She called the fitness requirement a catch-22 - the Commission had a different view
She called it a catch-22. The Fair Work Commission called it a resignation.
A former senior executive who spent 19 months on suspension and medical leave has lost her bid to have the Fair Work Commission treat her departure as a forced dismissal - a concept that, under Australian law, treats a resignation as a sacking when the employer leaves the worker with no real choice but to quit.
The worker held the title of Chief Growth Officer at A Team Tuition Australia, earning $153,750 plus superannuation. She had been with the business since November 2019.
Complaints stack up
In August 2024, the company's founder and CEO received a formal complaint about the worker's conduct from the company's Program Support Officer. Over the following two weeks, he conducted meetings with staff. Seven employees raised concerns about the worker's behaviour.
The allegations, detailed in the employer's later filings, were specific. They included sharing a colleague's confidential medical information with team members, telling staff to "shut the fuck up," laughing in a team member's face when she asked for a pay rise, describing a sales team member as "useless," and telling the sales team the CEO "doesn't know what he is talking about" and they should ignore him.
The worker, meanwhile, had flagged her own concerns. She told the CEO in mid-August 2024 that she was suffering work-induced anxiety, stress and burnout. Her GP diagnosed work-induced burnout on August 19, 2024 and recommended stress leave. She kept working.
The September 9 meeting
The company scheduled a meeting for September 5 to put the allegations to her. It was postponed after the worker said she was distressed and could not arrange a support person at short notice. When the rescheduled meeting arrived on September 9, the worker had not obtained the medical clearance the CEO had requested. Given the seriousness of the complaints, the CEO suspended her on full pay and handed her a suspension letter.
The worker made much of the fact that the letter had been prepared on September 5. The Commission found nothing improper in that - it had simply been held over from the postponed meeting.
From there, the worker did not return. She was certified unfit for work across a series of medical certificates stretching from September 2024 through February 2026. Some covered a fortnight. The last one covered three and a half months.
The investigation that never moved
The company's position was straightforward: it would put the allegations to the worker once she was medically fit to participate. Both the CEO and the CFO communicated this directly.
A September 2024 email from the CEO told her she would not need to respond to anything during her leave so she could "focus on & prioritise your wellbeing." An October 2024 email from the CFO said the company would check whether she was fit after her certificate expired and "only once this occurs will we be in a position to put the allegations to you and progress the investigation."
The worker saw it differently. She described the fitness requirement as "fitness gating" - a term the Commission had not heard before - where she could not get better without knowing the allegations, but could not learn the allegations until she got better.
In late December 2024, while legally represented, she filed a separate application with the Commission seeking help to resolve the dispute. It was accompanied by a 47-page document detailing her grievances, including claims that the CEO had shared her mental health status and the fact of her suspension with colleagues.
The company filed its response in late January 2025, and in doing so, laid out the substance of the employee complaints in some detail. The Commission later noted that this gave the worker "a pretty good picture as to what the employer is concerned about."
But the worker never formally responded to those particulars. During the hearing, the Commission pressed her on why. She said she had instructed her lawyer to respond, but her lawyer "didn't necessarily act on my instructions."
The money question
The Commission ordered the worker to produce documents relating to any income protection or sickness benefit payments she had received. It emerged she had self-funded an income protection policy and had been receiving payments since November 2024. The decision described those payments as "very substantial," covering "a very large percentage of the wages forgone." Her insurer had even pre-approved future monthly payments.
When the employer's counsel asked whether there was any economic need to resign in April 2026, the worker was direct: "There was no economic reason for resigning at that time."
Her workers' compensation claim, lodged in late 2024, had also been rejected. An independent review in June 2025 upheld that rejection, finding the employer's suspension was "reasonable management action, undertaken in a reasonable way."
The resignation
In early 2026, the worker discovered the company had moved to revoke her access to its social media accounts. In March, through her lawyer, she proposed a separation: resignation effective April 2, $58,000 in general damages, accrued entitlements, a statement of service, and a deed of release. The offer was open until April 2.
No response came. A follow-up email on April 8 also went unanswered.
On April 9, 2026, the worker resigned, effective immediately. Her lengthy resignation letter listed more than a dozen grounds - from the indefinite suspension without resolution to the removal of system access to the alleged disclosure of her health information to colleagues.
The CEO acknowledged the resignation the same day.
"Well, isn't that your whole case?"
At the hearing on July 20, 2026, the Commission pressed the worker on timing. Why not March 2025? "Because I was waiting, hopefully, to get particulars at some point." June 2025? "Same reason." September 2025? "Same reason." December 2025? By then, she said, "it got to the point where I'd watched progressively through being removed from communications."
The Commission also put to her that an employer would be unwise to press serious allegations on a worker who had been declared medically unfit - doing so could worsen her condition and open the door to a fresh workers' compensation claim. The worker eventually said she was not sure how to answer.
When asked directly whether she expected the employer to put the allegations to her while she was very unwell, the worker replied: "No, I wouldn't expect that."
"Well, isn't that your whole case?" the Commission asked.
The finding
The Commission found the employer had been "incredibly tolerant" of the worker's extended absence and "patient and very accommodating" of her situation. It held the company was within its rights to suspend her, was entitled to wait for medical fitness before progressing the investigation, and was in fact protecting her by not pressing the allegations while she was unwell.
On the unanswered settlement offer, the Commission found the employer was under no obligation to entertain a large payment in a short timeframe "when Ms McClear did not possess a large, metaphorical stick."
As for the missing medical certificate after February 2026 - a point the worker relied on heavily - the Commission was blunt. It was her obligation to provide it, not the employer's to chase it. She had provided one to her insurer for the same period but not to her employer. "The omission is hers, not the Respondent's."
The application was dismissed for lack of jurisdiction on October 27, 2026. The Commission determined the resignation was not caused by the employer's conduct and upheld A Team Tuition Australia's objection that it had no power to hear the claim.
For HR teams managing prolonged suspensions with concurrent medical leave, the case offers a practical template: maintain communication, document the fitness-for-work requirement clearly, avoid pressing allegations on an unfit employee, and keep the door open for return. Patience, in this case, was the employer's strongest argument.
The decision concerned a preliminary question about whether the Commission had power to hear the claim, and did not examine the merits of the underlying workplace complaints. The worker's name has been used in connection with the case citation only; the decision is a public document of the Fair Work Commission.
