s.394 - Application for unfair dismissal remedy

• [1] On 10 August 2025 Mr Nigel Smith (Mr Smith) made an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) to the Fair Work Commission (FWC) alleging he was unfairly dismissed by Hawkesford Nominees Pty Ltd (Chemsol).

• [2] Mr Smith's employment came to an end on 5 August 2025 at, or following, a meeting between Mr Smith and the owner of Chemsol, Mr Nathan Hawkesford (Mr Hawkesford) at which Mr Hawkesford says Mr Smith stated that he was resigning and at which Mr Smith variously says Mr Hawkesford told him that he was dismissed and told him he would be dismissed if he didn't resign.

• [3] On 20 August 2025 Chemsol filed a Form F3 - Employer Response to an unfair dismissal application asserting that Mr Smith resigned and was not dismissed from his employment (Jurisdictional Objection).

• [4] On 13 October 2025 the parties were notified that the Application had been listed for a conference at 2pm (AWST) on Friday 17 October 2025. On 14 October 2025 Chemsol's representative Mr Michael Loly (Mr Loly), a paid agent, requested that the conference be adjourned because of his unavailability. Mr Smith opposed the adjournment.

• [5] On 15 October 2025 the parties were advised that the adjournment request due to the unavailability of a paid agent had been declined on the grounds that the FWC was required to determine matters expeditiously, Mr Smith was unrepresented and that the conference process was an informal proceeding which did not require a detailed knowledge of the relevant law or court procedure.

• [6] On Friday17 October 2025 Less than two hours prior to the scheduled start time of the conference Mr Loly advised Chambers that:

"The Respondent will not be attending the conference scheduled today as this matter has already been to a conciliation conference with no resolution."

• [7] Directions for the filing of materials in advance of the Hearing were therefore issued to the parties on 21 October 2025 and amended directions issued on 3 November 2025 (Directions).

• [8] Taking into account the parties wishes and circumstances, it was determined that a hearing rather than a determinative conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a hearing in Perth on 21 November 2025 (Hearing).

• [9] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]

• [10] Chemsol sought permission to be represented at the Hearing by Mr Loly. Mr Loly's submissions in support of Hawkesford being granted leave to be represented were as follows:[2]

"The Respondent satisfies the definition of a 'Small Business'.

The Respondent operates a Chemical Manufacturing business and has previously relied upon external HR services for advice and support in this matter.

The Owner/Director, Mr Nathan Hawkesford does not hold HR/IR or legal qualifications or has any relevant experience with Fair Work Legislation.

The claim for unfair dismissal includes a question of jurisdiction and may involve; conciliation and/or arbitration;

• it would enable the matter to be dealt with more efficiently if the Respondent is

• it would be unfair not to allow the Respondent to be represented because they do not have the relevant experience to represent themselves (or their entity), and

• it would be unfair when considering the fairness between parties as the Applicant has written to the Commission advising that he is seeking to be represented.

The Respondent has no objection to the Applicant being represented."

• [11] Jurisdictional Objection raised turns entirely on the factual matrix. Chemsol assert that Mr Smith resigned and Mr Smith denies doing so. There is no legal complexity to the Jursidictional Objection. This is reflected in the briefness of the submissions filed by Mr Loly.

• [12] Mr Loly's participation in the proceedings had not assisted in enabling the matter to be dealt with more efficiently. The Directions required the parties to file copies of the authorities upon which they relied and provided with links to assist them to do so. Mr Loly did not file copies of the Chemsol's authorities as required by the Directions. When the non compliance was raised with him he responded that:

"As a part-time advocate with other commitments, I am unable to prepare, serve and file additional information due to the tight timeframe."

• [13] He was provided with a further extension to file the authorities but also failed to comply with this Direction.

• [14] Mr Smith had informed the FWC and Chemsol on 14 October 2025 that he was not represented and this was reaffirmed by Mr Smith on 28 October 2025 before Mr Loly filed his leave submissions. Having a lack of experience in the FWC and a lack of knowledge of the relevant legislation did not put Chemsol at a disadvantage as compared to Mr Smith, to the contrary to allow representation would have created unfairness as between Chemsol and Mr Smith.

