A. Z. v CA Dispensary Pty Ltd Trading As Ihealth Pharmacy [2025] FWC 3388

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy A. Z. v CA Dispensary Pty Ltd Trading As Ihealth Pharmacy (U2025/10835) COMMISSIONER CLARKE MELBOURNE, 13 NOVEMBER 2025 Unfair dismissal – extension of time – jurisdictional objection – employee not dismissed. [1] A. Z. (Applicant) has brought an Application under section 394 of the Fair Work Act 2009 (Act), seeking an unfair dismissal remedy. CA Dispensary Pty Ltd (Respondent), the Applicant’s former employer, has objected to the application on the basis that it was brought outside of the 21 day time period provided for in subsection (2) of section 394. The Respondent has also objected to the application on the basis that the Applicant was not dismissed. There is no dispute that, in a formal sense, the Applicant’s employment with the Respondent was brought to an end by her resignation. [2] Due to the objections raised, the matter was programmed for hearing in relation to those objections only. This decision deals with those objections. Protection of the Applicant’s identity [3] Prior to the hearing, the Applicant brought matters to our attention which she considered justified the granting of an order under sections 593 and 594 of the Act to protect her identity. Those were personal matters unconnected to the issues in dispute in the proceeding and which were the subject of processes outside of the Fair Work Commission. The Respondent did not oppose an order being made and I was satisfied in the circumstances that it was appropriate that such an order should be made. In consequence of that order (made on 4 September 2025), the hearing of the matter was held in private and the name of the Applicant has been replaced with a pseudonym. The order also imposed obligations on witnesses in the proceeding and the parties with respect to the name of the Applicant. The cases advanced – time [4] The Applicant was granted permission to be represented by Ms Numan of Clear Employment Relations. The Respondent was represented by Mr Wedgewood of the Pharmacy Guild of Australia. [2025] FWC 3388 DECISION -- 1 of 20 -- [2025] FWC 3388 2 [5] It is not in dispute that the Applicant’s employment with the Respondent came to an end on 4 June 2025, after the Applicant gave notice of her resignation on 20 May 2025. The Respondent first became aware of the Application when notified administratively by the Fair Work Commission. That notification relevantly stated that “On 26 June 2025, [name withheld] made an unfair dismissal application”. As 26 June 2025 is one day after 21 day time limit provided by subsection (2) of section 394, the Respondent understandably took the point that the application could not proceed unless an extension of time was granted, which the Respondent opposed. [6] Prior to the hearing, the parties were provided with internal records from the Fair Work Commission which I considered they ought to be made aware of to assist them in addressing the extension of time issue. Those internal records relevantly included an e-mail time stamped at 11:58PM on 25 June 2025 and a report from a Fair Work Commission IT Service ticket that indicated that the Fair Work Commission’s e-mail system received the application at that time but that its case management system did not process the e-mail until 12:10AM the following day (26 June 2025). The Respondent continued to press its objection notwithstanding this material. [7] According to the Respondent, an electronic communication should be taken to be received when the recipient records its receipt, which the Respondent said the initial notification from the Commission did record as 26 June 2025. It was further said that Commission’s recording of the entry of the matter into the case management system on that date confirmed that this was the date of the receipt. The focussing on the date or receipt was said by the Respondent to be consistent with the decision of the Commission in Kenworth v. Di Placido Group1, which applied Ayub v. NSW Trains2. The point in Ayub is however slightly more nuanced that this. In that case, the Full Bench was dealing with the question of when an employee had become aware of a dismissal of which notice had been given by e-mail. In discussing that, the Full Bench noted that section 14A of the Electronic Transactions Act 1999 provided that an e-mail “is deemed to have taken place” when the e-mail becomes capable of being retrieved by the addressee. [8] In any event, the question for determination in the present instance is when the application by the application was “made”: “394 Application for unfair dismissal remedy (1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal. Note 2: For application fees, see section 395. Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part. (2) The application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (3). -- 2 of 20 -- [2025] FWC 3388 3 (3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position.” (emphasis in underline added) [9] The Fair Work Commission Rules 2024 (Rules) are instructive as to how an application may be “made”. Rule 9 relevantly provides as follows: “9 Approved forms (1) The President may approve forms for the purposes of these Rules. (2) If the President approves a form for a particular purpose, then subject to these Rules, the approved form must be used for the purpose. (3) If there is no form approved for a particular application, approved form F1— Application (no specific form provided) must be used for the application. (4) The President must ensure that approved forms are publicly available. Note: In 2024, the approved forms were available on the FWC’s website (http://www.fwc.gov.au). (5) If these Rules require that an approved form be used, it is sufficient compliance if a document is substantially in accordance with the approved form.” [10] As foreshadowed by the note provided beneath sub-rule (4) above, the approved forms are available on the Fair Work Commission website. There is no suggestion that the Applicant did not use the approved form for making her unfair dismissal application. That form relevantly provides the following on its first page: “Lodging your completed form 1. Lodge your application and any supporting documents with the Commission within 21 days after your dismissal took effect. You can lodge: • online using the Commission’s Online Lodgement Service (OLS) • by email to [email protected], or • by post or in person at the Commission’s office