Mr Michael Costigan v KOR Equipment Solutions Pty Ltd - [2022] FWC 176

1

Fair Work Act 2009 
s. 394—Unfair dismissal

Michael Costigan
v
KOR Equipment Solutions Pty Ltd
(U2021/8444)

COMMISSIONER MIRABELLA MELBOURNE, 9 MARCH 2022

Application for an unfair dismissal remedy.

[1] On 20 September 2021, Mr Michael Costigan filed an application for an unfair dismissal 
remedy (the application) pursuant to s. 394 of the Fair Work Act 2009 (the Act), his employment 
having ceased on 31 August 2021.

[2] Mr Costigan alleges that he was dismissed in contravention of s. 385 of the Act by KOR 
Equipment Solutions Pty Ltd (KOR) and seeks compensation.

[3] KOR has raised an objection to Mr Costigan’s application. It says that Mr Costigan 
resigned and was not dismissed. Mr Costigan acknowledges that he resigned but says that he 
had no choice and was forced to resign due to the conduct of KOR.  Where the jurisdictional 
objection is not upheld, KOR says that Mr Costigan’s dismissal was not harsh, unjust or 
unreasonable. 

[4] This objection needs to be determined by the Fair Work Commission (the Commission) 
before there can be any consideration of the merits of Mr Costigan’s application. That is because 
only a person who has been dismissed is able to make an unfair dismissal application.1

[5] KOR did not consent to take part in a conciliation conducted by a Commission staff 
member due to their jurisdictional objection to the application. Consequently, this matter was 
allocated to me for case management on 19 October 2021. I issued directions for the filing and 
service of material on 25 October 2021 and conducted a Determinative Conference in the matter 
by video using Microsoft Teams on 15 December 2021. Prior to the Determinative Conference, 
I granted permission under s. 596 of the Act to KOR.

[6] Some facts are agreed although others are in dispute. On the disputed facts, issues of 
credit are relevant.

Background

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            
[2022] FWC 176

DECISION


AUSTRALIA FairWork Commission




 



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[7] KOR is an import and distribution business. The industrial equipment they import are 
truck mounted vacuum and hydro-excavation units which they distribute throughout Australia 
and New Zealand. 

[8] Mr Costigan commenced employment by KOR on 3 August 2020. When his 
employment with KOR ceased on 31 August 2021, he was working as a Business Analyst.

[9] On 26 May 2021, Mr Costigan and Mr Sean Roberts, the General Manager and Chief 
Financial Officer of KOR, had a meeting (the May meeting). Both parties disagree on the nature 
of this meeting. Mr Costigan says that this was an informal meeting. KOR says that, during this 
meeting, Mr Costigan was informed that his performance in the job was inadequate whilst 
noting several errors he had made in his work.  

[10] Mr Roberts and Mr Costigan met again on 21 June 2021 (the June meeting). Mr Costigan 
says that this was a “routine KPI meeting” but Mr Roberts says this was a “formal management 
meeting”, constituting a formal warning. Mr Costigan denies that he was given a formal 
warning but notes that Mr Roberts did raise some issues of concern regarding Mr Costigan’s 
work.2

[11] On 22 July 2021, Mr Roberts and Mr Costigan met again (the July meeting). Mr Roberts 
gave Mr Costigan a formal warning detailing what he says were errors in Mr Costigan’s work. 
Mr Costigan says that this constituted his first formal warning. Mr Robert says that this was the 
second formal warning. 

[12] On 31 August 2021, Mr Robert met with Mr Costigan in a disciplinary meeting to 
discuss Mr Costigan’s alleged performance issues (the resignation meeting). Mr Steven 
Cusworth, the Managing Engineer of KOR, also attended this meeting. At the meeting, Mr 
Roberts said that Mr Costigan had continued to make errors in his work in the month of August 
and proceeded to detail those errors. Mr Costigan does not agree with the manner in which the 
issues raised by Mr Roberts are characterised. The parties do not dispute Mr Cusworth’s 
evidence regarding the resignation meeting. 

[13] At the resignation meeting, Mr Roberts told Mr Costigan that the day of the meeting 
would be his last day working for KOR and told him that he could choose to resign rather than 
be dismissed. Following the meeting, Mr Costigan sent an email to Mr Roberts stating that: 

“At this point in time I would like to exercise my right to resign effective today.”

Relevant legislation

[14] Section 382 of the Act sets out when a person is protected from unfair dismissal and 
provides:   

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:








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(a) the person is an employee who has completed a period of employment with 
his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the 
employment;

(iii) the sum of the person’s annual rate of earnings, and such other 
amounts (if any) worked out in relation to the person in accordance with 
the regulations, is less than the high-income threshold.”

[15] This was not an issue in contention, and I am satisfied that Mr Costigan is a person 
protected from unfair dismissal.

[16] Section 385 of the Act describes the circumstances in which a dismissal is unfair and 
provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal 
Code; and

(d) the dismissal was not a case of genuine redundancy.”

[17] Sections 385(c) and (d) are not relevant considerations in this matter.

[18] Before the merits of the application can be considered and whether the dismissal was 
harsh, unjust or unreasonable, I must determine whether Mr Costigan was dismissed by KOR.

[19] Section 386 of the Act sets out the meaning of when a person has been dismissed and 
further provides:

“386 Meaning of dismissed

(1) A person has been dismissed if:








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(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.”

[20] Section 386 is divided into two limbs, sections 386(1)(a) and (b) respectively. In this 
matter, Mr Costigan is contending that he was forced to resign from his employment as per the 
second limb of s. 386(1).

[21] There are exemptions to the operation of s. 386(1),3 none of which are relevant in this 
matter.

[22] Section 387 of the Act provides for the factors that must be taken in to account in the 
consideration of whether a dismissal was harsh, unjust or unreasonable.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or 
unreasonable, the FWC must take into account: 

(a) whether there was a valid reason for the dismissal related to the 
person’s capacity or conduct (including its effect on the safety and welfare 
of other employees); and 

(b) whether the person was notified of that reason; and 

(c) whether the person was given an opportunity to respond to any reason 
related to the capacity or conduct of the person; and 

(d) any unreasonable refusal by the employer to allow the person to have 
a support person present to assist at any discussions relating to dismissal; 
and 

(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance 
before the dismissal; and 

(f) the degree to which the size of the employer’s enterprise would be 
likely to impact on the procedures followed in effecting the dismissal; and 

(g) the degree to which the absence of dedicated human resource 
management specialists or expertise in the enterprise would be likely to 
impact on the procedures followed in effecting the dismissal; and 








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(h) any other matters that the FWC considers relevant.”

[23] If I find that Mr Costigan was not dismissed pursuant to s. 386 of the Act, the application 
will be dismissed. If I find in the alternative, I will proceed to consider whether the dismissal 
was unfair and make findings accordingly. 

Mr Costigan’s evidence and submissions

[24] Mr Costigan gave evidence on his own behalf.

[25] Mr Costigan says that he had applied for a “Junior Accountant” role at KOR despite 
having more experience than was required, because he could see the potential to grow his 
career within KOR.

[26] Mr Costigan says that KOR added a supply chain management role to his position 
but the salary offered remained the same. He says that he accepted the role and extra 
responsibility anyway because he wanted to work at KOR and could see future career 
growth potential at KOR. 

[27] Mr Costigan says that he then started his role as Finance and Supply Chain 
Management, and was expected to cover administrative tasks and responsibilities for at least 
7 months. 

[28] Mr Costigan says that his agreed work hours were 9:00am to 5:00pm; however, Mr 
Roberts asked him to start at 8:30am and he was expected to stay until at least 5:30pm since 
his first day with KOR. He says that his workload and deadlines often prevented him from 
taking lunch breaks and participating in staff lunches. Mr Costigan says that when he did 
have the opportunity to step away from his desk to take a lunch break, there was not always 
someone to answer the phones so he would often eat at his desk.

[29] Mr Costigan says that, despite the mounting responsibilities, longer work hours and 
lack of financial compensation, he never once complained because he loved his job and felt 
like he was making a difference based on the feedback he was getting regularly from his 
colleagues and in his regular KPI meetings with Mr Roberts, where Mr Roberts would 
reassure Mr Costigan of his future potential within KOR.

[30] Mr Costigan says that, in the beginning of August 2021, despite working in the 
office for almost all of the time of lockdowns and restrictions, he was asked to work from 
home on a consistent basis for what ended up being his final two weeks at KOR.

[31] Mr Costigan says that he was asked to come in to work on 31 August 2021. When he 
finished reviewing invoices issued to a customer, he and Mr Roberts met to go over his 
findings. 

