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[54]
[2026] FWC 307
General information, not legal advice.
Fair Work Commission
2026-02-03
Original judgment source is linked above.
s.394 - Unfair dismissal
[1] This decision concerns the application made by Mr Spyridon Karagkoules under s395 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy.
[2] Mr Karagkoules was employed as a full-time factory fabricator by The Trustee for European Window Co Trust (European).
[3] Mr Karagkoules' employment was terminated verbally on 19 June 2025, effective that day. On 23 June 2025, European sent Mr Karagkoules a letter confirming the termination. European says that Mr Karagkoules was not dismissed and that his employment ended by mutual agreement. Mr Karagkoules contends that he was unfairly dismissed and is seeking compensation, rather than reinstatement.
[4] I conducted a Determinative Conference on 6 and 7 October 2025. I admitted the Digital Hearing Book (DHB) in its entirety with no objection from the parties. Both parties were unrepresented.
[5] Mr Karagkoules was engaged as a fabricator with European from 18 November 2024.
[6] Mr Karagkoules says that during his employment he was subjected to verbal abuse, swearing and belittling by co-workers which created a hostile work environment. He says he raised these issues with Mr Marshall Bell (Factory Manager, European) and Mr Carl Costabile (Managing Director, European).
[7] European says that it had concerns with Mr Karagkoules' behaviours and interactions with co-workers, which included him being aggressive and unable to work in a team. It says that these issues were the subject of a series of discussions between it and Mr Karagkoules. European says that it had no issues with Mr Karagkoules' capability, as he was a highly skilled fabricator.
[8] On 19 June 2025 a meeting took place between Mr Costabile, Mr Bell and Mr Karagkoules. European says Mr Karagkoules was not dismissed because the employment ended by mutual agreement. Mr Karagkoules says that he did not resign from his employment with European and that he was dismissed.
[9] The first issue I must be determine is whether Mr Karagkoules was dismissed. If I find that he was dismissed under s386(1) of the Act, then I must determine whether he was unfairly dismissed. If I find that he was not dismissed, then his unfair dismissal application must be dismissed.
[10] Before I determine whether Mr Karagkoules was dismissed, I first need to address an issue that arose with the evidence in this matter.
Evidence - Transcript and audio recordings evidence
[11] Much of the evidence relied upon by Mr Karagkoules in his case is transcript and audio recordings of two conversations that occurred at work. The first conversation was between Mr Karagkoules and Mr Bell which occurred on 18 June 2025. The second conversation, which occurred on 19 June 2025, was between Mr Karagkoules, Mr Costabile and Mr Bell. Mr Karagkoules says that his wife was able to record the conversations while he was on phone to her, and he was able to hear her through his earpiece. Mr Karagkoules filed a transcript of the recordings and the audio of both conversations.
[12] Two matters arise in my consideration of this evidence. Firstly, after having admitted these into evidence at the beginning of the Determinative Conference, it became apparent that Mr Costabile and Mr Bell were not aware of, nor consented to, these conversations being recorded.
[13] Secondly, at the Determinative Conference, Mr Costabile asserted that the transcript and audio recording of 18 June 2025 had been changed and was not a true reflection of the conversation that took place between himself, Mr Karagkoules and Mr Bell. At the Determinative Conference, it was Mr Karagkoules' and Mrs Karagkoules' sworn evidence that the transcript and audio had not been amended or changed in any way. I asked Mr Karagkoules on more than one occasion if the recordings had been changed. Mr Karagkoules said they had not. However, Mr Karagkoules subsequently conceded that he had amended both the transcript (by removing text from the transcript), and the audio (by inserting a cough to overdub a voice). He says he did so to remove himself telling Mr Bell that he had not taken his anxiety medication that day which may have caused him to react as he did. He says he removed it from the recordings because it was his private health information, and it was a private conversation with Mr Bell. It was Mr Karagkoules' evidence that no other changes were made to the transcript or the audio.
[14] However, it was Mr Costabile's submission that in the audio recording of 19 June 2025, Mrs Karagkoules can be heard saying to her husband 'ok, you're going to have to resign'. Mr Costabile says this demonstrates that Mr Karagkoules chose to leave and therefore, was not dismissed. Mr Karagkoules disputed this and said that he omitted his wife's comments from the transcript to keep the transcript focused on the conversation between Mr Costabile and Mr Karagkoules. He says that what his wife really said was 'ok, you're going to have to resign, but not today'. It was Mrs Karagkoules' evidence that she said the words 'you're going to have to resign, but don't say anything now'. Regardless of what was said, the words in question were omitted from the transcript by Mr Karagkoules.
