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[2026] FWC 187
General information, not legal advice.
Fair Work Commission
2026-02-02
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy; whether termination on the initiative of the employer; employee left employment of his own volition; application dismissed
[1] On 31 July 2025, Mr Gedamu Mersha Yigzaw made an application directed against Liferaft System Australia, his former employer, seeking a remedy in respect of unfair dismissal. The correct name for Mr Yigzaw's former employer is LSA Services Pty Ltd (LSA). I consider it appropriate to allow the amendment of his application to correct the name of the Respondent to reflect this, pursuant to s 586 of the Fair Work Act 2009 (the Act).
[2] The matter was the subject of a hearing, conducted in Hobart on 8 December 2025. LSA was granted permission pursuant to s 596 of the Act to be represented by a lawyer. Mr Mullavey appeared for LSA. Mr Yigsaw appeared for himself, assisted by a support person, Mr Gelaye, and an Amharic interpreter. The parties had earlier been directed to file and serve written materials in relation to the matter and did so.
[3] LSA objects to Mr Yigsaw's application on the basis it says his employment was not terminated within the meaning of s 386 of the Act. If Mr Yigsaw was dismissed, it says the dismissal was not unfair.
[4] I have given careful regard to all of the materials filed by both parties in this matter, and the submissions and evidence given at hearing. Not every matter raised by the parties is referred to in these reasons for my decision: I have focused on those aspects of the case that are relevant to the issues I am required to determine.
[6] LSA claims that Mr Yigsaw's employment was not terminated at its initiative and therefore his application for a remedy pursuant to s 394 is without merit and should be dismissed. For the reasons that follow I consider LSA is right: Mr Yigsaw left his employment and did not return, except briefly some days after he departed to obtain a Separation Certificate. His employment ended because he left his employment at LSA of his own volition.
[7] Mr Yigsaw claims to have been subjected to unfair treatment at LSA for reasons that include his race and cultural background. Mr Yigsaw is of Ethiopian origin and claims he and other LSA employees of similar racial or cultural background were subjected to unfair treatment and discrimination.
[8] While it appears Mr Yigsaw genuinely believes he was subjected to unfavourable treatment at LSA on some occasions because of his racial and cultural background, and was the subject of "racism", Mr Yigsaw has not been able to provide the Commission with any specific example, based on actual evidence, that this was so. It is denied by LSA.
[9] There was evidence that an incident occurred at some point in the workplace, where Mr Yigsaw was given to understand that some of his work colleagues had issues with his body odour. Perhaps Mr Yigsaw believes that by implication, this was a racially motivated incident. Mr Teklu, who worked with Mr Yigsaw, gave evidence about this matter, relating an incident said to have occurred in perhaps April or May 2024, in which Mr Yigsaw came to him upset and said that another worker had told him "people said you smell or you're smelly". When Mr Teklu was asked questions in cross examination about this, his evidence was somewhat vague. For example, he said he could not recall having been asked by the General Manager, Mr Gumley, to speak to Mr Yigsaw about his body odour. However, Mr Gumley gave evidence that he had indeed done this: that he had received a complaint about Mr Yigsaw's body odour and, in an effort to deal with the matter sensitively, asked Mr Teklu to speak to him about it. Mr Gumley was at pains to point out this was not a particularly unusual occurrence, and that he had had cause to speak to other people in the past about personal hygiene matters. I found it odd Mr Teklu could not remember having been asked to do this. Crucially however, I saw no indication in the evidence given about this matter that any such comments made to Mr Yigsaw were racially motivated or intended to disrespect of humiliate him for reasons associated with his race or cultural background or in any other regard.
[10] On 8 July 2025, while at work, Mr Yigsaw and a colleague Mr Teklu were tasked with making a raft floor, which involved welding. Mr Russell-Green, their supervisor at the time, wanted this job completed within about three hours, because that is about the timeframe within which it was reasonable to expect the job to be completed, and because the welder being used was needed later that morning for another job.