The resignation meeting








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[32] At the conclusion of this meeting, Mr Costigan says that Mr Roberts asked him to 
wait for a second and that he would be back. Shortly afterward, Mr Roberts returned with 
another Manager.4 During this second meeting (the resignation meeting), Mr Roberts 
informed Mr Costigan that he was still making errors, and that because of this his employment 
would be terminated effective that day and that that regardless of anything that Mr Costigan 
had to say the decision to end his employment that day would not change. Mr Costigan says 
that Mr Roberts then raised the following issues to which Mr. Costigan provides the following 
responses.5 

 A single data entry error made on 13 June. Mr Costigan says that this is irrelevant as 
it was an error made before the formal warning on 22 July 2021. 

 A new employee’s phone number being entered incorrectly on 15 July 2021; however, 
Mr Costigan says that this was an error made by administrative staff.

 Late approval of creditor invoices. Mr Costigan says the task could not be completed 
on time due to a lack of communication from Mr Roberts who he says failed to respond 
in a timely manner to emails and messages regarding the task.

 That Mr Costigan had wasted unnecessary time preparing the import file for the BU 
budget and had done more work than was required. Mr Costigan says that they both 
had agreed via email on the approach Mr Costigan would take beforehand. The budget 
had been imported but, due to software limitations, which he says were in the process 
of being resolved by IT specialists at the time of the dismissal, a report could not be 
produced in a timely manner. Mr Costigan says it is important to note that there was 
no due date for this task and throughout the process he ensured that Mr Roberts was 
well informed.

 That the Primus balance sheet reconciliation was not completed on time. Mr Costigan 
says he had nearly finished this task using the opening balances in the system but, after 
completing a significant body of work, he was informed that the accountants had 
changed these balances. After communicating this to Mr Roberts, he had asked Mr 
Costigan to prepare an entry to correct these numbers, and then to re-reconcile a 
number of accounts based on the new closing balances. This new information was 
provided to him on 23 August 2021. Mr Costigan says that had he been provided with 
the correct information from the beginning a lot of time could have been saved, and 
the task could have been completed without issue.

[33] Mr Costigan says he was provided with the option to resign, and Mr Roberts said he 
would be willing to write a reference for him as long as it did not relate to attention to detail 
matters.

[34] Mr Costigan submits that he felt relieved when Mr Roberts provided him with the 
option to save face by allowing him to resign. Mr Costigan submits that he was not in a clear 
mindset, being completely blindsided, and unable to clearly consider the grounds for resigning. 
Mr Costigan submits that he would not have resigned, or even considered it, if not for the 








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actions of KOR, and says that not being able to properly consider everything, he took the option 
to resign. Mr Costigan says that this was the only real option available to him.

“Mr Roberts noted that it would help me to get another job if I resigned instead and that 
he was willing to write me a reference if I did so.  I was informed that I would have to 
accept this option before going home on that day, otherwise I would instead just be 
dismissed.”6

“…I did not think my prospects of getting another job would be likely if I could not at 
least provide a reference from KOR.  I felt that I had no real choice but to accept the 
offer … I was asked to clear my desk, send some documents to Mr Roberts, grab any 
receipt – credit card receipts and to write a farewell email.”7

“During this whole ordeal I was not thinking straight and I was still under shock”.8

“Our meeting commenced at approximately 3.30pm and I left the premises at KOR 
immediately after sending the resignation letter at 4.07pm Within the space of this 37 
minutes at no point did it feel like I had any opportunity to stop and think.”9

[35] Mr Costigan says that Mr Roberts told him to pack up his things from his desk and write 
a farewell email to his colleagues in a meeting room close to his office. Mr Costigan says that 
this was extremely difficult to do as he was still dealing with the shock and embarrassment of 
losing his job.  Mr Costigan says that while he was trying to write the email Mr Roberts kept 
walking in and out of the room asking him if he was finished. Mr Costigan says that this meant 
that he had very little time to collect his thoughts and that he quickly sent out a farewell email 
at 3:53pm.

[36] Mr Costigan says that, after sending his colleagues a farewell email, he returned to Mr 
Roberts’ office who then told Mr Costigan that he now needed to send his resignation email. 
Mr Costigan says that he was not given the chance to do this at his desk and that he was told to 
write up this email on Mr Roberts’ desk with Mr Roberts present in the room. Mr Costigan says 
that the resignation email was sent at 4:04pm and he was subsequently escorted off the premises 
by Mr Roberts.10

[37] Mr Costigan says that he later found out that KOR had a replacement for him a week 
after he had been forced to resign. Mr Costigan says that he believes this demonstrates that 
the time he was working from home was only to allow KOR to conduct interviews without 
him knowing.

[38] Mr Costigan submits that, on 31 August 2021, KOR had already determined its stance 
to part ways with him, which he says is supported in the witness accounts of Mr Roberts and 
Mr Cusworth. Mr Costigan submits that the facts are clear that even if he had not accepted the 
offer to resign, KOR would still have ended his employment. Mr Costigan submits that in order 
to accept the offer to resign, he was required to do this before the end of the day.








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[39] In consideration of the items in the resignation meeting which were relied upon by KOR, 
Mr Costigan submits that there was no real evidence that he had made any further errors 
following the July meeting, as both errors were identified prior to what he says was the first 
warning, and the remaining items discussed were not clear indicators of poor performance. 

[40] Mr Costigan submits that he was forced to resign, and that the grounds relied upon 
were not reasonable or sufficient to warrant his dismissal. 

Forced resignation

[41] Mr Costigan submits that in Grundy v Brister and Co [2019] FWC 3242 the 
Commission, in a similar scenario, decided that the employee had been forced to resign. He 
submits that:

 On the facts of this case, the employer initiated the dismissal of the employee for 
serious misconduct, but afterward offered for the employee to resign instead. 

 When the employee later claimed that he was forced to resign, the employer raised a 
jurisdictional objection that the employee had resigned voluntarily.

 The Commission determined that the employer had forced the employee to resign, and 
that he had been constructively dismissed.

 Mr Costigan submits that, applying the facts of this case, this is directly comparable 
to his resignation from KOR. He had been informed of his dismissal, and then 
provided with the option to resign instead.

 Mr Costigan submits that, on the balance of the facts it is clear that he was 
constructively dismissed.

[42] Mr Costigan submits that Knight v Wattyl Australia Pty Ltd on which KOR relies is 
distinguishable on the facts from this case and says:  

 The facts of this case indicate Mr Knight was informed that a decision had been made 
to terminate his employment, and that Mr Knight’s representative asked if it were 
possible to negotiate a demotion or some other outcome, which was rejected. His 
representative then asked about resignation and Wattyl’s representative said it was 
totally up to Mr Knight. There was then a private conversation between Mr Knight 
and his representative and Mr Knight resigned. 

 Mr Costigan submits that the facts of this case are significantly different to those 
expressed in Grundy v Brister and Co. In this instance, Mr Knight dealt through a 
representative, who attempted to negotiate the termination of his employment. 

 Mr Costigan submits that, during the course of this negotiation, the resignation offer 
originated from the representative of Mr Knight, rather than from the employer.








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 Mr Costigan submits that, following the employer’s response to this request, Mr 
Knight discussed this option privately with his representative, and then Mr Knight 
resigned. 

 Mr Costigan submits that the Commission held the opinion that the applicant chose to 
resign, on the advice of his union representative, rather than being forced by the 
employer.

 In conclusion, Mr Costigan submits that this case is not sufficiently similar to be relied 
upon in considering if forced resignation occurred. 

Unfair dismissal

[43] Mr Costigan submits that one of the fundamental challenges he faced while working for 
KOR was that he was responsible, for the majority of his employment at KOR, for four 
competing roles, being Finance, Supply Chain, Receptionist and Administration. 

[44] Mr Costigan submits that the challenge of undertaking four different roles was that at 
times he was forced to put aside some deadlines from one role, to attend to more urgent ones in 
another role. Mr Costigan provided the example that a truck that was about to board a ship in 
Europe needed to be changed to another ship at the last minute because of a truck sale. Mr 
Costigan submits that at times he had to put urgent tasks on hold to complete menial tasks like 
regularly leaving the office to go and buy coffees from a local café (at the request of Mr 
Roberts), setting up and cleaning meeting rooms (even when the administrative staff returned 
from maternity leave), accepting Parcel deliveries and inducting visitors on site. Mr Costigan 
submits that tasks such as these were frequent, and constantly disrupted his workflow. 