[15] In my view, this exchange demonstrates why no regard can be had to the transcript and audio recordings of these two conversations, as they have been transcribed and changed to suit Mr Karagkoules' preferred version of events, and cannot be relied upon as a true and correct account of the conversations.
[16] I also note these recordings were conducted without the knowledge and consent of Mr Bell and Mr Costabile. The recording of private conversations is regulated by the Surveillance Devices Act 1999 (Vic) (SD Act).
"[60] Honesty, obedience, diligence, competence and due care are the foundation stones of an employee's duty to an employer. It is sometimes wrapped up under the term "good faith" or "duty of fidelity"."
[18] In this decision, the then Commissioner found that the applicant did not seek or obtain the permission of the meeting participants to have the meeting recorded and that this omission raises two issues for employers generally. Firstly, the employee is not being open and transparent in their actions with the employer. Secondly, the necessity of trust and confidence in the employment relationship is undermined because the integrity or probity of the employee's actions is not free from doubt for the employer.
[19] I agree with the view of the then Commissioner that secretly recorded discussions are objectionable because one party is being deceptive and purposefully misleading the other party. I also consider that secret recordings of a conversation with a colleague without their consent is both inappropriate and unfair to those who are being secretly recorded.
"[83] Unless there is justification, I consider the secret recording of conversations with co-workers to be highly inappropriate, regardless of whether it may also constitute a criminal offence in the relevant jurisdiction. The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated."
[21] I agree with the views expressed by the Deputy President.
[22] I consider the transcript and audio recordings of the two conversations are not evidence which I can or should have regard to because Mr Bell and Mr Costabile had no knowledge of, and did not consent to, their conversations being recorded. I also consider Mr Karagkoules changing the transcript and audio recordings so as not to accurately reflect the conversations to be a further reason for why I must disregard this evidence in its entirety.
[23] Section 386(1) of the Act states 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
[24] Section 386(2) of the Act sets out the circumstances where an employee has not been dismissed, none of which are relevant to the present matter.
[25] On 19 June 2025 there was a meeting between Mr Costabile, Mr Bell and Mr Karagkoules. At this meeting, Mr Costabile says that the ongoing issues with Mr Karagkoules' role, performance and team impact were discussed. Mr Costabile says the tone of the meeting on 19 June 2025 was calm, respectful and reflective. He says that they were not there to dismiss Mr Karagkoules but were there for a conversation about how they could make the relationship work. He says they spoke openly about the challenges, but it became clear to both parties that they were not going to resolve the issues. Mr Costabile says that at this meeting Mr Karagkoules acknowledged the interpersonal issues he had with multiple team members. It was Mr Costabile's evidence that Mr Karagkoules did not say that he was resigning, but rather it was a mutual decision of the parties.
[26] Mr Costabile says at the conclusion of this discussion, Mr Karagkoules 'stood up, shook my hand, and said words to the effect of, "Okay, well, that's that."' Mr Costabile says Mr Karagkoules then went downstairs and calmly collected his belongings, and spent approximately 45 minutes speaking with, and saying goodbye to several team members. As he was leaving Mr Costabile says that Mr Karagkoules asked him if he could contact him personally in the future if he needed help with Custom Window Work (which was his personal business). Mr Costabile says these are not the actions of someone who thinks that they have just been dismissed.
[27] Mr Costabile says that Mr Karagkoules did not object, protest, or request to remain employed, and that he made no further contact until he filed this application. He says that Mr Karagkoules made no efforts at the meeting, or after it, or expressed any desire to stay on, and did not ask to be reinstated, nor did he express shock. He says Mr Karagkoules' actions aligned with his decision to depart. There was no unilateral termination, no instruction or direction for him to leave, but instead recognition in real time by Mr Karagkoules that this was not going to work and therefore, this conduct is not consistent with a genuine dismissal. Instead, it is consistent with two parties coming to the end of a difficult working relationship and reaching an understanding to part ways professionally.
[28] Mr Karagkoules disputes Mr Costabile's version of the meeting on 19 June 2025 and does not agree that there was a 'mutual agreement' reached to the end of employment at European. He says that the meeting ended, and he was told to 'pack up your stuff' which he says he understood to mean he was terminated. Mr Karagkoules says he did not resign.
