s.394 - Unfair dismissal

Application for unfair dismissal remedy - jurisdictional objection - whether the applicant was dismissed - found that the applicant was not dismissed - application dismissed

• [1] This decision determines a jurisdictional objection made against an application commenced by Mr Charlie Sawczuk (the Applicant) under section 394 of the Fair Work Act 2009 (FW Act) against his former employer, P M R Profilio Metal Roofing Pty Ltd (the Respondent).

• [2] That jurisdictional objection being whether Mr Sawczuk has been dismissed within the meaning of section 386 of the FW Act. In summary, Mr Sawczuk contends that he has been dismissed. The Respondent contends that the Applicant resigned from his employment and has not been dismissed.

• [3] On 16 October 2025, the question of whether Mr Sawczuk has been dismissed was the subject of a hearing before me. Mr Sawczuk appeared for himself. Mr Blake Profilio appeared for the Respondent. Mr Profilio and Mr Joel Phillips jointly own and operate the Respondent. All the evidence and submissions made by the parties has been considered.

• [4] For the reasons explained below, I have determined that Mr Sawczuk has not been dismissed within the meaning of section 386 of the FW Act. Consequently, I have dismissed Mr Sawczuk's application for an unfair dismissal remedy.

• [5] Section 386(1) of the FW Act provides that 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.

• [6] While not put in these terms, the effect of Mr Sawczuk's argument was that he had been dismissed within the meaning of section 386(1)(a). Section 386(1)(b) was irrelevant to the facts of this application.

• [7] Mr Sawczuk commenced employment with the Respondent as an apprentice on 15 March 2021.[1] On completing his apprenticeship, Mr Sawczuk continued to work on a full-time basis for the Respondent as a Roof Plumber.[2] The roofing business operated by the Respondent is a small business with 8 employees.[3] That includes both Mr Profilio and Mr Phillips who jointly manage and own the Respondent.

• [8] On 24 March 2025, Mr Sawczuk sustained an injury to his hand while at work.[4] The injury occurred while Mr Sawczuk was cutting a sheet of metal roofing.[5] After finishing work for the day, Mr Sawczuk attended a medical centre in Dapto. Mr Sawczuk saw a doctor who advised Mr Sawczuk that the wound was superficial and there was no damage to the tendon. The doctor advised Mr Sawczuk that he was fit for work.[6] It appears that Mr Sawczuk then worked without incident until 3 April 2025.

• [9] In very summary terms,[7] Mr Sawczuk was certified as unfit for work from 3 April 2025. That arose from Mr Sawczuk attending a further medical appointment on that day. Ultimately, Mr Sawczuk was certified as fit for normal hours from 3 June 2025, albeit with some restrictions (lifting, pushing etcetera)[8] and returned to work on 10 June 2025. Mr Sawczuk was aggrieved by his treatment by the Respondent in the two months that he was absent from work. Mr Sawczuk felt that the Respondent was seeking to pressure him into returning to work and not to make to a claim for workers compensation. Ultimately, a workers compensation claim was submitted on 15 April 2025. Mr Sawczuk said there were delays with receiving workers compensation payments, which created financial hardship for him, and stress, depression and anxiety. The Respondent also reduced Mr Sawczuk's wage in this period from $34 per hour to $30.28.

• [10] Mr Sawczuk returned to work after the two month absence on 10 June 2025. Mr Sawczuk then worked an entire shift on 11 June 2025. Mr Sawczuk explained that he did not say hello to Mr Profilio or Mr Phillips at the start of shift on 11 June 2025. Mr Sawczuk explained that he was unhappy with Mr Profilio and Mr Phillips because of a conversation that had occurred the previous day and because Mr Sawczuk thought that he was going to be replaced with another tradesman who Mr Sawczuk said had started work with the Respondent that morning.[9]

• [11] The parties agree that a conversation took place on the afternoon of 11 June 2025 involving Mr Sawczuk, Mr Profilio and Mr Phillips. The parties strongly disagree as to what was said in that conversation.

• [12] Mr Sawczuk gave evidence as to the conversation on 11 June 2025. Mr Sawczuk's written account of the conversation[10] is reproduced below:

Joel: Look bro, I've been dreading having this conversation all day, but after you sent that message, I don't want to work with you on site anymore. Even if you stay here, I can tell you right now that you will never be back on the money you were on before and you'll be on $30 an hour for as long as you work here.

