Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - was the Applicant dismissed - Applicant was not dismissed - application dismissed

• [1] Mr Kimba Isopo has made an unfair dismissal application against his former employer, Taiga Holdings Pty Ltd. Taiga Holdings trades as Empower Solar and is in the business of selling solar panels. Mr Isopo says Taiga Holdings dismissed him. Taiga Holdings says Mr Isopo resigned. I must determine this issue before Mr Isopo's unfair dismissal application can proceed.

• [2] I conducted a hearing on Wednesday 17 September 2025. Both parties represented themselves. Having considered the relevant evidence and submissions of the parties, I find that Mr Isopo resigned his employment, and he was not dismissed. His unfair dismissal application must be dismissed.

• [4] Mr Isopo was the only witness who attended for his case. Mr Isopo filed witness statements for a Mr Travis Darcy and Ms Chelsei Matthews, but they did not attend the hearing. As a result, I have not given their written statements any weight.

• [5] Mr Isopo was given multiple opportunities to file material in support of his case, including extensions due to ill health. He did not file a witness statement for himself. Despite this, because he was unrepresented, I allowed him the opportunity to give oral evidence at the hearing. Much of his oral evidence affirmed the written evidence filed by Taiga Holdings and he did not contest the veracity of the text messages and emails that the witnesses tendered.

• [6] Taiga Holdings called the following witnesses to give evidence:

• Mr Don Xu - General Manager for Taiga Holdings,
• Mr Justin Paul - Senior Sales Consultant,
• M Khanh Nguyen - Operation Officer,
• Ms Lindsey Ditfort - Sales Consultant, and
• Mr Sentai Wang - Commercial Sales Consultant.

• [7] Taiga Holdings employed Mr Isopo on Tuesday 5 March 2019 as a Sales Consultant. Mr Isopo's employment was uneventful up until February 2025. In or around February 2025, the Western Australian State Government announced a solar battery rebate scheme. This was obviously significant news for Taiga Holdings' business. The performance of the sales team was strong in March 2025, including Mr Isopo's performance.[1]

• [8] Mr Xu's evidence is that in or around March 2025, Mr Isopo spoke to him about taking on a bigger role, such as a sales manager or team leader.[2] Mr Xu thought that Mr Isopo would be a good candidate for a bigger role but wanted more than four weeks of high performance before promoting him. Mr Xu told Mr Isopo that they should work towards a promotion. Mr Isopo largely agreed with this. His evidence was that his remuneration had not been increased for some time, and he felt this was unfair and wanted to be paid more, which led to him raising the issue with Mr Xu.

• [9] All of Taiga Holdings' witnesses gave evidence that in or around March or April 2025, Mr Isopo's behaviour changed - he became more erratic, was starting conflicts with co-workers and overall acting differently.[3] They all understood that Mr Isopo was dealing with issues in his personal life.

• [10] Mr Xu's account is that around this time Mr Isopo first raised with him the possibility of becoming a contractor and opening his own company, which would involve selling solar batteries but also installing them. Mr Isopo told Mr Xu his idea of starting a company with Mr Darcy. Mr Xu knew Mr Darcy as he is an electrician and former employee of one of Taiga Holdings' contractors.[4] Mr Isopo agreed with Mr Xu's account.

• [11] Mr Paul, Ms Nguyen and Ms Ditfort gave evidence that Mr Isopo shared with them his plan to set up his own business and work as a contractor for Taiga Holdings.[5] Ms Ditfort's account is that Mr Isopo would frequently announce different plans and ideas. Mr Isopo asked Ms Ditfort questions about the structure of her role and told her he wanted to start his own company and become a contractor.[6] Mr Isopo agreed with this evidence.

• [12] On Monday 5 May 2025, Mr Xu and Mr Isopo met in person. The meeting went for almost two hours and was so Mr Xu could understand Mr Isopo's business plan for his new company. During this meeting Mr Isopo was emotional and shared with Mr Xu the difficulties he was facing in his personal life.

• [13] Mr Xu's evidence is that he explained to Mr Isopo that becoming a contractor was difficult, and he encouraged Mr Isopo to remain an employee with Taiga Holdings. Mr Xu also told Mr Isopo that if he needed, he could take time off to deal with his personal issues.[7] Mr Isopo agreed that there had been a meeting, and he had been emotional. He did not recall whether Mr Xu had told him that becoming a contractor was difficult or whether Mr Xu had encouraged him to remain an employee.