in your state or territory.” [11] It follows that a putative applicant in an unfair dismissal claim has “made” an application when they have “used” the approve form by, inter alia, “lodging” it in accordance with the instructions provided on that form. As to what it means to “lodge” such a form by e- mail, the Rules provide at rule 16: “16 Lodging documents by email -- 3 of 20 -- [2025] FWC 3388 4 (1) A person may lodge a document that is required or permitted to be lodged with the FWC under these Rules by emailing the document: (a) if paragraph (b) does not apply—to an email address approved by the General Manager for the lodgment of documents by email; or (b) if the email is in relation to a matter allocated to a FWC Member—to the email address of the FWC Member’s chambers approved by the General Manager. Note: In 2024, the email addresses approved for lodgment of documents and for FWC Members’ chambers were available on the FWC’s website (http://www.fwc.gov.au). (2) If a document is lodged by email: (a) the document must be attached to the email: i. for a statutory declaration—as a PDF or an image format approved by the General Manager; and ii. for any other document—as an attachment in Word, RTF or PDF format or another format approved by the General Manager; and iii. without any security restrictions; and (b) the covering email must state: i. the name, address and telephone number of the natural person sending the email; and ii. an email address to which the FWC can send notices or other documentation; and iii. if the document is an application commencing a matter—that fact; and iv. if the document relates to an existing matter—the matter number given to the matter by the FWC; and (c) the person must either: i. retain the email as a “sent item” showing the email address to which the email was sent and the date and time that it was sent; or ii. retain a “delivered” statement or a “read receipt” showing the email address to which the email was sent and the date and time that it was delivered or read; and (d) the person must produce the retained document if required by the FWC. Note: The statutory declaration must be signed and witnessed. (3) If a document lodged in accordance with this rule is an application commencing a matter: (a) the General Manager must send an acknowledgment of lodgment, by email, to the person lodging the document; and (b) the application is not taken to have been lodged until the acknowledgment of lodgment has been sent; and (c) once the acknowledgment of lodgment has been sent, the application is taken to have been lodged at the time it was received electronically by the FWC.” [12] Of particular relevance is sub-rule (3) above. This relevantly obliges the General Manager to acknowledge a lodgement of an application by e-mail and that until the General Manager does this, the application is not to be taken to have been lodged. However, once that acknowledgement is sent, the application “is taken to have been lodged at the time it was -- 4 of 20 -- [2025] FWC 3388 5 received electronically by the FWC” (emphasis added). In the context of a rule concerned with lodgement of documents by e-mail, the italicised it in the extract above can only sensibly refer to the e-mail itself. If the e-mail was received within time, and later acknowledged, then the application was made within time. The fact that the entry of the application into the Commission’s case management system occurred some time after that e-mail was received is not determinative of the issue. [13] It is regrettable that the information initially conveyed to the Respondent about when the Application was made was demonstrably incorrect. However, for the reasons given, the objection concerning the timeliness of the application must be dismissed. It is therefore necessary to consider the second objection advanced by the Respondent, namely that the Applicant was not dismissed. When a person has been dismissed [14] An application under section 394 of the Act requires a person to have been “dismissed”. The meaning of dismissed is dealt with in section 386 of the Act, as follows: “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. (2) However, a person has not been dismissed if: (a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or (b) the person was an employee: i. to whom a training arrangement applied; and ii. whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or (c) the person was demoted in employment but: i. the demotion does not involve a significant reduction in his or her remuneration or duties; and ii. he or she remains employed with the employer that effected the demotion. (3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.” -- 5 of 20 -- [2025] FWC 3388 6 (emphasis in underline added) [15] Language akin to that underlined in both paragraphs (a) and (b) of subsection (2) in the definition above has long been relevant to determining disputes concerning employment relationships that, in a formal sense or at face value, were brought to an end by way of resignation. Disputes of this nature have commonly been encountered in proceedings in the unfair dismissal jurisdiction. The unfair dismissal jurisdiction has, since its inception, required that there be a termination of employment “at the initiative of the employer” as one of the essential elements. This is rooted in the historical constitutional underpinnings of Commonwealth laws providing for remedies in respect of unfair dismissal, yet the expression has remained a centrepiece of the scheme notwithstanding the shift to reliance on the corporations power and referral of State powers in recent decades. The expression “at the initiative of the employer” and its derivatives have been found to admit of some circumstances where the final act in bringing the employment to an end was an act of the employee claiming the remedy. In considering whether employment “has been terminated on the employer’s initiative”, a Full Bench of the Australian Industrial Relations Commission in O’Meara v. Stanley Works3 held that there must 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…. 