s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - whether the applicant was dismissed - found that the applicant was not dismissed - application dismissed

[1] The decision determines a jurisdictional objection made against an application for an unfair dismissal remedy commenced by Mr Nathan Hider (the Applicant) under section 394 of the Fair Work Act 2009 (FW Act) (the Application). The Application identified Cossie Pty Ltd as the respondent. Without objection, and pursuant to section 586 of the FW Act, I have exercised my discretion to amend the application to identify the respondent as New Era Disability Services Inc (New Era / the Respondent).

[2] The jurisdictional objection being whether Mr Hider has been dismissed within the meaning of section 386 of the FW Act. In summary, Mr Hider contends that he resigned from his employment with the Respondent, but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent. The Respondent contends that there was no such dismissal as defined in section 386 of the FW Act.

[3] On 10 February 2026, the question of whether Mr Hider has been dismissed was the subject of a hearing before me. Mr Hider appeared for himself. Mr Ossie Pisanu appeared for the Respondent. Mr Pisanu is a Director of the Respondent. All the evidence, documents and submissions relied upon by the parties has been considered.

[4] For the reasons explained below, I have determined that Mr Hider has not been dismissed within the meaning of section 386 of the FW Act.

[5] Section 386(1) of the FW Act provides that 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.

[6] Mr Hider commenced employment with the Respondent on 4 March 2024 in the role of Support Co-ordinator.[1] Mr Hider's employment with the Respondent was the subject of a written contract of employment (the Contract), which was before me.[2]

[7] On 5 August 2024, Mr Hider and the Respondent agreed to a variation to the Contract. The effect of the variation was to increase Mr Hider's pay. The pay increase was effective from 1 August 2024 and in the form of a bonus. The amount of bonus to be paid to Mr Hider was to result in Mr Hider's overall remuneration being equal to 70% of Mr Hider's billable revenue inclusive of superannuation. There was no other change to Mr Hider's terms and conditions of employment. The variation was reduced to writing and described as an Addendum. The variation, which was signed by Mr Hider and Mr Pisanu, was before me.[3]

[8] In about August 2025, the Respondent informed Mr Hider and another colleague, Ms Linda Moreman, that they had each been overpaid. The overpayment appears to have arisen from an error made by the Respondent in paying more bonus than provided for in the Contract, as varied. It appears that Mr Hider was overpaid an amount of $19,000. In discussing the overpayment with Mr Hider and Ms Moreman, Mr Pisanu said that the Respondent would not seek repayment of the full amount. Rather, Mr Pisanu sought repayment of 50% of the full amount and requested that Mr Hider propose a repayment plan. In the case of Mr Hider, $9,500 is 50% of the full amount of the overpayment. At the hearing, Mr Hider accepted that he had been overpaid.

[9] On 25 August 2025, Mr Hider sent an email to Mr Pisanu,[4] which is reproduced below:

Thank you for meeting with me on Wednesday, 20th August. I now understand there has been an issue with the calculation of bonus payments from August 2024 to June 2025.

I have to admit this has caused me some stress, as it wasn't what I expected given the Addendum to my Employment Contract from August 2024, which set out that I would be paid 70% of billable income as my wage increase. As no breakdown was provided for the first bonus payment in August 2024, I calculated this based on the letter attached and our discussions at the time and believed this was correct.

Having reviewed my finances, I am able to commit to repaying $750 gross per month for 12 months. Beyond this, my financial situation would make higher repayments difficult.

For clarity going forward, I would also appreciate receiving a monthly bonus breakdown so I can clearly understand how the figure has been calculated.

I also note that my income statement for the year ending 2025 will need to be adjusted with the ATO to reflect the agreed amount. I would like the chance to review this adjustment before it is submitted to ensure everything is correct.

My preference is for my monthly bonuses to continue to be paid, and I will then transfer the agreed repayment amount directly to New Era's nominated bank account. I do not authorise deductions to be taken directly from my wages or bonuses.

Thanks for your understanding and I hope we can resolve this matter smoothly.