• [15] Leave to be represented was therefore refused. At the Hearing, Mr Smith represented himself and Chemsol was represented by Mr Hawkesford.

• [16] The Directions required the parties to file their witness and documentary evidence in advance of the Hearing.

• [17] Mr Smith filed three witness statements on his own behalf.[3] Mr Smith gave further evidence in chief at the Hearing and was cross examined by Mr Hawkesford.

• [18] A witness statement from Mr Hawkesford was filed by Chemsol.[4] Mr Hawkesford is the owner and Managing Director of Chemsol. Mr Hawkesford gave further evidence in chief at the Hearing and was cross examined by Mr Smith.

• [19] A Digital Court Book containing the submissions, evidence and authorities relied upon by the parties was marked exhibit DCB.

• [20] In reaching my decision, I have considered all the submissions made, and the evidence tendered by the parties even if not expressly referred to in these reasons for decision.

• [21] Chemsol which trades as Chemsol Australia operates a liquid toll blending service. It's a small business with only seven employees including Mr Hawkesford.

• [22] Mr Smith commenced employment with Chemsol as an Area Sales Manager in or around 19 August 2022 pursuant to a contract of employment.

• [23] Mr Smith was provided with a company motor vehicle. Mr Hawkesford says that the vehicle was intended primarily for work use only. In support of this assertion Mr Smith filed an image of a text to his wife dated 18 August 2022 in which he states that his proposed employment contract with Chemsol provides that the vehicle is only for business use but says that Mr Hawkesford had agreed he could use it for personal use as long as he was reasonable in his usage.[5]

• [24] On 5th May 2025 Mr Smith was involved in a motor vehicle accident where he was found to be at fault. The accident (the second involving Mr Smith) was the catalyst for Mr Hawkesford's decision to install a 'dash camera and tracker' to the company vehicle used by Mr Smith.

• [25] Mr Smith says that he was not informed by Mr Hawkesford that a tracker had been installed in the company vehicle. Mr Smith says that he only became aware that tracker had been installed on or after 30 July 2025 when he was informed verbally by a warehouse employee.[6] The evidence reveals that Mr Smith was in fact notified of the installation by Mr Haweksford by email on 28 July 2025.[7]

• [26] In February 2025 Mr Hawkesford commenced having a monthly sales meeting with Mr Smith to discuss Mr Smith's sales performance. Mr Smith's monthly gross target was $100,000. According to Mr Hawkesford he had been concerned for some time that Mr Smith had not been fulfilling the obligations of his role, which are summarised in his position description as 'responsibility for servicing existing customers and developing new business'. The evidence is that during 2025, monthly sales have been as low as $70,000 per month.[8]

• [27] Mr Hawkesford says that in May 2025 he again raised with Mr Smith his concerns with Mr Smith's sales performance.[9]

• [28] In June Mr Smith sent an email to Mr Hawkesford claiming that he had been unpaid $1480 in commission payments.

• [29] In his Form F2 - Unfair Dismissal Application Mr Smith says:

"... This led to the Respondent threatening the Applicant's employment if the latter did not accept the remuneration being provided.

3. The Applicant organised a meeting in which he summarised his findings regarding underpayments. The Respondent's director again threatened to terminate the Applicant, stating the Applicant was being "over the top", and that the Respondent would not be investigating the matter.

5. Due to the threats of termination, the Applicant backed down and accepted a $400 bonus."

• [30] The evidence however reveals that via an email exchange Mr Hawkesford explained why a commission was not payable for some of the transactions in relation to which Mr Smith claimed a commission, clarified the circumstances in which commission was be paid and acknowledged that Mr Smith was owed an additional $400. Mr Hawkesford's tone in these exchanges was polite and professional.