[45] During their monthly KPI meetings, Mr Costigan says that Mr Roberts would frequently 
note the good work he was doing, and the things he wanted Mr Costigan to be able to do in the 
future. Mr Costigan says that Mr Roberts expressed his desire to “free me up” by hiring a new 
supply chain and second administrative staff so that he could do more reporting and analysis. 
In these monthly meetings Mr Costigan says that Mr Roberts would often acknowledge that Mr 
Costigan had taken a pay cut when accepting the role at KOR and express that he had the 
potential to be the next CFO, with the promise that his salary would be $100,000 within two 
years.

[46] Mr Costigan says that up to this point in May he had contributed a lot to KOR such as 
streamlining the supply chain, overhauling the monthly management reporting, and making 
many other improvements and developments which benefitted his colleagues. Mr Costigan says 
that Mr Roberts and he had been discussing for months prior what his new role would look like, 
and that Mr Costigan would take the full reporting responsibility for the new operations centre 
in the new year.

[47] Mr Costigan says that having spoken with Mr Roberts a few times about his future 
responsibilities, he looked up the market value for a Business Analyst and Management 








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Accountant. Mr Costigan says that, given the market value for similar roles, he determined a 
fair salary would be in the range of $100,000.

[48] Mr Costigan says that he requested that Mr Roberts consider $100,000, explaining that 
he believed that this was a fair value based on the contribution he was making at KOR and 
taking into account Mr Costigan’s new upcoming role. 

[49] Mr Costigan says that Mr Roberts expressed that they could discuss it in their salary 
review meeting, and they booked in a meeting for 26 May 2021.

[50] Mr Costigan says that on 26 May 2021 Mr Roberts suggested they walk to the Arbor 
Café and have lunch together. Mr Costigan says that, after lunch, he and Mr Roberts discussed 
Mr Costigan’s new role, his salary request, the quality of his work so far, and he expressed 
encouragement to now take focus on carriage and closure of tasks as he started this next chapter. 
Mr Costigan says that it was not a formal meeting as Mr Roberts stated in his witness statement; 
it was a casual conversation over lunch where he offered some advice on things Mr Costigan 
could do to get the salary he had requested and how to make note of the financial impact his 
work was contributing to KOR.

[51] Mr Costigan says that, while they were still in the Arbor Café, Mr Roberts countered 
his request for $100,000 with $75,000 (from $65,000). Mr Costigan responded that this was 
below what he valued his contribution. Mr Roberts then offered a salary of $80,000 and that he 
could get Mr Costigan to $90,000 after 31 December 2021 if he met all his KPIs until that date. 
After being allowed to consider it, Mr Costigan accepted this offer.

[52] On 13 July 2021 Mr Costigan says that he received a breakdown of his new salary, which 
indicated that the $10,000 increase was to be another bonus, rather than a pay increase. When 
Mr Costigan raised this with Mr Roberts he said that he could not get his base salary to rise that 
much all at once, but that in future years Mr Costigan would have more opportunity to do so. 
Although this was not what they had agreed to, Mr Costigan says that he did not pursue this 
further.

[53] When bonuses were paid in the first week of July, and Mr Costigan had not received 
his, Mr Costigan says that he asked Mr Roberts about it, and he explained that this now formed 
part of the new December bonus. Mr Costigan says that he expressed that this was not how he 
had understood it, but Mr Roberts stated that it was the reason why Mr Costigan had the 
opportunity for a bonus up to $10,000 in December.

June 2021 

[54] Mr Costigan says that on 21 June 2021 he met with Mr Roberts for one of their routine 
KPI meetings, and at the end of this Mr Roberts brought up some recent items that he thought 
Mr Costigan needed to be aware of. Mr Costigan does not agree that this was his first formal 
warning. The following are the issues Mr Costigan says were raised by Mr Roberts followed 
by his responses:








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 One truck LUX model had not been recognised in the database properly: Mr Costigan 
says that he had never been told that this model existed. In his original handover, Mr 
Costigan had requested clarification on naming conventions since there was some 
inconsistency between departments at KOR about how the same truck would be 
written. During this handover, there were many trucks with additional letters or 
descriptions, but they prepared a standardised set of names to use across the board. 
During their discussion Mr Costigan was told to ignore the LUX part of the name, and 
to note these as “Industrial”. He says that at no point did he ever receive training or 
advice on the truck models, so he took initiative where possible to learn the truck 
names and understand the differences on his own. He says that this truck was a one-
off unit model that Mr Costigan had never been told about, which is why it was 
recorded incorrectly.

 A missed payment for MBPG: Mr Costigan says that this was a new role he assumed 
at the beginning of June, and as such he was still establishing best practice. In this 
instance, Mr Costigan says that he had notified Mr Roberts that this had been entered 
and ready for him to pay, however, he did not make this payment, and insists that he 
did not inform him. To fix this issue he made sure all future payment requests were 
noted via email, and this error did not occur again after this time.

 A confidential email was sent to the administrative staff. 

 Miscoded a creditor invoice to the wrong entity: Mr Costigan says that he would 
routinely enter batches of at least 30 invoices at a time, and he entered one into the 
wrong entity. He says that when he became aware of this issue he modified his process 
and did not make the same mistake again.

 Sent an employment pack to the wrong address: Mr Costigan says that on 17 June 
2021 at 9:53am he had received an email from a colleague directed to him and 
Brittney, KOR’s administrative staff member who was working from home on this 
day. Mr Costigan says that in this email it was requested that either he or Brittney send 
the employment pack to a new employee in Queensland, and the colleague then 
provided them with the new employee’s address. Mr Costigan says that at 9:53pm 
Brittney sent him an email to request that he organise the postage, and provided him 
with an address that she had received from the colleague. Mr Costigan says that he 
organised this promptly, using the address provided to him from Brittney. Around 
2:00pm that day Mr Costigan says that he realised that the address provided to him 
from Brittney was incorrect, and he was able to resolve the issue before the item was 
actually sent.

July 2021

[55] On 22 July 2021 Mr Roberts and Mr Costigan again met to go over his KPIs for the 
month, and Mr Roberts afterward expressed concern that he had found more errors and wanted 
to talk through how they could resolve this. He indicated that he was issuing a formal warning 
for these errors. During this discussion Mr Costigan says he noted that he felt like his workload 








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was impacting his ability to complete tasks, and that he had so many deadlines that he found 
himself rushing through tasks to get things done. Mr Costigan says that Mr Roberts expressed 
that they have a weekly meeting, and that Mr Costigan should be open to push things back if 
needed. Mr Costigan says that he accepted Mr Roberts’ advice to push tasks back so he could 
take more time on each one. Mr Costigan’s responses to the items outlined in that meeting are 
as follows: 

 Mr Costigan had not reviewed the historical pricing during the Rangedale 
Invoice Review: Mr Roberts and Mr Costigan had prepared monthly invoice review 
from April 2021, up to this point, with a consistent procedure of checking that 
discounts were applied (as these were often missed) and determining the profit margin. 
In this instance Mr Costigan prepared the monthly review consistent with prior 
months, and after the usual review concluded it was requested that he print the 
historical prices and staple them to the back of each invoice. Mr Costigan followed 
this instruction and finalised the month as normal. Mr Costigan says that at the point 
of sending them out Mr Roberts then noted the reason for this request, and criticized 
Mr Costigan’s lack of review over historical pricing which he says was a new item 
that had not been mentioned once for review.

 Employment Hero email sent out to operations staff for certifications: The 
software in question had a toggle for "Setup mode" which would disable emails going 
out to employees while this mode was turned “on”. During one instance of the system 
being in setup mode Mr Costigan was setting up license and training for operations 
staff, and upon completion the system issued requests to the staff he had listed. He 
was informed immediately by a colleague, and Mr Costigan says he quickly checked 
and setup mode was still "on". Mr Costigan says that this issue was promptly raised 
with the Employment Hero team, as well as with Mr Roberts, and Mr Costigan notified 
all affected staff to disregard the email.

 On 9 July 2021 Mr Roberts had to re-explain the associated trust to one of the 
companies in the Birrel Group: Mr Costigan says that, in this instance he had 
misplaced his note. He says he then requested a copy of the entity register, and was 
provided with this on that date.

