed minimum hours consistently while Ms Spidy was performing the rostering of the store. [43] In addition, at no time during his employment did the Applicant elect to increase his contracted hours under the terms of the BWS Agreement 2019 nor did he have any discussion with Ms Spidy or his previous Manager, Mr Clark, regarding a change in his contracted hours. [44] It was also alleged by the Applicant that he lost “his” regular Saturday and Monday shifts as a result of the conduct of Ms Spidy. Ms Spidy consistently gave evidence that she did not have access to previous rosters prior to commencing in the store, other than during her time as a relief Manager. Ms Spidy therefore did not have had knowledge of his work pattern outside of the limited relief period except for the Applicant’s contracted hours. The Applicant also confirmed that during the Manager’s relief period, he was not rostered on a Saturday. The Applicant’s claim that the Saturday shift was deliberately removed from him is flawed as Ms Spidy had no knowledge of the hours. [45] At most, the Manager reduced a non-guaranteed financial benefit, while strictly adhering to the fundamental, guaranteed employment term of 10 hours per week. This cannot [2026] FWC 66 13 be determined as repudiating the employment contract. The Manager, at all times, was operating within its established operational rights of both parties under the BWS Agreement 2019. [46] The Applicant argued this course of conduct with the rostering was punitive, culminating in a hostile confrontation that left the Applicant with no alternative but to assign. The evidence does not support this claim. The final catalyst on the Applicant’s submission was the revocation of an offer of a single additional shift on 12 September 2025. Ms Spidy's evidence on this confirmed she reallocated that shift because the Applicant failed to attest or accept the offer in the UKG system, and she had information that he was seeking coverage by another employee for that shift. The Manager’s responses were within her discretion and a procedural management response to an employee's inaction regarding a non-guaranteed shift. [47] The Respondent submitted that the narrative of punitive intent by the Manager is flawed for the following reasons: • The overall hour reduction was due to a store-wide operational review (‘Rostering Our Way’) impacting all part-time staff and did not constitute targeted malice. Ms Spidy gave evidence that she reduced the overall hours of the store to come into line with the store’s target hours. Further, the Applicant did confirm that he was not the only team member who was offered less additional hours within the store, thus affirming this position. • The Applicant's resignation was initiated when he challenged, with the Manager, the removal of this single shift. In cross-examination, the Applicant confirmed that he came to the decision to resign himself. [48] On the evidence, the Applicant has failed to prove intolerability. On the Applicant’s own evidence, Ms Spidy’s behaviour could not be construed as bullying. The conduct can be considered as reasonable management action. The Applicant did not escalate his concerns or use any of the company’s grievance reporting options that he had been alerted to. He resigned without notice, indicating an impulsive choice, but not a last resort. [49] The Applicant stated that he “would’ve like to have spoken to [Ms Spidy] about [his resignation” and “would’ve thought she initiated the conversation with her being the Manager”. The Respondent submitted that Ms Spidy acted reasonably at all times during this exchange with the Applicant, and there was no obligation on Ms Spidy to convince the Applicant to reconsider his resignation particularly as the Applicant was leaving the store abruptly during his shift when he resigned. [50] The Applicant’s further conduct excluded a heat of the moment resignation as the Applicant returned to the store and provided a formal resignation letter. In the Applicant’s evidence he stated “Well, yeah, she asked for my resignation letter, so I went home and typed it up after I calmed down…” and “So did you intend to resign during that conversation? --- When I was giving my resignation letter”. [51] Ms Spidy’s immediate response: "Yeah, well, I'll take your work key and your letter of resignation, thanks" demonstrated, as set out by the Respondent that she was accepting a voluntary act, not intending to force it or drive it. This was agreed to by the Applicant. The Manager had not pressured the Applicant to resign. [2026] FWC 66 14 [52] Ms Spidy did not issue a directive to the Applicant but provided the Applicant the opportunity to formally resign once the heat of the moment had subsided. This was confirmed in Ms Spidy’s evidence where she stated, “If it was in the heat of the moment he wouldn’t have come back to me with the resignation letter” and “...wouldn’t you go home and think about it before handing a resignation letter in?”, [53] The Applicant was unhappy that his income had been reduced, by available legitimate operational management. This, however, was not intended to bring the employment to an end, nor did it render the 10-hour contract intolerable. The conduct was, at all times, contractually compliant. Consideration [54] Both