Amy Russo v Kytec Pty Ltd [2025] FWC 19

1 Fair Work Act 2009 s.365—General protections Amy Russo v Kytec Pty Ltd (C2024/7221) COMMISSIONER FOX MELBOURNE, 14 JANUARY 2025 Application to deal with contraventions involving dismissal – Applicant alleged that she was dismissed within the meaning of s.386(1)(b) of the Fair Work Act 2009 – Dismissal not found – Jurisdictional objection upheld – Application dismissed. [1] On 7 October 2024, Ms Amy Russo filed an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal, naming Kytec Pty Ltd as the Respondent to the application (the Respondent). [2] The Respondent filed a Form F8A in which it raised a jurisdictional objection to the application, that being Ms Russo was not dismissed. [3] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine this point before exercising its Conference powers under s.368 of the Act. Therefore, the issue for determination is whether Ms Russo was ‘dismissed’ from her employment within the meaning of s.386 of the Act. [4] Section 386(1) states as follows: Meaning of ‘dismissed’ (1) [When a person has been dismissed] 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 [5] Section 386(2) of the Act sets out circumstances where an employee is not considered to have been dismissed, none of which are relevant to the present matter. [2025] FWC 19 DECISION -- 1 of 10 -- [2025] FWC 19 2 [6] I issued Directions and conducted a Determinative Conference for the matter on 3 December 2024. [7] A Digital Hearing Book was compiled containing parties’ submissions in the matter. I admitted the Digital Hearing Book into evidence. At the commencement of the Determinative Conference, Mr David Okulicz, Managing Director of the Respondent, raised an objection to the inclusion of ‘without prejudice’ correspondence that had been exchanged between the parties prior to Ms Russo’s resignation. I noted Mr Okulicz’s objection and determined that I would weigh his objection accordingly in my Decision. However, the ‘without prejudice’ discussions were then raised by Mr Okulicz himself when giving his own evidence, and he expressly acknowledged that he was, by referring to these discussions in his own evidence, waiving his objection to this material being admitted as evidence. [8] Based on the evidence before me, I find that Ms Russo was not dismissed as she was not forced to resign by the conduct, or course of conduct, of the Respondent. Background and evidence [9] Ms Russo commenced full-time employment with the Respondent on 19 September 2017 as a Personal Assistant, and then later as an Executive Assistant and Office Manager. Ms Russo reported to Mr Okulicz. In March 2023, Ms Russo returned from a period of parental leave on a part-time basis of 2.5 days per week, which later increased to 3.5 days per week. Ms Russo alleges that, amongst other things, since returning to work, her duties and responsibilities have been unfairly reduced by Mr Okulicz.1 [10] On 8 July 2024, a meeting between Mr Okulicz and Ms Russo took place. At this meeting, Mr Okulicz accused Ms Russo of being untrustworthy, particularly in relation to a lunch that had taken place for a departing colleague – a lunch that Mr Okulicz had expressly instructed Ms Russo not to arrange (the Lunch Event).2 Ms Russo submitted that Mr Okulicz made insulting comments about her character at this meeting, and that Mr Okulicz’s behaviour and comments caused her a great degree of distress. [11] Ms Russo submitted that due to the events of this meeting, she took a period of annual leave until 11 July 2024, to focus on her ‘mental and physical wellbeing’.3 Whilst on annual leave, Ms Russo attended an appointment with her treating practitioner who suggested that she take ‘time away from work’.4 Ms Russo’s doctor then certified her for a period of leave, from 10 July 2024 to 1 September 2024. [12] During this period of personal leave, discussions between the parties occurred in relation to the accuracy of Ms Russo’s leave balances. A ‘leave reconciliation’ document was exchanged between the parties. I observe that the emails exchanged between the parties about the leave balance issue were, at times, hostile in tone from both parties. [13] On 26 August 2024, Ms Bianca Toce, People and Culture Advisor to the Respondent, sent Ms Russo an email which states, ‘[a]s discussed over the phone, Kytec is prepared to make a without prejudice offer of an additional payment in good faith in exchange for you signing a Deed of Release ... 4 weeks payment in lieu of your notice period … 6 weeks payment.’5 -- 2 of 10 -- [2025] FWC 19 3 [14] Ms Russo responded by email on 27 August 2024, rejecting the offer. Ms Russo made a counteroffer and stated the following: ‘I am hopeful to achieve a mutual outcome here as Kytec’s conduct of making false allegations against me is unwarranted, very disappointing and imposing an untenable position.’6 On 27 August 2024, Mr Okulicz responded as follows: ‘[t]his offer is rejected. We will be in touch with next steps.’7 [15] On 28 August 2024, Ms Russo sent an email to Mr Okulicz and Ms Toce in which she states, ‘Kytecs (sic) actions and discussions with HR have made it clear that Kytec is seeking me to leave (even though I am on sick leave and continue to be). The conduct of Kytec is deemed as an effective constructive dismissal, given facts and supporting information outlined in numerous email chains.’ She further states, ‘[t]his will be the last time we seek a mutual outcome, on a without prejudice basis.’8 [16] Ms Russo was due to return to work on 2 September 2024, as her medical certificate ended on 1 September. At 7:20am on 2 September 2024, Ms Russo sent an email to Mr Okulicz stating, ‘[u]nfortunately I’m still not feeling well. Hopefully feeling better by the 15th.’9 A medical certificate was provided to the Respondent which stated that Ms Russo was unfit to work from the 2 September to 15 September 2024. [17] Following this correspondence, at 10:19am that same day, Mr Okulicz replied as follows: I have just spoken with the Altona medical clinic. The doctor that you saw is now on leave for 2 weeks. Due to the extensive sick leave period, we will need to speak with the doctor that is producing the medical certificate. We note that the certificate was granted on the 28/8 but only sent this morning. The doctor went on leave as of 5 PM 30/8. Had the medical certificate been sent sooner, we may have had the opportunity to speak with him. As this opportunity has now passed, we will require a new doctors (sic) certificate from a doctor that we can speak with to confirm the duties that you would\would not be capable of performing.10 [18] Ms Russo then responded, via email on the same day, stating that she was not aware her doctor was now on leave, and that the medical certificate was ‘formal and issued by the doctor’, and that per the certificate, she was on sick leave.11 She further stated 'that [Mr Okulicz’s] request that [she] get another [medical certificate] from a random doctor is rejected, and completely unreasonable’.12 Ms Russo then said, ‘I won’t be corresponding with you any further whilst I am on sick leave.’ [19] To this correspondence, Mr Okulicz responded:13 Given the highly unusual circumstances where you are now claiming an 8 week absence for a pre-existing medical condition that has never required more than 1-2 days from work, the request to be able to speak with the issuing doctor is more than reasonable. The circumstance is more unusual due to the disciplinary proceedings and the close proximity to your 7 year anniversary – a key date in the Long Service Leave legislation. Please arrange a new certificate to be issued within 48 hours. -- 3 of 10 -- [2025] FWC 19 4 [20] That same day, Ms Russo responded that she would not be providing another medical certificate, as she had provided a current and ‘lawfully issued’ certificate.14 [21] There was no further correspondence between the parties until 9 September 2024, when Mr Okulicz sent another email repeating his demand for an updated doctor's certificate and stated:15 We are challenging the validity of the current certificate and require to speak to the doctor for clarification. The basis for our challenge is as follows: 1. You have told us that the leave is for a pre-existing condition which we understand is an auto-immune related illness. 2. During your previous 6 years, you have never needed more than 1-2 days off work for the condition and prior to July this year, had not indicated any worsening of the condition. 3. We have photographic evidence of you socialising at the South Melbourne Markets during a period that you claim to be unfit to attend a climate controlled office to complete administrative duties. 4. The most recent 8 weeks of sick leave followed a meeting that we classified as disciplinary. If we do not have an updated certificate by COB tomorrow and you do not return to the office, we will be making a determination of your continued employment at Kytec on the basis of this refusal and your previous refusal to follow reasonable directions as outlined in earlier emails. [22] Ms Russo responded later that day, stating that she thought the request was unreasonable and again asked to be left ‘alone to recover’.16 [23] On 12 September 2024, Ms Russo then sent an email to Mr Okulicz in which she stated ‘[y]our last communication on 9/9 has been causing me further stress. So I have seen another doctor. Please see attached’.17 A further medical certificate was then provided which certified that Ms Russo was unfit for work from 16 September to 20 September 2024. [24] No further correspondence was exchanged between the parties until 20 September, when Ms Russo sent an email to Mr Okulicz resigning from her employment, citing that the ‘unacceptable conduct’ she had been subjected to, left her with no choice but to resign, and that Kytec had created an unsafe and untenable work environment. Further, she wrote that ‘Kytecs (sic) behaviour has significantly further impacted [her] mental health and physical wellbeing, particularly whilst being on sick/personal leave, as supported by [her] medical certificates’, and that she felt ‘there [was] no option to return in a safe and reasonable manner’.18 [25] On 30 September 2024, Mr Okulicz accepted Ms Russo’s resignation, denying the allegations raised by Ms Russo about an unsafe workplace. Further, Mr Okulizc stated as follows: ‘we suggest that you have reacted poorly to a performance management discussion which ultimately resulted in an extended period of leave well outside the control of Kytec.’19 Statutory Context -- 4 of 10 -- [2025] FWC 19 5 [26] The Full Bench of the Commission considered the two limbs of s.386(1) in Bupa Aged Care Australia Pty Ltd v Tavassoli.20 After considering in detail the case law associated with the expression “terminated on the employer’s initiative”, the Full Bench said at [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 probabl(e)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. [27] Ms Russo submitted that she was dismissed within the meaning of s.386(1)(b) of the Act as her resignation was forced by the Respondent’s conduct, or a course of conduct. The onus is on Ms Russo to prove that her resignation was ‘forced’ by Kytec, and that the actions it took were with the intent, or had the objectively probable result, of bringing the employment relationship to an end.21 [28] The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) held:22 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. -- 5 of 10 -- [2025] FWC 19 6 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. [29] In Pawel v Australian Industrial Relations Commission,23 the Full Bench noted: Mere "causation" or "motivation” will not satisfy the requirement that the termination be at the initiative of the employer.” [30] Commissioner Hampton, as he was then, summarised the general principles on this point in Woodward v Neutrog Australia Pty Ltd, succinctly as follows:24 • the question as to whether the resignation was forced within the meaning of the FW Act is a jurisdictional fact that must be established by the Applicant; • a termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it “forced” the resignation; • the employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result; • conduct includes an omission; • considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and • in determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required Consideration [31] Ms Russo submitted that when she returned from parental leave, on a part-time basis, her duties and responsibilities were reduced and/ or changed. Mr Okulicz agreed that he had taken on some of the duties previously performed by Ms Russo, as she was now working part- time. -- 6 of 10 -- [2025] FWC 19 7 [32] It appears from the evidence of both parties that there were tensions between Mr Okulicz and Ms Russo prior to the meeting on 8 July. Mr Okulicz submitted that there had been issues with Ms Russo’s performance, unrelated to her taking parental leave, which he had raised with her prior to 8 July meeting. These concerns included issues around travel bookings and other administrative tasks not being completed to the requisite standard. [33] Mr Okulicz submitted that the 8 July meeting was a performance and disciplinary discussion. Ms Russo says she was not aware this meeting was a disciplinary meeting and only became aware of such when Mr Okulicz later emailed her regarding the leave payment issues. [34] At the Determinative Conference, Ms Russo acknowledged that the Lunch Event, along with other performance matters were discussed at this 8 July meeting. She further acknowledged that other issues, such as insurance and travel arrangements, had been previously discussed with her prior to 8 July. However, she did not believe these to be serious concerns. [35] While there is a difference of opinion about the Lunch Event, I do not consider it unreasonable conduct by Mr Okulicz to raise this issue, and other performance concerns, with Ms Russo. Mr Okulicz had expressly asked Ms Russo not to organise a farewell event for a departing colleague. Mr Okulicz submitted that the departing colleague had been informed by Ms Russo that Mr Okulicz had determined that a farewell event would not take place. An ‘informal’ lunch then took place. Ms Russo submitted that she did not organise this. Regardless of who organised the lunch, it was not unreasonable for Mr Okulicz to raise his concerns about this event with Ms Russo, and particularly Ms Russo’s conduct of advising the departing colleague that Mr Okulicz did not want to have a farewell lunch. Ms Russo acted as an assistant to Mr Okulicz, a position which understandably required a degree of trust and confidence between the parties. Ms Russo would surely have known that such an act would place Mr Okulicz in a difficult position and likely cause tension. [36] While Ms Russo submitted that she was upset about the meeting on 8 July 2024, she did not resign at this time. It was Mr Okulicz’s evidence that he was waiting until Ms Russo returned from leave to further discuss the concerns that he had regarding her performance. Ms Russo could have participated in these discussions. While she may not have agreed with Mr Okulizc’s view about the Lunch Event or indeed other performance concerns, the mere fact that he sought to raise them with her is not conduct which would leave Ms Russo with no choice but to resign. While it can be an uncomfortable experience to be involved in performance- related discussions, it is nevertheless appropriate for these conversations to take place when performance issues arise. [37] Ms Russo further submitted that Mr Okulitcz’s conduct after the 8 July meeting is evidence of conduct which made it untenable for her to remain employed. The conduct that Ms Russo relied upon included the attempts made by the Respondent to speak directly with Ms Russo’s treating doctor, the request to provide a further medical certificate, the correspondence regarding the leave accrual calculations, and a reference to photographic evidence of Ms Russo at a market whilst she was on personal leave. [38] In relation to the photographic evidence of Ms Russo socialising at the market, it was Mr Okulicz’s evidence that he saw a photograph of this on a mutual friends’ Facebook page. Ms Russo submitted that when Mr Okulicz mentioned this photo in an email to her, she felt -- 7 of 10 -- [2025] FWC 19 8 threatened and unsafe, as she frequently visits this area. While I consider Mr Okulicz’s comment about the photographic evidence as an attempt by him, somewhat clumsily, to highlight his ongoing concern about her extended leave period, I do not consider the email to be evidence of threatening conduct. [39] In relation to the other conduct Ms Russo raises, the period of leave initially certified by the doctor was a period of eight weeks, from 10 July to 1 September 2024. During this period, Mr Okulizc did not seek any clarification in relation to the certified period. However, during this period there were robust discussions between the parties about the accuracy of leave balances, which appears to have then led to ‘without prejudice’ discussions regarding the end of the employment relationship. [40] It was Mr Okulicz’s evidence that he initiated these ‘without prejudice’ discussions, as he was of the view that Mr Russo did not appear to want to return to the workplace. This view was not contested by Ms Russo. I do not consider that having ‘without prejudice’ discussions to be, of itself, conduct which left Ms Russo with no choice but to resign. This is evident from the fact that when the discussions proved unsuccessful, Mr Okulicz took no further action to press ahead with a settlement. Further, Ms Russo did not resign when these discussions concluded unsuccessfully. Instead, she made an appointment with her treating practitioner and was certified unfit for work from 2 September to 15 September 2024. [41] Mr Okulicz appears to take considerable umbrage with this additional period of certified leave. From the evidence, it appears he attempted to speak directly with the certifying doctor and then demanded that a new certificate be provided from a doctor who he could speak to directly. Mr Okulicz appears to be of the misguided view that this is a reasonable and lawful direction to make of Ms Russo. It is not. Ms Russo’s treating practitioner is not obliged nor permitted to discuss her medical condition with Mr Okulicz, unless Ms Russo expressly agrees to such a discussion being had. [42] It is evident from the emails to Ms Russo that the Respondent does not believe the medical certificate to be valid. The Respondent is, of course, not medically qualified to make such an assessment about the validity of a medical certificate. Ms Russo was rightly concerned by the Respondent’s request to provide another certificate from ‘a random’ doctor. However, while this behaviour is regrettable, I do not consider it to be conduct that crosses the line of that which left Ms Russo with no real choice but to resign. I make this finding because while the Respondent’s email of 9 September was forceful, it was not determinative. It did not state that Ms Russo’s employment would be terminated if she failed to follow the request, nor did the Respondent take any additional action when Ms Russo failed to follow the request by the deadline provided. In addition to this, Ms Russo later acceded to the request, providing another certificate on 12 September. She did not resign at this time, instead resigning some eight days later, without any prompt or pressure from the Respondent at that time. [43] It is evident that the parties’ relationship was deteriorating even prior to the events of 8 July. While I acknowledge that the conduct of the Respondent post-8 July has, at times, been unpleasant, when I consider the totality of the Respondent’s conduct, I do not consider that Ms Russo has established that the conduct left her with no choice but to resign. When objectively viewed, there is not a sufficient casual connection between the Respondent’s conduct such that it left Ms Russo with no real choice but to resign. While the events from 8 July onwards and -- 8 of 10 -- [2025] FWC 19 9 the deteriorating relationship and loss of trust between the parties may have motivated Ms Russo to resign, I find that she did so at her own initiative. [44] From the evidence, I believe that Ms Russo had other options available to her, instead of resignation, such as returning to work and participating in performance discussions with Mr Okulicz about valid concerns he raised as her direct report. [45] Having considered the evidence of the parties and their submissions, I have found that Ms Russo was not dismissed. The jurisdictional objection of the Respondent is upheld, and it follows that the application does not meet the requirements of s.365 of the Act. Ms Russo’s application is dismissed and an Order25 to this effect will be issued with this Decision. COMMISSIONER Appearances: A Russo on her own behalf. D Okulicz for the Respondent. Determinative Conference Details: 2024. Melbourne (By Video using Microsoft Teams): 3 December. Printed by authority of the Commonwealth Government Printer <PR782977> 1 Digital Hearing Book (‘DHB’) page 74. 2 Ibid page 75. 3 Ibid. 4 Ibid page 76. 5 Ibid page 42. 6 Ibid page 41. 7 Ibid page 38. -- 9 of 10 -- [2025] FWC 19 10 8 Ibid page 38. 9 Ibid page 132. 10 Ibid page 131. 11 Ibid. 12 Ibid. 13 Ibid page 130. 14 Ibid page 129. 15 Ibid page 128. 16 Ibid page 127. 17 Ibid page 127. 18 Ibid page 198-199. 19 Ibid page 31. 20 [2017] FWCFB 3941. 21 Ibid. 22 (1996) PRN6999. 23 (1999) FCA 1660, 58 (Pawel J). 24 [2021] FWC 2991 [63]. 25 PR783246. -- 10 of 10 --