 Credit applications for customers not being sent to Brittney, and reflected poorly 
on KOR: KOR had developed a new system for credit applications for customers, 
which required them to complete a form via Microsoft Forms, and an email would 
then be sent to KOR’s administrative staff. Mr Costigan had prepared the form, and 
tested it with the assistance of Brittney. In his testing Mr Costigan had requested that 
she complete the form, to see if he received an email, which he did. Once Mr Costigan 
checked this, and that the form itself was functioning correctly, he transferred the 
template into Brittney’s name. With this transfer he set up her email address to receive 
new applications, and then promptly tested that she received his test submission, which 
she did. Following this, two customers had filled in the form, and this had not been 
responded to. Mr Roberts indicated that the fault was on Mr Costigan’s as he had 
managed the process. Mr Costigan says that Mr Roberts was responsible as he was 








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Brittney’s manager and Mr Costigan asserts that he had performed his task to the best 
that it could have been done. At the time that this was brought up in their meeting Mr 
Costigan suggested that Brittney had simply missed these emails, but Mr Roberts 
informed Mr Costigan that it was simply poor management on his part, and that he 
should have tested it better. Mr Costigan then suggested he send a submission for the 
form immediately, and check if she received it. Mr Costigan says that he did this and 
after the meeting he confirmed that she did receive it.

 Stock in transit and spare parts audit workpapers were not ready: Mr Costigan 
says that the workload that was given to Brittney was a one-off, however, he was also 
working long days, and evenings. Mr Costigan had also been working with their 
Inventory Controller to see which invoices were not yet in the system, and most of the 
delays in this task were when he had to wait for the Inventory Controller to finish 
checking the information from his side. The invoices were all finally confirmed, and 
provided to Brittney on 16 July 2021. This data entry was part of her role, and Mr 
Costigan had performed this type of work whilst managing the administrative duties, 
in addition to his other roles. Mr Costigan says that, on top of this not being part of his 
role, he also had his own urgent priorities which he was required to focus on. He says 
that some of the tasks he had to do were finalising the end of financial year stocktake 
(which he had been asked to manage), finalising the end of financial year management 
reports, and reviewing the sold trucks for the previous month, which he says was 
significantly more than the past three months combined.

 When asked about stock in transit on 21 July 2021 Mr Costigan could not give 
an exact answer: Mr Costigan says that Mr Roberts asked for clarification of stock in 
transit shortly after 9:00am. Mr Costigan says that he had no prior warning that this 
information was requested, nor was he aware until that date that Brittney had even 
done the data entry over the weekend. Mr Costigan says that the ledger was messy 
because the value of the stock received did not always match the original invoices, 
and the stock from those invoices would frequently come in 2-3 parts. Mr Costigan 
says that, because of the nature of the ledger, the only way to properly understand it 
was to match the reference numbers and amounts together, which took at least an hour. 
Mr Costigan says that atthe time when Mr Roberts requested the information from 
him, he explained that he had not yet looked at it, and could not tell him until he had 
reconciled it.

 An email was sent from Employment Hero unintentionally on two occasions:  Mr 
Costigan says that he had found out immediately on both instances that this had 
occurred, and that he was still in the process of learning and testing this software. Mr 
Costigan says that in both instances he promptly informed all staff to ignore these 
emails, both in person and via email, including expressing this to Mr Roberts both 
verbally and via email.

 Mr Costigan had sent an email to Graig Bolton instead of Craig Brattan.








[2022] FWC 176

14

 Mr Costigan had not yet entered in the batch of creditor payments on 19 July: 
Mr Costigan says that Mr Roberts would frequently drop deadlines on him at the last 
minute, and require completion within a few hours. Mr Costigan says that in this 
instance he received word that these invoices had been uploaded to OneDrive (and 
were therefore able to be entered in) at around lunch time. He says that at the time he 
was focussed on attending to the external auditors who had also come in on that day, 
and were directing most of their questions at him. Mr Costigan says he was also 
required to attend to setting up meeting rooms, grabbing coffees at the request of Mr 
Roberts, and meeting with the external IT implementation team to discuss software 
changes. In regard to doing this task, Mr Costigan says he began the data entry during 
his lunch break, continued it during his meeting with the IT team, but had not 
completely entered all invoices, or managed to call these suppliers to confirm the 
payment details in order for payment to be made.

 Bank account error on 20 July: Mr Costigan says this issue is connected with the 
task above, where he was doing data entry whilst in another meeting with the IT team. 
Mr Costigan says in this instance he verified the bank details with the customer and 
says that he had not yet been given access to enter the bank details into the system. Mr 
Costigan says he requested this from Mr Roberts, and was granted access roughly 2 
hours afterward. Mr Costigan says he understands that he made an error here, and says 
he did not make any others like it before or afterward.

[56] Mr Costigan submits that the rationale for his dismissal was focussed on the idea that 
he had made several further errors since the July meeting. Mr Costigan contends that the only 
errors which occurred were well before the formal warning in July, and the remaining items 
that were noted were of little overall consequence and not in proportion to the ultimate 
punishment attached to them. Mr Costigan says that he also had made every effort to improve 
his work, taking on the advice to push work back and take more time on tasks to avoid future 
errors. Therefore, Mr Costigan concludes that his dismissal was unfair and relies on: 

 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371

 Rode v Burwood Mitubishi Dec 451/99 M Print R4471 AIRC 

[57] Mr Costigan also refers to Wadley v YMCA Canberra,11 which he submits expresses that 
there should be a proper opportunity to defend reasons for termination before the decision is 
made. In reference to the case, he cites the following passage:

“[T]he opportunity to defend, implies an opportunity that might result in the employer 
deciding not to terminate the employment if the defence is of substance. An employer 
may simply go through the motions of giving the employee an opportunity to deal with 
allegations concerning conduct when, in substance, a firm decision to terminate had 
already been made which would be adhered to irrespective of anything the employee 
might say in his or her defence. That, in his opinion, does not constitute an opportunity 
to defend.”








[2022] FWC 176

15

[58] Mr Costigan submits that he was given no opportunity to explain himself and, rather, 
that he was informed that irrespective of any comment he made the result would remain the 
same. Furthermore, Mr Costigan says that KOR had already hired his replacement, who started 
one week after he was dismissed.

[59] Mr Costigan says that KOR has provided an outline of the July meeting, in which he 
was provided with a few items to work on. Mr Costigan says that he was informed that this 
would be a formal notice. In the “Case Responses” document filed as part of his submissions, 
a copy of which is attached in Annexure A, Mr Costigan says that he provides feedback on the 
claims made against him in July, as well as the claims made against him at the resignation 
meeting.

[60] Mr Costigan submits that the grounds for his dismissal do not demonstrate that he had 
failed to improve, or that his actions warranted dismissal. Mr Costigan submits that, had he 
been given the opportunity to defend or discuss these matters properly, this could have been 
resolved without leading to termination of employment. 

KOR’s evidence and submissions

[61] KOR relied on the evidence of: 

 Mr Roberts, General Manager and CFO of KOR

 Mr Cusworth, Managing Engineer of KOR

[62] In the first instance, KOR submits that Mr Costigan is not eligible to make an unfair 
dismissal application to the Commission because he was not dismissed and that he resigned 
from his employment with KOR on 31 August 2021.

[63] KOR asserts a jurisdictional objection of no dismissal first and foremost to dispute the 
application. KOR asserts that evidence held by it in the form of email correspondence from Mr 
Costigan to Mr Roberts shows a clear resignation. 

[64] KOR submits that, if the jurisdictional objection is not upheld, the unfair dismissal 
application must fail as Mr Costigan was fairly dismissed based on his performance. KOR says 
that this is supported by evidence including an email from Mr Roberts to Mr Costigan dated 22 
July 2021, notes from various performance feedback meetings between KOR and Mr Costigan, 
as well as the witness statement of Mr Roberts.

[65] KOR submits that Mr Costigan’s outline of his position in relation to the merits of the 
application neglects to outline the legal basis on which his application relies. They submit that, 
save for assertions from Mr Costigan of the false apportionment of blame on him for mistakes 
made throughout his employment, his submissions do not offer any specific argument regarding 
the perceived harshness, unjustness or unreasonableness of the dismissal he claims.








[2022] FWC 176

16

[66] KOR submits that, if Mr Costigan is found to have resigned (as opposed to being 
dismissed), his claim in unfair dismissal cannot be successful.12

[67] KOR submits that in O’Meara v Stanley Works Pty Ltd13  the Court distilled the test of 
“at the initiative of the employer”:

“In determining whether a termination was at the initiative of the employer, an objective 
analysis of the employer’s conduct is required to determine whether it was of such a 
nature that resignation was the probable result, or that the appellant had no effective or 
real choice but to resign.”

[68] KOR contends that the question to be determined is whether resignation was the probable 
result or that Mr Costigan had no effective or real choice but to resign.