• [31] Mr Smith responded negatively to Mr Hawkesford correspondence and rejected the payment in a curt and unprofessional manner.[10] The contemporaneous email correspondence indicates that Mr Hawkesford was adamant that any owed commission should be paid and requested a meeting with Mr Smith to discuss this, and the tone of Mr Smith's correspondence.

• [32] Contrary to Mr Smith's evidence that he called the meeting[11] and his contradictory evidence that he was directed on 16 June 2025 to attend a meeting that same day[12] the evidence is that Mr Hawkesford invited Mr Smith to attend the meeting on 7 June 2025.[13]

• [33] A meeting was held between Mr Smith and Mr Hawkesford. Mr Smith and Mr Hawkesford disagree about what occurred at the meeting.[14]

• [34] Mr Hawkesford says that he explained that Mr Smith's communication was unprofessional and that if he continued to communicate in such a manner he would be dismissed.[15]

• [35] Mr Smith says that Mr Hawkesford told him he was dismissed and that he begged for his job back. In support of his version of events that Mr Hawkesford dismissed him Mr Smith filed a photograph of a text message from his wife asking him how the meeting went and his response timestamped 10:06am on 16 June telling her that Mr Hawkesford had wanted to sack him. Mr Smith also filed an undated text message timestamped 9:35am to his wife in which Mr Smith provided a detailed description of the meeting stating that he was given the choice of getting "sacked or apologise".[16]

• [36] Mr Smith was absent from work on holiday during July.[17]

• [37] Mr Smith says that on 5 August 2025 that he "... was called to a sales meeting with no notice.".[18] However the evidence reveals that on 4 August 2025 Mr Hawkesford emailed Mr Smith asking him when would be convenient that week to hold their monthly sales meeting (August Sales Meeting). [19]

• [38] In preparation for the August Sales Meeting, Mr Hawkesford produced the July Sales Report. Mr Hawkesford suspected that Mr Smith was spending an inappropriately excessive amount of time at home. Mr Hawksford reviewed the vehicle tracker log which confirmed that the vehicle was parked at Mr Smith's residential address for extensive periods of time during business hours for an employee whose role was to generate sales. Of greater concern to Mr Hawkesford was the log which showed 'up to' 4 trips to Perth from Hocking (and return) per week during usual business hours, which Mr Hawkesford suspected were unrelated to any work place activity. [20] Mr Smith's wife is employed at a location in Peth City.[21] Mr Smith's residential address is in Hocking.[22]

• [39] The August Sales Meeting commenced at about 9.00am on Tuesday, 5th August 2025. Mr Hawkesford says the meeting quickly moved to the topics of: sales performance, vehicle use and effort. [23]

• [40] Mr Hawkesford says he raised with Mr Smith that he was concerned that Mr Smith was spending an inappropriate amount of time at home during business hours when he should have been visiting clients or prospective clients. Mr Hawkesford admits that Mr Smith's explanation that he was spending a lot of time at home as he 'had nothing to do' triggered a strong reaction from him. Mr Hawkesford says that he was annoyed by Mr Smith's attitude and recalls responding that it is Mr Smith's job to 'find new customers'.[24] Mr Hawkesford says that upon being challenged about his work ethic Mr Smith told him that he was 'resigning' and left the room. [25] Mr Hawkesford is adamant that he did not tell Mr Smith that he was dismissed or that he must resign or be dismissed.[26]

• [41] Mr Smith says that he queried why he was being asked about July sales given that he had been absent on leave. Mr Smith says he was told that the vehicle tracker revealed it was often in the city and he was asked why he was there. Mr Smith says that he told Mr Hawkesford that he had stopped for a coffee. Mr Hawkesford asked Mr Smith why he spent 16 hours at home. He says he explained that he was ill. Mr Smith says he was then asked whether he was using the vehicle excessively for private use. He also says that Mr Hawkesford said he was not paying $60 an hour for him to sit at home.[27]

• [42] Mr Smith says that Mr Hawkesford then told him he was sacked and demanded that Mr Smith give back his laptop and company car telling him that he would arrange for Mr Smith to be driven home. However Mr Smith also says that Mr Hawkesford told him that he could resign and he would pay Mr Smith his wages and outstanding commission. Mr Smith says that as he left the room Mr Hawkesford warned him to make his decision quickly because being dismissed at his age would make find alternative employment difficult. [28]