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.”4 [16] Explicit reference to a resignation brought about by employer conduct developed in the unfair dismissal provisions of successive Commonwealth workplace relations legislation over the last two decades. In considering whether a resignation has been “forced” in the manner currently dealt with in paragraph (b) of subsection 386(1), a Full Bench of the Commission in Bupa Aged Care Australia v. Tavassoli5(‘Bupa’) said: “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 [sic] result of the employer’s conduct such that the employee had no effective or real choice but to resign.” (emphasis in underline and bold added). [17] It should be noted that the immediate predecessor of paragraph (b) of subsection 386 (1), section 642(4) of the Workplace Relations Act 1996, referred to “forced” resignation but continued the legislative tradition of requiring such forced resignations to be characterised as a species of termination at the initiative of the employer in order to be actionable as an unfair dismissal. It relevantly provided as follows: -- 6 of 20 -- [2025] FWC 3388 7 “For the purposes of this Division, the resignation of an employee is taken to constitute the termination of employment at initiative of the employer if the employee can prove that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer” [18] Section 642(4) of the Workplace Relations Act 1996 was considered by a Full Bench of the Australian Industrial Relations Commission in Australian Hearing v. L Peary6 (‘Australian Hearing’) in circumstances where it was contended by the Appellant that it was an essential ingredient in satisfying that section that the employee prove that the resignation was an intended consequence of conduct or a course of conduct engaged in by the employer. In rejecting that submission, the Full Bench said: “We cannot accept this construction of the section. The section specifies the matters that an employee who has resigned must prove in order to displace the legal effect of the resignation. The employee must prove that the employer engaged in conduct or a course of conduct which forced the employee to resign. There is no warrant for requiring the employee to prove an additional matter, that the employer intended to force the employee to resign. The plain words of the section deny such a requirement. Furthermore, the section is not directed at the state of mind of the employer, but at the state of mind of the employee. It is particularly difficult for an employee to prove an employer’s intention. In that respect it is relevant to note that where the Act imposes a requirement related to the intention or motive of the employer a reverse onus is usually applied.”7 [19] In light of the decision in Bupa, it seems that it is no longer the case that the intention of the employer is necessarily irrelevant to determining whether a resignation is “forced” in the relevant sense, although it is not a requirement to show such intention in every case. In any event, there have been differing views to that expressed in Australian Hearing as to the role or relevance of employer intention even when the legislative scheme did require forced resignations to be characterised as “at the initiative of the employer”. For example, in Rheinberger v. Huxley Marketing8, Moore J approached the issue this way: “The issue that emerges from these facts is whether the applicant has demonstrated there has been a termination of her employment at the initiative of the Company. The applicant relied on several passages from a recent Judgement of a Full Court in Mohazab v. Dick Smith Electronics Pty Ltd (1995) 62 IR 200. Particular reliance was placed on the following passage: ‘It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee…’ These observations had been preceded by a discussion by the Full Cout of the relationship between the Convention concerning Termination of Employment at the Initiative of the Employer, which is Sch 10 to the Act, and the importation into the Act of the meaning of expressions in it by operation of s. 170CB. The applicant further relied on a later passage in which the Full Court said: -- 7 of 20 -- [2025] FWC 3388 8 ‘In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action that it did, the employee would have remained in the employment relationship.’ However, it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that employment will conclude. I am prepared to assume, for present purposes that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employers conduct”9 (emphasis in underline and bold added). [20] To similar effect was the decision in Hastie v. Impress Australia10, which, like Australian Hearing, considered section 642(4) of the Workplace Relations Act 1996 and in addition the particular significance of the then nascent addition of the adjective “forced”, which is also now adopted in s. 386(1)(b): “The employer’s conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances. If this were not the case, then it would be difficult to distinguish between many instances of voluntary resignations which arise from a discretionary judgment of the employee, and resignations which are the result of the conduct of the employer. This is because, for all practical purposes, most decisions by an employee to resign their employment arise from the conduct of the employer, in some manner or form. That is, employer conduct is causally responsible at some level for most resignations. But not all the species of the conduct of an employer have the probable result of the employee’s resignation or make the resignation, on an objective view, a reasonable response to the employer’s conduct. It is only a sub set of employer conduct that ought to attract the remedy against a harsh, unjust or unreasonable termination of employment based on a termination at the initiative of the employer. If this is so, in what manner then has the amended statutory provisions affected this approach to determination whether an employee was terminated at the initiative of the employer or if the employee resigned voluntarily? -- 8 of 20 -- [2025] FWC 3388 9 …. Putting aside the onus specified in the Act, the critical issue here is whether the inclusion of the adjective “forced” affects in any way of the above discussion of the authorities as they were before the introduction of the Workchoices legislation. To describe the conduct of the employer as forcing an outcome suggest that the conduct in some manner or form compelled or mandated or obliged or necessitated the resignation of the employee. These seem to be the common dictionary meanings of “forced”. In a narrow sense, no resignation is ever forced unless there is some observable physical intervention by the employer. Consequently, all resignations are likely to be voluntary, in a narrow sense. Such was commented on by Dowsett J in his minority decision in