[69] KOR submits that the case of Knight v Wattyl Australia Pty Limited14  considered this 
issue in circumstances where an applicant had resigned during a meeting or interview with his 
employer:

“While the evidence shows that the applicant decided to resign as a direct consequence 
of the decision taken by his employer to terminate his employment, his decision was not 
“forced” upon him by his employer. The applicant chose to resign…”

[70] KOR submits that, on 31 August 2021, Mr Roberts met with Mr Costigan in a 
disciplinary meeting to discuss ongoing performance issues which had been previously raised 
with Mr Costigan. KOR submits that the resignation meeting came as the culmination of various 
attempts by KOR to address Mr Costigan’s unsatisfactory performance.

[71] As outlined in Mr Roberts’ witness statement, KOR submits that the unsatisfactory 
performance of Mr Costigan included instances of:

 Multiple errors made;

 Wasted time spent completing work that was not needed and outside scope; and

 Overdue deliverables that were still outstanding.

[72] KOR says that at the resignation meeting Mr Roberts explained to Mr Costigan that his 
performance had not improved sufficiently to continue in his position and offered Mr Costigan 
the option to resign.

[73] KOR says that at the resignation meeting Mr Costigan said that he would like to resign 
effective immediately and would prepare a letter of resignation accordingly. KOR submits that 
Mr Costigan was instead offered time to himself to consider his options and independently 
decided to resign.








[2022] FWC 176

17

[74] At 4:04pm on 31 August 2021, being the same day as the resignation meeting, KOR says 
that Mr Costigan sent the following email to Mr Roberts:

“Hi Sean,

At this point in time I would like to exercise my right to resign effective today 
Thanks,”

[75] KOR submits that the facts of this case are comparable to those of Knight v Wattyl 
Australia Pty Limited, wherein the applicant’s resignation was brought about following a 
disciplinary meeting with his employer. KOR submits that in that case “the applicant gave clear 
evidence that he was not ‘forced’ to resign by any action of his employer.”

[76] KOR submits that the finding in that case that the employee was not forced to resign 
was upheld despite evidence that showed that he had decided to resign as a direct consequence 
of the decision taken by his employer to terminate his employment.

[77] KOR submits that in that case the Commission also found that the applicant had failed 
to discharge the onus required of him to prove that his resignation was forced. Accordingly, 
KOR submits that the Commission found that there was no dismissal, as the termination was 
not at the initiative of the employer, despite the employer having expressed their intention to 
terminate the employee in a meeting.

[78] Similarly, KOR submits that in this case the onus of proof rests with Mr Costigan to 
demonstrate that he was forced to resign because of conduct engaged in by KOR. KOR submits 
that Mr Costigan has not provided any evidence of compulsion or coercion and, instead, that he 
freely admits that an optional choice was made available to him.

[79] In contrast to the facts of Knight v Wattyl Australia Pty Limited, KOR submits that Mr 
Costigan in his submissions admits that he “was provided with the option to resign” at the 
resignation meeting, and that Mr Roberts said that he “would be willing to be a reference for 
[Mr Costigan]”. Consequently, KOR contends that Mr Costigan has provided evidence that he 
was not forced to resign but, rather, was given the opportunity to make a free choice.

[80] KOR submits that it accepted the resignation on 31 August 2021 and at no time has Mr 
Costigan sought to withdraw his resignation.

[81] KOR submits that the Commission should uphold KOR’s jurisdictional objection of no 
dismissal and consequently dismiss the application.

[82] KOR submits that, in the alternative, in accordance with s. 387(e) of the Act the 
dismissal related to unsatisfactory performance by Mr Costigan.

[83] KOR submits that Mr Roberts has provided evidence that Mr Costigan had been on 
notice of his unsatisfactory performance for close to 12 months.








[2022] FWC 176

18

[84] KOR submits that the performance issues of Mr Costigan failed to improve despite 
discussions where KOR gave notice that his performance would need to improve if he wished 
to maintain his position.

[85] The details of feedback meetings that occurred on 12 October 2020, 4 November 2020, 
26 May 2021, 4 June 2021, and 21 June 2021, are outlined in the witness statement of Mr 
Roberts. In these meetings, KOR submits that Mr Costigan was provided with verbal feedback 
regarding the inadequacy of his performance.

[86] KOR says that at the regular Monday meetings with Mr Costigan, Mr Roberts would 
address errors in Mr Costigan’s work as they arose. Mr Roberts produced notes from 5 dates 
spanning October 2020 to June 2021.

[87] Of these meetings, Mr Roberts says the following:15

“14. On 12 October 2020 I met with the Applicant at approximately 9:30am to go 
through some agreed deliverables for the week, including:

a. Clearing creditor notices.

b. Parts invoicing and daily GP report to be sent out.

c. Debtor reminders were discussed and the Applicant advised me that Tuesday 
was the “usual day” for this task.

d. Operations KPI reports were discussed and I informed the Applicant that I 
required the monthly reports on that same day.

e. Date for ROIC spreadsheet, the Applicant agreed to email Chris and Tim and 
copy me into the correspondence.

15. On review of what was completed following our meeting on 12 October 2020, I 
noted the following:

a. No creditor invoices were loaded in BC and 33 invoices for the previous week 
were loaded (a week delayed).

b. I did not receive a daily parts report at any point.

c. Monday task management software suggests Monday (not Tuesday) was the 
Debtor reminder day.

d. No KPI reports or monthly reports were produced to me.

e. No email was sent to Chris and Tim.








[2022] FWC 176

19

16. On 4 November 2020, at our meeting, I requested the Applicant complete the 
following tasks:

a. For a second time, request to make the COVID worker permits a priority and 
to provide them to me for review before the end of that day.

b. Ensure we had 100% annual leave forms before I was able to sign them.

c. Laptop insurance claim.

d. FBT emails to employees.

e. Primus year end information.

17. On review of the completion of tasks, I noted the following:
a. No worker permits were prepared by the end of 4 November 2020.

b. The Applicant had not provided any response to me about the annual leave 
forms by close of business on 4 November 2020.

c. Little or no progress on tasks listed at 16.c, d, and e above.

18. I again brought up the Applicant’s failure to complete the tasks in paragraphs 14 and 
16 with him at subsequent meetings in May, June, July and August, however, the tasks 
were then either completed late, contained errors and/or required significant 
supervision.

…

19. On 26 May 2021 I met with the Applicant to discuss the gap between his actual 
performance and the expectation of his performance. I made it clear to the Applicant at 
that meeting that he would need to improve his performance.

20. We discussed some of the errors he had made, and I asked him to comment on how 
this might be improved. At this stage I was fully supportive of him continuing in his 
position but made clear that improvements would be needed in his performance.

21. At the meeting, I listed several errors that the Applicant had made, and deliverables
which he had neglected or failed to complete.

22. On 21 June 2021 I met again with the Applicant for a formal performance 
management meeting. At this meeting I again listed more errors that had been made by 
the Applicant in his role, some of which included:

a. Incorrect entry of truck detail into database which led to significant lost 
revenue for the Respondent.








[2022] FWC 176

20

b. Missed a MBPG payment.

c. Sent a confidential employment contract containing confidential details about 
another employee’s salary to our office manager without first removing the 
amount of the salary, thereby compromising the confidentiality agreement with 
our employee.

d. Sent an employment pack to the wrong address, despite extensive instructions
given.

23. The meeting on 21 June 2021 constitutes the first formal warning given to the 
Applicant that if his performance did not improve, his position would be terminated.

24. At the meeting we had a lengthy discussion about how the Applicant could improve. 
Some of the strategies we spoke about included:

a. Prioritising accuracy over speed. I encouraged him to slow down and try not 
to rush through tasks.

b. Introducing a process of self-review at the end of each task to attempt to pick 
up errors before they are forwarded to other members of the team, including 
myself.

c. Using the meeting rooms, my office or headphones to create a distraction-free 
workspace for designated periods of time, thereby limiting the effect of 
disruptions to his workflow and encouraging better focus.

d. Implementing a system of “blocked time” to focus on specific tasks, to avoid 
multi-tasking.”

[88] Again, on 22 July 2021, KOR notes that Mr Roberts met with Mr Costigan to discuss 
ongoing issues with errors being made in the course of his employment. KOR submits that Mr 
Roberts also provided notes relating to the July meeting via email to Mr Costigan on 22 July 
2021, outlining what had been discussed in their meeting of that day and outlining some 
strategies to improve his performance.

[89] KOR submits that, at the July meeting, Mr Costigan agreed with Mr Roberts that his 
performance was not and had not been at an acceptable standard.