• [43] Mr Smith filed a copy of undated handwritten notes which he says he took during the meeting. These notes are difficult to read. When viewed closely they appear to have been written with two different pens. The notes appear to include the word 'dismissed' on two occasions. There does not appear to be any reference to a resignation.[29]

• [44] After Mr Smith's departure Mr Hawkesford sent at email to Mr Smith at 9.21am with a list of items that Mr Smith was required to return. [30] The content of the email is more consistent with Mr Hawkesford evidence that Mr Smith resigned and walked out of the room, than with Mr Smith's evidence that Mr Hawkesford had already instructed him to return company property.

• [45] Mr Smith says he left the work premises in the company vehicle and rang a lawyer for advice but that no one was available to speak to him. This is inconsistent with his evidence that Mr Hawkesford told him in the meeting that he was dismissed and that he would arrange a lift home for him given he was no longer entitled to use the company vehicle. [31]

• [46] Mr Smith then says he rang his wife who told him that they needed money so he should resign. Mr Smith says that he then sent Mr Hawkesford a 'forced resignation'.[32]

• [47] The email sent by Mr Smith to Mr Hawkesford at 9.30am (Resignation Email) expresses Mr Smith's discontent with having performance issues raised with him at the meeting earlier that day without prior warning. The Resignation Email requests the payment of Mr Smith's outstanding wages and commissions plus two weeks notice. In the body of the Resignation Email Mr Smith states:

"I still exceed my predecessor achievements and feel that I have no other choice than to resign as this is totally unacceptable"

• [48] The Resignation Email concludes with the statement:[33]

"Ad [SIC] this is now gone beyond any professional person can take this as my notice to terminate"

• [49] The Resignation Email is consistent with Mr Hawkesford's evidence that Mr Smith resigned during the meeting because he was unhappy with criticisms being made of his performance.

• [50] If Mr Smith's resignation was, as he alleges, at Mr Hawkesford's direction and only in order to secure his entitlements then it would have been unnecessary for Mr Smith to provide reasons for his resignation or to request payment of his entitlements. He would have needed only to send an email stating that he was resigning.

• [51] Mr Hawkesford responded to Mr Smith's email at 9:42 as follows:[34]

I understand your frustration as you were sometimes unhappy the way I ran things, but at the end of the day this is my business, and I make the decisions.

I have enjoyed working with you and it was never my intention for it to go the way it did in our meeting, but saying you were at home because you had nothing to do is just no good enough for me. I think we both expect different things from each other and so I am happy to except your termination, and you will be paid all entitlements in full once all Chemsol property is returned. I am happy to pay for the ride home for you or get one of the guys to take you home.

If you leaving all goes well, I am happy to offer any new employer a reference"

• [52] Mr Hawkesford's email is consistent with his evidence that Mr Smith resigned in frustration at the July Meeting after having performance issues raised with him. It is not consistent with Mr Smith's evidence that the payment of entitlements was dependent on his tendering of a resignation.

• [53] Mr Smith replied again requesting payment of his termination payment.[35]

• [54] Mr Hawkesford responded as follows:[36]

I am trying to do the right thing, but I need the Chemsol property back before we can finalise all payments.

Last weeks wage will get paid today and we will process your commission and final payment tomorrow if everything is returned.

You are still working for Chemsol today so please deliver all Chemsol property back today."

• [55] Mr Smith's response was as follows:[37]

Plus offering 3 weeks is what I'm due as I've worked there 3 years

Sorry but you saying you will do what you want as it's your company is tgd same as when you decided not to pay me for items sold

It's not right and when I was duped in to a normal meeting ref wages and this one

The law says I have to be told prior and I'm allowed a person of my choice in any disciplinary

So please pass on as requested and I will be in touch when I find out what's going on

• [56] This email is consistent with Mr Smith's evidence that he was in the process of seeking legal advice.

