The attached document replaces the document previously issued with the above code on 24 July 2025.

[2025] FWC 2152

Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - Jurisdictional objection raised of 'not dismissed' - Applicant found to have resigned - Applicant found not to have been dismissed - Application dismissed.

• [1] On 10 April 2025, Mr Logan Nagy filed an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal against O'Brien Joinery Tas Pty Ltd (O'Brien).

• [2] O'Brien filed a Form F8A in which it raised a jurisdictional objection to the application

• that Mr Nagy was not dismissed from his employment with O'Brien.

• [3] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine this point before exercising its Conference powers under s.368 of the Act. Therefore, the issue for determination is whether Mr Nagy was 'dismissed' from his employment within the meaning of s.386 of the Act.

• [4] I conducted a Mention with the parties on 8 May 2025 where I outlined the material required to be filed by the parties and specified that the matter was listed for Determinative Conference/ Hearing on 18 June 2025.

• [5] Mr Nagy failed to attend the Determinative Conference. My Chambers made several, unsuccessful attempts to contact him by phone and left several voicemails advising Mr Nagy that if he did not attend the Determinative Conference, it would proceed in his absence. My Chambers also advised Mr Nagy of this by email and via SMS message the morning of the Determinative Conference/ Hearing. Mr Nagy did not, and has not, contacted my Chambers.

• [6] I determined to proceed with the Determinative Conference, in the absence of Mr Nagy.[1] Mr Nick O'Brien and Mr Jono O'Brien gave evidence at the Determinative Conference.

• [7] Mr Nagy began an apprenticeship with O'Brien on 21 November 2022.[2] Prior to starting his apprenticeship, he worked for O'Brien as a labourer.[3] Mr Nagy says that his employment was terminated by O'Brien on 9 April 2025. O'Brien say that Mr Nagy resigned from his employment on 9 April 2025.

• [8] Mr Nagy says that he was forced to resign after a conversation with Mr Jono O'Brien, who said to him words to the effect of 'you should look for another job for a year and then maybe come back, and I need you to sign this.'[4] Mr Nagy says he was taken aback by the conversation, did not understand what he was being told and assumed he had been dismissed due to a 'lack of work' and that he didn't have a choice.[5] He says that it was only when he received an email from O'Brien's management accepting his resignation and thanking him for his service, that he then realised what had happened.

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

(1) [When a person has been dismissed] 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

• [10] 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.

• [11] The general principles to be applied in circumstances such as these are well established in case law. As set out by Deputy President Hampton in Tao Yang v SAL HR Services Pty Ltd, an employer is generally able to treat a clear and unambiguous resignation as a resignation. However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise. That is, in some circumstances it may be unreasonable to accept a resignation immediately. Further, the employer may have a duty to confirm the intention to resign if they are put on notice that the resignation was not intended..[6]

• [12] The Deputy President succinctly summarised the general principles applicable to the facts of this case, as follows:[7]

• The question as to whether there was a dismissal within the meaning of the Act is a jurisdictional fact that must be established by the Applicant;
• A termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it "forced" the resignation;
• The employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
• Conduct includes an omission;
• Resignations that are clear and unambiguous may be treated on face value unless special circumstances are present which warrant the employer confirming the intention of the employee;
• Considerable caution should be exercised in treating a resignation as other than voluntary (i.e. forced) where the conduct of the employer is ambiguous and it is necessary to determine whether the employer's conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
• In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the parties' conduct is required.

• [13] The following comment of the Full Bench of the Commission is also appropriate in determining whether an employee has resigned:[8]

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.

• [14] Mr Nagy says that on 9 April 2025, Mr Jono O'Brien gave him a document and told him to sign it. He says that he did not realise until later that the document he signed was a resignation letter. He says that he did not draft the resignation letter, and that the resignation letter contained an incorrect address for a residence he had not lived at for nearly two years, which was evidence that he did not write the resignation letter. Mr Nagy says that he later asked Mr Nick O'Brien for his job back but was told that he could not 'change the decision' as everything had been processed.[9]

• [15] O'Brien say that Mr Nagy was not dismissed but that he voluntarily resigned from his employment. It says there were several discussions over the preceding 12 months in which performance concerns were raised. Some discussions had also occurred with his TAFE teachers to see what additional supports could be given to Mr Nagy to assist him with meeting the expectations and requirements of his apprenticeship.