parties submitted that the end of the employment relationship occurred on 2 September 2025, as a result of the Applicant’s letter of resignation. However, the parties were in dispute as to whether the resignation was voluntary (or forced) or was a termination at the Employer’s initiative.3 In relation to each party there was a summary of the submissions and the evidence, and the interpretation of such. The following case law applicable to matters pursuant to s.386(1)(a) and (b) has been considered in relation to the prominent matters of evidence as emphasised above. [55] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli, set out the meaning of a dismissal pursuant to s.386(1)(a) and (b) 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.”4 [56] The analysis of s.386(1)(a) and (b) of the Act, requires an assessment to be conducted by reference to the cessation of the employment relationship. Two conditions must be met for a ‘termination at the initiative of the employer’ to occur: [2026] FWC 66 15 (a) the actions of the Employer ‘directly and consequentially’ results in the termination of employment; and (b) if the employer did not take this action, then the employee would have remained employed.5 [57] In contrast, the Applicant’s representative argued that the Applicant’s employment was terminated pursuant to s.386(1)(b), that is the Applicant resigned from his employment but was forced to do so by the Manager’s conduct. The Applicant conceded that the resignation was not undertaken in the heat of the moment but was a considered and serious step taken in response to the Manager’s actions. This is acknowledged in circumstances where the Applicant went home, took “some time to calm down” and then returned after writing his resignation letter. The Applicant’s representative submitted that an employer must carefully assess whether they can rely on an employee’s resignation. Mr Campbell stated that he determined that in the circumstances resignation was the only viable option given the conduct of the Respondent’s store Manager. The Respondent disagreed with this. [58] The approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd (O’Meara)6 in relation to the examination of the full context of the statements of both parties needs to also assess the resultant actions, relevant to the consideration of s.386(1) of the Act. The Full Bench examined these issues in the following case: “[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said: ‘[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the Applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.’ [2026] FWC 66 16 [59] The circumstances of that example are analogous to the current situation where there was a decision by the Employer to retract an offer for an additional shift. The conduct of both parties has been examined. [60] In relation to the assessment of whether a termination of employment occurred, in O’Meara it is stated: [23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether ‘the act of the employer [resulted] directly or consequentially in the termination of the employment.’ Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” 7 (footnotes omitted) (emphasis added) [61] In ABB Engineering Construction Pty Limited v Doumit,8 in determining whether the termination of employment can be categorised as a ‘forced resignation’, it was recognised that: “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) [2026] FWC 66 17 Examples of Alleged Conduct [62] In assessing what gave rise to the Applicant’s resignation during cross-examination, the Applicant was asked to provide examples of the alleged conduct by Ms Spidy that led to the alleged constructive dismissal. The Applicant responded with examples such as the request by Ms Spidy to throw out a water bottle of another team member and a direction by Ms Spidy to the Applicant to not smoke in the drive-through as part of the business premise. However the Applicant agreed that this conduct was in fact not condescending or critical. The Applicant was unable to indicate other conduct of his Manager that made his employment so intolerable that required or caused him to resign. This cannot be held to be conduct intended to force a resignation. Reduction of Rostered Hours [63] The Applicant alleged that Ms Spidy had engaged in bullying and aggressive conduct, including the repeated removal of his shifts, with the intention of forcing Mr Campbell to resign. The Applicant’s assessment was that the Respondent had not completely discharged its onus for proving that the reduction in the Applicant’s hours did not occur for a prohibited reason but were undertaken as part of a store rostering review. It must be emphasised that this proceeding was in relation to the jurisdictional objection with regard to whether a dismissal pursuant to s.386 of the Act had occurred. It is not a full merits proceeding under s.361 as to whether a prohibited reason was a substantial or operative part of the alleged reasons for the adverse action. [64] In relation to the Applicant’s claimed reduction to his hours of work by the new Manager, it was confirmed that she was required to review the hours of the store and stated that she did so in accordance with BWS’s ‘Rostering Our Way’ policy. Ms Spidy identified the Bellbowrie BWS store was