[90] Further errors of concern were discussed in a meeting between Mr Roberts and Mr 
Costigan in the July meeting and set out in a letter between the parties later that day.16 This 
letter reads as follows:

“We met on 21 June to discuss errors relating to lack of care / attention to detail. We 
discussed a number of examples and together agreed on the following solutions:

 Accuracy over speed, slow down and try not to rush through tasks








[2022] FWC 176

21

 Introduce self-review at the end of each task to attempt to pick up errors before 
they come to me 

 In order to block out distractions use the meeting rooms, my office or headphones 
to better focus

 Block time to focus on specific tasks, don’t multi-task

Despite our discussion the number of errors, some minor, others extremely material, 
have not reduced. In fact they have become more of a concern. Examples we went 
through today were:

02.07.21 Rangedale invoice review - historical prices were not reviewed. Risk 
of sending out invoices with higher price when the customer specifically put us 
on notice that there was an issue with consistent pricing. When the email was 
sent to customer still had reversed invoice for hose correction on the summary.

05.07.21 Employment Hero - email prematurely sent out to ops staff for 
certifications. Whether this was an error or not it displayed a lack of 
understanding of a project you were leading and reflected poorly on the finance 
team and KOR’s HR function.

09.07.21 Had to ask about Devereux Properties Pty Ltd again. This had been 
communicated before and the register of entities was shown to you.

15.07.21 Credit applications for customers were not being sent to Brittney. We 
missed 2 x applications. Bad 1st experience for customers. I have not checked 
Brittney’s emails yet, when I do and if the emails are discovered this will be 
deleted.

16.07.21 Stock in transit and spare parts audit workpapers were not ready. By 
not managing the process a significant body of work was handed to Brittney 
approximately 10 business hours before the due date. This resulted in 6.5 hours 
of overtime for Brittney on a Sunday. When we met on 21.07 you could still not 
articulate which shipments were in transit.

19.07.21 Found out EH emails were sent out late June (was never informed). 
This is in addition to the issue on 05.07.21

19.07.21 sent an email to Craig Bolton instead of Craig Brattan. Easy mistake to 
make, not material if it wasn't for the quantity of errors above.

19.07.21 conversation was had with you that MPG creditor payments were 
overdue which was unacceptable. This was identified as an immediate priority. 
I had to follow up with you again on 20.07 as I had heard nothing.








[2022] FWC 176

22

20.07.21 Bank account error for Sharp and Howells. Risk of losing $10k. No 
verbal verification notes, which is the agreed and understood procedure. Three 
opportunities to verify.

o 1 = sighting invoice

o 2 = input into Xero

o 3 = during verbal verification with customer”

[91] KOR submits that, at and after the meetings, including the July meeting, Mr Costigan 
was given the opportunity to respond and improve.

[92] Ultimately, KOR contends that the responses given by Mr Costigan were not 
satisfactory to KOR, and Mr Costigan did not improve his performance.

[93] KOR submits that Mr Costigan admits in his submissions to multiple errors made as well 
as the opportunities afforded to him by KOR to respond. KOR notes that he also admits that the 
July meeting was explained to him as being a “formal notice”.

[94] KOR submits that procedural fairness was provided to Mr Costigan by virtue of:

“27. In accordance with section 387(e) of the Act, the dismissal related to unsatisfactory 
performance by the Applicant.14

28. Mr Roberts has provided evidence that the Applicant had been on notice of his 
unsatisfactory performance for close to 12 months.15

29. The performance issues of the Applicant failed to improve despite discussions where 
the Respondent gave notice that his performance would need to improve if he wished to 
maintain his position.16

30. The details of feedback meetings that occurred on 12 October 2020, 4 November 
2020, 26 May 2021, 4 June 2021, and 21 June 2021, are outlined in the witness statement 
of Mr Roberts.17 In these meetings, the Applicant was provided with verbal feedback 
regarding the inadequacy of his performance.

31. Again, on 22 July 2021, the Respondent met with the Applicant to discuss ongoing 
issues with errors being made in the course of his employment (Performance 
Meeting).18 Mr Roberts also provided notes relating to the Performance Meeting via 
email to the Applicant on 22 July 2021, outlining what had been discussed in their 
meeting of that day and outlining some strategies to improve his performance.

32. At the Performance Meeting, the Applicant agreed with Mr Roberts that his 
performance was not and had not been at an acceptable standard.








[2022] FWC 176

23

33. At and after the meetings, including the Performance Meeting, the Applicant was 
given the opportunity to respond and improve.19

34. Ultimately, the responses given by the Applicant were not satisfactory to the 
Respondent, and the Applicant did not improve his performance.20

35. The Applicant admits, in the outline of his position, to multiple errors made as well 
as the opportunities afforded to him by the Respondent to respond.21 He also admits that 
the Performance Meeting was explained to him as being a “formal notice”.22”

[95] KOR submits that, subsequently, at the resignation meeting, Mr Costigan was again 
informed that his performance had not sufficiently improved.

[96] Accordingly, KOR submits that, if the Commission finds that Mr Costigan was 
dismissed, that dismissal came about as the result of valid reasons, to which Mr Costigan was 
given ample opportunity to respond and improve. KOR contends that the dismissal, therefore, 
ought not be found to be harsh, unjust or unreasonable.

Was Mr Costigan dismissed or did he resign?

[97] KOR says that in order for Mr Costigan to succeed in his application for an unfair 
dismissal remedy he must satisfy the Commission that he did not resign voluntarily and 
establish that KOR forced his resignation, by identifying action on KOR’s part which brought 
the relationship to an end or action that had that probable result.17

[98] Section 386(1) of the Act allows for dismissal under two distinct limbs, the first being 
employment being terminated on the employer’s initiative and the second being a resignation 
forced by the conduct of the employer where the employee had no choice but to resign.

[99] Mr Costigan submits that he was dismissed as per s. 386(1)(b) of the Act. 

[100] The meaning of “dismissal’ in the context of s. 386(1)(b) was extensively examined by 
the Full Bench in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli 
[2017] FWCFB 3941 (Bupa). I adopt the reasoning of the Full Bench, which held that: 

“[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan 
J) in Wilkie v National Storage Operations Pty Ltd , that “The wording of s.386(1)(b) 
of the Act appears to reflect in statutory form the test developed by the Full Court of the 
then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty 
Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations 
Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of 
pre-FW Act decisions concerning “forced” resignations, including the decisions to 
which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen 
Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope 
Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.”








[2022] FWC 176

24

....

[47] Having regard to the above authorities and the bifurcation in the definition of 
“dismissal” established in s.386(1) of the FW Act, we consider that the position under 
the FW Act may be summarised as follows:

....

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the 
employer will be a dismissal within the second limb of the definition in s.386(1)(b). The 
test to be applied here is whether the employer engaged in the conduct with the intention 
of bringing the employment to an end or whether termination of the employment was 
the probable result of the employer’s conduct such that the employee had no effective 
or real choice but to resign. Unlike the situation in (1), the requisite employer conduct 
is the essential element.”

[101] In maintaining its position that there was no dismissal and that Mr Costigan resigned, 
KOR relies on Philip Knight v Wattyl Australia Pty Ltd.18 The facts in this matter are 
distinguishable. Unlike the circumstances in Knight v Wattyl, Mr Costigan did not have access 
to a representative who advised him and negotiated on his behalf and the idea of resignation 
came from the employer.

[102] There is no dispute that KOR had made the decision to dismiss Mr Costigan. Although 
unlike Grundy v Brister and Co19 a termination letter had not been arranged and signed, a 
decision had been made to terminate Mr Costigan’s employment. Under cross-examination Mr 
Roberts said:

“… when it was decided that your employment would cease at KOR, we intended to go 
about it in the most human and dignified way, including allowing you to resign, offer a 
letter of reference and not requiring you to work your four week notice period and also 
providing you with an additional payment to allow you to transition to the next chapter 
of your life.  So the resignation offer was primarily for your own benefit.”20

[103] There is some dispute regarding the sequence of events; that is, whether Mr Costigan 
was given an opportunity to leave the meeting room to think about matters before or after he 
resigned. 

[104] The resignation meeting started at 3:30pm and by 4:07pm Mr Costigan had tendered his 
resignation.

[105] Mr Roberts had told Mr Costigan that 31 August 2021 would be his last day working 
for KOR. In that context, the pressure KOR put on Mr Costigan to make a decision in less than 
two hours, being the end of business for the day, the exact timing of the offer to leave the room 
to “think about it” is immaterial because it would have been insufficient time in any case for 
Mr Costigan to make a considered decision.








[2022] FWC 176

25

[106] Mr Costigan knew what he was doing, and in that moment believed that it was in his 
best interests to resign. That is not the matter in contention. The issue is whether Mr Costigan 
was exercising individual judgement independent of the employer’s actions. Between 3:30pm 
to the end of the working day, he had been told he would no longer be working at KOR by 
day’s end, had resigned, sent a farewell email to his colleagues, cleared his desk, volunteered 
his keys and entry fob and lost access to his work emails. 

