This decision of the Fair Work Commission contains an excellent explanation of what is required for an effective resignation from employment.
“Section 365; jurisdictional objection dismissed; no resignation tendered
1
The dispute and outcome
[1]
On 5 January 2026, John O’Hanlon (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant commenced employment with Full Bore Drill & Blast Pty Ltd (the Respondent) on or around 19 August 2024, as a General Manager Operations in a permanent capacity. On 4 March 2026, the Applicant emailed Luke Martyn (Martyn), Managing Director, and whilst addressing multiple concerns with the Respondent business in respect to tender preparation, day to day activities, authorities and accountability, role delineation between founder and executive, and governance, the Applicant wrote:
…I take responsibility for what I put my name to. I’m not prepared to have my professional reputation or legal exposure tied to rushed decisions, unclear authority, or outcomes that carry avoidable commercial or HSE risk. For that reason, appropriate timeframes, clear priorities, and genuine authority are non-negotiable.
Given the above, I need to formally advise that I am withdrawing from the General Manager, MMS role, effective immediately. In its current form, the role does not have the authority or governance support required to be discharged responsibly.
This isn’t a lack of commitment to the business. It’s a practical decision to ensure accountability aligns with authority and operating reality. I remain open to supporting the business in a clearly defined and appropriately structured capacity if that can be agreed.
Happy to discuss this further during working hours, but I wanted my position clearly documented.
[2]
By email dated 6 March 2026, the Applicant emailed Martyn and asked Martyn to confirm in writing whether he considered and accepted his ‘22 February email’ as a formal resignation from the General Manager, MMS role. The Applicant further stated that he believed the intent of his ‘22 February email’ had been misconstrued and that its purpose was to put
[2026] FWC 2515
DECISION
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2
serious operational and governance concerns on record and to prompt a discussion about
resolving them – not simply to abandon the business. The Applicant thereafter continued:
If the company is unwilling to address and rectify the governance, authority and timeframe
issues I describe, my decision to withdraw from General Manager, MMS role will be nonnegotiable.
While this is clarified, I am prepared to provide a limited handover to preserve business
continuity. I can be available to assist as required, or if you prefer we can agree a longer leadout
period of up to 6 weeks.
Please confirm which option you want and provide written acknowledgment of my
resignation status and next steps by close of business in 72 hours.
[3] By letter of 6 March 2026, Martyn acknowledged receipt of the Applicant’s resignation
and confirmed that the Applicant’s last day of employment with the Respondent was 4 March
2026.
[4] The Respondent has objected to the general protections application on the ground that
the Applicant was not dismissed within the meaning of s 386 of the Act but voluntarily resigned.
[5] The Respondent’s objection has implications for the application on foot because it is
accepted that a person must have been dismissed to be entitled to make a general protections
dismissal dispute application.1 Section 365 of the Act relevantly provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(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.
[6] Where there is a dispute about whether a person was dismissed, the Commission is
obliged to determine that point before exercising its powers under s 368 of the Act.2 Therefore,
the discrete issue for determination is whether the Applicant was ‘dismissed’ from his
employment within the meaning of ss 12 and 386(1)(a) or/and (b) of the Act.
[7] Given the factual dispute over whether the Applicant was or was not dismissed, the
matter proceeded to hearing on 25 June 2026. Having considered the evidence of the parties
and their submissions, I have found that the Applicant was dismissed. It follows that the
Respondent’s jurisdictional objection is not upheld and the matter will be listed for conference.
[8] My detailed reasons follow.
1 Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54], (‘Milford’); special leave to appeal declined in Coles
Supply Chain Pty Ltd v Milford [2021] HCASL 37.
2 Ibid 602 [51].
[2026] FWC 2515
3
2 Consideration
2.1 Resignation
[9] The starting point is the consideration of whether the Applicant’s communication on
4 March 2026 to Martyn conveyed a real and unequivocal intention to resign. This is because
the Respondent adopted the position that it did. 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 4 March 2026.
[10] The approach to be adopted when considering the effect of a resignation was explained
at length in Koutalis v Pollett (‘Koutalis’),3 a judgment of the Federal Court of Australia,
followed by the Full Bench of this Commission in Canberra Urology Pty Ltd v Lancaster.4
[11] In Koutalis, at issue, was whether a Mr Pollett resigned or was constructively dismissed.
