//
[80]
[2026] FWC 269
General information, not legal advice.
Fair Work Commission
2026-01-30
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
L.A. Realty Pty Ltd As The Trustee For L.A. Realty Unit Trust Trading AS Barry Plant Frankston
Application to deal with contraventions involving dismissal - jurisdictional objection - whether Applicant was dismissed or resigned voluntarily - found Applicant did not provide a clear and unequivocal resignation - found employment relationship ended at the initiative of the Respondent - jurisdictional objection dismissed - application to proceed.
[1] Mr Josh Larkin (the Applicant) has 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 Respondent to this application is L.A. Realty Pty Ltd As The Trustee For L.A. Realty Unit Trust Trading AS Barry Plant Frankston.
[3] There is no dispute that on 7 June the Applicant sent an email to Mr Tony Larkin (his father and Managing Director of the Respondent's business) in the following terms:
Please note that I will no longer be returning to the office. All further communication must go through my lawyer..."
[4] The Applicant's position is that he sent this email because he no longer felt comfortable returning to the office and was under stress; was on medical leave; felt like he was being forced to resign prior to an agreed exit in October; and that he wanted things resolved before he could go back to work. On the 27th of May, he sought and engaged legal representation to assist him with the issues he was having at work. On the 13th of June, he accepts that his legal representatives proposed terms for an agreed cessation of his employment relationship with the Respondent.
[5] In its F8A response form, the Respondent acknowledges that on the 12th of May the Applicant provided a sick leave certificate for the period from the 12th of May to 30th May 2025. They submit that as the Applicant did not have enough sick leave entitlements to provide paid leave for this period, the Applicant was asked and agreed to use his annual leave entitlements.
[6] The Respondent argues that when all the Applicant's paid leave entitlements were exhausted, they asked if he would be returning to work but received no response. Then on the 7th of June, the Applicant told them he would not be returning to the office.
[7] After receiving this email, the Respondent's position is it understood the Applicant had resigned from his position. Because of this, the Respondent's Managing Director removed him from the Respondent's WhatsApp chat group the same day. To further confirm he had resigned, he emailed the Applicant on the 13th of June asking him to clarify if his email on the 7th of June meant he resigned. The Applicant did not respond to this email.
[8] On June 17th, the Respondent sent the Applicant a further email as set out below:
Just following up my email to you from last Friday.
If we do not hear from you by 4pm today will treat your email of 7 June as your resignation of employment with BP Frankston."
[9] The Applicant did not respond. He accepts, however, that he received and read this email not long after it was sent. His position is that he did not respond to it because he had asked his father to communicate through his lawyer because he no longer believed their communications were healthy or productive.
[10] In the absence of a response on 19th of June, the Respondent sent the following email:
We advise that we treat your email date 7 June 2025 as your resignation of employment with BP Frankston, given you have not attended work since that date and have not responded to our follow up requests for clarification.
We advise that your resignation is accepted by BP Frankston, and that your employment with BP Frankston will be ceased (sic) effective Tuesday17th at 5.30pm
Please return all BP Frankston property that is in your possession as soon as you are able.
Please also not that as you have not given the required notice period for resignation, BP Frankston will deduct one week's wages from your final pay in accordance with clause 29.1(c) of the Real Estate Industry Award 2020."
[11] The Respondent's position is that the Applicant clearly indicated he intended to resign when he told them he would not be returning to the office on the 7th of June. That this intention was consistent with conversation between the Applicant and Respondent's representatives that he no longer wanted to work in the family business. Further, that the Applicant's non-response to multiple email requests to clarify his intention reinforces the fact it was his intention to resign.
[12] On this basis, the Respondent argues that the Applicant has not been dismissed but voluntarily resigned from his position.
[13] The Applicant maintains that at no stage did he resign from his employment. Submitting that while he was under a lot of pressure, unwell and that he sought legal advice about ending his employment on amicable terms, he had no intention of ending his employment earlier than October 2025 unless by agreement.
[15] Directions were issued for parties to file evidence and submissions on the jurisdictional issue, with the Hearing being conducted on 6 November 2025. Both the Applicant and the Respondent filed written submissions with supporting material. The Applicant was represented by Mr Patrick Said in proceedings and gave sworn evidence, subject to cross examination. The Respondent was represented by Mr Angel Aleksov (Counsel). Both Mr Said and Mr Aleksov were granted leave to appear. The Respondent's case was supported by the sworn evidence of Ms L Keyte, Mr Thomas Larkin (Director and brother of the Applicant) and Mr Tony Larkin (Managing Director and father of the Applicant).
[16] Section 386 of the Act sets out when a person is taken to have been dismissed for the purposes of s.365. If 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.
