Two PIPs in nine months and a resignation letter that didn't quite land at Fair Work
A long-serving ING tech lead quit mid-performance plan, calling it forced. The Fair Work Commission disagreed, in a decision handed down on 4 May 2026.
Gaurav Mudgal had been employed at ING Bank (Australia) from 15 January 2020 until his resignation on 3 February 2026. The Commission ruled that performance management, even two rounds of it, is an ordinary feature of working life.
Until May 2025, when he was placed on a performance improvement plan, Mudgal had mostly achieved positive performance ratings and in March 2025 had been paid a substantial bonus on account of his performance in 2024.
In September 2025, ING restructured. Mudgal's role of Test Chapter Lead became redundant and he was invited to apply for a broader role of Chapter Lead – Engineering Enterprise. He secured the new role, despite the performance process underway and agreement that parts of the role did not directly align with his core skill set.
The first PIP wrapped up in mid-November 2025, with the outcome notified on 14 November. Mudgal was told he had shown some good progress, but improvement was still needed. His manager encouraged him to use the December break to recharge. Mudgal then took leave from 1 December 2025 to 16 January 2026. He had already been warned a second PIP was possible on his return.
While on leave, on 4 December 2025, Mudgal wrote to Mr Roy Shiladitya, Head of Technology for Enterprise and Operations, expressing gratitude for the new role and concern about his current reporting line. On 21 January 2026, he wrote again, raising concerns including that his performance ratings would have financial impacts, which the Commissioner read as a concern about his annual bonus.
On 27 January 2026, Mudgal was notified of a second PIP with a review on 18 February. He emailed CEO Ms Melanie Evans seeking her intervention, saying his concern was not about his job being at risk but about unfair treatment, and accused his managers of targeting him. Ms Evans referred the matter to HR, where Mr Flavio Passaro delegated it to a HR Business Partner.
On 2 February 2026, Mudgal met Mr Shiladitya and put three options on the table: move him to a different team, stop the PIP, or make his role redundant with a payout. Mr Shiladitya said he could not decide alone and would respond the following Monday. Mudgal resigned the next day.
His resignation letter cited "concern for the potential outcome(termination) of the current PIP process". He flagged his personal stakes as "the sole breadwinner and mortgage payer", and said his only regret was that redundancy had not been considered at the September restructure instead of transitioning him into a new role under the same leadership.
His final day was 6 February 2026. He offered to withdraw his resignation if HR thought it could help, but ING declined and paid out his four-week notice.
The legal test and findings
The application was made under section 365 of the Fair Work Act 2009. Applying the Full Bench test in Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941, Commissioner McKinnon asked whether ING acted with the intention of ending the employment, or whether termination was the probable result of its conduct such that Mudgal had no real choice but to resign.
She found neither. ING had recently re-employed him, encouraged him to embrace the new role, and was supporting his improvement. The first PIP had not led to disciplinary action, and there was no reason to think the second would either. Mudgal also had viable alternatives, including waiting on Mr Shiladitya's promised response and the HR review Ms Evans had set in motion.
Mudgal had not been dismissed and lacked standing under s.365.
The decision is a useful reminder that consecutive PIPs are not automatically coercive, that documenting genuine performance concerns matters, and that responding promptly to employee escalations can be decisive when a resignation is later challenged.
