Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Drilling Services International Pty Ltd Trading AS Acc Corporate

Application to deal with contraventions involving dismissal

• [1] On 1 August 2025 Sarah Sheets (Applicant) lodged an application with the Fair Work Commission (Commission) to deal with a general protections dispute which she alleged involves dismissal. The respondent to the application is Drilling Services International Pty Ltd (Respondent). The Respondent objected to the application, submitting that the Applicant was not dismissed from her employment but rather resigned voluntarily.

• [2] A person may only make an application for the Commission to deal with a dismissal dispute under s.365 of the Fair Work Act 2009 (Cth) (Act) if they have been dismissed. As such, in order to determine whether the Commission has the jurisdiction to hold a conference to deal with the dispute, the question of whether the Applicant has been dismissed needs to be determined as a threshold issue.

• [3] Section 386 of the Act 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.

(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."

• [4] It is not in contention that the circumstances in s.386 (2) and (3) do not apply in this case.

• [5] A hearing was held on 12 November and 21 November 2025 to determine the question of whether the Applicant was dismissed. The Respondent filed submissions on 10 October 2025, the Applicant filed submissions on 31 October 2025, and the Respondent filed submissions in reply on 7 November 2025.

• [6] Both the Applicant and Respondent sought to be represented by a lawyer. The nature of the jurisdictional objection raised complex factual and legal considerations concerning whether the Applicant resigned or whether the Applicant's employment was terminated on the initiative of the Respondent and I considered that the matter would proceed more efficiently if the Commission was assisted by lawyers in the proceedings. As such I granted permission for both the Applicant and Respondent to be represented by a lawyer pursuant to s.596(2)(a) of the Act.

• [7] The Applicant gave evidence on her own behalf, filing a witness statement on 20 October 2025. The following witnesses gave evidence for the Respondent:

• Mark Liesegang, the Managing Director/Owner of the Respondent, in respect of whom witness statements dated 9 October 2025 and 7 November 2025 were filed;
• Brooke Fitch, an Administrative Assistant who works for the Respondent, in respect of whom witness statements dated 9 October 2025 and 10 November 2025 were filed, with the signed version of the statement of 10 November 2025 filed on 21 November 2025;
• Sean Johnson, an Operations Supervisor who works for the Respondent, in respect of whom witness statements dated 9 October 2025 and 8 November 2025 were filed;
• Nathan Agar, an Operations Manager who works for the Respondent, in respect of whom witness statements dated 9 October 2025 and 7 November 2025 were filed;
• Prue Bassett, an Administration Manager who works for the Respondent, in respect of whom a witness statement dated 7 November 2025 was filed.

• [8] The evidence establishes that on the morning of 22 July 2025 Ms Bassett convened a meeting in which the Applicant and Ms Fitch were present. During that meeting Ms Basset advised she would be preparing the payroll calculations for the week and that they would be complicated due to the year-end bonuses and pay rises that were being awarded in that pay cycle.

• Although both she and the Applicant have access to the payroll folder they needed to be given permission by management to access it.
• In the meeting on 22 July 2025 Mr Bassett told the Applicant during the meeting that she would let her know when payroll was completed and ready to be reviewed.
• Ms Bassett told the Applicant not to access the payroll documents until she told her she was done.
• Approximately 15 minutes later the Applicant approached Ms Fitch at her workstation and asked if she was aware that she was receiving a higher bonus and increase in pay than the Applicant and told her what her pay rise and bonus was.
• Ms Fitch told the Applicant she was yet to receive her letter and had no idea what pay rise or bonus she was getting.
• The Applicant told Ms Fitch that if she did not receive the same pay increase and bonus "she was resigning".
• The Applicant told Ms Fitch she had accessed the payroll folder and at that time Ms Bassett had not yet given permission for the folder to be accessed.
• Later that morning Ms Bassett sent a message advising that payroll was ready and after that message was sent, the Applicant approached Ms Fitch again and asked if she knew about her pay rise and bonus.
• Ms Fitch told the Applicant she had not received her letter and was not aware of what Mr Liesegang had decided to do.
• The Applicant responded again by saying that if she was not given the same pay increase and bonus she "will be resigning".
• Ms Fitch went to the kitchen and heard the Applicant aggressively approaching her, raising her voice saying, "it's not fair that you get a higher bonus and pay rise than me".
• The Applicant again asked whether Ms Fitch knew what the pay rise and bonus was, Ms Fitch then turned around and the Applicant was positioned right up to her face and continued to step towards her.
• Ms Fitch told the Applicant that she could not help her and did not know what was happening to which the Applicant responded by saying if they did not give her the same pay increase as Ms Fitch "she would hand in her resignation".
• Ms Fitch started walking backward and the further she walked back the more the applicant walked towards her until she was against the fridge.
• The Applicant started raising her voice aggressively and told Ms Fitch she was going into Mr Agar's office to hand in her resignation.
• After returning from Mr Agar's office, the Applicant kept saying it was not fair that she was getting a lower pay rise and bonus as she had a certificate in bookkeeping and had been with the Respondent longer than Ms Fitch.