• [14] On Tuesday 6 May 2025, Mr Isopo texted Mr Xu asking for time off. Mr Xu agreed to this. Mr Isopo took leave for approximately four weeks, except for Thursday 22 May 2025, where Mr Isopo attended work to finalise some sales. During this period of leave, Mr Xu and Mr Isopo continued to communicate via text where Mr Isopo would update Mr Xu on how he was feeling, and Mr Xu would check in on Mr Isopo.[8]

• [15] Mr Xu's account is that he also spoke to Mr Isopo on the phone during this period of leave. Mr Isopo would discuss his plans to transition to a contractor and Mr Xu instead encouraged Mr Isopo to remain an employee as he felt it was a more secure option for Mr Isopo given his current personal circumstances. Mr Isopo agreed that there had been phone calls between Mr Xu and himself where they had spoken about a transition to a contractor role but could not recall if Mr Xu had encouraged him to remain an employee.

• [16] On Tuesday 20 May 2025, Mr Isopo sent a lengthy text message to Mr Xu where he explained that he wanted to have a working relationship with Mr Xu and give Mr Xu the first opportunity to engage the company he had set up with Mr Darcy and others.[9] That same day, Mr Isopo called Mr Xu to discuss his new company and said that Taiga Holdings could engage the new company to act as a sales contractor and to provide battery installation services. Mr Xu explained to Mr Isopo that he had reservations about Mr Isopo's business partner and his reasons why.[10] Mr Isopo agreed with Mr Xu's account of this phone conversation.

• [17] On Wednesday 21 May 2025, Mr Isopo texted Mr Xu thanking him for the discussion and confirmed that he would remain on leave until the end of May.

• [18] Mr Xu's evidence is that during Mr Isopo's leave there were customers contacting the business following up the status of orders arranged by Mr Isopo. So that Mr Xu could service these customers, he reset the password on Mr Isopo's work system so he could access Mr Isopo's emails to understand the status of the orders and pass them onto a different sales consultant.[11]

• [19] Mr Isopo's oral evidence is that this occurred because Mr Xu had been pressuring him to work while he was on leave, and he had pushed back against this. Mr Xu disagreed with this. Mr Xu's evidence under cross-examination was that he had asked Mr Isopo about his customers and Mr Isopo had said he would deal with them. When there was no action taken by Mr Isopo, Mr Xu took the action of accessing Mr Isopo's emails.

• [20] On Sunday 1 June 2025, Mr Isopo sent Mr Xu a lengthy text message that relevantly provided the following:

• he wanted to discuss with Mr Xu moving across to a contractor role like Ms Ditfort;
• as he was in a transient housing situation, he wanted to take advantage of this time to potentially spend time in Kalgoorlie;
• he wanted to challenge himself and focus on his start-up company rather than focusing on negative issues in his personal life; and

• • that he wanted to meet with Mr Xu on Tuesday to discuss 'what [it] would look like selling batteries as a contractor for ESA'.[12]

• [21] Mr Isopo also texted Mr Paul the following:

• • A screenshot of Mr Isopo's text messages to a former Taiga Holdings employee where he stated, 'took a leaf out of your page and txt [sic] don my resignation of sorts'.[13]
• • That his focus was no longer working for someone else's company and that he would work for his own company.[14]

• [22] On Tuesday 3 June 2025, Mr Isopo attended the premises to meet with Mr Xu. Mr Xu's evidence is that he understood Mr Isopo wanted to meet to discuss a transition to a contractor role and to say goodbye to his colleagues.

• [23] Mr Isopo sat in on the weekly sales meeting that day. Ms Nguyen's evidence is that after the meeting, Mr Isopo told her that he was moving to Kalgoorlie and had asked Mr Xu to transition him to a contractor role.[15] Mr Isopo agreed that he had said this to Ms Nguyen. Mr Isopo then went to lunch with other employees.

• [24] In the afternoon, Mr Isopo and Mr Xu spoke. Mr Xu's account is that Mr Isopo told him that he was resigning. Mr Xu asked him to follow up with an email to confirm the resignation They also discussed the contractor arrangement and how it might be similar in structure to other contractors engaged by Taiga Holdings. Mr Xu told Mr Isopo that he would send through a contractor agreement for Mr Isopo to review.[16]

• [25] Mr Isopo agreed that Mr Xu had told him that he would send through a contractor agreement but otherwise disagreed with Mr Xu's version of the conversation. Mr Isopo said the conversation only went for a few minutes, while Mr Xu's evidence is that it went for approximately half an hour.

• [26] Mr Isopo did not attend work on Wednesday 4 June or Thursday 5 June 2025. I asked Mr Isopo why he did not attend work if he did not resign. His evidence is that Tuesday 3 June 2025 was his last day in the office, and that he was just waiting for the contactor role details from Mr Xu.

• [27] In the evening of Thursday 5 June 2025, Mr Xu sent the following email to Mr Isopo:

I'm writing to confirm that, as per our meeting on Tuesday, 3rd June 2025, we have accepted your request to terminate your full-time employment with Empower Solar Australia and transition to a contractor arrangement.

