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[95]
[2026] FWC 485
General information, not legal advice.
Fair Work Commission
2026-02-16
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
DP World Australia Landside Pty Ltd, Nathan Riley
Application to deal with contraventions involving dismissal - jurisdictional objection that Applicant not dismissed but voluntarily resigned - no forced resignation found - application dismissed.
[1] On 1 September 2025, Mr Delio Fagundes (the Applicant) made an application to deal with contraventions involving dismissal to the Fair Work Commission, pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondents to this application are DP World Australia Landside Pty Ltd & Nathan Riley.
[2] Mr Fagundes alleges that on 4 August 2025 he was forced to resign from his employment, which ended on the 11th of August. He claims the reasons he was forced to resign constitute a dismissal within the meaning of the FW Act and that reasons for this dismissal included matters prohibited by the FW Act's general protections provisions.
[4] On 3 October 2025, I issued directions and advised this objection would be considered at a hearing on the 25th of November. Information about the meaning of dismissal within the FW Act and the matters I am required to take into account in considering this matter were provided to the parties.
[5] Mr Fagundes represented himself in proceedings and provided sworn evidence in support of his written submissions and material filed in accordance with my directions. Mr D Pietrocola sought and was granted leave pursuant to s.596 of the Act to represent the Respondent. The Respondent's case was supported by written submissions and material submitted in reply, in addition to the sworn evidence of Ms Burke, Mr Squires, Mr Wright, Mr Harris and Mr Riley.
[6] A digital court book was compiled from the material that was filed by both parties and distributed prior to the hearing. The court book was accepted by the parties into evidence. To the extent relevant, I rely on the court book as a record of the material filed by the parties with appropriate weight being given to all the material after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
[7] Section 365 of the Act provides as follows:
365 Application for the FWC to deal with a dismissal dispute
(a) A person has been dismissed; and
(b) The person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
[8] Section 386 of the Act sets out when a person is taken to have been dismissed for the purposes of s.365. It relevantly provides:
(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] What this means in the present case is if I am not satisfied Mr Fagundes was dismissed within the meaning of FW Act, his application must be dismissed.
[11] It is not in dispute that on the 4th of August 2025, Mr Fagundes sent an email to the Respondent advising them relevantly as follows, with the title being "Resignation letter":
I would like to formally resign from DP World Australia Landside as a MC Driver, here is my seven days' Notice, my last day will be 11/8/2025.
I have enjoyed a productive work environment at DP World, which changed after events as tabled after Easter 2025. I have a very good relationship with management, both in Melbourne and Sydney as I always did my work in a professional and timely manner.
On December/2024, I asked Nathan Riley, our National Director of Operations to transfer me to Perth WA, which he supported (prior Easter 2025). I was then informed on 02/07/2025 I saw this an off-ramp, a framework which would allowed to refuse me something that Nathan had agreed for a long time, a way to get back to me without having Nathan Riley and Craig Wright directly involved.
Then I raised compliance and safety issues on 09/07/25, things that should have been done without me saying anything.
I was then presented with a written letter notifying me of Potential Breaches of the DP World Code of Conduct, note the safety issues I raised where not mentioned, tabled or noted!
I have been unfairly stood down from 10/07/25 to 24/07/25 on the minimum pay, which is around 50% of my normal pay.
I lost a lot of money with this pay cut, simply because I raised compliance and safety concerns without response.
A company that I once enjoyed working with has turned against me, did not listen to or address my valid requests for review of an unjust Written Warning for the mud guard damage, has accused me of Bullying and breach of Code of Conduct which I do not agree at all, made a toxic work environment leaving me with no option but to resign.
DP World has not only failed to address the issues I raised but made me the villain, stood me down, gag me with work colleagues and was financially crippling me with a minimum wage..."
[12] Mr Fagundes accepts that he returned to work on the 24th of July after his suspension and continued to perform work including working overtime that was made available to him.
[13] Mr Fagundes' position is that because of the cumulative impact of what had occurred after he had a negative interaction with Mr Wright about working in Brisbane before Easter, he was left with no other option but to resign. He argues, Mr Wright made it clear he was "out to get him" because of this interaction and submits this is exactly what happened.
[14] Supporting his case, Mr Fagundes identifies prior to Easter 2025 he was an exemplary employee. After he was threatened by Mr Wright, a promise that he was going to be transferred to Perth was withdrawn. He was disciplined for making legitimate safety complaints and accused of inappropriate bullying conduct. He was stood down from work on minimum pay, denied the opportunity to work his usual amount of overtime and unfairly given a final warning.
[15] The Respondent rejects these submissions. Their position is that Mr Fagundes' resignation was clear and unambiguous. That it was not made in the heat of the moment and that it was not made because of the conduct, or course of conduct of the Respondent or its representatives. On this basis, they submit the Commission lacks jurisdiction to consider his application.