[107] Events were moving quickly. Mr Costigan says that during the meeting he was in shock 
and not thinking straight, that he was feeling vulnerable and did not think he could get another 
job without a reference from KOR.21

[108] Not every resignation following notification of an impending termination will constitute 
a dismissal and each matter turns on its own facts. In these circumstances, there was time 
pressure imposed on Mr Costigan and the actions of Mr Roberts were instrumental in Mr 
Costigan’s resignation. The resignation was Mr Roberts’ idea and he presented it as an 
alternative to termination, together with a positive reference and an additional bonus. KOR’s 
intention was that Mr Costigan, whether through termination or resignation, would cease to be 
employed by them within less than two hours. There was no genuine attempt to give Mr 
Costigan time to contemplate the choice of resignation.

[109] In applying the principles in Bupa,22 it is difficult to come to a conclusion that Mr 
Costigan was exercising his individual judgement when he accepted the offer to resign.  He had 
no effective choice regarding the tenure of his employment at KOR. The only choice he had 
was the manner in which he would depart.

[110] In finding that Mr Costigan was forced to resign as per s. 386(1)(b) of the Act, I do not 
direct any criticism at KOR. KOR’s offer to Mr Costigan that he resign, the bonus and the offer 
of a work reference were their attempt at a dignified exit and to make it easier for Mr Costigan 
find another job.

Was the dismissal harsh, unjust or unreasonable?

[111] Having found that Mr Costigan was dismissed, I am now required to consider whether 
his dismissal was unfair; that is, whether his dismissal was harsh, unjust or unreasonable.

Was there a valid reason for the dismissal related to Mr Costigan’s capacity or conduct?

[112] In order to be a valid reason, the reason for the dismissal should be “sound, defensible 
or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”23  However, 
the Commission will not stand in the shoes of the employer and determine what the Commission 
would do if it was in the position of the employer.24

[113] In Crozier v AIRC25 it was found that:








[2022] FWC 176

26

“A reason will be “related to the capacity” of the employee where the reason is 
associated or connected with the ability of the employee to do his or her job.”

[114] KOR submits that there was a valid reason for the dismissal of Mr Costigan related to 
his capacity to perform the requirements of his substantive role.  It is KOR’s evidence that Mr 
Costigan had been on notice of his unsatisfactory performance for almost twelve months 26 and 
that he had been coached to assist him in improving his performance. Further, that even after 
the employer reduced his duties in June so that he could focus on core tasks, Mr Costigan 
continued to make unacceptable errors.  

[115] That against the background of poor performance, particularly over June and July, by 
August 31 2021, the following matters illustrated that Mr Costigan could not perform his job 
and this constituted a valid reason for dismissal. Mr Roberts notes that the following errors he 
identified were not exhaustive:27

a. Ongoing late approval of creditor invoices which Mr Costigan had not managed, and 
the urgency of the task was not understood by Mr Costigan. 

b. In August 2021, Mr Costigan failed to import the monthly budget for BU for 
Capellotto and run a budget. KOR say that this is another example of Mr Costigan not 
taking instructions and incorrectly prioritising tasks.

c. After a discussion on 23 August 2021 that reconciling the Primus balance sheets was 
high priority, four days later this task had not been completed.

d. Mr Costigan was responsible for checking trade references as part of the application 
by customers for a 30-day account. ControlTech applied on 3 August 2021 and on 19 
August 2021, more than two weeks later, references had still not been checked. KOR 
submits that this lack of urgency and prioritisation reflected very poorly on the company 
and likely caused a loss of business.

e. In August another Xero creditor error was discovered that had been made by Mr 
Costigan on 13 June 2021. Mr Costigan had delivered the invoice net of GST. This 
resulted in the customer short-paying KOR and querying the invoice.28

[116] With regards to the reasons given for dismissal at the resignation meeting, Mr Roberts 
gave evidence that:

 The “ongoing late approval of creditor invoices” was the same as the problem that had 
been identified and communicated to Mr Costigan in October 2020.29

 
 In relation to the monthly budget for BU, Mr Costigan’s failure to follow instructions 

to complete only a very small part of the task of quite a large task related to KOR 
taking on a second major supplier. That the consequence of this was that much of Mr 
Costigan’s work needed to be redone. He says that much of it could have been avoided 
if Mr Costigan had broken the task into smaller tasks, completed one, imported it, 








[2022] FWC 176

27

reviewed it and checked it before moving on to the next task.30 This process had been 
part of the coaching advice that Mr Costigan had been given by Mr Roberts.31

 In response to COVID-19, KOR created an online process for potential customers to 
open 30-day accounts with the company. This was the first direct interaction potential 
customers would have with the company and that for over two weeks Mr Costigan had 
not checked customer references. KOR submits that Mr Costigan not prioritizing this 
task led to the likely loss of business because of the risk that customers, not having 
heard whether they had been successful in opening a 30-day account, had gone to 
competitors resulting in loss of business.32

[117] At the Determinative Conference, in response to the question from Mr Costigan, Mr 
Roberts said:33

“Are they demonstrators of a lack of improvement?   At the point of that meeting on 31 
August as I believe I previously stated, I had lost all trust in your ability to complete 
tasks on time, in full and without error and I believe I mention in my notes somewhere 
that on a particular case where you'd sent an email to Craig Bratton and not Craig Bolton, 
it might be the other way round, but an easy mistake to make, I  mentioned that if it 
wasn't for the quantity of ongoing errors that this particular error is not material, 
however, the quantity of errors over an extended period of time, errors, lack of 
comprehension and carriage, have forced me to arrive at a position where I could no 
longer trust you to complete your role and I was having to complete a significant review 
of all tasks that you were doing to save the reputation and the profitability of the 
company.”

[118] Mr Costigan responds to the issues raised with him at the resignation meeting as detailed 
by Mr Roberts. Mr Costigan does not dispute the evidence of Mr Cusworth. Significantly, 
however, he disagrees with the manner in which the issues raised by Mr Roberts are 
characterised and offers his alternate characterisation.

[119] He says: 

 a. In relation to the ongoing late approval of creditor invoices, he submits that this task 
could not be completed on time due to a lack of communication from Mr Roberts who 
failed to respond in a timely manner to emails and messages regarding the task.34 He 
further stated that:

“I had been instructed by Sean (CFO) that I receive specific instruction for each 
creditor as to the approval criteria. I was to meet with Sean regarding each new 
creditor as they arose, and establish the reasonable limits for approval. I 
consistently requested time to meet with Sean to go over these – to then allow 
approvals to be done, and this was consistently delayed and pushed back. I then 
began emailing Sean each time I had a new creditor invoice, but these also were 
not always replied to in a timely manner”.35








[2022] FWC 176

28

 b. In relation to his failure to import a monthly budget for BU, Mr Costigan says that 
he had been instructed by Mr Roberts to find a better way to complete this task but 
that he had received no formal training on how to achieve this, which he says would 
involve generating a report within the Business Central software. He says that he spent 
some time discussing how to achieve this with KOR’s software expert and had spent 
time experimenting with the software and doing his own research. He says that the 
system was not user friendly and that not all reports within Business Central are known 
or understood.36 

 c. In relation to failing to reconcile balance sheets in a timely manner, Mr Costigan 
says that when he had started the task, prior to being informed that it was urgent on 23 
August, this task took longer than normal because the software is keyboard based and 
is not simple to work with. He says that when initially preparing the reconciliations he 
was using his workpapers from the previous year as he had not been given access to 
the financials. He says that after a few weeks of starting the task KOR gave him access 
to the financials and with these new figures he realised there was a discrepancy with 
the GST which he was struggling to reconcile. He admits that this task remained 
incomplete prior to his dismissal.37

 d. In relation to failing to check trade references as part of the application by customers 
for 30-day accounts, Mr Costigan accepts that he did not complete this task. However, 
he submits that this was a new process for him and that he was struggling to complete 
this along with his other responsibilities. He says that he had requested support a 
number of times and asked for this task to be completed by another staff member but 
that these requests were denied.38

 e. In relation to the Xero creditor error, Mr Costigan accepts that he made this error, 
but he submits that this error occurred before the July meeting and that he never made 
this error again.39 He says that this should carry no weight towards grounds for 
dismissal based on when it occurred.40

[120] Mr Costigan contends that the claims against his work were low in impact to his 
employer, and generally petty in nature. He says that some errors were not errors at all, but, 
rather, were misunderstandings and other errors were out of his control. Mr Costigan submits 
that this should also be compared with the quality work he produced, his consistent work ethic, 
and the meaningful contribution he made on a consistent basis. Mr Costigan says that, even at 
his dismissal, the Managing Director thanked him for his commitment and work ethic, and in 
the notes from KOR in May there is an outline of the outstanding work overall that he was able 
to contribute. Mr Costigan says that he has noted in his timeline of events, and response to the 
performance notes, that many of the issues presented were impacted by the large work load he 
was given.