Pawel v Advanced Precast Pty Ltd: “As to ‘compulsion’, it is difficult to contemplate circumstances in which it can be said that an employee has been compelled to resign, but not dismissed, unless one accepts the somewhat bizarre reference in the course of argument to an employer holding a gun to the employee’s head.” That said, to describe an employer’s conduct as forcing a resignation does not demand a narrow reading such as this. Force may be applied in a physical sense, as Dowsett J describes it, or else it may be applied indirectly, by the conduct or the course of conduct by an employer which makes an outcome. Of course, many such examples of such conduct might be provided, and a person may be forced or compelled to adopt a course of action by a variety of actions taken by their employer. Generally, the exercise of force may take many forms, and there is little point in exploring these in detail. But common manifestations of ‘force’ will always exhibit an outcome in which a person acts contrary to their desired intention, and because of the conduct of another person that was directed at or towards them. I do not think the definition should be limited to cases in which an employee can demonstrate that the employer took positive action of some kind that was motivated to bring about the resignation, though many cases no doubt will fall into that category. The conduct of an employer, wilful or not, may nonetheless generate circumstances in which the resignation of an employee was the probable result. It would appear to me, then, that on an ordinary or natural reading of the term “forced”, an employee may be forced (or compelled) to resign for reason of the employer expressly demands the resignation (perhaps, though not necessarily, in conjunction with a threat of termination), or makes the conditions of work so oppressive or repugnant to the employee (and the employment relationship), and/or else, so bears down on the volition of the employee, that the resignation was a reasonable probable response to the circumstances the employee faced at the time. -- 9 of 20 -- [2025] FWC 3388 10 In effect, therefore, it appears that the inclusion of the adjective “forced” in s.642(4) of the Act does not require a new or additional test as to whether a resignation was at the initiative of the employer to that which may have been alluded to by the Full Bench in O’Meara v Stanley Works Pty Ltd (under the pre-reform Act). Rather, it simply recasts descriptively and makes express the implied nature of a resignation by an employee that is taken to constitute a termination at the initiative of the employer, and it (s.642(4) of the Act) does so in juxtaposition to a “voluntary” resignation. The Explanatory Memorandum, as quoted above, does not invite a different reading. Further, I note that in some instances in which members of the Commission have applied the test of “force” to a determination as to whether a resignation was termination at the initiative of the employer for purposes of s.642(4) of the Act, they have drawn on the availability of an “effective choice” in demonstration of that finding.” 11 (emphasis in underline and bold added, footnotes omitted). [21] In light of the above, in considering the current matter, I have adopted the following approach: a) A resignation may be forced in the relevant sense either because it was the intended result of the employer’s conduct or because the employer’s conduct left the employee with no real or effective choice other than to resign. b) The inclusion of the word “forced” does not signify that the employee must be physically overborne or be explicitly issued with an ultimatum. The focus is on the conduct of the employer and its intended and/or probable effects. c) In order to be considered forced, the resignation must be a reasonable and probable response to the employer’s conduct; and d) Each of the above involves an objective analysis. [22] Facts establishing a repudiation of the employment contract may also be relevant in determining whether an employee has been dismissed. A repudiation occurs where there is a sufficiently serious breach of the contract of employment so as to indicate the party in breach no longer wishes to perform the contract. Where the employer is the party in breach, the repudiation gives rise to a right to the employee (as the innocent party) to either terminate the employment (by resigning) or to affirm the contract. An election to resign in response to a repudiation is properly regarded as a termination at the initiative of the employer under section 386(1)(a), in the sense that it is the employer’s conduct which is the principal contributing factor in bringing about the end of the employment relationship, being conduct that had the probable effect of doing so.12 The repudiatory conduct by the employer may in some cases be sufficient to bring about the end of the employment relationship on its own.13 The cases advanced on the dismissal issue [23] The Respondent relied on a witness statement from Ms Monzie,14 the Operations Manager of the Respondent, together with the Applicant’s position description15, contract of employment16 and a bundle of text messages between Ms Monzie and the Applicant.17 The Applicant relied on her witness statement.18 Both parties prepared written submissions. -- 10 of 20 -- [2025] FWC 3388 11 [24] The Respondent’s contention was that the Applicant’s resignation was entirely voluntary rather than forced. The resignation itself stated otherwise, although this of course is not determinative: “Please accept this letter as notification that I am resigning from my position as Dispensary Team Lead at Ihealth pharmacy, effective 4th June 2025. I must state that this resignation is not voluntary. I was forced to resign due to unreasonable demands, change in terms of employment and false claims made against myself. This action was a result of duress, coercion and unfair pressure. I have no choice to resign to avoid further negative consequences.”19 [25] The resignation was given via email, one day after the Applicant had sent an e-mail to the Respondent in the following terms: “I do not agree to being removed from my role as team lead of dispensary and with the way I have been treated regarding my shoulder injury. As such, this is constructive dismissal and I have no choice but to take legal action”.20 Whilst this may have been reflective of the Applicant’s views at the relevant time, her submissions at the hearing did not contend that the mere