In relation to the former issue, his Honour 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
3 (2015) 235 FCR 370.
4 [2021] FWCFB 1704, [26]–[33].
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4
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.5
[12] Where a resignation is ambiguous, equivocal, or there are ‘special circumstances’, then
the employer might be obliged to see whether the resignation was really intended.6 The
Industrial Relations Court of Australia in Minato v Palmer Corporation Ltd (‘Minato’),7
considered circumstances where, 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,
she was under personal pressure, not in a ‘sensible state’ and did not intend to resign. In those
circumstances, the acceptance of the resignation was characterised as constituting a termination
of employment at the initiative of the employer. In particular, it was said in Minato, that the
legal position in respect of ascertaining whether there was a real resignation is set out in
Sovereign House Security Services Ltd v Savage (‘Sovereign House’).8 It is observed that the
opinion of the Court in Sovereign House was referred to in Koutalis above and as such has been
cited and relied upon for the purpose of this decision.
[13] The Applicant asserts that his communication on 4 March 2026 was not a resignation
from his employment, but a withdrawal specifically from the General Manager role due to
concerns about governance, authority, workload and work, health and safety that had prevented
him from safely discharging his duties as an officer under the Work Health and Safety Act 2020
(WA) (WHS Act). The Applicant reiterated that his email to Martyn dated 4 March 2026
outlined serious concerns about unrealistic tender timeframes, increased commercial and safety
risk, unclear authority and governance, and an inability to safely discharge due diligence
obligations. The Applicant clarified that the email conveyed that he was ‘withdrawing from
the General Manager MMS role, effectively immediately’ – not his employment. The
Applicant submitted that this was a work, health and safety driven step to avoid personal
liability under the WHS Act.
[14] On 5 March 2026, the Respondent removed the Applicant’s access to the system
(presumedly IT system). The Applicant said that he sent a text message (presumedly to Martyn)
to the effect, ‘[n]ot sure if you are reading the intent of the email… the wording “effective
immediately” ensures that I am not legally liable…’. According to the Applicant he reiterated
to the Respondent that it had misunderstood the intent of his email and that he was open to
discuss a structured transition.
5 Koutalis (n 3) 379–80 [43]–[44] (emphasis omitted).
6 Ngo v Link Printing Print R7005, [1999] AIRC 57, (22 January 1999).
7 (1995) 63 IR 357.
8 [1989] IRLR 115.
[2026] FWC 2515
5
[15] On 6 March 2026, the Applicant emailed Martyn and stated the following:
Please confirm in writing whether you consider and accept my 22 February email as a formal
resignation from the General Manager, MMS role.
I believe the intent of my 22 February email has been misconstrued. My purpose was to put
serious operational and governance concerns on record and to prompt a discussion about
resolving them – not simply to abandon the business…
[16] Whilst the Applicant’s email dated 6 March 2026 referred to an email of ‘22 February’,
at hearing, the Applicant clarified that the reference was a typographical error and was supposed
to refer to his email dated 4 March 2026.
[17] On 6 March 2026, as observed, Martyn acknowledged receipt of the Applicant’s
‘resignation’ and confirmed that his last day of employment with the company was 4 March
2026. Further correspondence from Martyn to the Applicant on 6 March 2026, set out the
Applicant’s outstanding and accrued entitlements on termination.
[18] The Applicant states that his action was a work, health and safety compliance act, not a
resignation, and relies upon the following factors as indicative that his resignation was not clear
and unequivocal:
a) he did not state that he resigned from his employment;
b) he did not provide notice under his employment contract;
c) he did not specify an end date; and
d) he did not express an intention to end the employment relationship.
[19] The Respondent presses that the Applicant’s email dated 4 March 2026, objectively
constructed, was a clear and unambiguous act ending his employment, not merely a step back
from a subset of his duties. The Respondent submits that the circumstances were not such that
the communication was rendered in the ‘heat of the moment’ or that other special circumstances
applied that would permit the unilateral withdrawal of the resignation. It is the Respondent’s
view that the Applicant’s assertions about his own intention in his emails dated 4 and 6 March
2026, do not alter the objective character of his earlier communication.