• [10] The Applicant gave different evidence and said that she had a conversation with Ms Fitch near the fridge in which she said words to the effect:

• of "Maybe I should resign as it would seem Mark doesn't value my work as much as he did yours"; and
• that she was going to talk to Mr Agar and ask if he knew anything about the pay rises and bonuses.

• [11] The Applicant indicated she was frustrated, angry and upset with Mr Liesegang and not Ms Fitch and denied:

• aggressively approaching or raising her voice at Ms Fitch;
• being right up in Ms Fitch's face and stepping towards her;
• telling Ms Fitch that if she didn't get the same pay increase, she would hand in her resignation;
• telling Ms Fitch that she was going into Mr Agar's office to hand in her resignation. The Applicant said she instead said words to the effect that she was going to talk to Mr Agar and ask if he knew about the pay rises and bonuses and why hers was less than Ms Fitch's.

• [12] On 23 July 2025 Ms Fitch emailed Mr Liesegang, Mr Agar and Ms Bassett regarding the incident. In that email Ms Fitch indicated that she felt very uncomfortable during the interaction and that the Applicant had said "she was going to speak to [Mr Agar] and intended to hand in her resignation."

• [13] Mr Johnson gave evidence that on 22 July 2025 he went to see Ms Fitch and:

• noticed Ms Fitch's mannerisms were different from normal;

• asked Ms Fitch what was wrong as she was visibly upset;

• Ms Fitch told him that the Applicant 'had a go at her' and was in the office with 'Nathan', who I understand is a reference to Mr Agar;

• Ms Fitch told him that the Applicant had accessed payroll documents, that Ms Fitch's pay and bonus was higher than the Applicant's and when the Applicant and Ms Fitch were in the lunchroom, the Applicant confronted her about it.

• [14] Mr Agar gave evidence that on 22 July 2025:

• he was sitting in his office when the Applicant stormed into his office, began raising her voice and said "if I am not remunerated the same as Brooke I'm handing in my resignation";

• the Applicant continued to repeat herself and said "I've got more certificates, more qualifications and I've been here longer";

• the Applicant calmed down once sitting down and continued to say if she did not receive the same remuneration as Ms Fitch "she was resigning" and said this a few times;

• he tried to explain the potential reasons why the Applicant was not receiving a higher pay rise and bonus;

• he mentioned a few times that he would talk to Mr Liesegang about the pay rises and bonuses and the Applicant left his office.

• [15] Mr Agar gave evidence that he had not yet been made aware of any approved pay rise or bonus and that any pay rises and discretionary bonuses needed to be signed off by Mr Liesegang.

• [16] The Applicant gave evidence that after her discussion with Ms Fitch she visited Mr Agar in his office and:

• said words to the effect of "it appears that I am not being valued by the company the same as Brooke, so I may as well resign";

• Mr Agar told her he did not know anything about the difference in pay;

• Mr Agar expressed concerns that she had accessed confidential information;

• told Mr Agar that she would wait and see if Mr Liesegang would approach her to explain why she was being paid less than Ms Fitch;

• when she first spoke with Mr Agar she was very upset, angry, annoyed, distressed and frustrated about the situation and spoke louder than she normally would have but did not yell;

• she became calmer as it became clear that Mr Agar was not involved in the decision-making process concerning pay and bonuses;

• after she discussed her pay concerns with Mr Agar, she and Mr Agar discussed arrangements to reallocate her work responsibilities while she was on annual leave in Canada between 13 August 2025 and 12 September 2025;

• she told Mr Agar she could assist with a job involving completing of a lot of purchase orders and product builds and offered to take her laptop overseas;

• Mr Agar said he would talk to Mr Liesegang about this offer and come back to her.

• [17] The Applicant gave evidence that about 20 minutes later she spoke to Mr Agar and asked him not to say anything to Mr Liesegang about the pay rises and bonuses as she wanted to wait and see what Mr Liesegang said to her about these issues first. The Applicant said she then returned to her desk where she completed the payroll review.

