s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether dismissed

• [1] This is an edited version of a decision issued on transcript today.

• [2] On 28 August 2025, Mr Stackpole applied for an unfair dismissal remedy under section 394 of the Fair Work Act (Cth) (the Act) in relation to his employment with Z Software Pty Ltd (Z Software). Under s.394, a person who has been dismissed may apply to the Commission for an unfair dismissal remedy. The dismissal must have taken effect by the time the application is made, which must be within 21 days after the dismissal took effect, or within such further period as the Commission allows.

• [3] A person has been dismissed if one of the circumstances described in s.386 of the Act is made out. Those are, in summary, either that the person's employment with their employer has been terminated on the employer's initiative (s.386(1)(a)), or the person resigned from their employment but was forced to do so because of conduct or a course of conduct engaged in by the employer (s.386(1)(b)).

• [4] The question is whether Mr Stackpole was dismissed for the purposes of s.386(1)(a).

• [5] It is not in dispute in this case that Mr Stackpole was employed from 11 September 2023 until 8 August 2025. It is also not in dispute that Mr Stackpole resigned from his employment on 8 July 2025. The resignation was given in a meeting between Mr Stackpole and Z Software to discuss concerns about his employment, during which it was agreed that his resignation would take effect on 30 September 2025. The parties agree that this period of notice was longer than required under Mr Stackpole's contract of employment. It was nevertheless a period of notice agreed between the parties and confirmed in writing by Z Software as being a decision in their mutual interests. As confirmed in the hearing today, Mr Stackpole agreed to this in writing by reply email on the same day.

• [6] On 8 August 2025, Z Software reneged on the agreement for a longer period of notice by advising Mr Stackpole that it was best if he left straight away. This was not an outcome agreed with Mr Stackpole and I do not accept evidence to the contrary. On the evidence of Z Software, particularly the evidence of Ms Vanessa Law, it was a decision made by Ms Law as Head of Product and Delivery. Once made, the decision was not negotiable and nor was the subsequent offer of a Deed of Release to reflect the change in outcome accepted by Mr Stackpole.

• [7] I do not accept the submission that bringing forward the date of termination was consistent with the notice period required under Mr Stackpole's contract of employment. Had Mr Stackpole given notice in accordance with his contract of employment, the period of notice he would have been required to give was arguably 2 weeks (in accordance with s. 117 of the Act). Although the Schedule to the contract refers to a 4 week notice period, this finds no support in the body of the document. Further, the period between Mr Stackpole's resignation and date of termination was 4 weeks and 4 days, which was longer than the 4 week notice period asserted by Z Software.

• [8] I also do not accept that Mr Stackpole's conduct after his resignation voided the agreement to extend his notice period to 30 September 2025. No conditions on the agreement to extend the notice period of the kind asserted by Z Software are made out on the evidence.

• [9] I find that Mr Stackpole's employment ended immediately upon communication of the decision to end his employment on 8 August 2025. The decision to bring forward the date of termination to 8 August 2025 was the act that brought the employment relationship to an end. This was the act of Z Software and it resulted in termination on the initiative of the employer.

• [10] It may be accepted that had Z Software not acted as it did, the employment would likely have ended by Mr Stackpole's resignation on 30 September 2025. But the question of whether Mr Stackpole has been dismissed is to be considered through the lens of when the dismissal took effect, which in this case, was almost 8 weeks earlier, on 8 August 2025. At that time, Mr Stackpole's resignation had not yet taken effect.

• [11] For these reasons, I find that Mr Stackpole has been dismissed. The jurisdictional objection fails.

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