fact she did “not agree” to the employer’s conduct was sufficient to ground a finding that her resignation had been forced. [26] Rather, the course of conduct that the Applicant considers forced her resignation consisted of the following: (a) The Respondent’s response to an injury the Applicant had suffered in May of 2025 (including with respect to her return to work); (b) The workload, and the Respondent’s reactions to complaints concerning this, including concerns that the demands placed upon pharmacists were unethical and potentially placed their professional registrations at risks; (c) The removal of overtime; (d) A refusal by the Respondent to engage with the Applicant about her responsibilities; (e) A demotion; (f) Being denied a promotion on the basis of a refusal to supply medical cannabis to a patient who admitted he was drug dependent and distributing the medical cannabis to other people; and (g) Inaction following the sexual harassment of a colleague. I deal with each of these matters in turn below. For completeness, I note that it was no part of the Applicant’s case that her resignation was offered in the heat of the moment, such that her resignation could not be relied on as effective. The Applicant had previously offered a resignation (and presumably retracted it with her employer’s consent) around 3 months earlier.21 The day before the resignation the subject of the current matter, the Applicant had commenced a period of personal leave22 and had reported mental health concerns to her employer. [27] It was not in dispute that, immediately prior to her resignation, the Applicant was a qualified pharmacist working in the role of Team Lead – Dispensary in the Respondent’s -- 11 of 20 -- [2025] FWC 3388 12 business. Nor was it in dispute that one of the main products dispensed by the Respondent’s pharmacy business was medicinal cannabis. Injury and response [28] It is not in dispute that the Applicant sustained a shoulder injury outside of work. Following the injury, the Applicant obtained a medical certificate for the period 5-9 May which she provided to her employer and advised she would return to work on the coming Monday23, which was 12 May 2025. When the Applicant did return to work, evidently after taking a further day of leave24, her arm was still in a sling.25 Her initial complaint about the employer’s response to this was described variously as “refusing to communicate with me in the normal way and imposing unreasonable requirements that I come in early and work overtime”26, failing “to put in place a return-to-work plan, disregarded my health, and pressured me to return to work despite being injured”27 and refusing “to engage with me directly about team lead responsibilities. Instead, they bypassed me and dealt with other staff”28. [29] In oral evidence it appears that most, if not all, of those concerns related to the behaviour of Mr Matthew Ghobrial, the owner of the Respondent. The Applicant said that Mr Ghobrial “…treated me completely differently, it was the like the cold shoulder….. And wouldn't really address me when I was in the room, although he addressed me when I returned in dispensary on the first day in front of everyone and said we must have been drinking to cause that injury, which was unprofessional.”29 The Applicant also said “..when I got back, I was expected to carry duties as normal. There was no return to work plan. Matthew and Gloria never sat me down to see how I was going. In fact, I was just expected to work - continue working as normal.”30 Mr Ghobrial was not a witness and I was asked to draw an adverse inference concerning his absence. There was no cross examination by the Respondent on these issues. [30] One can readily accept that a failure to adapt duties in response to an injury is a cause for a legitimate complaint. Whist this was not an injury that was associated with a Workers’ Compensation claim so as to trigger a formal return to work process as mandated under State Legislation, it equally would have been glaringly apparent that a conversation about the injury was required. Upon presenting to work after a week of sick leave in a sling, any reasonable manager would be alive to the possibility that being confined to the use of one arm and most likely experiencing pain and fatigue could have workplace consequences worthy of a discussion, not the least of which a might be a potential exacerbation. It rightly falls on the employer to initiate that conversation. By the same token, it is passing strange that an articulate health professional such as the Applicant would not, upon feeling ignored, do something to initiate that conversation. In any event, the evidence was that Ms Monzie, the Operations Manger of the Respondent, messaged the Applicant on the Monday she first commenced her personal leave and offered her assistance31, and when the Applicant did attend work after her leave concluded she asked her how she was feeling and offered that if she wasn’t feeling well she could go home.32 This is not inconsistent with the Applicant’s evidence that Ms Monzie “never sat me down to see how I was going”, but rather the evidence discloses a mismatch between Ms Monzie’s view and the Applicant’s view about the level of formality that the situation demanded. The Applicant said under questioning from me that when she first returned to work, she said to her colleagues in the presence of Mr Ghobrial that she could continue some of her job duties and would see how far she could get33. Indeed, some days later she refused some duties on account of her injury.34 I find that at the least there was a proposition put to the -- 12 of 20 -- [2025] FWC 3388 13 Applicant that she could respond to, concerning the management of her injury in the workplace, and the Applicant had taken it upon herself to notify the Respondent of what she was and was not able to manage (and, at least to some extent – did so). [31] Whilst less than ideal, this situation could only constitute a few strands of straw on the proverbial camel’s back in any course of conduct which was said to force a resignation. Ms Monzie was not in a position to contradict the proposition that Mr Ghobrial did not discuss the issue with the Applicant, but that does not mean that the issue was entirely ignored by the Respondent. It was remiss of the Respondent to not follow up with Applicant promptly, but her injury was the context for changes to her working hours some days later, which are discussed at paragraphs [36] - [41] below. [32] Whilst