• [57] Mr Hawkesford responded as follows:[38]

This was not a planned thing as I don't have a plan B. If I knew this was going to happen, I would have organised a replacement.

There is no one starting and I have not advertised yet.

Happy for you to get advice, but in the end you left.

Sorry, you are right you are due 3 weeks as you are over 45 years old. You started on the 19th of August 2022 and you finished today, so it is under 3 years. I am happy to pay you 4 weeks if you can bring back Chemsol property today.

As I have told you I am not in the habit of not paying staff or underpaying staff, that's not how I operate."

• [58] This email is consistent with Mr Hawkesford's version of events that Mr Smith resigned in frustration in the course of the meeting and that this was not Mr Hawkesford intended outcome of the meeting.

• [59] On 6 August 2025 Mr Smith informed Mr Hawkesford that the company vehicle had been left in a public car park and that he had been taken to hospital. In the email Mr Smith states:[39]

"I'm still in hospital and as you were sacking me and gave me the option to resign I did"

In same email Mr Smith refused to return company property until all the commissions that he claimed to be entitled to had been paid.[40] This is the first occasion in any of the correspondence where Mr Smith contemporaneously with the separation first mentions that he was dismissed. Mr Smith conceded in cross examination that he had obtained legal advice.[41]

• [60] On 6 August 2025 Mr Hawkesford responded to confirm he had located and taken possession of the company vehicle and that all wages including three weeks notice would be paid that day.[42]

• [61] Mr Smith did not ultimately return the remaining company property until a later date.

• [62] An order for compensation may only be issued if Mr Smith was unfairly dismissed and Mr Smith was protected from unfair dismissal at the time of his dismissal.

• [63] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period and one or more of the following apply:

1. a modern award covers the person;
2. an enterprise agreement applies to the person in relation to the employment;
3. the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the Fair Work Regulations 2009 (Cth) (FW Regulations), is less than the high income threshold.

• [64] For the purposes of Part 3-2 of the FW Act a person is an employee if they are employed by a national system employer. There is no dispute and I am satisfied that Chemsol is a national system employer and Mr Smith is therefore a national system employee.

• [65] Depending on the number of employees employed by an employer the minimum employment period is either six or twelve months.

• [66] Mr Smith commenced permanent employment with Chemsol on or around 19 August 2022.[43] Mr Smith's employment ended on 5 August 2025.[44]

• [67] I am therefore satisfied that, at the time his employment ended, Mr Smith was an employee who had completed a period of employment of at least the minimum employment period.

• [68] There is no dispute, and I am satisfied, that Mr Smith's earned less than the high income threshold at the time his employment came to an end.

• [69] There is no dispute and I am satisfied that Mr Smith is therefore protected from unfair dismissal.

• [70] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:

1. the person has been dismissed;
2. the dismissal was harsh, unjust or unreasonable;
3. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
4. the dismissal was not a case of genuine redundancy.

• [71] The term 'dismissed' is defined in section 386 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."

• [72] Section 386(2) of the FW Act contains some exceptions which are not applicable to this Application.

• [73] According to the Explanatory Memorandum to the Fair Work Bill 2008:

1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12)."

• [74] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[45], the Full Bench differentiated the two limbs of s.386 as follows: [46]

"[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 conductis 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 (sic) 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."

• [75] Mr Smith has not sought to characterise his separation as a 'heat of the moment' resignation. He did not seek to retract the resignation in the hours or days after it was given. In his evidence and his submissions he has insisted that his resignation was forced in the manner contemplated by the second limb of s.386 of the FW Act.

• [76] Mr Smith says variously that his employment with Chemsol came to end in the following way:

1. Mr Hawkesford dismissed him during the course of the August Sales Meeting.
2. Mr Hawkesford forced him to resign by threatening at the August Sales Meeting to dismiss him and withhold his accrued entitlements if he did not resign.

• [77] Mr Hawkesford disputes both these assertions and says that Mr Smith resigned during the August Sales Meeting then confirmed his resignation in writing by way of the Resignation Email.