[11] While Mr Yigsaw and Mr Teklu were doing the job, Mr Haig approached them. He asked them to work faster and told them to "shhh" because they were talking. Mr Yigsaw said there was no explanation or direction given, and then when Mr Haig returned, he was "visibly frustrated" and said the welding should have been finished. Mr Yigsaw said he said "give me peace, I will finish it".
[12] Mr Haig gave evidence that he began assisting Mr Telku and Mr Yigsaw to "roll up" the floor they were working on.
[13] Mr Yigsaw described this as Mr Haig stepping physically between him and Mr Teklu and said he spoke in an "aggressive and hostile manner".
[14] Mr Haig denied speaking in an aggressive and hostile manner, and denied inserting himself physically into the situation, or speaking closely or within an arms-length of Mr Yigsaw and Mr Teklu. Other people in the vicinity of this incident, such as Mr Riboet (whose evidence was uncontested) said Mr Haig was "really calm the whole time", and was not "offensive, hostile or aggressive in any way".
[15] However, it is also clear that neither Mr Yigsaw nor Mr Teklu appreciated Mr Haig's intervention or the manner in which it had occurred.
[16] At around about this point, Mr Yigsaw walked away from the place where he was working, went to his locker, collected his possessions and left the workplace. It was not entirely clear from the evidence what Mr Yigsaw said, or indeed precisely what prompted this - but it appears likely Mr Yigsaw said out loud: "I'm leaving". It is also plain from the evidence that Mr Yigsaw did not ask permission to leave or explain why he was leaving. He simply left.
[17] When the incident involving Mr Haigh and Mr Yigsaw and Mr Teklu occurred, Mr Russell-Green was in the weekly managers meeting. When he finished his meeting, he was told that Mr Yigsaw had left and Mr Teklu had called Mr Haigh a racist. He approached Mr Haigh and Mr Teklu who were both still working together. He asked Mr Haigh what happened, who told him that that he had got up to help Mr Yigsaw and Mr Teklu roll up the floor and then Mr Teklu said he was rushing him, and called him a racist. Mr Russell-Green asked Mr Teklu what happened, who became agitated in his response, and walked away from the conversation and left the workplace. He has also not returned to LSA.
[18] These matters were later related to Mr Gumley, who is the Geneal Manager. Mr Gumley spoke to Mr Russell-Green and Mr Haig. He obtained written statements from both men about what they said happened. He also looked at footage captured from security cameras in the welding bay and considered it "more or less aligned with what Greg and Ian [Mr Russell Green and Mr Haig] had told me". This footage was not available at hearing because it has been deleted, in accordance with LSA's ordinary practice, but I have no reason to doubt the veracity of Mr Gumley's account of what it showed.
[19] Mr Yigsaw was scheduled to work the following day, Wednesday 9 July 2025 and again on Thursday 10 July 2025 and on Friday 11 July 2025. He did not report for work on these days. Mr Gumley said that Mr Yigsaw made no contact with the workplace following what happened on 8 July 2025, or in the following days. He was absent from work without explanation on these days. No enquiry was made by LSA, including Mr Gumley, as to Mr Yigsaw's whereabouts during this time, or why he was not at work.
[20] On Monday 14 July 2025, Mr Yigsaw attended the workplace at about 10:30AM. It was not in contest that Mr Yigsaw had attended well after his ordinary work start time and was not dressed for work. It did not seem to be suggested before me that Mr Yigsaw was reporting for work - rather he appeared to have attended in order to speak to Mr Gumley, and, as he put it, "get it resolved" - where "it" was a reference to the incident on 8 July 2025. When Mr Gumley learned Mr Yigsaw had attended the workplace he went and met him on the factory floor.
