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[208]
[2025] FWC 951
General information, not legal advice.
Fair Work Commission
2025-04-04
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for relief from unfair dismissal - not small business employer - minimum employment period completed - dismissal at the initiative of employer - no valid reason - no procedural fairness - unfair dismissal - compensation ordered.
Commissioner Crawford has reviewed the latest material filed by the parties.
The Commissioner is concerned about how this matter is progressing. The hearing on 19 February 2025 resulted in a significant amount of yelling from both parties. The yelling disturbed other Commission staff members on Level 11.
The Commissioner is also concerned that Mr Salmon is making unnecessary personal statements about Ms Ros Frandin in circumstances where Ms Ros Frandin has been experiencing mental health issues.
The Commissioner is also concerned that Ms Ros Frandin is raising alleged underpayment issues which he does not have the jurisdiction to resolve in an unfair dismissal application.
In the circumstances, the Commissioner has decided to express the following provisional views about the key issues that arise for consideration in relation to Ms Ros Frandin's unfair dismissal application:
The Commissioner directs the parties to confirm whether they oppose any of the provisional views above by 5:00pm on Monday, 3 March 2024.
If the Commissioner's provisional views are opposed, a further brief hearing will be convened. The Commissioner intends to ensure any further hearing is strictly confined to the legal issues he must determine in this case and is conducted in a calm and respectful manner. If that cannot occur, the hearing will be adjourned.
If the Commissioner's provisional views are not opposed, the Commissioner will finalise his decision and compensation order and the matter will be concluded."
Initial matters - uncontested provisional views
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the SBFDC;
(d) whether the dismissal was a case of genuine redundancy.
Was Ms Ros Frandin a person protected from unfair dismissal?
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.
Mr Salmon: "I want to have a meeting with you at 5 pm. Today."
Ms Ros Frandin: "I'm free now, I'm going out later"
Ms Ros Frandin: "I can't make it, I'm meeting my girlfriends at 4pm. Can we leave this for tomorrow morning?"
Mr Salmon: "That will be the worst decision you have made this year. Up to you."
Ms Ros Frandin: "We can talk now" and then "I'm here."
Mr Salmon: "5 pm. I will be at the piano lounge. Your choice."
Mr Salmon: "You need to agree with me 100% of the time. Can you agree with me?"
Mr Salmon: "If you can't agree with me, you can't work for me. If you are not going to agree with me, you are resigning."
Thank you for your time today. I understand that you do not wish to continue with the role due to the overwhelming nature of the job. Including Thank you for your service over the last 10 months. I accept your offer to move out tomorrow morning Monday the 17th November. Jared Buncombe will be your contact person for all outstanding entitlements. I wish you all the best. Regards Rod Salmon."
Thank you for your time today. I understand that you do not wish to continue with the role due to the overwhelming nature of the job.
Thank you for your service over the last 10 months.
I accept your offer to move out tomorrow morning Monday the 17 th November.
Jared Buncombe will be your contact person for all outstanding entitlements.
I would like to clarify some points regarding my departure. At no time did I resign. I simply expressed my concerns about the workload being beyond what I could reasonably handle and noted that I lacked the necessary training to meet all the expectations of the role.
I was surprised to receive your decision to terminate my contract, which makes it clear that this decision was initiated by you, not me.
I also expect to receive everything I am entitled to for the time I worked, and I wish you all the best moving forward.
I appreciate the opportunity I had over the past 10 months, and I remain available for any further clarification.
Dani said she was overwhelmed and unless I got her help then she could not continue.
I advised her that that "was the job" and if she could not fulfil it she should resign. I was not changing her role to suit her inexperience
First, I want to make it clear that I did not agree to resign. Rod made the decision to terminate my employment after becoming very aggressive during a conversation. He also asked me to leave his house, immediately which I have respected..."
"I appreciate the opportunity to have worked with you over the past 10 months. It was a valuable experience for me, and I am grateful for the whole time.
I will handle all outstanding matters with Jared moving forward as instructed.