• [78] As a matter of fact and law Mr Hawkesford could not have dismissed Mr Smith AND given him the opportunity to resign. Once dismissed the employment relationship is ended and resignation is not possible.

• [79] On the balance I favour the evidence of Mr Hawkesford as to the events which occurred at the August Sales Meeting over the evidence of Mr Smith. There are many inconsistencies in Mr Smith's written and oral evidence and submissions (a number of which are referenced earlier in this decision). Mr Hawkesford appeared to be a more truthful witness. If he could not remember events accurately, he conceded this and was willing to make concessions adverse to his case in written and oral evidence for example that he became frustrated in the course of the August Sales Meeting. [47]

• [80] That Mr Smith might get angry, frustrated and impulsive when challenged is consistent with his behaviour during the Hearing in which he became increasingly assertive in tone, louder in volume and increasingly dismissive of guidance given to him or responses unsatisfactory to him.

• [81] The first email exchanged between the parties after the August Sales Meeting was Mr Hawkesford's request that Mr Smith return company property. This is consistent with Mr Smith having resigned and having stormed out of the meeting. If the meeting had concluded as Mr Smith suggests with Mr Hawkesford waiting for Mr Smith's decision as to whether he wished to resign rather than be dismissed then Mr Hawkesford would logically wait to receive email confirmation from Mr Smith as to which option Mr Smith had chosen before instructing Mr Smith about the return of property.

• [82] The Resignation Email references resignation on two occasions and provides detailed reasons for the resignation. The Resignation Email is consistent with Mr Hawkesford's evidence that Mr Smith resigned during the meeting because he was unhappy with criticisms being made of his performance. If Mr Smith's resignation was, as he alleges at Mr Hawkesford's direction and only in order to secure his entitlements, then it would have been unnecessary for Mr Smith to provide reasons for his resignation or to request payment of his entitlements. He would have needed only to send an email stating that he was resigning.

• [83] There is no evidence that Mr Hawkesford intended the August Sales Meeting to be anything other than a discussion about his concerns about Mr Smith's performance of his role. The dismissal of a senior employee in a small business without pre planning is rarely a desirable course of action for a small business owner. This is consistent with Mr Hawkesford's email in response to the Resignation Email which stated that "I have enjoyed working with you and it was never my intention for it to go the way it did in our meeting" [48] and his follow up email which stated:

This was not a planned thing as I don't have a plan B. If I knew this was going to happen, I would have organised a replacement.

There is no one starting and I have not advertised yet.

Happy for you to get advice, but in the end you left. [49]

• [84] There is no evidence that Mr Hawkesford had advertised to fill Mr Smith's role or that Mr Smith was quickly replaced.

• [85] It is not until Mr Smith's email of 6 Aug 2025 that he makes any reference to being told that he was dismissed or that he was offered the option to resign. It appears that this email was sent around the time Mr Smith secured legal advice.[50]

• [86] For all of these reasons I prefer the evidence of Mr Hawkesford that he did not dismiss Mr Smith or inform Mr Smith that he would dismiss him if he did not resign over that of Mr Smith to the contrary.

• [87] Having found that Mr Hawkesford did not dismiss Mr Smith nor tell Mr Smith that he would dismiss him if he did not resign I have also considered where Mr Hawkesford conduct in the August Sales Meeting was such as to leave Mr Smith with no alternative but to resign. In effect making the resignation a dismissal at Chemsol's initiative in the manner contemplated by the second limb of s.386 of the FW Act.

• [88] The onus to prove that a resignation was not voluntary and constituted what is colloquially described as 'constructive dismissal' lies with the employee alleging constructive dismissal occurred.[51] Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be "closely drawn and rigorously observed."[52]

• [89] Further it has been found that where an employee is subject to disciplinary procedures or performance management, this is not in itself sufficient to demonstrate that a resignation was forced by the actions of the employer.[53] A statement that an employee's employment may be terminated as a result of an investigative process is not, on its own, determinative of whether a constructive dismissal has occurred. [54] In Pacific National (NSW) Ltd v Bell[55], the Applicant, Mr Bell resigned prior to the conclusion of a formal investigation regarding his falsification of timesheets. The evidence was that Pacific National had informed Mr Bell that it took the allegations seriously and that his employment may be terminated. The Full Bench concluded that Mr Bell had 'jumped before he was pushed' and that his employment was not terminated at the initiative of Pacific National.