I agree with the Applicant’s view that it was unprofessional to make a joke about the Applicant’s injury being the result of drunkenness, this level of behaviour could not objectively amount to much of consequence in a compounding course of conduct, culminating in a resignation that is claimed to be forced. As to the claims of different treatment following the injury, they weren’t sufficiently particularised to enable any meaningful conclusions to be drawn. Certainly, it was not long after the Applicant’s return to work that she did have dealings with Mr Ghobrial, which were evidently the source of a great deal of concern to the Applicant. Workload [33] The Applicant had concerns that her workload was excessive, particularly in respect of how many items were required to be dispensed, which she said was “90 units per hour”.35 The Applicant’s understanding was that the Australian Health Practitioner Regulation Agency set a limit of around 150 scripts per day to be dispensed before an additional pharmacist was required, however she said that in the Respondent’s business pharmacists are required to dispense nearly 600 scripts per day each. She considered that this was excessive and placed the pharmacists’ registrations at risk.36 The Applicant said she raised these concerns with Ms Monzie, who “dismissed” them. No documentary evidence was provided as to what the relevant limits were. [34] Ms Monzie gave evidence about her interactions with the Applicant in relation to the above matters. She stated that she had expressed the view to the Applicant that the dispensing practices were not a compliance risk, however invited the Applicant to consider whether she had considered another role within the pharmacy which could be less demanding. She disagreed with the Applicant’s characterisation of her response as “dismissing” her concerns. In cross examination, Ms Monzie elaborated on her evidence about this conversation, and gave some context that she had understood that the Applicant had been struggling with her mental health and that her suggestion about considering another role in the pharmacy was made informally and was responsive to that understanding.37 Ms Monzie says she passed on the Applicant’s concerns to Mr Ghobrial and this led to the two of them discussing an offer being made to the Applicant for a new role. Ms Monzie’s evidence is that the Applicant’s discussion with her concerning workload, and her own discussion with Mr Ghobrial, were mere days before the Applicant resigned, such that the time between the events didn’t permit any further consideration of how those complaints might be addressed. Whilst Ms Monzie chose not to identify in her evidence if there was in fact a regulatory limit on the number of prescriptions to be filled per pharmacist, she stated that on 27 May 2025 (8 days after the Applicant’s last day -- 13 of 20 -- [2025] FWC 3388 14 at work) there was an unannounced audit on the pharmacy by the Victorian Pharmacy Authority, which raised no concerns about dispensing practice. No evidence was given as to whether the dispensing practices on the day were any different to those the Applicant had in fact experienced. [35] Ms Monzie’s evidence on the workload issue is essentially to the effect that the workload was not objectively a difficulty, but it was proving to be a difficulty for the Applicant. On the evidence I have before me, I am not able to make any findings about whether the workload was objectively unreasonable. What is clear is that Ms Monzie’s reaction to the complaint, in seeking to identify whether another role could be offered to the Applicant in order to provide a less demanding workload, could not be reasonably described as intending to bring about a resignation or leaving the Applicant with no choice but to resign. Overtime [36] The Applicant’s uncontested evidence is that throughout her employment, prior to her injury, she would work what she described as “copious amounts of overtime”38. As to morning overtime, the Applicant’s evidence is that she would occasionally come in to do administrative work.39 Such work was, in the Applicant’s assessment, “light duties”40. [37] On 15 May, the Thursday of the Applicant’s first week back at work, she was asked by Mr Ghobrial to perform some morning overtime to help dispensing medications. The Applicant’s evidence is that she advised against this on the basis of her injury, being behind on tasks due to her injury and the additional workload associated with teaching interns. She said that Mr Ghobrial maintained his position until she eventually relented, with words to the effect “I will try, but I am in a lot of pain”.41 [38] Later that day, in a text message exchange with Mr Ghobrial, the Applicant made a similar statement: “I’ll do my best tomorrow, but it’s a bit of an unfair ask given I’m quite injured in and in a lot of pain :(”42 Mr Ghobrial’s response was as follows: “All good, if you think it will be difficult with your arm, just do problem solving. But in that case I think an 8am start should be sufficient”.43 [39] I understand the Applicant’s objection to this is that Mr Ghobrial had made the availability of overtime conditional on the range of duties that the Applicant was fit to perform and that this was retaliatory and unfair. [40] I do not agree that this is objectively unfair. As I understand the evidence, there was no requirement or request to work any overtime on that day until the request was made “to come in early the following day to help the team dispense”44. Once it became apparent to the Respondent that those were not duties the Applicant could perform (and that likely ought to have been apparent at an earlier stage), it is not unreasonable that the Respondent withdrew the request to perform those duties. Such conduct does not on any objective view make any material -- 14 of 20 -- [2025] FWC 3388 15 contribution towards being forced to resign. Viewed objectively, the conduct is directed to providing modified duties to the Applicant to accommodate her injury, rather than intending to bring about a resignation. A resignation is not a reasonable or probable response to such conduct. [41] There was no evidence that the Applicant was entitled under the terms of her employment to self-select when she would perform overtime as her own priorities dictated. Had this been an evident feature of the Applicant’s employment, it would be clear that she had been deprived of a material benefit of her employment in earning additional