[18] The Respondent's position is that the Applicant was not dismissed. Their submissions are that the Applicant made it known to the Respondent he was no longer happy working for the Respondent and had decided to resign. This decision was communicated in a conversation with Mr Tony Larkin on the 24th of April where it was discussed and agreed the Applicant would transition out of the business and exit in October 2025.
[19] Following the subsequent Anzac Day long weekend Mr Tony Larkin approached the Applicant and sought to negotiate an earlier date for his departure. The Respondent submits it did not move to dismiss the Applicant but engage in a considered conversation between father and son to find an amicable solution.
[21] The Respondent acknowledges that after completing a day's work on the 12th of May, the Applicant provided a medical certificate dated the 9th of May indicating he was unwell and unable to attend work from May 12th to the 30th. Mr Tony Larkin's evidence is that the Applicant had not previously made him aware he was feeling stressed and unwell. He submits he was genuinely concerned about his son's health and wellbeing. This being the case, the Applicant was granted leave without issue. When it became apparent the Applicant did not have the sick leave entitlements to be paid for his absence, Mr Tony Larkin offered him access to his annual leave entitlements.
[22] The Respondent's evidence is that prior to going on sick leave, the Applicant removed several personal items from his desk, leaving his work jacket behind. When all the Applicant's paid sick and annual leave entitlements were exhausted, Mr Tony Larkin submits he asked the Applicant if he would be returning to work but did not receive a response. Mr Tony Larkin's witness statement indicated the next time they heard from the Applicant was on the 7th of June when he received the email set out above at [3]. His evidence is that he took this email to mean the Applicant was resigning from this employment, and that he sent subsequent emails to the Applicant on the 13th and 17th of June seeking confirmation of the Applicant's position but did not receive a response. This being the case, the Respondent accepts it sent the email set out above at [10] to the Applicant.
I am currently seeking legal advice regarding my employment matter with Barry Plant Frankston. As you are aware I am unable to return to work due to certain unresolved workplace issues.
Take notice that I will be therefore seeking to remain on leave until this matter is resolved."
[25] Mr Tony Larkin also acknowledged that he understood the Applicant had indicated he was seeking legal advice about his employment matters and had requested future communications to go through his lawyers. His position was he determined to communicate directly with the Applicant and sought his own legal advice.
MR SAID: Isn't it correct that the applicant didn't give you any verbal or written notice in relation to his resignation?---He gave us written notice that he would not be returning to the office.
But that could mean a number of things?---The fact that he had been - he removed himself on sick leave, then went on personal leave, then had correspondence from his solicitor through our solicitors, and then stating that he would not be returning to the office, I don't what else it would mean.
So you confirm - you just stated that correspondence was received by your solicitors. Do you recall - sorry, who were your solicitors at the time?---My solicitors is (indistinct) Turnbull's.
Isn't it correct that you took it upon yourself to dismiss him on 19 June 2025?---We didn't dismiss the person. We took it that the person had resigned when they indicated he would not be returning to work."
[28] The Respondent also suggests that the fact the Applicant did not have approval to work from home or request to do so is a further matter to be considered.
[29] In addition to Mr Tony Larkin's evidence, Mr Thomas Larkin and his wife Ms Laura Keyte gave evidence. Their evidence supports that of Mr Tony Larkin. Importantly, for these purposes, Mr Thomas Larkin accepts that he also did not receive a clear and unequivocal resignation from the Applicant. Ms Keyte gives the same evidence. Her evidence is also that she was surprised when told the Applicant resigned and that he had rarely been in the office in 2025 yet was not subjected to any warnings or discipline from the Managing Director.
[30] The Applicant's consistent position is that he did not resign from his employment.
[31] He accepts that in April 2025 he had discussions with his father about a transition out of his role and agreed this would happen in October 2025. His simple position is that after this understanding was reached, the Respondent's position changed and he was being pressured into leaving sooner. Because he did not have another job to go to and had existing commitments this was not possible. He maintains he sought to make this clear to the Respondent. His position is that despite this being the case, he still felt they wanted him to leave sooner and were pressuring him to do so. He felt unable to cope, stressed and exhausted. He sought medical advice and was advised not to return to work until after the 30th of May.
[32] He advised the Respondent he was unable to work because he was sick and accepts prior to taking sick leave he removed some personal photos from his office desk, leaving his work jacket behind. He submits there is nothing unusual about him leaving his jacket at work and that his intention was to resume work from home when he was able to return.
[33] During his sick leave, his evidence is that he felt the Respondent was continuing to pressure him into resigning, making it clear remaining an employee until October 2025 was not an option. He submits this included the Respondent explicitly asking him to finish up earlier, removing him from work communications and making unauthorised deductions from his pay.
[34] On the 27th of May, the Applicant sought legal advice about what was going on at work and on the 30th of May he wrote to his father making it clear that he was seeking to remain on leave until the issues with his employment were resolved in the terms set out at [23]. He submits the following day, his father acknowledged and agreed to this request.