I'm writing to inform you that I was unexpectedly terminated and asked to vacate the property yesterday (Sunday) at 5:30pm, which was technically my day off. This situation has left me with very little time to arrange alternative accommodations or manage my belongings.
Unfortunately, I won't be able to leave by midday as requested. I kindly ask for an extension until the end of the day and at the very least to pack and move everything properly.
"Please have all your items packed and at the front door by 1pm.
I have interviews from 6pm with a new housekeeper/cleaner.
Consideration - was Ms Frandin "dismissed" by Coho?
"(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer."
Mr Salmon: "You need to agree with me 100% of the time. Can you agree with me?"
Mr Salmon: "If you can't agree with me, you can't work for me. If you are not going to agree with me, you are resigning."
"The four authorities cited above were summarised by a Full Bench of the AIRC in O'Meara v Stanley Works Pty Ltd (O'Meara) as follows:
'In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.
Subject to the comments below, we accept and adopt this as a summary of the principles applicable in determining whether an employee has been forced to resign because of the conduct of the employer within the meaning of s.386(1)(b) of the Act...
First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an "important feature" of constructive dismissal, it is not sufficient that "the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee". There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The "limb" of the O'Meara test relating to resignation as a probable result of an employer's conduct should be read in this light.'"[4]
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
Was there a valid reason for dismissal related to Ms Ros Frandin's capacity or conduct?
Was Ms Ros Frandin notified of the reason for dismissal?
Was Ms Ros Frandin given an opportunity to respond to the valid reason?
Did Coho unreasonably refuse to allow Ms Ros Frandin to have a support person present to assist at discussions relating to the dismissal?
Was Ms Ros Frandin warned about unsatisfactory performance before the dismissal?
To what degree would the size of Coho's enterprise be likely to impact on the procedures followed in effecting the dismissal?
To what degree would the absence of dedicated human resource management specialists or expertise in Coho' enterprise be likely to impact on the procedures followed in effecting the dismissal?
Is an order for payment of compensation appropriate in all the circumstances of the case?
Compensation - what must be taken into account in determining an amount?
(a) the effect of the order on the viability of Coho's enterprise;
(c) the remuneration that Ms Ros Frandin would have received, or would have been likely to receive, if Ms Ros Frandin had not been dismissed;
(d) the efforts of Ms Ros Frandin (if any) to mitigate the loss suffered by Ms Ros Frandin because of the dismissal;
(e) the amount of any remuneration earned by Ms Ros Frandin from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by Ms Ros Frandin during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
Effect of the order on the viability of Coho's enterprise
Remuneration that Ms Ros Frandin would have received, or would have been likely to receive, if Ms Ros Frandin had not been dismissed
Efforts of Ms Ros Frandin to mitigate the loss suffered because of the dismissal
Amount of remuneration earned by Ms Ros Frandin from employment or other work during the period between the dismissal and the making of the order for compensation
Amount of income reasonably likely to be so earned by Ms Ros Frandin during the period between the making of the order for compensation and the actual compensation
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers' compensation payments are deducted but not social security payments. The failure to mitigate loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Compensation - is the amount to be reduced on account of misconduct?
Compensation - how does the compensation cap apply?
[1] For example, Mr Salmon made reference to cross-examining Ms Ros Frandin for several hours during the proceeding.
[3] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
[4] [2013] FWCFB 5279 [18], [19] and [23].
[5] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009), [30].
[6] Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
[7] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[8] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.
[10] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.
[11] Edwards v Justice Giudice [1999] FCA 1836, [7].
[12] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[13] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[14] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[15] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[17] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[18] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.
[19] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.
[20] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].
[21] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].
[22] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
[23] He v Lewin [2004] FCAFC 161, [58].
[24] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[26] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[29] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].
[32] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].
Printed by authority of the Commonwealth Government Printer
Danubia Ros Frandin
COHO Property Pty Ltd [2025] FWC 951
(1995) 62 IR 371
(1996) 142 ALR 681
(2000) 98 IR 137
(2010) 194 IR 1
(1995) 60 IR 1
(2002) 117 IR 357
(1998) 88 IR 21