s.394 - Unfair dismissal

[1] This decision concerns the application made by Mr Kibreab Teklu under s.395 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy.

[2] Mr Teklu was employed as a full-time machine operator by Liferaft System Australia (LSA), who manufacture life raft and marine evacuation systems in Hobart, Tasmania. In its Form F3, LSA say that Mr Teklu was dismissed for serious misconduct on 14 July 2025 because he left work without permission before the end of his shift, and from the period between 9-14 July 2025, failed to attend work at the scheduled time, or at all, without permission or leave. However, in its subsequent submissions, it says that Mr Teklu was not dismissed at the initiative of LSA.

[3] I conducted a Determinative Conference on 10 and 11 November 2025.

[4] At 7:00AM on 8 July 2025, Mr Teklu commenced his regular shift at LSA and was instructed to undertake work on one of the welder machines with a colleague, Mr Gedamu Yigzaw. Around 8:30AM, the acting supervisor, Mr Ian Haigh asked Mr Teklu and Mr Yigsaw to 'quiet down' the volume of their discussions. A short time later, Mr Haigh spoke to Mr Teklu and Mr Yigzaw about the need to complete the work assigned, as there was another job scheduled for 10:00AM. Mr Teklu says Mr Haigh spoke aggressively to them, and that he attempted to physically insert himself between him and Mr Yigzaw. Mr Yigzaw was unhappy and left the workplace. When the supervisor, Mr Greg Russel-Green returned to site at around 9:30AM, a conversation took place between him, Mr Haigh and Mr Teklu about what had occurred earlier. Mr Teklu says he was not allowed to give his side of the story, and he then left the workplace.

[5] Mr Teklu did not attend work for his rostered shifts on 9,10 and 11 July 2025. On Monday, 14 July 2025, at sometime around 10:30AM, Mr Teklu attended the LSA premises and had a conversation with Mr Alan Gumley (General Manager, LSA). Another colleague, Mr Tew Hagos was also in attendance. Mr Teklu did not return to work at LSA and he was subsequently provided with a separation certificate.

[6] The first issue I must determine is whether Mr Teklu was dismissed. If I find that he was dismissed under s.386(1) of the Act, then I must determine whether he was unfairly dismissed. If I find that he was not dismissed, then his unfair dismissal application must be dismissed.

[7] Section 386(1) of the Act states as follows:

(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

[8] Section 386(2) of the Act sets out the circumstances where an employee has not been dismissed - none of which are relevant to the present matter.

• [9] A Full Bench of the Commission considered s.386(1) of the Act in Bupa Aged Care Australia Pty Ltd v. Tavassoli.[1] After considering in detail the case law associated with expression "terminated on the employer's initiative" including notions of constructive dismissal and forced resignation, the Full Bench said at [47]:

"Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(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.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element."

Did Mr Teklu resign or was he dismissed at the initiative of the employer?

[10] Mr Teklu says that Mr Haigh was being aggressive and was pressuring both himself and Mr Yigzaw to complete the panels before the computer process was finished. He says Mr Haigh also physically stepped in between himself and Mr Yigzaw. Mr Teklu says that Mr Yigzaw, overwhelmed with the pressure of the situation, left the premises. Mr Teklu says that when Mr Russel-Green returned, he raised a concern with him about Mr Haigh's behaviour. He says that a conversation took place between the three of them, but Mr Haigh spoke over him and did not let him explain his side of the story. He says that this made him 'reach his limit' and that he was feeling physically ill, and he told his supervisor he needed to leave.

[11] LSA says that the task Mr Teklu was performing usually takes about 2-3 hours to complete and that Mr Teklu and Mr Yigzaw had a habit of dragging out the job to 6 hours. Mr Haigh says he was trying to get them to complete the job because the next job was scheduled at 10AM, and that the job was more than capable of being completed in the time allocated to them. It was Mr Haigh's evidence, which was supported by the uncontested evidence of Mr Ramon Riboet (Senior Welder, LSA) and Mr Damien Greenwood (Senior Employee, LSA) that Mr Haigh was speaking calmly and was not being aggressive with Mr Yigsaw or Mr Teklu.

[12] It is uncontested that Mr Teklu left the workplace, and that he said to Mr Russel-Green and Mr Haigh that he was leaving. I accept that Mr Teklu was unhappy about being asked to quieten down and being instructed to hurry up with completing the tasks before the 10AM job. However, I do not find on the evidence that Mr Haigh spoke to him in an aggressive way, or that the request to complete the task in the allocated time was an inappropriate or unwarranted request by a supervisor. I also accept that while the nature of the work done at LSA commonly involves deadlines, the appropriate time had been allocated to the task and Mr Teklu was not being asked to complete it in an unreasonable time. There is no evidence that Mr Teklu was being unduly or unfairly pressured to complete the task.

