s.394 - Application for unfair dismissal remedy

[1] This is an edited version of my decision given on transcript on 16 February 2026.

[2] Lachlan Arrighi was employed on a casual basis by Alsco Pty Limited.

[3] In a letter dated 10 November 2025, Steven Stucovski, Alsco's Production Manager, directed Mr Arrighi to attend a meeting on 11 November 2025 to discuss his "performance and behaviour". The letter stated:

"This is a serious conversation in relation to your employment and may result in disciplinary action up to and including termination of employment."

• [4] Mr Arrighi attended the meeting, accompanied by his father. Alsco was represented by Mr Stucovski and Robert Andreeski, the Branch General Manager. The subject of the meeting was an incident on 7 November 2025, in which Mr Arrighi was seen climbing on top of a piece of equipment to turn on a warehouse fan. In his evidence in these proceedings, Mr Stucovski described this as a "critical safety breach". It is not necessary to traverse the details of that incident or the matters discussed at the meeting in relation to that incident. Suffice it to say, Mr Stucovski said in his evidence in these proceedings:[1]

"6. Having considered the response and the seriousness of the safety breach, and consulting with Robert Andreeski, Branch General Manager and Danielle Keogh, People & Culture Business Partner, we determined that termination of employment was appropriate.

7. I reconvened the meeting and advised Mr Arrighi that Alsco intended to terminate his employment effectively immediately. No termination letter had yet been prepared or issued at that time."

• [5] Mr Andreeski similarly stated:[2]

"10. Before finalising the decision, we followed protocol and ensured the meeting wording and process adhered strictly to the provided script. ...

11. After returning to the room, we advised Mr Arrighi that the decision was to terminate his employment. No termination paperwork had been issued at that time"

[6] Alsco's evidence included a document titled "Disciplinary Discussion - Possible Termination of Employment". Mr Stucovski described these as his "meeting notes". It is a pro forma document, apparently designed to guide the conduct of the meeting and to record its outcome. The document records the following outcome:

"We have considered what you have told us in response to the allegations and will [be] proceeding as follows:

Notwithstanding the explanation you have provided us, we find that they are not sufficient to account for the misconduct we have identified and as a result we will be proceeding with the termination of your employment for cause, effective immediately.

As you are a casual employee, no notice or statutory entitlements are due to you on termination.

You will receive a confirmation in writing of the outcome of this meeting to your home address or a personal email if you choose..."

[7] Later in the morning of 11 November 2025, Mr Arrighi sent an email to Mr Stucovski titled "Resignation" which stated simply "I resign".

[8] A couple of hours later, Mr Stucovski sent Mr Arrighi an email in response stating: "I Acknowledge [sic] your request and will proceed."

[9] Alsco later sent Mr Arrighi a letter dated 14 November 2025, titled "Acceptance of Resignation". The letter confirmed that the company had received Mr Arrighi's resignation and that his final day of employment was 11 November 2025.

[10] On 17 November 2025, Mr Arrighi commenced these proceedings, by filing an application under section 394 of the Fair Work Act 2009 (Act).

[11] Alsco raised a jurisdictional objection. It contends that Mr Arrighi was not dismissed. Its submissions can be shortly stated:

• he had done so before "any written termination action had been taken";

• there is no evidence that the resignation was forced, as all that had occurred was that Mr Arrighi was involved in a "lawful disciplinary process"; and

• the resignation was therefore "voluntary and effective" to bring the employment to an end.

[12] Today, Mr Arrighi stated that he had tendered his resignation on the advice of "someone in his circle" who had told him that it would be better to resign to avoid having his reputation tarnished as a result of having been dismissed. He said that he had no intention of resigning from his employment with Alsco and had only done so once he had been told that his employment was to be terminated.

[13] The Act defines "dismissed" in section 386(1). That section contemplates two scenarios. First, a person will have been dismissed where their employment was terminated on the employer's initiative: section 386(1)(a). Second, a person will have been dismissed where they resigned from their employment, but were forced to do so because of conduct, or a course of conduct, engaged in by their employer: section 386(1)(b).

• [14] An objective analysis of the employer's conduct is required.[3] Where questions of jurisdiction are involved, it is the facts which are relevant, not the parties' subjective beliefs or the reasonableness of their conduct.[4]

[15] The lynchpin of Alsco's objection is that Mr Arrighi tendered his resignation before the company had confirmed his dismissal in writing. But the fact that Alsco had not taken any "written termination action" is irrelevant. Mr Arrighi was informed at the meeting on 11 November 2025 that he was being terminated "effective immediately". As the "Disciplinary Discussion" document made clear, Alsco was to provide Mr Arrighi with "written confirmation in writing of the outcome of this meeting". The outcome had already been communicated to him.

[16] It follows that Alsco's submissions are misdirected. They are predicated on establishing that Mr Arrighi's resignation was not "forced" within the meaning of section 386(1)(b). But they ignore the effect of the meeting on 11 November 2025. The communication to Mr Arrighi that his employment was terminated effective immediately was the principal contributing factor which led to the termination of the employment relationship, to adopt the language of Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200 at 205.

[17] Mr Arrighi's subsequent "resignation" does not change that fact. It was not meaningfully "voluntary" as he said he would not have resigned from his employment had he not been told that he was dismissed. By that stage, the employment relationship had already been terminated

[18] For these reasons, I find that Mr Arrighi's employment was terminated on Alsco's initiative, within the meaning of section 386(1)(a).

[19] Alsco's jurisdictional objection is dismissed.

[1] Witness Statement of Steven Stucoski, 9 January 2026

[2] Witness Statement of Robert Andreeski, 4 February 2026

[3] O'Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]

[4] Searle v Moly Mines Ltd (2008) 174 IR 21; [2008] AIRCFB 1088 at [38]

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