• [16] At the Determinative Conference, Mr Jono O'Brien said that he had a meeting with Mr Nagy on 9 April 2025 because he had received some feedback from staff about Mr Nagy's performance and wanted to check in with him and see how Mr Nagy felt things were going. Mr Jono O'Brien said that Mr Nagy told him that he was stressed and wanted to step away. It is Mr Jono O'Brien's evidence that when he asked how Mr Nagy wanted to proceed, Mr Nagy responded that he would resign.

• [17] O'Brien filed a copy of handwritten meeting notes made by Mr Jono O'Brien about his conversation with Mr Nagy that day, which state as follows:[10]

• Discussion with how he is going reports from senior team members about his work ethic, quality & work ability.
• Discussed he has been here for almost three years & what we expect.
• Discussed TAFE & teacher's thoughts regarding completing apprenticeship.
• Logan mentioned he feels stressed about TAFE and his quality/work ability.
• I asked if he felt a break from joinery would help.
• Logan agreed that a break would help him, he asked how TAFE work if he resigned and picked it back up later, which I stated that he would be fast tracked back through with the TAFE he has already been made competent on.
• Logan left with mentioning he would be resigning from his apprenticeship with us.

• [18] O'Brien say that later that same day, after Mr Jono O'Brien's meeting with Mr Nagy, Mr O'Brien approached Mr Nagy and 'asked if he needed a hand to write his resignation letter'. Mr O'Brien says he did this as Mr Nagy's literacy competency level is low. O'Brien say that Mr Nagy said yes, and Mr O'Brien then organised for the letter to be typed and given to Mr Nagy, who then signed the letter.[11] Mr Jono O'Brien said that this explains why the address was incorrect, as Mr Nagy had not updated that information with the business and so the person drafting the letter had the wrong details.

• [19] At the Determinative Conference, it was also Mr Jono O'Brien's evidence that on 11 April 2025, he checked in with Mr Nagy that he still wanted to resign, and Mr Nagy confirmed he did want to resign. Mr Nagy continued to work out his notice period with O'Brien.

• [20] Mr Nick O'Brien says that on 17 April 2025, Mr Nagy asked to speak with him. Mr Nick O'Brien says that Mr Nagy told him that he was 'second thinking' his decision to resign and that he had since spoken to his parents over that weekend, who were not happy about his decision. Mr Nick O'Brien said that he advised Mr Nagy it was not possible to rescind his resignation as the TAFE cancellation had already been completed.

• [21] Mr Nagy says that performance issues were never discussed with him, although this does not accord with the evidence of Mr Nick O'Brien and Mr Jono O'Brien, nor with the TAFE teachers' feedback document, which was part of the material filed by O'Brien. I am satisfied, on the evidence before me, that there were discussions with Mr Nagy about his performance and his ability to complete his apprenticeship.
• [22] When objectively viewed, I find that Mr Nagy did resign from his employment at his own initiative. I am satisfied that O'Brien drafted the resignation letter, but that it did so to assist, rather than coerce Mr Nagy to resign. I am satisfied that Mr Nagy resigned voluntarily. The cancellation of apprenticeship document was signed by Mr Nagy on 10 April, the day after he signed the resignation letter. If Mr Nagy had wanted to withdraw his resignation, he would have had no reason to sign a document confirming the cancellation of his apprenticeship the following day.

• [23] At the Determinative Conference, Mr Jono O'Brien gave evidence that he also followed-up with Mr Nagy on Friday, 11 April 2025 to confirm that Mr Nagy wanted to resign. Mr Jono O'Brien gave clear, specific evidence and in the absence of evidence to the contrary, I have no reason to doubt that such a conversation took place. I am satisfied that Mr Nagy resigned from his employment voluntarily and not because of any conduct, or course of conduct, engaged in by O'Brien. For completeness, having been satisfied that Mr Nagy resigned voluntarily, I am also satisfied that there was no termination at O'Brien's initiative.

• [24] Having considered the evidence of the parties and their submissions, I have found that Mr Nagy was not dismissed. The jurisdictional objection of O'Brien is upheld, and Mr Nagy's application is therefore dismissed. An Order[12] to this effect will be issued with this Decision.

[1] Fair Work Act 2009 (Cth) s.600.

[2] Digital Hearing Book (DHB) page 18.

[6] Yang v SAL HR Services Pty Ltd [2023] FWC 1325 at [50].

[8] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [47].

[12] PR790061.

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