income. A refusal by the Respondent to engage with the Applicant about her responsibilities [42] This issue was not sufficiently explored in the evidence to enable any findings to be made about it. The Applicant’s evidence on the issue was vague and in any event, the period over which this is said to have occurred was in the short period between the Applicant’s return to work in the week beginning 12 May and her last day of work on 19 May. A demotion [43] The Commission was provided with a letter of offer for the position of Pharmacist.45 It is not in dispute that during her employment the Applicant had been promoted to a team leader position. Immediately prior to 19 May 2025, the Applicant was working as the Team Lead for the Dispensary team. She described her official role as a “team leader pharmacist”46. [44] On 19 May 2025, the Applicant had a discussion with Mr Ghobrial. Her recollection of the conversation was that she was told she was being moved from her role as a Team Lead of the Dispensary Team to a Team Lead of the Counselling Team. In oral evidence she was invited to accept that an offer was put to her to change position, and she did not accept this. She was adamant that it was not an offer at all and that that, when she sought clarification as to whether this was permanent or temporary, Mr Ghobrial said “Oh, well see”.47 Ms Monzie’s evidence is that she was not an observer to that conversation but had discussed what occurred with Mr Ghobrial after the event. She says Mr Ghobrial put the offer of the move to the Applicant and “it wasn’t necessarily declined, but it was very clear that she wasn’t happy with it, and that she walked away, walked out from the pharmacy”48. In any event, it is clear that the Applicant never commenced in the new role. [45] The Applicant left the workplace in state of distress following that conversation, prior to the conclusion of her normal work day. She subsequently exchanged text messages with Ms Monzie, who was evidently moved to write to her, “Be careful on your way home please”, at 9:44AM. Shorty afterward, at 10:07AM, the Applicant wrote the e-mail to the Respondent set out in paragraph [25] above. [46] That correspondence elicited a response from Mr Ghobrial.49 Among other things, that correspondence clearly put to bed any notion that the move from Team Lead Pharmacy to Team Lead Dispensary was an “offer”, and there is no need to make an adverse inference as to Mr Ghobrial’s absence in order to draw that conclusion. The move was described as “the recent change from Team Lead – Dispensary to Team Lead – Consulting/Counselling” and “a temporary lateral move, with no change in your classification or pay”. It should be stated at this -- 15 of 20 -- [2025] FWC 3388 16 point that the Respondent called no evidence to demonstrate the source of any right to unilaterally enforce a “lateral move”, temporary or otherwise. Mr Ghobrial’s correspondence said that “The decision was based on operational needs and was also made in consideration of your wellbeing, following your expressed feelings of being overwhelmed in the dispensary leadership role”. The move was described as a “decision to transition you into a different team leadership position where your skills could continue to be valued in an alternative setting”. Mr Ghobrial’s message also said: “At this stage, your intentions regarding your ongoing employment with iHealth Pharmacy remain unclear. We respectfully request that you confirm in writing whether you wish to continue your role or intend to resign, so the business can proceed accordingly” It is inescapable in these circumstances that the Applicant was being told that her employer had unilaterally, albeit temporarily, re-allocated her to a different role and that she was being issued with an ultimatum to either come to terms with that, or leave. [47] Later that day, at 4:02PM, the Applicant wrote to Ms Monzie via text message in the following terms: “Hi Gloria What’s happened today has had unfounded effects on my mental and emotional well being and I’m not fit to return to work as of yet. I will be seeing my GP tomorrow and will send you a medical certificate.”50 [48] It seems the medical certificate was in fact provided at some time the same day and covered the period from 19 May to 16 June.51 It was not in dispute that by the time the Applicant did give notice of her resignation the following day, she was on personal leave. [49] The Applicant describes the change in the Applicant’s position as a demotion, whereas the Respondent points out that the change involved no change in pay or classification. I am unable to make a finding on the state of the evidence as to whether the move was appropriately described as a demotion, but this is beside the point for present purposes. There is no dispute that the Applicant was employed as a Pharmacist, pursuant to a letter of offer and position description and promoted to a team leader within a month or two. The letter of offer said nothing of her duties other than to refer to the position description. Her evidence is that she was not supplied with a new position description following the promotion. However, the initial position description for Pharmacist was broad enough to encompass a range of duties including to “Counsel consumers on their medication (both prescription and over the counter products) in an up-to-date, evidence based manner”52. [50] Clearly, the scope of the employment evolved with the promotion to Team Leader. The Applicant’s evidence about the Dispensary Team Lead Position was as follows: “So, my role was a dispensary lead for the majority of the employment was all- encompassing. I – there was another team-lead pharmacist in the VOLT team. She would only work part-time so the majority of time there was only me. I had to oversee dispensary operations, liaise with the other teams, provide support, oversee the -- 16 of 20 -- [2025] FWC 3388 17 counselling and help the VOLT team. I also had to be the liaison between the medical practitioners at the medical clinic (indistinct) the pharmacist consultant then while also liaising with the other pharmacies and medical clinics that we had. I was also the main clinical educator for all our interns in the complex while also being the (indistinct) pharmacy (indistinct) roles, then issues would arise. For instance patients in the pharmacy wanting to escalate to a manager or any kind of managerial HR things I had to handle as well, as well as onboarding, interviewing and (indistinct) staff.”53 The Applicant accepted that she would on occasion conduct counselling within the scope of that role if the pharmacy was extremely short staffed and there was no other option.54 [51] The Applicant’s evidence was that the Counselling Team Lead position involved a severe reduction in those duties and that she would be “counselling patients all day on phone calls”55. Ms Monzie described the Counselling Team Lead position as involving managing a team of four interns who were performing the counselling, as well as performing some counselling directly and dealing with more complex counselling matters that may be escalated to her.56 On any view then, there clearly is a significant change in duties in moving to the latter role. [52] There were differing views as to whether there was any difference in seniority between the two roles and the evidence on this issue is inconclusive. I accept that they were lateral in their pay and classification, but the roles were clearly distinct. Even if the roles were at the same level, they were different jobs and the written communication from Mr Ghobrial on 19 May was consistent with this. Thus the real question is not whether there was a demotion, but whether the employer’s decision to place the Applicant in a different job for some indeterminate period constituted a repudiation of her employment contract. Although this was agitated as a subsidiary argument by the Applicant57, it is in my view a highly meritorious one and one that I accept. As was observed by the discussion of repudiation in Full Bench decision of City of Sydney RSL & Community Cub c. Balgowan58: “Similarly, if an employer seeks to bring about a change in the employee’s duties or place of work which is not within the scope of the express or implied terms of the contract of employment, the conduct may evince an intention to no longer be bound by those terms. Therefore, in these circumstances if an employee does not agree to the change, which if agreed would amount to a variation of the contract, the employee may claim to have been constructively dismissed.”59 [53] For completeness, it was open for the Applicant to either accept the repudiation by resigning (which is what she did) or to instead affirm the contract as varied. I do not accept the circumstances of a temporary move to a different job with the same salary left the Applicant with no real or effective choice other than to resign at that time that she did, while on personal leave. Denial of a promotion [54] The Applicant’s evidence on this issue is that she discharged a drug dependent patient from the pharmacy who admitted to supplying medicinal cannabis to third parties. She said that -- 17 of 20 -- [2025] FWC 3388 18 Mr Ghobrial’s response to this was to tell her that she was “not ready to be an owner or a manager”.60 [55] Whilst I have no reason to disbelieve the Applicant’s evidence on this issue, I am unable to conclude that she was denied a promotion in the absence of any evidence that a promotion was otherwise available. Inaction following sexual harassment [56] The limited evidence on this issue was that the Applicant made a complaint that a former colleague had been sexually harassed and that this had been “swept under the rug”.61 [57] Sexual harassment in the workplace is disgraceful, unlawful conduct and any suggestion that it has occurred warrants a response. One can readily understand that employees would feel unsupported if it seemed that complaints of this nature were not addressed or worse if the behaviour was tolerated. The difficulty with the Applicant’s evidence however is that it provides me with no basis to be satisfied that the Applicant would have visibility over the steps taken to investigate or respond to a sexual harassment complaint that did not directly involve her. Conclusion [58] In all of the circumstances, the Applicant had a sound foundation for a considered and rational decision that she would be better of working somewhere other than in the Respondent’s business in light of the Respondent’s response to her injury. But that is not the same as a forced resignation. The unilateral change in the Applicant’s role likewise did not force her resignation at the time she chose to resign, but it did constitute a repudiation of her employment contract, in response to which she was entitled to resign. A resignation as an acceptance of a repudiation is a termination of employment on the employer’s initiative, and as such is a dismissal under section 386(1)(a) of the Act. [59] For the reasons given in paragraphs [8] - [13] above, the Applicant’s claim was brought within time. [60] The Respondent’s jurisdictional challenges to the Applicant’s application are dismissed. Next Steps [61] The matter will be listed for directions in short order. COMMISSIONER -- 18 of 20 -- [2025] FWC 3388 19 Appearances: Ms A. Numan, for the Applicant. Mr D. Wedgewood, for the Respondent. Hearing details: 9 September. 2025. Printed by authority of the Commonwealth Government Printer <PR793653> 1 [2024] FWC 2447. 2 [2016] FWCFB 5500. 3 [2006] AIRC 496. 4 Ibid. at [23]. 5 [2017] FWCFB 3941. See also City of Sydney RSL & Community Club Limited v. Balgowan [2018] FWCFB 5 at [10]-[13]. 6 [2009] AIRCFB 680. 7 Ibid at [30]. 8 (1996) 67 IR 154. 9 At p 160-161. 10 [2008] AIRC 102. 11 Hastie v. Impress Australia [2008] AIRC 102 [48]-[51], [54]-[62]. 12 O’Meara v. Stanley Works [2006] AIRC 496, Mohazab v. Dick Smith Electronics (No2) [1995] IRCA 645. 13 Broadlex Services v. United Workers Union [2020] FCA 867. 14 Exhibit R1. 15 Exhibit R2. 16 Exhibit R3. 17 Exhibit R4. 18 Exhibit A1. 19 Annexure E of Exhibit A1. 20 Annexure B of Exhibit A1. 21 Hearing Book, page 7. 22 PN133, Exhibit R4 at Hearing Book 80. 23 Exhibit R4, Hearing Book Page 78 24 PN 119 25 PN121. 26 Exhibit A1 at [6b]. 27 Exhibit A1 at [6a] 28 Exhibit A1 at [6g]. 29 PN135. 30 PN120. -- 19 of 20 -- [2025] FWC 3388 20 31 Exhibit R4, Hearing Book pages 74, 75, 78. 32 PN213. 33 PN123 34 PN121. 35 Exhibit A1 at [6(c)]. 36 Exhibit A1 at [6(d)]. 37 PN221, 281. 38 PN139 39 PN140. 40 PN139. 41 Exhibit A1 at [6(f)]. 42 Annexure A to Exhibit A1. 43 Ibid. 44 Exhibit A1 at [6(f)]. 45 Exhibit R3. 46 PN66. 47 PN146-149. 48 PN226. 49 Hearing Book p61-62. 50 Hearing Book page 80. 51 Hearing Book pages 10-11. 52 Exhibit R2. 53 PN163. 54 PN169. 55 PN100. 56 PN227-233. 57 PN454, Applicant’s submissions at [15]. 58 [2018] FWCFB 5 59 At [18]. 60 PN153-155, Exhibit A1 at [6(j)]. 61 Exhibit A1 at [6(k)]. -- 20 of 20 --