• [90] In Jodie Moore v Woolworths Group Limited T/A Big W[56], Deputy President Lake made the point that:[57]

"...it would be a perverse outcome to consider an objectively fair investigation and show cause process as imposing forcibly upon the Applicant that they must resign."

• [91] The usual purpose of an investigation is not, of itself, to bring about termination. Rather, the intention is to ascertain, with a degree of certainty, what event or series of events - transpired and, if relevant, their cause. Once that information is gathered and conclusions drawn, the employer can decide what action is appropriate.

• [92] In support of his position that his resignation should be treated as a dismissal Mr Smith cited Costigan v KOR Equipment[58]. In that case KOR Equipment conceded that a decision had been made to terminate the employment of Mr Costigan but that it had offered Mr Costigan chance to resign instead to maintain his dignity.

• [93] As I noted earlier in this decision there is no evidence that Mr Hawkesford intended the August Sales Meeting to be anything other than a discussion about his concerns about Mr Smith's performance of his role. This is consistent with Mr Hawkesford's email in response to the Resignation Email which stated that "I have enjoyed working with you and it was never my intention for it to go the way it did in our meeting" [59] and his follow up email which stated:

This was not a planned thing as I don't have a plan B. If I knew this was going to happen, I would have organised a replacement.

There is no one starting and I have not advertised yet.

Happy for you to get advice, but in the end you left. [60]

• [94] There is no evidence that Mr Hawkesford had advertised to fill Mr Smith's role or that Mr Smith was quickly replaced. It appears that Mr Hawkesford purpose was simply to alert Mr Smith to his concerns so that Mr Smith might address them.

• [95] Faced with mounting pressure about his private use of the company vehicle and his sales performance and dissatisfaction with the calculation of commissions, it seems that the Mr Smith made the decision to resign from his employment, perhaps - rightly or wrongly - in anticipation of the potential termination of his employment. I do not, however, accept that was the only option available to him. Nor, am I satisfied did Mr Hawkesford's conduct forced Mr Smith to resign.

• [96] I therefore find that the termination of Mr Smith's employment was at his own initiative and not at the initiative of his employer. I also find that he was not forced to resign because of conduct, or a course of conduct, engaged in by his employer.

• [97] Mr Smith therefore was not "dismissed' for the purposes of section 385 of the FW Act and is not therefore protected from unfair dismissal pursuant to section 396 of the FW Act. In these circumstances the FWC is unable to consider the merits of his application for a remedy from unfair dismissal. The Application is therefore dismissed.

• [98] An Order[61] to this effect will be issued with this Decision.

[1] Warrell v Walton [2013] FCA 291; (2013) 233 IR 335, 341 [22].

[2] Digital Court Book (DCB) at 173.

[14] FWC Transcript of Proceedings (Transcript), 21 November 2025, [PN392] (Binet DP).

[22] Ibid 5, 12, Transcript (n14) at PN295.

[45] [2017] FWCFB 3941.

[46] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [47].

[51] Australian Hearing v Peary [2009] AIRCFB 680(Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].

[52] Doumit v ABB Engineering Construction Pty LtdPrint N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

[53] Pacific National (NSW) Ltd v Bell[2008] AIRCFB 555.

[54] Moore v Woolworths Group Limted T/A Big W [2020] FWC 963 at [26].

[55] [2008] AIRCFB 555.

[56] [2020] FWC 963.

[57] Moore, Jodie v Woolworths Group Limted T/A Big W - [2020] FWC 963 at [29].

[58] Mr Michael Costigan v KOR Equipment Solutions Pty Ltd [2022] FWC 176.

[61] PR793932.

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