s.365 - General protections

International Stone Pty Ltd Trading AS CMG Stone (Contemporary Marble and Granite)

Application to deal with contraventions involving dismissal

• [1] Nicholas Kopljar (Applicant) lodged an application with the Fair Work Commission (Commission) to deal with a general protections dispute which he alleged involves dismissal. The respondent to the application is International Stone Pty Ltd. (Respondent). The Respondent objected to the application, submitting that the Applicant was not dismissed from his 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 this dispute, the question of whether the Applicant has been dismissed needs to be determined as a threshold issue.

• [3] Both parties were self-represented, and a determinative conference was held on 9 December 2025 in order to determine these issues.

• [4] The Applicant provided a timeline of events between 2 July 2025 and 30 July 2025 that resulted in him becoming frustrated and stressed.

• [5] Daniel McAllum (McAllum) said that on 23 July 2025 he was notified by two staff members that the Applicant had another job and was quitting.

• [6] Mr McAllum said that on 28 July 2025:

• he asked the Applicant whether the rumours were true;
• the Applicant said he didn't know if he wanted to work for the Respondent anymore, indicating this was not because of anything Mr McAllum or Ms Paula McAllum (McAllum) had done but he thought he had lost the respect of his fellow workmates and this was making it hard for him to continue in his role as factory Foreman;
• he responded stating he was willing to help him regain the respect and trust of his workmates by adding additional management support and did not want him to leave;
• he took the opportunity to clear up another couple of issues, including:
• directing the Applicant not to use his company car for other work he had been doing and telling the Applicant his role at the Respondent had to take precedence over his other work;
• directed the Applicant not to leave the workplace to organise rendering jobs or drop material off in work hours.

• [7] During the hearing the Applicant said the above conversation occurred on 30 July 2025.

• [8] The Applicant said that at 3:30pm on 30 July 2025 a coworker started abusing him for not having completed certain work that he has pushed back on and the Applicant:

• told him to "stop talking to me like a piece of shit"
• explained to the coworker why the work had been pushed back;
• explained to the coworker that nobody wanted to help him get the work done;
• 'exploded' and told the coworker he was done with picking up everyone's slack and he felt like he didn't want to be there anymore;
• the coworker then said to the Applicant "you can't leave who's going to run the machines and sort jobs out";
• the Applicant walked away to continue working.

• [9] The Applicant gave evidence that on 31 July 2025 he was at his machine working when a colleague walked over and told him that Mr McAllum wanted to speak to him. The Applicant said he went to see Mr McAllum and the following exchange occurred:

Mr McAllum: "So what is it? Are you staying or leaving?"

Applicant: "I honestly don't know what I want to do"

Mr McAllum: "Too easy. You've said what you had to. You can fuck off now", in a raised voice.

Mr McAllum: "You're exactly like [former manager] - both using pricks"

Applicant: "Don't you ever compare me to anyone else"

• [10] In the Form F3 response Mr McAllum said when the Applicant was told to "fuck off" it was not a direction to leave the company but was said to stop the Applicant harassing him as he needed time to think about the situation regarding the Applicant quitting. Mr McAllum indicated during the hearing that the Applicant regularly used this type of language and he would not have used those words otherwise.

• he 'got the hint' he had been dismissed but offered to work two or four weeks' notice to get someone trained up;
• Mr McAllum rejected this offer and started storming away;
• Mr McAllum then stormed back and demanded that the Applicant follow him upstairs to Ms McAllum's office together with another employee;
• Mr McAllum then pointed out everything he 'hated or disliked' about the Applicant, called him a sook and falsely accused the Applicant of blaming the other employee for wrongdoing;
• Mr McAllum then asked what the Applicant was going to do and the Applicant did not provide a response;
• Mr McAllum then asked "are we having this meeting then?" to which the Applicant replied stating he was happy to participate to see what was discussed.

• [12] Mr McAllum provided a different account of events and said on 29 July 2025:

• he approached the Applicant to see if things had improved and the Applicant responded by saying he was still unsure;
• he asked the Applicant if he had another job to which he said he had not but was getting offers;
• he responded to the Applicant stating that he felt the response was unfair, that the Respondent had always treated him well and deserved to know if it still had a Foreman;
• the Applicant went on to say he did not think he would stay;
• he walked away wanting time to think and the Applicant followed him;
• he asked the Applicant to let him be for a couple of minutes so he could talk to Ms McAllum but the Applicant continued to harass him stating it wasn't his fault but the fault of other employees;
• he told the Applicant to "fuck off" a couple of times;
• the Applicant asked if Mr McAllum was sacking him to which Mr McAllum said definitely not;
• Mr McAllum and the Applicant both entered Ms McAlllum's office with another employee to try and work things out;
• after some time, an understanding was reached, it was resolved that a staff meeting would take place the following day in which the Applicant was no longer to be sole factory Foreman but was to be the head of the CNC division as this would be an easier role with less stress but no reduction in pay or benefits.