[16] I have considered all the evidence and submissions in this matter. I have not been satisfied Mr Fagundes was forced to resign and, therefore, was not dismissed within the meaning of the FW Act. Because of this finding, his application must be dismissed.
[17] The reasons for this conclusion are below.
[19] Just prior to Easter, Mr Fagundes' evidence is that he was contacted by Mr Tom Squires and asked to head up to Brisbane to work. He agreed to this request. He submits, Mr Squires told him not to mention anything to his manager Mr White, because he would talk to him first. The next day, he gives evidence that a very angry Mr White rang and called him to ask why he was talking to Mr Squires_._ He submits Mr White accused him of going behind his back and made it clear he felt Mr Fagundes didn't care about what he wanted anymore because he was going to be transferred to Perth.
[20] Later the same day, he contacted Mr Squires about what happened because he thought Mr White was going to be out to get him. He says Mr Squires told him not to worry as things were not going to change, he was going to be transferred to Perth. He submits his response was to tell Mr Squires that he felt Mr White was so upset he was not going to let things go.
[21] Further supporting his argument that Mr White was out to get him, Mr Fagundes identifies that from early May 2025 he started raising concerns about how Mr White was managing his drivers. These included concerns about inaccurate and faulty scales, not being allocated his regular vehicle, and Mr White making disparaging remarks about him to co-workers. In addition to raising his concerns with Mr White, Mr Fagundes raised these concerns formally from the 14th of May with Ms Burke as part of the Respondent's Human Resources team based in Sydney. His evidence is his concerns were ignored and not addressed.
[22] Instead, he argues Mr White continued to act vindictively towards him. This included disparaging him to other drivers, not listening to his legitimate concerns and denying him Sunday overtime shifts. On the 5th of July, Mr White called him to a meeting and gave him a formal warning for driving infringements that caused damage occurring on the 26th of April and 26th & 29th of May.
[24] Mr Fagundes identifies that in December 2024, he reached an agreement with Mr Riley that he would be transferred to Perth once the Respondent's operations there were up and running. His gives evidence that his managers had the same understanding and that through the early months of 2025 he would regularly check on when Perth would be up and running. He says that because of this agreement, on the 5th of May, Mr Squires sent him an email requiring him to complete a fitness to drive report needed to work in Western Australia. And that on July 2nd, he was informed he had to attend an interview with the new Perth Operations Manager, only to be told 2 days later he has not suitable for the available Perth position.
[25] Tired of not having his concerns addressed, regarding his truck being unwashed and his scales being inaccurate and tampered with, Mr Fagundes again escalated his concerns about safety and Mr Wright's management failings with human resources. He accepts that he also ventilated some of these concerns on a WhatsApp message board drivers used for regular communications that referenced Mr Wright. He denies that these communications were bullying targeting Mr Wright. Submitting, rather that drivers regularly used the WhatsApp chat to raise concerns and communicate them with each other, adding this was all he intended to do.
[26] On 9th of July, Mr Fagundes accepts he was directed not to make personal comments about Mr Wright on WhatsApp but submits that he did not see this message until after he made further comments. The following day, he was stood down on pay pending an investigation into his comments.
[27] He submits that being stood down on minimum pay had a crippling financial impact because he was no longer getting paid overtime. He identifies this financial impact to be another reason why he had no choice but to resign.
[28] On 24th of July, Mr Fagundes was advised by Mr Riley that all 3 allegations of misconduct against him had been substantiated, and he was given a final written warning. He does not accept the conduct he is alleged to have engaged in was bullying or harassment. He argues that the communications were not targeted at Mr Wright, vindicative or personal. That they were part of normal communications on a platform and expressions of his frustration because of the Respondent's failure to address his many concerns. He argues the final warning was unfair and the fact he received it made clear the Respondent was determined to get rid of him, forcing him to resign.
[30] In this regard, the Respondent's evidence is supported by the sworn evidence of the Respondent's witnesses.
[32] Mr Wright accepts he did not personally conduct an independent inspection of the vehicle Mr Fagundes damaged on May 29th but relied on the report provided to him. His evidence is the warning Mr Fagundes received for this conduct was for all three incidents, and that the independent report he received confirmed driver error to be the cause. Adding that the incident Mr Fagundes identifies involving another driver who was not provided a warning is not comparable.
[33] Mr Riley and Mr Squires provided clear and consistent evidence that at no time was Mr Fagundes promised a job or transfer to Perth. Both witnesses acknowledge they understood Mr Fagundes was interested in working in Perth and were committed to ensuing he would be considered for appropriate roles there if any became available. They submit this is exactly what happened.