NDIS Support Coordinator & Specialist Support Coordinator

[10] On 28 August 2025, Mr Hider and the Respondent agreed to a further variation to the Contract. The variation was reduced to writing and described as an Addendum.[5] In essence, this variation provided that Mr Hider would pay 50% of the overpayment. The variation, which was signed by Mr Hider and Mr Pisanu, is reproduced below:

This Addendum is made to the Employment Agreement between New Era Disability Services ("the Employer") and Nathan Hider ("the Employee").

The Employee agrees to repay the Employer the sum of $9,500.00 AUD being part of the bonus received.

Repayments will be made at $750.00 per month over 13 months, commencing from the next payroll cycle following this agreement. If the Employee does not earn a bonus in any month, the repayment term will be extended accordingly, and the number of months will increase until the full amount of $9,500.00 is repaid.

Repayment will occur by way of reimbursement invoice raised each pay cycle, which the Employee must pay within 24 hours of payroll being processed.

In the event the Employee resigns or is terminated before the completion of the repayment term, the outstanding balance becomes immediately due and payable in full upon the finalisation of employment.

The Employee acknowledges that he has been made aware of the total repayment amount and has agreed to these terms prior to receiving the bonus.

These changes constitute an addendum to your employment contract and are made a part thereof. Please sign below and return a copy of this addendum to acknowledge receipt and acceptance.

[11] Mr Hider explained that he felt pressured to agree to these arrangements, and that he experienced significant stress and financial anxiety. I accept that to be the case.

[12] On 29 August 2025, Mr Hider made a payment of $750 to the Respondent. The payment was made in accordance with the agreed arrangements that Mr Hider would pay 50% of the overpayment.[6]

[13] On 22 October 2025, Mr Hider sent an email to Mr Pisanu, which advised of the resignation of his employment.[7] The email is reproduced below:

I am writing to formally resign from my position as Support Coordinator and Specialist Support Coordinator with New Era Disability Services, effective 5th November 2025, in accordance with my notice period.

This decision has not been made lightly. However, it follows ongoing and unresolved issues with the billing and invoicing processes that have persisted for months. Despite raising these matters in early August 2025 to ensure all outstanding items were rectified prior to any new bonus payments being processed, invoices have continued to be missed or actioned incorrectly by the accounts team. On multiple occasions, including while I was on leave in April, invoices were not followed up, and I was not advised of unpaid claims until long after the fact.

These repeated errors and the lack of timely communication have caused unnecessary stress and have negatively impacted my mental health, particularly given the 70% billable target tied to monthly bonus eligibility. It is unreasonable for staff to be held accountable for billing outcomes when processes and follow-ups are not being managed appropriately at an organisational level.

While I have valued the opportunity to work with New Era Disability Services, the continued lack of resolution to these issues has made it untenable for me to remain in this role.

I will ensure a smooth transition for all participants currently under my coordination and have provided them with choice regarding whether they wish to remain with New Era or transition with me should I move to another organisation, consistent with the process agreed upon when I joined New Era.

Thank you and I wish New Era Disability Services all the best moving forward.

I was meant to email this this morning but been unwell with headaches

[14] Mr Hider contended that he had been dismissed within the meaning of section 386(1)(b) of the FW Act.[8]

[15] In his resignation letter,[9] Mr Hider did not expressly state that his resignation was 'forced'. In summary terms, Mr Hider suggested that his resignation was motivated by ongoing and unresolved issues with the billing and invoicing processes that have persisted for months. Mr Hider explained that the repeated errors and the lack of timely communication caused unnecessary stress and negatively impacted upon his mental health. Mr Hider further explained that the continued lack of resolution to these issues made it untenable for him to remain in his role.

[16] In his witness statement filed in support of his application, Mr Hider contended that his resignation was the direct result of coercive and unreasonable conduct by the Respondent, including demands to repay alleged overpayments caused by employer error, pressure to agree to repayment arrangements not contained in his contract, threats or implications of wage deductions or withholding of pay and ongoing financial and emotional pressure.[10]

[17] A Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[11] (Bupa) held:

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 probably 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.[12]

[18] As explained by the Full Bench in Bupa, the essential element of a dismissal within the meaning of section 386(1)(b) of the FW Act is the conduct of the employer.

