Worker claims dismissal for raising pay issues, while employer argues she resigned after refusing support
The Fair Work Commission (FWC) recently dealt with a jurisdictional dispute over whether a real estate sales assistant was dismissed or resigned from her position.
The case involved a worker who had raised concerns about her working conditions and pay entitlements, leading to a meeting that resulted in the end of her employment after less than three months on the job.
The worker claimed she was dismissed for exercising workplace rights when she made enquiries about overtime pay and car allowances.
However, the employer argued that she had resigned voluntarily after refusing to accept performance targets and declining offers of additional training and support.
The dispute centred on what actually occurred during a crucial meeting in April 2025, with both parties presenting conflicting accounts of the conversation that led to the employment relationship ending.
The real estate sales assistant commenced employment with the property company on 13 January 2025.
During her employment, she had concerns about her working hours, overtime entitlements, and whether she was entitled to receive a car allowance. She raised these workplace concerns with the company director on 31 March 2025.
On 2 April 2025, the worker was called into a meeting with the director, with a sales associate also present. As a result of that meeting, the worker's employment came to an end.
On 16 April 2025, she commenced proceedings by filing an application under section 365 of the Fair Work Act 2009. She alleged that she had been dismissed for exercising a workplace right, namely making enquiries about her pay and conditions.
The employer filed a response to the application but did not directly raise a jurisdictional objection. However, the company asserted that the worker had not been dismissed but had resigned.
This assertion created a fundamental dispute that needed resolution before the substantive claims could be examined.
Section 365 of the Fair Work Act 2009 provides that if a person "has been dismissed" and they allege that the dismissal contravened Part 3-1 of the Act, they may apply to the Commission to deal with the dispute. Given the language of this section, a person must have been dismissed for it to apply.
When a respondent asserts that there has been no dismissal, it gives rise to a dispute about whether the applicant is entitled to make the application.
The decision explains: "That dispute must be resolved before the Commission can exercise any of the powers the Act confers on it." This jurisdictional question had to be addressed before any substantive matters could proceed.
The Act defines "dismissed" in section 386(1), which contemplates two scenarios. First, a person will have been dismissed if their employment was terminated on the employer's initiative.
Second, a person will have been dismissed where they resigned from their employment but were forced to do so because of conduct engaged in by their employer, reflecting the concept of constructive dismissal.
The key to resolving the jurisdictional question was determining what happened at the meeting on 2 April 2025. The employer relied on statements from the director and the sales associate who was present.
The director stated: "During our final meeting, [the worker] openly acknowledged that she was not meeting her daily and weekly KPIs. She candidly expressed that she did not feel capable of continuing in the position and made it clear that she was stepping away from the role."
The director also said he offered additional training and support, but the worker declined, stating she didn't feel she could do the job.
The sales associate described the interaction differently, noting that when the director "advised her that if she isn't willing to listen to learn then we would need consider parting ways, [the worker] responded by saying that she did not feel capable of achieving more than three contacts daily and could not achieve the KPI."
The worker provided a contrasting account of the meeting. She described the director as being "very upset, kept talking loudly, kind of shouting, all the time, didn't allow me to explain or talk, he stopped me every time I tried to speak."
She said she asked for help meeting the targets but was ignored, and when pressed about accepting the key performance indicators, she responded: "It is really hard for me; I don't think I can make it."
At the hearing, both the director and sales associate gave oral evidence and denied suggestions that the meeting had been pre-arranged to effect the worker's dismissal.
They stated they had been meeting about a property matter when the worker unexpectedly returned to the office during scheduled door-knocking time, prompting them to call her into the meeting to explain why.
The director and sales associate also denied that the director had raised his voice during the meeting and disputed the worker's description of there being a break in the meeting.
When questioned about his statements regarding the worker's intention to resign, the director clarified his evidence, explaining he was faced with a worker who did not accept the performance targets and was unwilling to do the work to meet them. He "took it as her resignation."
The sales associate described the worker as having a "very negative" attitude regarding offers of additional support and insisting that three contacts per day was all she could achieve.
She maintained her view that it was a "mutual termination" of employment, with both parties agreeable to the employment ending.
Additional evidence came from the worker's husband, who received text messages from her at 11.26am stating "I have been fired, no surprise" and "Over my capabilities."
The FWC preferred the evidence of the director and sales associate over that of the worker, finding their accounts broadly consistent and credible.
However, the Commission did not accept that the worker had resigned. The decision states: "I am not satisfied that the evidence demonstrates that at the meeting on 2 April 2025, [the worker] expressed an intention to terminate the employment relationship before the possibility was raised by [the director]."
The Commission found that the director's written evidence was qualified by his oral evidence at the hearing, revealing that he saw the parties at an impasse and concluded the worker must be relinquishing her employment when she wouldn't accept the performance targets.
The decision notes: "From [the sales associate's] evidence, it was [the director] who first suggested a parting of the ways."
The FWC concluded: "I find that [the director's] suggestion of a parting of the ways, as understandable as that suggestion was and as inevitable as that outcome may have been, was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment."
The Commission determined that the worker's employment was terminated on the employer's initiative within the meaning of section 386(1)(a), meaning she was dismissed and entitled to make an application under section 365. The proceedings were listed for conference to address the substantive claims.