using more labour than was budgeted and consequently reduced the amount of additional hours offered to all its part-time and casual employees. The Applicant’s contracted hours were agreed in writing at the start of the Applicant’s employment and were set at 10 ordinary hours per week. The Applicant, as a part-time employee, was able to work additional hours further to the contracted hours. Before the reduction, the Applicant was working approximately 24 additional hours, and following the reduction was working approximately 17.4 additional hours. Therefore, under Ms Spidy’s management, the Applicant still retained a significant number of additional hours. However, the Respondent emphasised that in accordance with clause 8.4.1 of the Agreement, the additional hours are subject to operational needs of the business and are not guaranteed to be offered. Further, while the Applicant had provided standing consent to work additional hours, there had been occasions in which he had not affirmed additional offered shifts or ultimately had not been able to work them. This is not fatal to an employee’s contract of employment, but it informs the store Manager of the Applicant’s reliability for additional shifts or the actual availability of the employee. [65] The Applicant submitted that despite the additional hours not being contractually guaranteed, Mr Campbell stated that he had a legitimate expectation of these additional hours. It was acknowledged that he had not made use of the relevant Enterprise Agreement’s mechanism for part-time employees consistently working additional hours, to elect to increase their contracted hours. [2026] FWC 66 18 [66] Further, the Applicant’s representative was critical of the Manager not being able to recall dates and relying on her acknowledgement that she had limited access to previous rosters, as a defence. Those matters did not derogate from her evidence in relation to her charter for reviewing the rosters. The Applicant’s representative considered that the evidence in regard to Ms Spidy rostering Mogill store employees more frequently at the Bellbowrie BWS store detracted from the Respondent’s reliance on the ‘Rostering Our Way’ defence. However, the evidence from cross-examination did not support that a targeted reduction in the Applicant’s hours occurred or that there was an unfairness with rostering other store employees. In circumstances where a broad span of hours was required for the store rosters, the Employer is at liberty, where there has been circumstances where coverage of hours has been difficult at times, to increase the available pool for rostering. This cannot be held to be conduct intended to force a resignation. Reallocation of Shift [67] The Manager was in the position of ensuring coverage of retail hours at a relatively large liquor sales store and in doing so managing employees who are also balancing a range of competing objectives and demands in their lives. The Manager reasonably considered that the additional shift had been on offer to the Applicant and the shift date to be worked was in proximity; by the Monday, he had failed to accept the shift for Friday that week. Ms Spidy, who had been informed and reasonably understood from another employee, that the Applicant was requesting another colleague to cover the shift, reasonably undertook to ensure that the shift would be worked. A necessary consequence of the Applicant’s failure to confirm availability for an extra offered shift in a reasonable time, is that it may be offered to another employee to ensure coverage of operations. No reasons had been provided by the Applicant as to why he had not affirmed attendance for this shift, and he knew this was a requirement. In circumstances where the Applicant has been particularly critical of a reduction in his hours, it was then antithetical that he would not immediately confirm his acceptance of the shift. This cannot be held to be conduct intended to force a resignation. No Actions Taken by Applicant Despite Advice [68] The Applicant in cross-examination was clear that he had not raised any complaints or concerns through the available channels with the Employer. Those options included: with the Area Manager, Senior People Partner (Human Resources), or Team Services. Further, if the Applicant felt he was being bullied, he also had the opportunity to apply to the Commission for an order to stop bullying. [69] The Applicant, feeling upset and somewhat put off by the reduction in his additional shifts and the financial impact, took the opportunity to speak to his former Manager about the concern. The former Manager correctly advised him, that the appropriate step was to raise concerns with the Employer, (through the range of options) but the Applicant failed to do so. This prior Manager was particularly influential on the Applicant; the Applicant had placed significant weight on his relationship and valued the advice of this primary Manager. It therefore detracts from his case, that if the conduct and circumstances caused by Ms Spidy created a situation where he considered his only option was coming to a forced resignation, why did he not elect to report the conduct or seek assistance as advised by his previous Manager. [2026] FWC 66 19 The Applicant on his own evidence recognised