[21] This conversation that then ensued between Mr Yigsaw and Mr Gumley occurred after earlier, Mr Teklu had visited the workplace and spoke for about half an hour with Mr Gumley. Little evidence was given about what Mr Teklu and Mr Gumley spoke about. It seemed evident at least that the conversation was about Mr Teklu's dissatisfaction with the conduct he believed he had been subjected to by Mr Haig the previous week. It is also evident that Mr Teklu's employment with LSA has ended; that he had also not returned to the workplace since he left on 8 July 2025 and the conversation with Mr Gumley on 14 July 2025 plainly did not re-ignite the employment relationship.
[22] In the conversation with Mr Yigsaw, Mr Gumley arranged for Mr Hagos to be present, who sometimes assisted Mr Gumley to communicate with Mr Yigsaw as an informal interpreter.
[23] Some discrepancy exists in the evidence as to precisely what was said in this meeting. Mr Gumley said in his evidence that Mr Yigsaw "launched into what he said had happened the week before" and seemed to have "no perception that he had been absent from work without notice or permission for nearly a week". He said Mr Yigsaw was asking in a "heated" way why "Ian had "pushed him" that day. He said Mr Yigsaw made allegations of racism and, while he was communicating through Mr Hagos, Mr Gumley thought he was using a very "heated tone and came across angry and hostile". Mr Gumley said near the end of the meeting, Mr Yigsaw asked for a separation certificate and Mr Gumley said it would be prepared for him to collect at the end of the pay week. Mr Gumley said - and Mr Yigsaw agreed in his evidence - that the meeting concluded by Mr Yigsaw "thanking" Mr Gumley and shaking his hand.
[24] Mr Yigsaw said that Mr Gumley said in the meeting either that "I don't have a job for you" or "we don't have any work for you". Mr Gumley disputed he said words to that effect. Mr Gumley said he thought Mr Yigsaw had resigned. He conceded in his evidence that Mr Yigsaw did not at any stage use the term "resignation" or say he had resigned, but that he interpreted Mr Yigsaw's behaviour in that way.
[25] Mr Yigsaw said in his evidence that on 9 July 2025 he phoned a Doctor to make a medical appointment. In his witness statement, the contents of which Mr Yigsaw said were true and correct, he said he saw the Doctor on 9 July 2025, but when cross examined about this assertion, conceded he did not see the Doctor that day - that was the day he made his appointment. He said he could not get in to see the Doctor that day, and an appointment was made for 14 July 2025. The eventual consultation with the Doctor Mr Yigsaw said he had occurred after he spoke to Mr Gumley on 14 July 2025. He was given a medical certificate by the Doctor which was somehow "backdated", stating that in the Doctor's opinion, Mr Yigsaw had a medical condition and "will be unfit from work from 09/07/2025 to 19/07/2025 inclusive". It is unclear how the Doctor diagnosed Mr Yigsaw as unfit for work between 9 July 2025 and 13 July 2025 when they didn't consult him until 14 July 2025.
[26] Mr Yigsaw gave the medical certificate to LSA on about 15 July 2025, perhaps by email.
[27] Mr Yigsaw was later issued with a separation certificate. Under the heading "reason for separation" a box was ticked which said "end of season or contract". Ms Brown, who is LSA's office manager, gave evidence that she prepared to separation certificate, and the reference to "end of season or contract" was her mistake. This evidence was not contested.
Did Mr Yigsaw resign or was he terminated at LSA's initiative?
[28] A dismissal cannot be unfair unless the employee concerned was terminated at the initiative of their employer. Section 386 of the Act provides 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.
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part."
[29] At the start of the hearing, I commented that I was not sure whether Mr Yigsaw may contend, as part of his case theory, that he was "forced to resign" on or about 8 July 2025, by conduct attributable to LSA, perhaps within the meaning of the 'second limb" of s 386 of the Act. However, it is evident that Mr Yigsaw does not put his case this way - properly so because he contends that he did not resign.
"[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."
[31] Mr Yigsaw's conduct is consistent with that of a person who decided he no longer wished to work at LSA and who decided to finish his employment of his own volition. I consider this to be so because he voluntarily left the workplace, he provided no explanation for doing so, nor did he ask permission to do so, and he did not come back to the workplace and present for work for at least the next three working days.