[29] Mr Karagkoules says that he was not aware of, nor had any issues ever been raised with him, about his interpersonal conflicts with his colleagues prior to the meeting on 19 June 2025. However, at the Determinative Conference he conceded that there had been discussions with him about these matters, and that these issues were discussed at the meeting on 23 May 2025.
[30] Mr Karagkoules says that the termination letter makes no mention of mutual agreement. He says that he did not mutually agree to finish and that he wanted to find a solution. On 23 June 2025, European sent the following to letter to Mr Karagkoules:
I am writing to formally advise you that your employment with European Window Co P/L has been terminated, effective 19 June 2025.
Following ongoing discussions and feedback, we have mutually agreed that ending your employment is the appropriate way forward. Despite efforts from both sides to improve collaboration and performance, we acknowledge that the necessary progress has not been achieved. We both recognise that the expectations of the role have not been met and that this has had a continued impact on the team's operations.
In accordance with the National Employment Standards, you will receive 1 weeks' pay in lieu of notice, and outstanding entitlements, including 67.21 hours unused annual leave plus 17.5% leave loading, will be paid in your final pay.
If you have any questions regarding your final pay or entitlements, please contact Yu Jun at 97637799 or accounts@eurowindow.com.au.
We thank you for your time with European Window Co and wish you all the best for the future.
Was Karagkoules dismissed at the initiative of the employer? (s386(1)(a) of the Act)
[32] Mr Costabile says he did not go into the meeting of 19 June 2025 with the intention of dismissing Mr Karagkoules, and that he was aware of the process that needs to be undertaken before a dismissal. He acknowledged that he was frustrated at Mr Karagkoules' unwillingness to take responsibility for his behaviours or accept that they needed to be addressed, and that he was relieved when the meeting ended this way.
[33] It was Mr Bell's evidence that at the end of the meeting, Mr Karagkoules said words to the effect 'well, I guess this is the end. This is not going to work this, is it?' and both the parties agreed this was the case. Mr Bell says they all then stood up, shook hands, and that Mr Karagkoules smiled, and things were calm and civil.
[34] I prefer the evidence of Mr Costabile and Mr Bell, over that of Mr Karagkoules regarding the meeting on 19 June 2025, and find that that the employment came to an end by mutual agreement. There is no evidence that Mr Karagkoules was dismissed at the initiative of European, but rather, after a long discussion the parties mutually reached the conclusion that it would come to an end. I consider Mr Karagkoules' actions at the end of the meeting are not consistent with someone who has been dismissed at the initiative of the employer. I accept the evidence of Mr Costabile and Mr Bell that the meeting was calm, that the parties shook hands at the end of it, that Mr Karagkoules then collected his belongings, and said goodbye to his colleagues. It was also the uncontested that Mr Karagkoules asked Mr Costabile about getting work in the future from European as a contractor if he needed it.
[35] The termination letter dated 23 June 2025 refers to the employment coming to an end by mutual agreement. The letter states 'we both recognise that the expectations of the role have not been met and that this has had a continued impact on the team's operations.' Mr Karagkoules says that this suggests that it was not a mutual parting of the ways, but rather that he was dismissed because of misconduct. It is not contested that Mr Karagkoules' interactions with others and his ability to work as part of a team were discussed at the meeting on 19 June 2025. It was Mr Costabile's evidence that the letter was drafted by an accounts/payroll employee, without legal or human resources advice. In addition, the letter makes specific reference to the employment ending by mutual agreement. I do not consider the letter changes or re-characterizes the way in which the employment came to an end on 19 June 2025.
[36] I consider the evidence does not support a finding that Mr Karagkoules was dismissed at the initiative of the initiative of European.
[37] I do not consider s386(1)(b) of the Act relevant in this matter, as Mr Karagkoules says, and I accept, that he did not resign from his employment with European.
[38] I consider the evidence does not support a finding that Mr Karagkoules was dismissed at the initiative of the employer. Mr Karagkoules was not dismissed within the meaning of either s386(1)(a) or s386(1)(b) of the Act. Accordingly, at the time Mr Karagkoules made his application on 26 June 2025, he was not a person who had been dismissed for the purposes of s365 of the Act. European's jurisdictional objection is therefore upheld, and the application must be dismissed.
[3] [2025] FWCFB 212 (at [53]).
Printed by authority of the Commonwealth Government Printer
Spyridon Karagkoules
The Trustee For European Window Co Trust [2026] FWC 307