This extract from a Fair Work Commission decision deals very convincingly and definitively with the legal distinction between a dismissal and a resignation in circumstances contended for by the employee to have a been a “constructive” dismissal in the context of a general protections claim involving a dismissal. Although the concept of a constructive dismissal was born in the unfair dismissal regime of the Fair Work Commission, much of the same testing of the concept arises when there is a contest in a general protections case as to whether the employee’s departure from an employer arose as a dismissal or a resignation.
“3 Consideration
[21] The Applicant asserts that his text message to Davey on 2 September 2025, did not convey a resignation and to the extent that it did, it was given at a time when the Applicant was in a state of emotional distress due to his removal from his only worksite absent any explanation. Furthermore, the Applicant denies having communicated a resignation in the meeting with Davey on 2 September 2025. In contrast, Davey considers that the Applicant’s text message constituted notification of his resignation, and, in addition, Davey gave evidence that during the meeting on the evening of 2 September 2025, the Applicant again communicated his resignation. Edmunds, who was also present in the meeting on 2 September 2025, gave evidence that the Applicant was ‘clear that he was quitting’.
[22] Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section is relevant for present purposes given the acceptance by the Federal Circuit Court3 and Federal Court4 that the definition of the word ‘dismissed’ in s 386(1) is equally relevant to the meaning of the term as used in s 365 of the Act. The word ‘dismissed’ as defined in ss 12 and 386 of the Act reads:
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.
[23] There are exceptions under s 386(2) regarding when a person has been dismissed; however, those exceptions are not relevant to this case.
[24] The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration.
[25] The first element traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct, or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (‘Bupa’),5 and in Lipa Pharmaceuticals Ltd v Jarouche where the Full Bench endorsed the principles established in Bupa in respect of s 386(1)(b) of the Act. 6 In Bupa it was said:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the 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
[26] While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan considered the operation of s 386(1):
“[10] It seems clear…that the concept of constructive dismissal is to be accommodated by
s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, 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. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)8
[27] The critical questions in this case are whether the Applicant’s communication to Davey on 2 September 2025 conveyed a resignation and if it did, whether that resignation was legally effective, and whether the act of the First Respondent in accepting the resignation by email dated 8 September 2025, was the principal contributing factor, resulting directly or consequentially in the termination of the Applicant’s employment.
[28] The starting point is the consideration of whether the Applicant’s communication to the First Respondent over the course of 2 September to 8 September 2025 conveyed a real and unequivocal resignation. Such communication cannot be viewed in isolation. The surrounding circumstances known to the parties factor into the decision of what a reasonable person in the position of the parties would have understood was the objective position of the parties on and from 2 September 2025.
[29] The approach to be adopted when considering the effect of a resignation was explained at length in Koutalis v Pollett (‘Koutalis’),9 a judgment of the Federal Court, which was followed by the Full Bench of this Commission in Canberra Urology Pty Ltd v Lancaster.10
[30] In Koutalis, at issue was whether a Mr Pollett resigned or was constructively dismissed. In relation to the former issue, Rares J said:
The question whether a resignation did or did not occur does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:
This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the
parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461-462 [22]].
In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee’s employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116, namely:
In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.11
[31] On balance, I find that in his text message of 2 September 2025, the Applicant conveyed to Davey that he was not going to present for a meeting and that he would take another job. The communication passing between the parties evinces a level of frustration between Davey and the Applicant, to the extent that when considered in isolation, I am not persuaded that the text message conveyed a legally effective resignation. It is evident that the Applicant was in a heightened state when sending the text message. This finding is reinforced by the subsequent conduct of Davey, who, whilst considering that the Applicant had resigned, nevertheless met with the Applicant on that same day and offered him alternative placements, including one at the racecourse.
[32] That is not to say that I am sceptical of the account that Davey has provided in these proceedings. Davey’s evidence was, in my opinion, more believable than that of the Applicant. The Applicant obfuscated at times such that he did not always provide answers that were responsive to what had been asked. While the Applicant made appropriate concessions at hearing in respect of Davey having offered him alternative work, I do not consider he has provided a credible account, when he stated that he did not advise Davey that he was ‘quitting’ or that Davey could ‘stick our fucking job’.
[33] The Applicant’s communication in the meeting on 2 September 2025 was, however,
provided in circumstances where he was described by Davey as ‘agitated’, ‘rambling’,
‘volatile’, ‘yelling and shouting’ and that he ‘refused to sit down and was getting more and more worked up’. Davy stated that she encouraged the Applicant to seek professional help for his mental health. Edmunds similarly described that the Applicant was ‘aggressive’, was ‘cursing at Sue’ and ‘slamming his first on the desk’. Edmunds reports that the Applicant was ‘yelling and screaming things along the line of “I don’t know what’s real and fake in my head”’. In the circumstances, the resignation conveyed to the First Respondent on 2 September 2025 was given in the heat of the moment and was of no legal effect. The appropriate course for the First Respondent to have taken following the interaction was for the First Respondent to check whether the Applicant intended to resign when a reasonable period had passed.