[35] On the 7th of June, he again wrote to his father indicating he would not be returning to the office. He maintains this email was not a resignation, but simple clarification that he was unable to return to the office and requested for future correspondence to be sent to his legal advisors.
[36] The Applicant's submissions are that by this time he no longer felt able to communicate directly with the Respondent and that the relationship with his father and brother had broken down. It was clear to him they wanted him to leave. Not being comfortable or well enough to communicate with his father directly, he instructed his lawyers to engage in communications on his behalf and propose terms for an amicable separation.
[37] At no stage did the Applicant communicate in any way that he was resigning. The communications that followed are set out above. From his perspective, the Respondent ignored his request to communicate with his lawyers, failed to respond to his proposals for an amicable separation and moved to terminate his employment based on a resignation that was never provided.
[38] In further support of his position, the Applicant submits over the course of his employment he was subjected to significant pressure from the blurring of personal and professional relationships that created a hostile and stressful work environment which negatively impacted him.
[39] Much of the evidence and facts in this case are no longer in dispute. The Respondent accepts that the Applicant sought to be on leave from the 30th of May, advised he would not be returning to the office and attempted to engage communications through his lawyer about an amicable ending of the employment relationship. The Applicant accepts that in the circumstances of this case, his communication of the 7th of June he would not be returning to the office could have been misinterpreted.
[40] Much in this case has also not been said or is not relevant to the determination I am required to make. What has occurred or been proposed between the parties prior to these proceedings for an amicable settlement is just one example.
[41] It is also plainly apparent both the personal and professional relationship between the Applicant, his father and other family members working for the Respondent have irrevocably broken down. It is clear to me that the Applicant has significant issues dealing with and communicating with his father that have been ongoing for some time. His evidence is that this has caused him stress, anxiety and negatively impacted his health and capacity. I have no reason to doubt that this is not the case. And while I accept the Respondent's submissions that nothing other than care, professionalism and diligence have been shown to the Applicant this does nothing to discount his subjective perception.
[42] While these matters are perhaps reason for reflection for both Mr Tony Larkin and his son, they are not relevant to the considerations I am required to make to determine the question before the Commission. What this requires is a determination on whether the Applicant resigned or if his employment was ended at the initiative of the employer.
[43] Having 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 each of the witnesses is that they present selective versions of the facts from their individual perspective, which are of little assistance.
[44] As the Applicant himself acknowledged in proceedings, from the Respondent's perspective it is plausible in the circumstances of this case that Mr Tony Larkin could have construed the Applicant's email of the 7th of June as a resignation.
[45] What the Respondent could have subjectively understood he was being told by the Applicant, however, 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.
[46] I prefer the Applicant's evidence to that of the Respondent's. His evidence is he never intended to resign; he has consistently maintained this position. It is also the case that the contemporaneous documentary evidence, which is not in dispute, clearly supports his versions of events.
[47] Plainly, the evidence in this case is that the Applicant did not clearly say in writing, or otherwise, that he was resigning from his employment. The Respondent's position is less clear. For example, they provide no plausible reason why if it understood the Applicant clearly resigned on the 7th of June it took until the 13th of June for anything to be done about the resignation. I do not accept this evidence is an accurate version of what in fact occurred.
"(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 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 period of 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 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.
[67] The consequence is that, where the employee has not in fact resigned or an apparent resignation is ineffective, purported acceptance of the resignation by the employee will constitute a termination of employment at the initiative of the employer for the purposes of s 386(1)(a)." (footnotes omitted)
[51] I have considered the competing submissions and evidence from the Applicant in this case in light of these authorities.
[52] I am persuaded that this evidence establishes the Applicant did not in fact resign and that the employment relationship was ended on the 17th of June when Mr Tony Larkin communicated this outcome purporting to accept a resignation that was never provided.
[53] Considering all the evidence before me, I am satisfied the Applicant was dismissed within the meaning of s.386 and that the Commission has jurisdiction to consider his application further.
[54] Accordingly, the Respondent's jurisdictional objection that the Applicant was not dismissed and resigned voluntarily, is dismissed. This application will now be programmed for a Conciliation Conference in line with s.368 of the Act in due course.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591.
[2] Grass v Chinese Tennis Association Inc [2021] FWCFB 3443 at [11].
[3] Witness Statement of Tony Larkin at [29], Court Book p.93.
[4] Exhibit #A1 Bundle of Documents Produced by Applicant.
[5] Transcript of Proceedings on 5 November 2025 at PN182-183.
Printed by authority of the Commonwealth Government Printer
Mr Josh Larkin
L.A. Realty Pty Ltd As The Trustee For L.A. Realty Unit Trust Trading AS Barry Plant Frankston [2026] FWC 269
(2020) 279 FCR 591
(1995) 62 IR 200