[34] Mr Riley is adamant he did not promise Mr Fagundes he would be transferred to Perth, adding he did not have the authority to do so. Mr Squires provides similar evidence.
[36] His further evidence is he considered Mr Fagundes' concerns about being sent to Brisbane addressed by the fact that he ultimately was sent to spend a week working up there. Adding that he made the conscious decision to remove both himself, Mr Squires and Mr Wright from the formal investigation into Mr Fagundes' misconduct after he was stood down because of his concerns about being targeted by Mr Wright. And further, that he made the deliberate decision not to terminate Mr Fagundes but return him to work on the 24th of July because he thought he was a good driver who could improve.
[37] Ms Burke's evidence is that she received and acted on all the issues and concerns that Mr Fagundes brought to her attention and that she responded to him as appropriate.
[40] It is not in dispute that Mr Fagundes articulated he was resigning from his employment on the 4th of August because he felt he had no option but to resign.
[41] I also accept that Mr Fagundes clearly and unequivocally articulated this was his intention. There is no lack of clarity in the words he used. Nor is there any scope for his employer to misunderstand what he meant. Mr Fagundes made it clear he had decided to resign, and his last day of work would be 11th of August.
[42] Setting out the reasons why the toxic work environment created by DP World left him no option but to make this decision, Mr Fagundes identifies several circumstances that "forced" him to reach this conclusion. These reasons include being denied the job he was promised in Perth. That concerns he identified about vehicle safety, faulty truck scales and both disparaging remarks by Mr Wright along with his poor management practices were ignored or not addressed. That he was given an unfair warning for damage to a vehicle that he was not his fault. That the substantiated allegations against him for attacking Mr Wright on WhatsApp are unfair. And that finally, because he was stood down on minimum pay and denied overtime, he was left with no choice but to resign. Adding that the sequence of these circumstances only commenced after Easter 2025 when he had a run in with Mr Wright who thereafter he believed was out to get him.
[43] From his perspective, I accept the issues Mr Fagundes identifies left him no other choice but to resign are significant. He presents as a skilled and experienced truck driver who is hard working and clearly prides himself on his diligence and professionalism. I have no reason to doubt that this is the case. I also note that it is not in dispute that up until Easter 2025, Mr Fagundes had a clean employment record and was well regarded by the Respondent who ultimately submit they wanted him to stay around.
[44] How Mr Fagundes believed he was being treated is important. But it is not necessarily relevant to the considerations I am required to make to determine the question before the Commission.
[46] I have assessed and considered all the evidence and submissions of the parties in this matter to the extent relevant and necessary in this regard. My assessment of Mr Fagundes's evidence is that he presents a version of the facts coloured by his perspective that he was the victim of an orchestrated effort by Mr Wright and the Respondent to force him out.
[47] What Mr Fagundes subjectively believed he was being forced to do is not what I am required to determine. What is required is an objective assessment of the facts, considering all the circumstances of the case and the material before me.
[48] In this regard, on balance, I prefer the Respondent's evidence to that of the Applicant. This is not to say DP World's conduct in this matter is without issue or anomaly. I am not satisfied that this is the case. Mr Fagundes has identified a series of failings that ought not to have occurred and are less than satisfactory. Among these are:
[49] I am not satisfied that on their own these failings, forced, or left Mr Fagundes no choice but to resign. The case he presents identified several other contributing factors, each of which are considered in turn below.
[50] Firstly, that Mr Fagundes was denied the job he was promised in Perth. In this regard, I do not accept that Mr Fagundes was promised a role in Perth. Each of the Respondent's witnesses present consistent and compelling evidence that this was not the case. The Respondent's documentary evidence of employment practices further supports this conclusion. I prefer this version of events to that presented by Mr Fagundes. This is not to say that I do not accept Mr Fagundes believed he was going to be able to move to Perth. The evidence is clearly the case that the Respondent was prepared to consider him for a Perth role when, and if, a suitable position became available. I do not accept because he was told a suitable position was not yet available is a reason for him to conclude he had no choice but to resign.
[52] While Mr Fagundes did not get the answers he expected to hear, and perhaps they could have come sooner in writing, it is not the case that he was ignored. On the contrary, Mr Fagundes had regular communication about his concerns with members of the Respondent's senior management team.
[53] In the weight of this evidence, I do not consider the fact Mr Fagundes made complaints about his workplace that he believed were not being responded to forced him to conclude he had no choice but to resign.