[34] It is established that there may exist ‘special circumstances’ which render an apparent indication of resignation on the part of the employee ineffective unless the employer obtains confirmation of the employee’s intention to resign after a reasonable period.
[35] In Bupa12 the Full Bench gave detailed consideration to the judgment of the Industrial Relations Court of Australia in Minato v Palmer Corporation Ltd (‘Minato’).13 In Minato, the employer purported to accept a resignation of the employee even though it knew that when the employee uttered the words taken as a resignation that she was under personal pressure, not in a ‘sensible state’, and did not intend to resign.14 In those circumstances, the acceptance of the resignation was characterised as constituting a termination of employment at the initiative of the employer.15 The Court in Minato referred to Sovereign House Security Services Ltd v Savage, observing that it set out the legal position in respect of ascertaining whether there was a real resignation. 16
[36] Regard is, in addition, to be had to the conduct of the Applicant after conveying to Davey and Edmunds that they could ‘stick our fucking job’. The Applicant emailed Davey on 3 September and 4 September 2025 in respect of the incident at Agricola. Those emails did not convey to the First Respondent that the Applicant considered that he had resigned. Whilst the First Respondent drew attention to the Applicant having stated that he reserved ‘all legal rights including the right to pursue unfair dismissal, breach of contract, reputational harm, or other relevant actions’, he did so in the context of also stating ‘should this matter not be resolved equitably’. That the Applicant reserved his rights regarding ‘unfair dismissal’ does not implicitly communicate a resignation in these circumstances.
[37] Whilst appreciative of the First Respondent’s contentions that the Applicant was offered work at alternative sites and refused that work in the meeting of 2 September 2025, and that the Applicant did not, before 8 September 2025, accept the work that was offered, it was ultimately the First Respondent who terminated the employment of the Applicant.
[38] The First Respondent was evidently aggrieved by the Applicant’s conduct in the meeting on 2 September 2024. Furthermore, as observed, the First Respondent received no confirmation from the Applicant at the meeting on 2 September 2025 that he would accept alternative work, and the Applicant did not, by 8 September 2025, communicate to the First Respondent acceptance of work placements offered. Instead, the Applicant sent correspondence to the First Respondent about the Agricola incident and the investigation of the same – in circumstances where the First Respondent considered itself bound to accept the decision of the Second Respondent. However, the First Respondent’s ‘acceptance’ of the Applicant’s ostensible resignation of 2 September 2025, a resignation which had no legal effect,
gives rise to the conclusion that the Applicant’s employment was terminated at the initiative of the First Respondent as contemplated by s 386(1)(a) of the Act. In my view it was incumbent on the First Respondent to not simply treat the ostensible resignation as terminating the employment relationship but to clarify with the Applicant after a reasonable time that the Applicant genuinely intended to resign.
4 Conclusion
[39] Having determined that the Applicant was dismissed, he is entitled to apply under s 365 of the Act for the Commission to deal with his dismissal dispute. The First Respondent’s jurisdictional objection that the Commission is absent jurisdiction to deal with the application, is dismissed.
[40] It is worth outlining s 370 of the Act, which, in setting out the pre-requisites for the making of a general protections court application, provides an overview of the next steps for the conduct of the Applicant’s application:
A person who is entitled to apply under s 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
[41] The precursor to the issuing of the required certificate under s 368(3)(a) is that the Commission must deal with the dispute by conducting a conference17 and reach a level of satisfaction ‘that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful’.18 Hence for present purposes and as a result of my determination, this matter will now be listed for conference in order to explore the possibility of resolution. A notice of listing will be issued shortly.
[42] Finally, while I have determined the Applicant was dismissed by the First Respondent and is therefore entitled to apply under s 365 of the Act for the Commission to deal with his dismissal dispute, it should be noted that the Full Court in Milford made observations of the following nature regarding s 370 of the Act and the making of a general protections court application:
- a) the Act establishes multiple alternate pathways for an applicant and prospective litigants;
- b) s 370 of the Act is to be interpreted against the background that while the Commission may determine the question of a person’s entitlement to make an application to it, this may not be conclusive; and
- c) this is because a Court may ultimately decline to recognise an ‘application’ or resulting certificate granted by the Commission as valid, if called upon by a respondent to determine a subsequent objection to the competency of a general protections court application under s 370 of the Act. 19”
Langdon v Tenowsue Holdings Pty Ltd & Curtin University delivered [2025] FWC 3591 delivered 27 November 2025 per Beaumont DP