When does employer conduct actually force a resignation? FWC weighs in
A rigger who resigned after a strike, a racism complaint, and a warning letter was not constructively dismissed, the Fair Work Commission found.
In Beyene v C&H Acquisition Pty Ltd, decided on 16 March 2026, Deputy President Dobson ruled the employer's conduct did not force the employee to resign, upholding the jurisdictional objection and dismissing the application.
Johnnu Beyene, a rigger of Ethiopian descent, started at C&H Acquisition in June 2021 at age 21. From May 2025, he joined protected industrial action with other CFMEU members, including a work stoppage on 6 and 7 May 2025 and an indefinite strike from 28 May to 24 July 2025.
On 23 May 2025, Beyene complained of racial discrimination and workplace bullying after a toolbox meeting about acceptable behaviour that he considered hypocritical given conduct he said he had experienced. The employer acknowledged the complaint and opened an investigation.
When Beyene returned on 28 July 2025 after 61 days away, the employer directed him and nine other striking workers to complete training in acceptable workplace behaviour, manual handling, site induction, and a "Take 5" safety module at a separate yard. Beyene initially refused, though at the hearing he could not recall whether he objected to all modules or only the workplace behaviour component. He completed training on 5 August 2025.
On 8 August 2025, the employer told him his complaint was unsubstantiated. However, his submissions noted the investigation substantiated he was called a "pirate," a term he found deeply offensive given his African descent and the fact he was wearing a durag. He said no action followed and the employer did not interview witnesses he nominated.
Between completing training and resigning, Beyene worked 12 days and took 22 days of leave. Duties included cleaning cranes, inspecting rigging gear, ensuring crane documentation was in order, loading trucks, building a crane, and constructing an igloo shelter. He also contended the employer had threatened redundancy after the industrial action, later rescinded.
On 2 September 2025, another union member, Jeremy Richardson, was dismissed for what the employer said was driving dangerously at the Port of Brisbane. Beyene then fell ill with bacterial gastroenteritis and accepted he failed to notify the employer on 8 September 2025. Upon his return on 15 September 2025, the employer issued an allegations letter. Beyene responded the next day, attributing his failure to notify to forgetfulness from the illness, and provided a medical certificate. A formal warning followed on 17 September 2025.
He resigned on 29 September 2025, stating he "had no choice but to resign." He cited segregation from non-striking workers, an inadequate racism investigation, no meaningful work, being disciplined while seriously unwell, and Richardson's dismissal, which led him to believe he would be targeted next. The employer told him he could leave immediately and be paid for his notice period.
The Commission found each reason insufficient, individually and cumulatively. Beyene acknowledged other options were available, including the dispute resolution clause in his enterprise agreement. The Commission accepted that the other eight or nine employees who had taken industrial action all remained employed by the Respondent.
Citing Doumit v ABB Engineering Construction Pty Ltd, the Commission noted that the line between a forced resignation and a voluntary one must be "closely drawn and rigorously observed... 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."
The case underlines that post-strike retraining will face scrutiny and should be documented and communicated. The allegations-letter-to-warning sequence shows the value of procedural steps before discipline. And closing a discrimination investigation without remedial action can resurface in proceedings.