• [18] The Applicant gave evidence that she:

• never told Mr Agar that she intended to resign or was resigning;

• did not tell Mr Agar that if she didn't get a pay increase or bonus that was the same as Ms Fitch's she would resign;

• did not provide a written letter of resignation to Mr Agar.

• [19] Mr Agar gave evidence that later on 22 July 2025:

• Ms Fitch came into his office and told her that the Applicant had been aggressive and had confronted her in the lunchroom regarding the pay rise and bonus;

• Ms Fitch told her that if she didn't get the same pay rise or bonus she would resign;

• some time after Mr Fitch left his office, Mr Johnson came to his office and he told Mr Johnson about the interaction with the Applicant and that he would be calling Mr Liesegang about it;

• he called Mr Liesegang to tell him about what had happened and Mr Liesegang said he would handle it from there.

• [20] This is broadly consistent with the evidence of Mr Johnson who said on 22 July 2025 he went to see Mr Agar and:

• Mr Agar informed him that the Applicant barged into his office and began making demands, disclosed her pay rise and bonus and said if she didn't get the same pay rise and bonus as Ms Fitch she "was resigning";

• Mr Agar said he was not aware of what Mr Liesegang had done with the bonuses and financial increases;

• Mr Agar informed him that he would be calling Mr Liesegang later that night to update him on the events that transpired with the Applicant.

• [21] On the morning of 23 July 2025 Mr Agar emailed Mr Liesegang providing his account of events and raising concerns about the Applicant's behaviour. Mr Agar's email indicated that:

• the Applicant said to him "if I am not remunerated the same as what Brooke received I will be handing in my letter of resignation";

• the Applicant kept mentioning a letter and said she would wait to receive a letter from Mr Liesegang;

• he had always defended the Applicant on previous issues, but it was hard for him to defend her actions on 22 July 2025, and he considered the Respondent could not "have that in the workplace".

• Mr Agar called him late in the afternoon on 22 July 2025 and informed him about what had happened between the Applicant and Ms Fitch and the Applicant and Mr Agar;

• Mr Agar informed him that the Applicant demanded the same pay and bonus as Ms Fitch otherwise she was resigning;

• he informed Mr Agar that he would take appropriate action the next day;

• on 23 July 2025 he reviewed the emails from Ms Fitch and Mr Agar regarding the incident on 22 July 2025 and determined that the Applicant's behaviour and conduct was unacceptable and contravened the Applicant's employment contract and the Respondent's policy;

• he proceeded to write up the outcome letter confirming he was accepting the Applicant's resignation;

• he met with the Applicant, gave her a copy of the letter and read it out;

• at no point did the Applicant argue against the outcome letter, say she had not resigned, or rescind her resignation.

• [23] Mr Johnson gave evidence that on 23 July 2025:

• Mr Liesegang called him in the morning and told him that due to the Applicant's conduct and poor performance, he would be issuing her with a letter saying he accepted her resignation and was going to write up an outcome letter confirming this;

• Mr Liesegang asked him to attend the meeting between himself and the Applicant;

• about two to three hours later he attended that meeting and Mr Liesegang proceeded to read the outcome letter to the Applicant word for word while the Applicant had a copy of that letter in her hand;

• saying she wanted to talk about the matter further.

• [24] The Applicant gave evidence to the effect that she was prevented from saying anything in response and that she did not tell Mr Liesegang she intended to resign or was resigning.

• [25] The Respondent submitted that the Applicant was not dismissed but resigned of her own volition. During the hearing the Respondent submitted that the Applicant engaged in a concerted course of conduct on 22 July 2025 in repeatedly relaying to Ms Fitch and Mr Agar the concerns and actions she would take and in repeating the same ultimatum, i.e. that if she did not get the same pay and bonus she would resign. The Respondent submitted that this amounts to a clear and unequivocal resignation. The Respondent submitted that Mr Liesegang considered that the Applicant's intention was clear, that the only way the resignation was to be subverted was that if the pay demands were met and considering the Applicant's conduct, he did not accede to the request and would instead accept the resignation. The Respondent also submitted that the Applicant's silence during the meeting on 23 July 2025 further confirms the Applicant's resignation.

• [26] The Applicant submitted that there is no evidence of a clear and unequivocal resignation. In the alternative, the Applicant submitted that if there is a finding that the Applicant resigned, the Applicant did so in the heat of the moment, and the Respondent did not take adequate steps to confirm with the Applicant whether she did in fact intend to resign within a reasonable period. The Applicant noted that the Commission only needed to deal with this alternative submission if it found that there was a resignation. The Applicant did not concede that there was a resignation.

