For an employee to bring a general protections claim involving dismissal, they must be able to demonstrate that they were “dismissed” from their employment within the meaning of section 386 of the Fair Work Act 2009.
One of the instances in which an employee may be “dismissed” from their employment is if they were forced to resign because of the employer’s conduct or course of conduct. This is commonly referred to as “constructive dismissal”.
In the decision of Muriqi v Uniqlo Australia Pty Ltd [2025] FWC 2494, the Fair Work Commission (FWC) upheld an employer’s jurisdictional objection to an employee’s general protections application involving dismissal on the basis that the employee was not forced to resign from her employment and therefore was not dismissed within the meaning of section 386 of the FW Act.
The employee was employed on a full-time basis as the Human Resources Manager for Uniqlo Australia Pty Ltd (the Employer). As part of her role, she was responsible for managing the day-to-day functions of the Human Resources (HR) Department, supervising a team of employees and providing advice to the Employer on HR-related matters.
In May 2024, the employee commenced parental leave with a return date in May 2025.
Prior to the employee’s return from parental leave, she sent an email to the Employer requesting an extension of her parental leave as well as a flexible working arrangement under section 65 of the FW Act. The employee requested to reduce her working days to two days per week on the basis that they were the only able to arrange a babysitter on Mondays and Wednesdays.
The Employer accepted the extension of parental leave and organised a meeting with the employee to discuss the requested flexible working arrangement. During the meeting, the Employer proposed alternative flexible working arrangements which the employee did not accept on the basis that they would not be suitable to her family responsibilities.
The Employer ultimately declined the request by email in May 2025, citing business reasons including that working two days per week would not be sufficient to perform the duties of the HR Manager role including the mentoring required of junior and new employees, the HR oversight required in stores and the general scope of the HR Manager role including continuity, workplace investigations, dispute resolution, training and incident responses.
The Employer again proposed alternative arrangements to the employee, including reducing to four days per week until November 2025 and a potential transfer to a Sustainability Lead starting at two days per week and later building up to four days per week.
The employee did not accept these alternative arrangements and resigned from her employment, stating that the Employer’s reasons for rejecting her flexible working request were unlawful and amounted to adverse action.
In the employee’s general protections claim involving dismissal, she submitted that she felt she had no choice but to resign from her employment because the Employer denied her “repeated requests” for flexible working arrangements and that the Employer’s rejection of the requests constituted adverse action.
The Employer raised a jurisdictional objection to the general protections claim, arguing that the employee had voluntarily resigned and was not dismissed.
The FWC ultimately upheld the jurisdictional objection in finding that the employee was not dismissed from her employment.
The FWC found that the Employer’s refusal to accept the employee’s particular flexible working arrangement was not a proper basis to conclude that the Employer refused to accept the request with the intention of brining the employment relationship to an end or that the probable result of its refusal would leave the employee with no choice but to resign.
The FWC acknowledged that the Employer had proposed alternative flexible working arrangements, offered to transfer the employee to another role and notified the employee of her right to lodge a dispute with the FWC. Further, the FWC noted that as a senior HR practitioner, the employee would have been aware of the alternative avenues to resolve the dispute – as she threatened to do prior to resigning.
The FWC commented that it did not have jurisdiction to consider whether the Employer’s refusal was made on reasonable business grounds, but that the employee would have been open to make an application under section 65B of the FW Act for the FWC to deal with the request.
On this basis, the FWC found that it was clear on the evidence that the Employer’s refusal of the request was nota circumstance which gave the employee no effective or real choice but to resign.
It is for these reasons that the FWC upheld the jurisdictional objection and dismissed the application.
Lessons for employers
Workplace tensions may sometimes lead employees to resign from their employment and claim that they have been constructively dismissed.
As seen in this decision, the FWC may not be satisfied that the employee had no effective or real choice but to resign if alternative solutions were available to employee at the time of resignation, such as dispute resolution avenues or reasonable alternative proposals made by the employer.
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