Your final day of full-time employment was 30th May 2025, and your final pay was processed and completed on Wednesday, 4th June 2025.

I'm currently working on an updated contractor commission structure, and once finalised, it will be sent to you along with the contractor agreement for your review and signing.

Please feel free to reach out if you have any questions in the meantime.'[17]

• [28] On Friday 6 June 2025, Mr Isopo replied to Mr Xu's email with, 'Hi Don can you please confirm if I will be paid for the hours in the office on Tuesday as well as the public holiday.'[18] Mr Xu did not respond to this email.

• [29] On Wednesday 11 June 2025, Mr Xu was notified of a customer complaint against Mr Isopo. Mr Xu called Mr Isopo and told him about the complaint. Mr Xu told Mr Isopo that the complaint would need to be reviewed before the contractor arrangement was finalised.

• [30] On Thursday 12 June 2025, Mr Isopo filed this unfair dismissal application.

• [31] 'Dismissed' is defined in s 12 of the Fair Work Act 2009 (Cth), which refers to s 386. Section 386 of the Act 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.'

• [32] Mr Isopo says that he never resigned and that Taiga Holdings dismissed him. His submissions can be summarised as follows:

(a) He acknowledges that he intended to resign and that he told his co-workers that he was resigning. However, he did not at any point say what date his resignation would take effect.

(b) It did not make sense for him to resign because:

1. he had not set up an ABN for his company yet; and
2. Mr Xu had not given him the contractor agreement to look over and agree to.

(c) Taiga Holdings excluded him from the company, including by locking him out of his email account.

(d) Mr Xu's email on Thursday 5 June 2025 set an arbitrary resignation date that he did not initiate or agree to.

• [33] Mr Isopo also spoke at length to his grievance against Taiga Holdings for not increasing his remuneration as per his request. Whilst I understand the basis for his grievance, he did not explain why it was relevant to the question of whether he had been dismissed.

3.1 Why I have found that Mr Isopo was not dismissed

• [34] The only areas where Mr Isopo contested evidence was Mr Xu's account of events. Mr Isopo said he did not recall Mr Xu encouraging him to remain an employee, and that on the meeting on Tuesday 3 June 2025 he did not tell Mr Xu that he was resigning and that they did not talk about the contractor arrangements.

• [35] I preferred Mr Xu's version of events. Mr Xu's evidence was cogent and his recall under cross-examination was consistent. I find that Mr Xu did encourage Mr Isopo to remain an employee.

• [36] Mr Xu's evidence that Mr Isopo verbally informed him that he was resigning at the meeting on Tuesday 3 June 2025 is also consistent with Ms Nguyen's uncontested evidence that Mr Isopo told her after the weekly sales meeting that day that he was resigning, and Mr Isopo's text messages to Mr Paul on Sunday 1 June 2025.

• [37] This is also consistent with Mr Isopo's email to Mr Xu on Friday 6 June 2025, where he did not contest that he had resigned. His only concern was whether he would be paid for coming to the office on Tuesday 3 June 2025.

• [38] On an objective consideration of the largely uncontested evidence and my findings on the contested evidence above, I find that Mr Isopo did resign. By his own evidence and submissions, he intended to resign. His actions mirrored that intention. Whether it made sense for Mr Isopo to resign or not does not change the objective evidence. It was also not necessary for him to put a specific date for his resignation to be accepted. There was no dismissal on Taiga Holdings' initiative.

• [39] Though Mr Isopo did not argue that his resignation was forced due to Taiga Holdings' conduct, for completeness I will also address whether there was a dismissal under s 386(1)(b) of the Act. I am satisfied that Mr Isopo's resignation was not forced. Mr Xu encouraged Mr Isopo to remain an employee. Mr Isopo clearly pursued the idea of resigning for several months. Mr Isopo also did not contest Mr Xu's email of Thursday 5 June 2025. Mr Isopo's reply email was only concerned with whether he would be paid for Tuesday 3 June and the public holiday. There was no dismissal under s 386(1)(b) of the Act.

• [40] I order that Mr Isopo's application under s 394 of the Act is dismissed.

[1] Witness Statement of Don Xu, Digital Court Book 76 [9]-[13].

[5] Witness Statement of Justin Paul, DCB 101 [5]; Witness Statement of Khanh Nguyen, DCB 106 [5].

[6] Witness Statement of Lindsey Ditfort, DCB 108 [5].

[7] Witness Statement of Don Xu, DCB 77 [23]-[24].

[10] Witness Statement of Don Xu, DCB 78 [31]-[32].

[15] Witness Statment of Khanh Nguyen, DCB 107 [6].

[16] Witness Statement of Don Xu, DCB 79 [44].

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