• [27] The evidence establishes that the Respondent's usual payroll procedure involved Ms Bassett completing the payroll, advising the Applicant that she had finished and then telling the Applicant so she could check it. During the hearing Ms Bassett indicated that while this was a procedure or practice it was not a formal directive. On 22 July 2025 the Applicant departed from this practice and checked the payroll file early. It was in that pay run that employees were to be given pay increases and bonuses and this had been communicated to the Applicant that morning. While the Applicant said she did this because Ms Bassett said the calculations were complicated and she wanted to make a start on them, given the Applicant's departure from practice and the events that followed it seems more likely that she did this because she was eager to see her own pay increase and bonus.

• [28] In doing so, the Applicant discovered that Ms Fitch had received a bonus and pay increase higher than her own. The Applicant clearly considered this to be unfair and became angry and upset and confronted Ms Fitch and Mr Agar. The Applicant wanted a pay rise and bonus that was equal with what had been given to Ms Fitch. I accept that the Applicant:

• told Ms Fitch that if she did not receive the same pay increase and bonus "she was resigning" and "will be resigning";

• told Ms Fitch that if she did not get the same pay increase that Ms Fitch was getting, "she would hand in her resignation";

• told Ms Fitch she was going into Mr Agar's office to hand in her resignation.

• [29] I also accept that the Applicant said to Mr Agar words to the effect of:

• "if I am not remunerated the same as Brooke I'm handing in my resignation"; and, more specifically,

• "if I am not remunerated the same as what Brooke received, I will be handing in my letter of resignation".

• [30] However, Mr Agar was not the decision maker concerning pay rises and bonuses, and said that he would talk to Mr Liesegang about this, and the Applicant left his office. During her discussion with Mr Agar the Applicant became aware that Mr Agar did not have knowledge of these matters, that Mr Liesegang was the decision maker concerning pay outcomes and she was clearly anticipating further communications with Mr Liesegang. Indeed, Mr Agar indicated in his email of 23 July 2025 that:

"Sarah kept mentioning throughout this confrontation about a letter and she will wait to receive a letter from Mark. I think she is referring to the normal letter that is issued by the company when bonuses are issued (thanks for heard (sic) work over the year etc)..."

• [31] The statements made by the Applicant to Ms Fitch and Mr Agar do not amount to resignation in clear and unequivocal terms. Rather, they constitute a threat of resignation if certain conditions were not met. Whether those conditions were to be met was a matter for Mr Liesegang to decide and communicate to the Applicant who wanted to wait and see what Mr Liesegang said to her about these issues. Further communication from Mr Liesegang about the Application's pay and bonus did not occur.

• [32] Rather than discussing the Applicant's concerns about her pay, on 23 July 2025, the day after the Applicant had reacted poorly to the disparity in pay outcomes, Mr Liesegang met with the Applicant and provided her a letter. That letter set out a number of allegations concerning the Applicant's conduct and proceeded to state:

"Having regard to the above and considering all the information available to us we find each of the allegations proven, and in the present circumstances we will accept your resignation as your conduct outlined above is totally unacceptable.

We ask at your earliest convenience that you present by way of e-mail your written registration (sic)"

• [33] While the Respondent's position is that the Applicant resigned, I find that the Applicant merely threatened to resign if her demands were not met. Even if the resignation could be considered a conditional resignation, there was no further communication about whether those conditions would be met. During cross examination Mr Liesegang said, with reference to the outcome letter of 23 July 2025:

"...This letter is because of her aggressive nature, bailing up Brooke, both in the kitchen and in in her workplace, in her face to a point where Brooke had to back up against the fridge. Now, I can't stand for that kind of aggressive behaviour by any employee.

...And bursting into Nathan's office, standing in front of him in a very aggressive, loud manner, her superior - that's not acceptable. Sorry."

• [34] Mr Liesegang was clearly concerned about the behaviour of the Applicant and its impacts on staff and rather than having the conversation with the Applicant about her concerns regarding pay, he decided to adopt a different course of action by making clear that he considered the Applicant's conduct to be, as described in the outcome letter, "totally unacceptable". Mr Liesegang found each of the allegations concerning the Applicant's conduct to be proven and intervened to actively bring the Applicant's employment to an end. In those circumstances I find that the Applicant's employment was terminated on the Respondent's initiative and as such, the Applicant has been dismissed within the meaning of s.386(1)(a) of the Act.

The matter will now be listed for conference to assist the parties in resolving the matter.

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