[20] I find that the Applicant’s email dated 4 March 2026 did not unequivocally
communicate to the Respondent a resignation from his employment. It is evident that whilst
the Applicant sought to withdraw from the role of General Manager Operations in its current
form and did so on the basis of the issues identified in the email, he had not unequivocally
notified the Respondent that he resigned. On an objective basis, it is clear that what was
contemplated in the email was the continuation of the employment relationship at that time with
a view to discussing and arriving at a position concerning a ‘clearly defined and appropriately
structured capacity’. The parties had a choice as to how to resolve the potential conflict in
relation to governance and other issues that had been raised by the Applicant in his email. It
was the Respondent that ultimately sought to rely upon the Applicant’s email dated 4 March
2026 as notification of resignation. When it did so, it acted erroneously. It failed to clarify or
engage with the Applicant as to whether he intended to resign. By its email dated 6 March
2026, the Respondent engaged in the operative act that brought the employment of the
Applicant to an end.
[2026] FWC 2515
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[21] To the extent that it is relevant, the Applicant’s email dated 6 March 2026, evinced that
the Applicant did not consider that he had ended the employment relationship by his email dated
4 March 2026, the Applicant stating that if the Respondent was unwilling to address and rectify
governance, authority and timeframe issues, then the decision to withdraw from the General
Manager role would be non-negotiable. Notwithstanding the communication from the
Applicant on 5 March 2026 and 6 March 2026, the Respondent acted upon the Applicant’s
equivocal communication on 4 March 2026.
2.2 Dismissal
[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
Federal Circuit Court9 and Federal Court10 have accepted 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) of the Act 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’),11 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.12
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
9 Morris v Allied Express Transport Pty Ltd [2016] FCCA 1589, [117].
10 Milford (n 1) 603 [54].
11 [2017] FWCFB 3941 (‘Bupa’).
12 [2023] FWCFB 101, [18].
[2026] FWC 2515
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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.13
[26] While a summary of the position under s 386(1) of the Act 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)14
[27] In circumstances where the Respondent acted erroneously by relying upon a resignation
that was not forthcoming from the Applicant, it is open to find, which I have, that the
termination of the Applicant’s employment was brought about by the employer. It follows that
the Applicant was dismissed as that term is understood by reference to s 386(1)(a) of the Act.
[28] Insofar as it is necessary to address the matter of whether the content of the Applicant’s
email dated 4 March 2026 or for that matter 6 March 2026, constituted a repudiation that was
open to the Respondent to elect to accept, I observe that the factual matrix presented was one
where the Respondent simply moved to accept a resignation in circumstances where what was
communicated by the Applicant on 4 March 2026 was not a resignation.
13 Bupa (n 10) [47].
14 [2018] FWCFB 5 [10]–[11].
[2026] FWC 2515
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3 Conclusion
[29] I find that the Applicant has been dismissed within the meaning of s 386(1)(a) of the
Act. Accordingly, at the time the Applicant made the application under s 365, the Applicant
was a person who had been dismissed for the purposes of s 365 of the Act. The Respondent’s
jurisdictional objection is therefore dismissed.
[30] Having determined the Applicant was dismissed, he is entitled to apply under s 365 of
the Act for the Commission to deal with his dismissal dispute. It is therefore 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:
s 370 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 (as defined in s 368(4)) 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.
[31] 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 conference15 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.16
[32] Finally, while I have determined the Applicant was dismissed by the 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 Coles Supply Chain Pty Ltd v Milford17 made
observations of the following nature regarding s 370 of the Act and the making of a general
protection court application:
The Act establishes multiple alternate pathways for an applicant and prospective litigants:
• section 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
• 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
15 Fair Work Act 2009 (Cth) ss 368(1), (2).
16 Ibid s 368(3).
17 Milford (n 1).
[2026] FWC 2515
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a subsequent objection to the competency of a general protections court application under
s.370 of the Act.18
[33] For present purposes and as a result of my determination, this matter will now be listed
for conference between the Applicant and the Respondent in order to explore the possibility of
resolution.”
Application to deal with contraventions involving dismissal O’hanlon v Full Bore Drill & Blast Pty Ltd – [2026] FWC 2515 delivered 2 July 2026 per Beaumont DP