[19] I am satisfied that the Respondent's conduct in raising the overpayment with Mr Hider and seeking repayment of the overpayment was intended to recover 50% of the overpayment. The Respondent raised the overpayment with Mr Hider in August 2025. The parties then agreed to arrangements whereby Mr Hider would only repay 50% of the overpayment. Fundamental to those agreed arrangements was Mr Hider remaining employed by the Respondent and earning sufficient monthly bonus to make the monthly repayment. The agreed arrangements also provide that the full amount of the overpayment would be payable if Mr Hider's employment ended by way of resignation or termination before the completion of the repayment term. Notwithstanding the possibility that the full amount of the overpayment may become payable in those circumstances, I am satisfied that the Respondent agreeing to accept 50% repayment of the overpayment contingent upon Mr Hider's continued employment with the Respondent clearly demonstrates that the Respondent's conduct associated with the overpayment was not intended to bring Mr Hider's employment to an end. To the contrary, the Respondent's intent was for Mr Hider to remain employed so that he could repay 50% of the overpayment.

[20] I do not accept that the probable result of the Respondent's conduct associated with the overpayment, which Mr Hider described as coercive and unreasonable, left Mr Hider with no effective or real choice but to resign. In addition to the matters discussed above, Mr Hider made one payment in August 2025 in accordance with the agreed arrangements. Mr Hider then gave written notice of his resignation on 22 October 2025, which was almost two months after the overpayment was raised with Mr Hider, the arrangements to repay the overpayment were agreed and Mr Hider making the one repayment. I accept that the overpayment is a significant amount. I accept that the overpayment was the result of an error by the Respondent. I accept that the events associated with the overpayment caused Mr Hider significant stress and financial anxiety. However, that does not mean that Mr Hider had no effective or real choice but to resign. Mr Hider could well have continued in his employment with the Respondent and paid 50% of the overpayment in accordance with the agreed arrangements. In making the payment in August 20205, this is initially what Mr Hider did before resigning almost two months later. The probable result of the Respondent's conduct did not leave Mr Hider with no effective or real choice but to resign.

[21] For those reasons, I do not accept that the Respondent's conduct associated with the overpayment, which Mr Hider described as coercive and unreasonable, was intended to bring Mr Hider's employment to an end or that the probable result of the Respondent's conduct left Mr Hider with no effective or real choice but to resign.

[22] As explained, Mr Hider's resignation letter suggests that the resignation was motivated by ongoing and unresolved issues with the billing and invoicing processes, lack of communication about any such errors or lack of resolution to these matters. I do not accept that the Respondent's conduct with respect to any of these issues was intended to bring Mr Hider's employment to an end or that the probable result of any such conduct by the Respondent left Mr Hider with no effective or real choice but to resign. Put simply, there were no facts before me to support a finding that Mr Hider's resignation could be said to be 'forced' by any of those issues.

[23] At the hearing, Mr Hider pointed to issues with his final pay. Mr Hider's final pay was processed after Mr Hider notified the Respondent of his resignation. Accordingly, any issues with Mr Hider's final pay cannot be indicative of the Respondent's intent to bring Mr Hider's employment to an end or that the probable result of any such conduct by the Respondent left Mr Hider with no effective or real choice but to resign. Any issues with Mr Hider's final pay are irrelevant to the question that was before me.

[24] I am not satisfied that Mr Hider was dismissed within the meaning of section 386 of the FW Act. Therefore, I am required to dismiss Mr Hider's application for an unfair dismissal remedy. An order to that effect will be issued separately to this decision.

[1] Digital Hearing Book (DHB) page 45.

[8] Paragraph 20 of the Witness Statement of Nathan Hider dated 13 January 2026 (Hider Statement), DHB page 23.

[10] Paragraph 21 of the Hider Statement, DHB page 23.

[11] [2017] FWCFB 3941.

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