these alternatives but did not exercise any other available option open to him rather than resigning. The evidence in relation to the Manager’s conduct cannot be relied on to sustain an argument of forced resignation toward the Applicant. Resignation Response [70] The Applicant submitted that Ms Spidy’s blasé attitude towards Mr Campbell’s resignation, was clear in her alleged response to him, “Yeah, well, I’ll take your work key and your letter of resignation, thanks”. The Applicant argued that Ms Spidy’s attitude demonstrated that she understood and was content with the resignation being the probable result of her course of conduct. The situation was that without warning; the Applicant absented himself from the store during the course of his shift. If the Manager had engaged in admonishing the Applicant for this at that time or on his return to the store, it is suspected that the case on behalf of the Applicant would have been equally critical of the Manager’s conduct. His letter of resignation set out his reasoning which involved his criticism of the store Manager. Whilst he was at liberty to indicate his views, it was not for the Manager at that stage when operating a shift then with one less employee to endeavour to change his views. This is particularly so as the Applicant had left the store and had a period at home prior to returning to the store with this completed resignation letter. This cannot be held to be a situation of an intended forced resignation. Conclusion [71] As above, the jurisdictional determination in the current matter requires a finding that the Employer’s actions either need to intend to bring the employment relationship to an end or have that probable result.9 The determination of this matter has relied on the primary case law that are tested case authorities in relation to s.386(1)(a) and (b) (as referred to and extracted above). Whilst both parties’ evidence and submissions have been taken into account, it has not been necessary to determine the matter on the basis of the case law as referred to by the parties, some of which has not been able to be located. This has not changed the course of the determination of this matter, given, application of the primary cases (as has been referred to), clearly establishes the tests in relation to s.386(1) of the Act. The manner in which the application of known case law (as referred to) determines the matter, is detailed in the consideration. [72] The decision of the Employer to take reasonable management action (to ensure certainty of coverage in a retail environment) to withdraw an offer of an additional shift given to the Applicant, where the Applicant had failed to accept the shift, was not conduct clearly intended to bring the employment relationship to an end. The actions of Ms Spidy in rostering the hours of the Bellbowrie BWS store align with her claim that her management guideline was to bring the labour hours in line with the BWS store policy, rather than engaging in a course of conduct to induce the resignation of Mr Campbell. [73] Further, supporting this conclusion the other conduct complained of by the Applicant as evidence of Ms Spidy’s conduct, in creating a hostile environment is not conduct commensurate with targeted, punitive conduct by the Manager towards the Applicant intended to bring about the Applicant’s resignation. When directly asked for examples of the Manager’s conduct that was allegedly attributed to creating a hostile environment and bullying, the Applicant’s responses provided in evidence are not reflective of the conduct complained of by the Applicant [2026] FWC 66 20 that created an intolerable situation where there was no option but for the Applicant to resign. The Applicant’s examples of the Manager’s conduct referred to her dealing with another employee’s water bottle and undertaking discussions with him about smoking in the workplace drive-thru vicinity. [74] I find that there is no evidence to support the allegation that the Manager engaged in conduct or a course of conduct intended to bring the employment to an end or which had the probable result of bringing the employment relationship to an end. [75] For the reasons above, I am satisfied that on the evidence of the parties, Mr Campbell was not dismissed within the meaning of s.386(1)(a) or (b) of the Act. The termination of employment occurred at the Applicant’s initiative on 2 September 2025. The Respondent’s jurisdictional objection, that no dismissal pursuant to s.386 occurred, is upheld and the application made under s.365 is therefore dismissed. [76] I Order accordingly. COMMISSIONER Appearances: S Lock of Workplace Law Group for the Applicant L Hook and R Kakwani of the Respondent Hearing details: 21 November 2025 Directions on final written submissions: Respondent’s closing submissions on 16 December 2025 Applicant’s closing submissions on 23 December 2025 Printed by authority of the Commonwealth Government Printer <PR795608> 1 [2020] FCAFC 152. 2 Applicant’s Witness Statement [58]. [2026] FWC 66 21 3 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941. 4 Ibid at [47]. 5 Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. 6 [2006] AIRC 496 (PR973462). 7 Ibid at [23]. 8 AIRCFB (1996) PRN6999. 9 Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 at [24].