• [13] Ms McCallum gave evidence that the meeting was intended to see what could be done to make things happy.

• [14] Mr McAllum said that on 30 July 2025 a staff meeting was held, staff were informed about the changes, and everyone seemed happy with the direction. The Applicant described this as a toolbox meeting in which a couple of small things were discussed to help him out.

• [15] Mr McAllum said by 31 July 2025 it appeared that everything was back to normal and there was no further correspondence between the Applicant and management and the Respondent believed that everything had 'gone back to how it was'.

• [16] Mr McAllum said on 3 August 2025 the Applicant accessed the factory without authorisation, removed items and used the company vehicle to take the items to his home before returning the vehicle. Mr McAllum said that neither he or Ms McAllum were aware that this was happening and only found out about the Applicant quitting via a third party. Both Mr and Ms McAllum said that the Applicant did not contact either of them on 3 August 2025.

• [17] The Applicant gave evidence that on Sunday 3 August 2025:

• he had time to think about what was said and moving forward;
• he felt that there was no recovering from the events and how Mr McAllum handled the situation;
• he went to work, opened the gate and took the rest of his belongings;
• he tried contacting Ms McAllum to let her know what he was doing but she did not answer so he locked up the ute and handed the keys over to a colleague;
• he advised the colleague to wait and let him email Ms McAllum or Mr McAllum what was going on but the colleague decided to message Mr McAllum before the Applicant was able to do so.

• [18] 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.

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

• [20] I accept that the Applicant had experienced a build-up of frustration, perceiving that his coworkers were not pulling their weight and did not respect him in his role of Foreman. This likely caused him to say words to the effect that he was done with picking up everyone's slack and he felt like he didn't want to be there anymore.

• [21] This sentiment was relayed by the coworkers to the owner of the business, Mr McAllum, who confronted the Applicant to understand whether he would be staying with or leaving the business. When the Applicant indicated that he was unsure, this likely caused Mr McAllum to become angry and frustrated. Mr McAllum seems to have attempted to remove himself from the situation, walking away to take time to think about the response and discuss the issue with Ms McAllum.

• [22] I accept Mr McAllum's evidence that he told the Applicant to "fuck off" a couple of times. This was inappropriate language to use however it is clear that Mr McAllum had formed the view that the Applicant was intending to leave the business, was very unhappy about this and wanted some space to think about the situation. It is likely that Mr McAllum said the inappropriate words when the Applicant attempted to continue dialogue with him when he was feeling angry and I find that the use of the words, considered in the context in which they were said, did not amount to the Respondent dismissing the Applicant.

• [23] The Applicant, who says he 'got the hint' he had been dismissed, offered to work two or four weeks' notice to get someone trained up. However, the Applicant had not been dismissed by the Respondent. Rather, Mr McAllum was plainly seeking to clarify the Applicant's intentions. The Applicant was not satisfied with his coworkers, had expressed this, and likely intended to resign. The meeting between the Applicant, Mr McAllum, Ms McAllum and another employee appears to have been Mr McAllum's attempt to work out a way forward between the parties and retain the Applicant. It seems Mr McAllum also used the meeting as an opportunity to raise matters concerning the Applicant that had been bothering him and, in an attempt to move forward, provided direction to the Applicant about these matters. It is also likely that structural changes were discussed at the meeting as a way of appeasing the Applicant's concerns about his coworkers not pulling their weight and not respecting him. While the meeting dynamics were likely uncomfortable for the Applicant at times as some difficult matters were discussed, I accept that the parties walked away from that meeting with a way forward that would be discussed at a staff meeting. The staff meeting was held, and the changes were discussed. At this time, the employment relationship clearly remained on foot, and the Applicant had not been dismissed.

• [24] After contemplation over the weekend, despite what had been discussed at the staff meeting, the Applicant formed the view that despite the changes that had been agreed and then discussed at the staff meeting, he did not want to remain employed by the Respondent. The Applicant accessed the factory on Sunday and collected his belongings, handed over his keys to a colleague and communicated to his colleague that he was resigning but wanted to tell Mr McAllum and Ms McAllum before the colleague did. While the colleague did not respect his wishes and appears to have informed Mr McAllum and Ms McAllum of the resignation, in my view the Applicant's actions, considered in their context, amount to resignation.

• [25] The Respondent wanted the Applicant to remain employed and had attempted to implement changes to secure that outcome. This was not a case where the Applicant had no real choice but to resign[1] or where the Respondent took action with the intent (or which had the probable result) of bringing the relationship to an end.[2] The employment was not terminated at the Respondent's initiative, and the Applicant was not forced to resign because of conduct, or a course of conduct, engaged in by the Respondent. Rather, the Applicant resigned voluntarily.

• [26] As such, I find that the Applicant was not dismissed within the meaning of s.386 of the Act and the application is dismissed.

Mr D. McAllum and Ms P. McAllum on behalf of the Respondent.

[1] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200, 206

[2] O'Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23]

Printed by authority of the Commonwealth Government Printer