Blake: You clearly don't want to work here anymore, because you didn't want a bar of us this morning, you didn't even say hello. You still haven't said sorry to Joel for what you sent, and I thought you'd fight for your job a little more, but you haven't

Me: Well you dropped my wage as soon as the work cover claim was lodged

Me: My biggest problem is that I wasn't getting paid on time and that I wasn't eating, I couldn't even afford to buy basic needs for survival. My mental health has been so negatively impacted by this whole situation.

Joel: I get you have mental problems, we all do, I'm struggling through problems every day too. You definitely will never be able to earn the wage that you were on before injury, and it seems you don't want to work here so we hate to drop you like this, but you're gonna have to take your two weeks. I don't know what you want to do, if you want to work the last 2 weeks or do you want us (Blake and Joel) to just pay out your last 2 weeks.

Blake: You were protecting yourself by taking off the time you need, but now it's time for us to take care of our business I guess.

• [13] Mr Profilio gave evidence as to the conversation on 11 June 2025. Mr Profilio's written account of the conversation[11] is reproduced below:

When Charlie returned from injury, we could see that he was unhappy and looking like he was not wanting to be here. We then pulled him aside and spoke to him, he told us he was unhappy with his pay, we told him we were currently not in a position to move his pay back up , he then told us that wasn't going to work as he needed more money, it was then agreed that if Charlie didn't want to be here and was unhappy that he would work two weeks and then cease working with us. That was the end of the conversation.

• [14] Later that afternoon, Mr Sawczuk sent a text message to Mr Profilio,[12] which is reproduced below:

After my 2 weeks notice was given me today verbally, am I able to please have a written letter of termination.

Could you please include that you were happy to pay me out for the 2 weeks and expressed that I did not have to work in this time.

As I am unfit for full duties, I will need to lodge my termination notice with Centerlink for government subsidies asap, until I can be cleared for full duties by my physician.

• [15] Later that night, Mr Profilio replied by text message to Mr Sawczuk,[13] which is reproduced below:

We did not terminate your employment, you clearly do not want to work with us anymore via your actions & the fact you told us you don't make enough money here & wish to start a plumbing apprenticeship.

So we all agreed for you to take your two weeks as, it was best for everyone. You said you were keen to come in for the remaining two weeks to help.

If you are now wanting to resign, we are happy to accommodate that but will need you to send through your resignation letter before we will be able to pay you your last two weeks. If not, we will see you tomorrow.

• [16] Mr Profilio sent a further text message to Mr Sawczuk later that evening,[14] which is reproduced below:

You also have been cleared for a return to work as worker compensation is not paying your wage anymore

• [17] Mr Sawczuk did not attend for work on 13 June 2025, which resulted in Mr Profilio sending Mr Sawczuk a text message,[15] which is reproduced below:

• [18] The text message exchange ceased with Mr Sawczuk sending Mr Profilio a text message on the morning of 13 June 2025,[16] which is reproduced below:

Sorry, didn't message last night as Joel said he didn't appreciate it so I waited until this morning.

In the conversation we had yesterday, I raised the question of if my salary would be restricted back to the minimal award wage with my remaining time back with PMR as it had been restricted the day that my injury was processed through work cover, even after an agreed wage negotiated between us after I completed my apprenticeship.

I was told that my wage will never increase from the award wage, even with how much work I do and the quality of work that I produce, which I was reversed back to award rates after my injury occurred.

I was told by yourself and Joel that PMR will pay me out 2 weeks in advance for my exit from the company even if I don't work those 2 weeks.

I have reassessed after the fact that you won't send me a letter of termination and you are trying to turn this back around on me now. All I would like to do is receive my letter of termination so I can plan my life looking forward and build myself back up to the fitness and health at which I was at before my injury.

I appreciate everything PMR has done for me, I always have and my hard work and quality that I have put into yours and Joel's business has reflected that. I have not wished to exit the company, as I stated on a phone call with Joel a couple days after my first surgery - but it was just assumed that I were to not make a return, no contact had been made by yourself to confirm this. I have still been performing my work duties to which the work duties plan that has been made for my case of injury, (that was also updated as of yesterday), states.

My main aim was to get my health back to normal and be the hard working employee both yourself and Blake have told me I am for the last 4 years - doing in my time of recovery what I was supposed to do, not only for my fitness but for my mental health plan also, which was going to the gym on the treadmill and/or running to keep my fitness up as recommended to me by my doctor.

I am sorry to see the last 4 years come down to me receiving a 2 weeks notice of termination on my second day back from an absence for a work related injury while on light duties, as per my work duties plan.