[54] The third factor Mr Fagundes identifies is that he was subjected to unfair warnings. Firstly, for his driving. Secondly, for his use of WhatsApp to express his frustration about Mr Wright. I accept there is some basis for Mr Fagundes being aggrieved he was given a warning for the incident involving the mudguard damage on the 29th of May absent being provided with a copy of the vehicle inspection report. Ultimately, however, the fact remains he accepts he was at fault in the incidents on both the 26th of April and May. The Respondent's consistent position is the warning Mr Fagundes received on 11 June was for all three incidents, each of which were serious warranting disciplinary action. Mr Fagundes does not dispute his conduct on 26th April and 26 May warranted being given a warning.
[55] Furthermore, I do not accept there is any excuse that can justify the direct and targeted bullying comments Mr Fagundes directed at Mr Wright in his WhatsApp communications. As Mr Harris concluded, these comments were inappropriate in the workplace on any platform and warranted disciplinary action.
[56] Neither of these circumstances leading to Mr Fagundes being given formal warnings were the result of conduct, or a course of conduct, of the Respondent. It was Mr Fagundes's conduct that plainly resulted in the Respondent resolving to reprimand him for his driving mistakes and inappropriate communications. I do not accept the fact that DP World issued Mr Fagundes with a warning, and a final warning, provide a basis for him to conclude he had no other option but to resign.
[57] The fourth contributing factor Mr Fagundes identifies is that he was financially crippled by being unfairly stood down on minimum pay and denied overtime. I do not accept there is any basis to these circumstances contributing to him being forced to resign because of the conduct or course of conduct of the Respondent.
[58] Mr Fagundes was stood down on minimum pay for 2 weeks because of the communications he engaged in on WhatsApp targeting Mr Wright. Mr Fagundes has also not presented any evidence to support his submission of being financially crippled or denied overtime. In contrast, the Respondent's evidence includes a record of the overtime hours he worked before and after Easter. The record indicates little variance. In addition, the Respondent unchallenged evidence is that Mr Fagundes worked a further 15 hours overtime in his last fortnight of work when he returned from being stood down.
[59] The final contributing factor Mr Fagundes asserts which forced him to resign is that all the above circumstances occurred because Mr Wright was out to get him following the altercation about him working in Brisbane. Mr Wright denies that this is the case and I prefer his evidence to what occurred in this conversation to that of Mr Fagundes. Mr Wright accepts he was frustrated because he did not know what was going on. He accepts it was a tense conversation, but maintains that he did not threatened Mr Fagundes, or yell or scream at him. Adding further, that he supported Mr Fagundes's ongoing work, including sending him up to Brisbane.
[60] I found Mr Wright's evidence convincing and prefer it to that of Mr Fagundes. I accept his evidence to be an accurate version of what occurred. The fact Mr Fagundes worked in Brisbane, had continued access to overtime and that Mr Riley concluded he should only be given a final warning despite the findings of Mr Harris against him support this conclusion.
" (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 conduct with the intention of bringing the employment to an end or whether termination of the employment was a probable result of the employer's conduct such that the employee had no effective choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element."
"a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.
In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly and important feature is the act of the employer results directly or consequently in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."
"[61] The usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment. Implicit in that approach is a recognition that it is a necessary incident of the employment relationship that the other party must be notified in clear and unambiguous terms if a right to bring the contract to an end is being exercised. Consistent with that principle, an employee will not be found to have resigned unless the employee has clearly communicated an intention to do so to the employer."
[64] I have applied these principles to the facts in this case.
[65] The evidence is that Mr Fagundes unambiguously resigned from his employment because this is a decision he made. It was not something he was forced to do. It was a considered decision, with notice, and not made in the heat of the moment. There is no lack of clarify in the words used.
[67] Mr Fagundes indicated he did contact external health and safety authorities about his concerns, as well as the Transport Workers Union. He did not present any evidence to support this to be the case and takes these submissions no further.
[68] Ultimately, I am satisfied Mr Fagundes makes the case he had determined it was time for his employment relationship with the Respondent to end.
[69] I am not persuaded he was forced to reach this conclusion because of any conduct or course of conduct of the Respondent. Therefore, it follows that it cannot be said that the Applicant was dismissed within the meaning of the Fair Work Act 2008.
[70] Accordingly, this application is dismissed for want of jurisdiction.
[2] See for example Grass v Chinese Tennis Association Inc [2021] FWCFB 3443 at [11].
[3] See Transcript of Proceedings on 25 November 2025, PN966.
[6] Per Bupa Aged Care Australia Pty Ltd [2017] FWCFB 3941.
[10] Respondent's Outline of Submissions at [50], Court Book (CB) p.69.
[11] Per Bupa Aged Care Australia Pty Ltd [2017] FWCFB 3941.
Printed by authority of the Commonwealth Government Printer
Mr Delio Fagundes
DP World Australia Landside Pty Ltd, Nathan Riley [2026] FWC 485
(1995) 62 IR 200