[13] LSA say that Mr Teklu left the workplace without advising anyone that he was leaving or when he would return. LSA says that when Mr Teklu attended the LSA premises on Monday 14 July 2025, he was not dressed for work or otherwise ready to work. It says that he did not seek reemployment or indicate to Mr Gumley that he expected to work, nor did he seek to renounce his conduct or recommence work, nor did he offer an explanation for his absence. It says that Mr Teklu acted as if his employment had ended, and he had come to LSA to air his grievances. All of which was uncontested by Mr Teklu at the Determinative Conference.

[14] LSA say that Mr Teklu made no attempt to advise anyone that he would not be attending work after 8 July 2025, nor did he make any attempts to log into the work App (Employment Hero) and request leave for the shifts he was rostered to work on 9, 10,11 July 2025. Mr Teklu says that when he left work on 8 July 2025, he felt overwhelmed and was experiencing physical symptoms of distress. He says he drove around for a time before parking his car and wandering aimlessly. He says that in the days that followed he was unable to eat, sleep, or find peace. Mr Teklu provided a Centrelink medical certificate dated 19 September 2025, which states that he has been experiencing depression and anxiety, and records the date of onset as 31 July 2025. He also provided a medical certificate from his doctor, dated 28 August 2025 which states that Mr Teklu attended the clinic on 17 July 2025 and 31 July 2025 due to work stress.

[15] At the Determinative Conference, Mr Teklu was unable to provide any reasons for why he did not contact anyone at LSA or apply for leave if he was unwell and unable to attend work. I do not consider Mr Teklu's medical information provides any evidence of incapacity so as to render him incapable or unable to contact LSA or apply for leave via Employment Hero App.

[16] There are some inconsistencies in the Respondent's Form F3 and submissions regarding how the employment came to end. In its Form F3, the Respondent says that Mr Teklu was dismissed for serious misconduct. In its submissions it says it ended by way of mutual agreement but also that Mr Teklu resigned. There is no evidence that Mr Teklu was dismissed for serious misconduct or that there was mutual agreement to terminate Mr Teklu's employment.

[17] It was Mr Gumley's evidence that he understood from the discussion with Mr Teklu on 14 July 2025 that Mr Teklu was not seeking or intending to come back to work for LSA. Mr Gumley says that neither he, nor anyone else from LSA attempted to follow up on Mr Teklu's whereabouts because in his experience, if employees have walked out and not come back then they have resigned.

[18] Mr Teklu was provided with a separation certificate which identified the reason for the separation as 'end of season or contract'. It was Ms Marissa Brown's (Office Manager, LSA) uncontested evidence that she made a mistake when preparing the certificate. I do not consider the separation certificate provides any insight into whether Mr Teklu was dismissed.

[19] Mr Teklu decided to leave work early because of what he perceived was unfair treatment by Mr Haigh. Mr Teklu's actions are consistent with someone who decided that he no longer wished to continue working at LSA. Mr Teklu voluntarily left the workplace; voluntarily chose not to attend his next three scheduled shifts; and voluntarily chose not to advise anyone about it. When Mr Teklu did attend the LSA premises on 14 July 2025 with the purpose of speaking to Mr Gumley, he did so after his normal start time and was not dressed or ready to perform work. It was Mr Teklu's evidence that he did not ask Mr Gumley about his job or about returning to work at LSA. Mr Teklu's employment ended because he voluntarily chose to leave his job at LSA.

[20] On the evidence, I find that Mr Teklu was not dismissed at the initiative of LSA.

[21] Mr Teklu does not submit that he was forced to resign because of the conduct of LSA. He says, and I accept, that he did not resign.

[22] While Mr Teklu did not submit that he was forced to resign because of the conduct of LSA, even if Mr Teklu had resigned, there is no evidence which suggests that he was forced to do so because of the conduct of LSA. The evidence strongly supports that Mr Haigh acted calmly and was not aggressive in his interactions with Mr Teklu. In my view, the actions of Mr Haigh were nothing more than that of a supervisor seeking to ensure that the work assigned, which was capable of being done in the allocated time frame, was completed on time.

[23] I consider the evidence does not support a finding that Mr Teklu was dismissed on the initiative of the employer within the meaning of s.386 of the Act. Accordingly, at the time Mr Teklu made his application on 26 June 2025, he was not a person who had been dismissed for the purposes of s.365 of the Act. LSA's jurisdictional objection is therefore upheld, and the application must be dismissed.

• [24] Mr Teklu's application for unfair dismissal is dismissed. An Order[2] giving effect to this Decision will be issued separately.

[1] [2017] FWCFB 3941 at [47].

[2] PR797227.

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