[32] Mr Yigsaw made no effort to explain this conduct, either to his employer or to the Commission. He did not submit his departure from work on 8 July 2025 was "in the heat of the moment". The evidentiary picture might have supported such a notion - Mr Yigsaw left work abruptly on 8 July 2025 and in some state of apparent upset.
[33] However, when he attended on 14 July 2025, he did not present for work either - rather - he attended well past his normal start time and was not dressed for work and was obviously there for the purposes of speaking to Mr Gumley. Mr Yigsaw accepted in his evidence that during this conversation, he did not ask to be provided with or returned to work.
[34] Had this conversation not occurred, LSA's failure to have clarified or confirmed with Mr Yigsaw the reason why he left work and was absent from work, and whether he intended to resign, may have supported the suggestion that it simply assumed he had done so. However, the conversation with Mr Gumley and Mr Yigsaw did take place on 14 July 2025, and because of it, Mr Gumley knew Mr Yigsaw's absence from work was intentional, and it left him with the belief that Mr Yigsaw did not intend to return to the workplace. I consider Mr Gumley had a reasonable basis for this belief.
[35] There are only two possible considerations weighing against this finding. One is Mr Yigsaw's allegation that Mr Gumley said "I don't have a job for you" or words to that effect. The other is that Mr Yigsaw then went to the Doctor, obtained a medical certificate and provided it to LSA - perhaps suggesting at that point he wanted his employment to continue.
[36] However, I do not consider the evidence that Mr Gumley said "I don't have a job for you" to be reliable. Mr Gumley's evidence in this matter was forthright, measured and reasonable. Mr Yigsaw's evidence was more oblique. In this regard, I have taken into account that Mr Yigsaw gave evidence with the assistance of an interpreter, which may have made his evidence sound less direct. Be that as it may, I consider it more likely he misinterpreted Mr Gumley. I do not accept that Mr Gumley told Mr Yigsaw he did not have a job, or work for him. Mr Gumley denied this was so, and fundamentally, the evidence, taken in context, does not support the notion this was a conversation between a worker, seeking work, and an employer refusing to provide it. I accept Mr Gumley's evidence that he thought Mr Yigsaw's behaviour was consistent with that of a person who no longer wanted to work for LSA. I accept that Mr Gumley did not understand Mr Yigsaw to have attended in order to obtain re-engagement but rather to obtain a separation certificate.
[37] This is consistent with Mr Yigsaw's own evidence. He did not say he went to the workplace on 14 July 2025 for the purposes of reigniting his employment. There is no evidence he actually asked for work. I consider it more likely Mr Yigsaw attended the workplace to voice his upset over how he thought he had been treated - not for the purposes of repairing the working relationship - but because he was aggrieved, and to obtain a separation certificate. In other words, I do not consider this to be a circumstance where an employee left work angry in the heat of the moment, engaged in a period of unexplained absence, and then returned with an explanation as to their conduct with a view to things returning to normal. This is almost no evidence Mr Yigsaw wanted to return to work.
[38] The only suggestion he did was the provision of the medical certificate on or about 15 July 2025. However, Mr Yigsaw did not expand as to the reason he provided the medical certificate. His evidence on this point was extremely vague - he originally asserted having seen the Doctor on 9 July 2025, only to concede later he did not see the Doctor until 14 July 2025. In LSA's submission, the certificate was provided after Mr Yigsaw had, by his conduct, resigned his employment such that his employment by that time had been ended. I consider this submission to have merit. In any event, the provision of the medical certificate was not conduct plain enough to be sufficient to counter the more obvious appearance that Mr Yigsaw had in fact decided to end his employment of his own volition.
[1] LSA Services Pty Ltd Enterprise Agreement 2019
Printed by authority of the Commonwealth Government Printer
Mr Gedamu Mersha Yigzaw
LSA Services Pty Ltd [2026] FWC 187