All I am asking for is the letter of termination, in accordance with my return to work plan. I have an anticipated time of achievement of the RTW goal, which is 3 months to be re-assessed for full duties so I cannot find work in this period and need to seek a form of income until I get back on my feet.

If we could please keep it at yourself and Joel have terminated me as from Joel's response stating he does not want to work with me onsite, I believe this to be personal and I think it would be best for all involved if PMR would just pay me my entitlements, as stated from you two, along with provide me with a termination notice, and allow me time to work out my finances.

Again I have not indicated I wanted to leave, but have been told yourself and Blake are giving me 2 weeks notice to end my employment. I will pick up my tools and belongings this afternoon, and I have noted that I have already been easily replaced to fulfil my position in PMR

I do not wish to engage in any further chat, so I would like, for my mental health, to be able to receive my entitlements, tools, belongings and letter of termination and a reason why.

I look forward to receiving my letter of termination, in order to make way forward

• [19] With the benefit of observing Mr Sawczuk and Mr Profilio give evidence, and having carefully considered the material before me, I prefer Mr Profilio's evidence over Mr Sawczuk's as to the conversation on 11 June 2025.

• [20] On Mr Sawczuk's written account of the conversation with Mr Profilio and Mr Phillips on 11 June 2025, he was given a choice by Mr Profilio and Mr Phillips - to either work for the last 2 weeks or to be paid out 2 weeks. Mr Sawczuk's written account of the conversation ends with the words spoken by Mr Profilio. Mr Sawczuk's written account of the conversation does not record him responding to those words, or saying anything at all after he was given that choice. Mr Sawczuk's written account of the conversation was incomplete. Mr Sawczuk confirmed this in an answer to a question from me at the hearing. The effect of Mr Sawczuk's answer was that he probably did say something after those words were said, however, he could not recall what he said. I accept there is some difficulty in remembering conversations some four months later. However, Mr Sawczuk set out in some detail his written account of that conversation, which evidences that Mr Sawczuk could remember much of the conversation. Mr Sawczuk's response to the choice presented by Mr Profilio and Mr Phillips is a critical part of this conversation. It is something that Mr Sawczuk should have been able to remember. The fact that Mr Sawczuk did not include and could not remember what he said to the choice presented to him demonstrates that Mr Sawczuk's evidence was incomplete. This is one reason causing me to prefer Mr Profilio's evidence over Mr Sawczuk's evidence as to the conversation on 11 June 2025.

• [21] Mr Sawczuk's written account of the conversation with Mr Profilio and Mr Phillips on 11 June 2025 is also inconsistent with his text message sent to Mr Profilio on 11 June 2025.[17] As explained above, on Mr Sawczuk's written account of the conversation with Mr Profilio and Mr Phillips on 11 June 2025, he was given a choice by Mr Profilio and Mr Phillips - to either work for the last 2 weeks or to be paid out 2 weeks. However, that text message from Mr Sawczuk does not suggest he was given any such choice. That text message suggests that Mr Sawczuk was to be paid out the 2 weeks without any requirement to work those 2 weeks. This inconsistency between Mr Sawczuk's written account of the conversation and his text message to Mr Profilio on 11 June 2025 is another reason for me prefer Mr Profilio's evidence over Mr Sawczuk's evidence as to the conversation on 11 June 2025.

• [22] I accept that there is an inconsistency between Mr Profilio's written account of the conversation on 11 June 2025 and his first text message[18] to Mr Sawczuk on the evening of 11 June 2025. That text message refers to Mr Sawczuk wishing to start a plumbing apprenticeship. There is no reference to Mr Sawczuk wanting to start a plumbing apprenticeship in Mr Profilio's written account of the conversation on 11 June 2025. Other than this inconsistency, this text message is consistent with Mr Profilio's written account of the conversation on 11 June 2025. I am satisfied that Mr Profilio's evidence is reliable.

• [23] For those reasons, I find that the conversation on 11 October 2025 to be consistent with Mr Profilio's evidence. Mr Profilio's account of the conversation has been set out above. Based upon my finding as to what was said during the conversation on 11 October 2025, I am not satisfied that Mr Sawczuk has been dismissed within the meaning of section 386 of the FW Act.

I find that Mr Sawczuk has not been dismissed within the meaning of section 386 of the FW Act. Mr Sawczuk's application for an unfair dismissal remedy is dismissed.

[1] Digital Hearing Book (DHB), pages 8, 11 & 83.

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