[121] KOR submits that Mr Costigan performed poorly as a Business Analyst and was not 
able to perform tasks in an efficient and/or professional manner. Further, that even after notice 
of the matters that needed an improvement in performance, and in spite of multiple 








[2022] FWC 176

29

opportunities to improve, Mr Costigan did not improve, could not be trusted to deliver accurate 
work and could not perform work to the required standard.

[122] When asked whether one of the reasons for dismissal was because Mr Costigan 
continued to make errors, Mr Roberts said:41 

“Yes, that was one of the reasons for deciding to cease your employment, errors and 
lack of attention to detail, comprehension of tasks.  There was a number of factors, 
however ongoing and consistent errors were definitely a material factor.”

[123] The fact that errors made in July were not discovered until August does not mean that 
they cannot be matters included in the consideration of s. 397(a). Mr Costigan says that three 
instances related to tasks being late and one was a misunderstanding. I do not find these 
characterisations and Mr Costigan’s explanations regarding his failure to import a monthly 
budget for BU and his failure to reconcile balance sheets in a timely manner convincing. I do 
not accept Mr Costigan’s contentions that the claims did not significantly impact his employer. 

[124] Considering all the evidence, and the matters referred to above, I find that there was a 
valid reason for Mr Costigan’s dismissal that related to his capacity, being his inability to 
perform his job to the reasonable satisfaction of his employer. 

Was Mr Costigan notified of the valid reason?

[125] It is not disputed that Mr Costigan was notified of the reason for his dismissal and the 
date that the dismissal was to take effect. Mr Costigan was advised orally at the resignation 
meeting. 

Was Mr Costigan given an opportunity to respond to any valid reason related to his capacity 
or conduct?

[126] An employee protected from unfair dismissal should be provided with an opportunity 
to respond to any reason for this dismissal relating to their conduct or capacity. An opportunity 
to respond is to be provided before a decision is taken to terminate the employee’s 
employment.42

[127] The opportunity to respond does not require formality and this factor is to be applied in 
a common-sense way to ensure the employee is treated fairly.43 Where the employee is aware 
of the precise nature of the employer’s concern about his or her conduct or performance and 
has a full opportunity to respond to this concern, this is enough to satisfy the requirements.44

[128] In his Form F2 application Mr Costigan says that his actions did not warrant dismissal 
and that he had improved. He says that had he been given the opportunity to “defend or discuss 
these matters properly” that the issues would have been resolved and that he would not have 
been terminated. 








[2022] FWC 176

30

[129] At the resignation meeting, Mr Costigan was presented with reasons for his dismissal 
and, as detailed earlier in this decision, was given a choice of resigning or being dismissed. It 
is not in dispute that KOR had decided to terminate Mr Costigan’s employment regardless of 
what Mr Costigan had to say in response to the reasons and errors detailed by KOR at his 
resignation meeting.45

[130] KOR had previously given Mr Costigan opportunities to rectify the issues identified in 
the May meeting and the June and July meetings. By the resignation meeting, Mr Roberts had 
reached the conclusion that:46

“[Mr Costigan’s] position and the errors and lack of performance had created a position 
where I could no longer trust you to do your work.  I had to conduct a significant amount 
of review and sometimes rework of your work, and where it got to a point where after a 
drawn-out process of coaching, positive enforcement, of working correctively to how 
these gaps in performance could be reduced, it had come to a point where the position 
was no longer tenable.  It came down to I could no longer trust you to competently do 
your job on time and error-free.”

[131] The undisputed evidence of Mr Cusworth is that Mr Costigan did respond to the list of 
errors put to him by Mr Roberts.47

[132] I find that Mr Costigan was given an opportunity to respond to the reasons for dismissal 
as outlined at the resignation meeting. Whilst it may not have been an opportunity that permitted 
time for Mr Costigan to consider his responses, having regard to KOR’s efforts over several 
months to identify and assist Mr Costigan in rectifying errors and their evidence, which I accept, 
that he did not satisfactorily improve, this factor is marginally in favour of a finding that the 
dismissal was unfair. 

Did KOR unreasonably refuse to allow Mr Costigan to have a support person present to assist 
at discussions relating to the dismissal?

[133] No submissions were made on the issue of a support person. This is a neutral 
consideration. 

Was Mr Costigan warned about unsatisfactory performance before the dismissal? 

[134] Mr Costigan had regular meetings with Mr Roberts at which his KPIs were discussed. 
He had been receiving regular feedback about errors and the areas in which he needed to 
improve. I accept Mr Roberts’ evidence that in May 2021 he was supportive of Mr Costigan in 
closing the gap between his performance and what was expected of him. 

[135] Mr Costigan has admitted some errors and denied others. Of the issues of concern raised 
by KOR over several months, Mr Costigan described some of them as misunderstandings or 
out of his control, or someone else’s responsibility or that he did not have the assistance that he 
had requested. Mr Costigan submitted that his work was at a high standard. 








[2022] FWC 176

31

[136] In some instances, there is a chasm between the interpretation of what was 
communicated between Mr Roberts and Mr Costigan. To the extent that there is a disagreement 
regarding the facts and after having observed both witnesses, I prefer the evidence of Mr 
Roberts. His evidence was clear and direct. Mr Costigan was at times obtuse and on at least one 
occasion exaggerated his evidence. 

[137] I accept Mr Roberts’ evidence that in a series of meetings from October 2020 to June 
2021, he gave Mr Costigan feedback regarding the inadequacy of his performance. In May 
2021, Mr Roberts had a meeting with Mr Costigan to discuss the gap between his performance 
and what was expected of him. He describes this as a salary and performance related meeting.  
There was a discussion of the errors and pathways to improvement. Mr Roberts’ evidence is 
that a list of errors and the deliverable which he had neglected or failed to complete was 
presented to Mr Costigan. Mr Costigan claims that this meeting was not a formal meeting, but 
a casual conversation over lunch. Mr Roberts did not deny the meeting was conducted over 
lunch.

[138] Mr Roberts gave evidence to the effect that this first warning was given to Mr Costigan 
orally,48 to the effect that if his performance did not improve, his employment would be 
terminated. Mr Costigan does not deny the issues raised at this meeting but denies it was a first 
warning. He also denies the number of errors. Specifically, an error that could have cost KOR 
$100,000 is referred to by Mr Costigan as a “misunderstanding”.49 

[139] A month later, a second warning was given to Mr Costigan. It referenced the 21 June 
errors and included additional errors. I accept Mr Roberts’ evidence that at this meeting Mr 
Costigan agreed that his performance had not been at an acceptable standard. 

[140] Mr Costigan admits that he was given an opportunity to respond to the concerns raised 
at the June and July meetings.50

[141] The challenge for KOR and Mr Costigan is that what KOR viewed as errors, serious 
enough to warrant performance management in the period up to June and afterwards formal 
warnings, where not seen as errors by Mr Costigan. He responded to the issues raised by Mr 
Roberts, but more often than not, was of the view that he was not responsible for the errors, or 
in fact that these were not errors at all but misunderstandings. Multiple errors over several 
months had been made and other errors continued to be made. Mr Costigan had a different 
interpretation to the errors and of their consequences on KOR.

[142] In all the circumstances, I find that KOR did warn Mr Costigan of his unsatisfactory 
performance before dismissal. This weighs against a finding that the dismissal was harsh, unjust 
or unreasonable. 

The degree to which the size of KOR’s enterprise and the absence of dedicated human 
resource management specialists would be likely to impact on the procedures followed in 
effecting the dismissal?








[2022] FWC 176

32

[143] KOR had 45 employees at the relevant time and does not employ a dedicated human 
resources management specialist. Notwithstanding this, there is evidence that considerable 
effort has been made to spell out clearly to Mr Costigan the issues with his work performance. 
To the extent that there may be any issues regarding the deficiencies in the process followed, 
however, is a factor that is explained by the size of the company and its limited specialist 
resources. This is a neutral consideration.

What other matters are relevant?

[144] Section 387(h) requires the Commission to take into account any other matters that the 
Commission considers relevant. 

[145] Mr Costigan raises other issues and says:

 He did not receive adequate training.

 Errors he had made were attributable to his high workload.

 Termination being disproportionate to his conduct.

 Scrutiny of his work increased after he asked for a pay rise.

 His achievements should be noted, presumably in response to performance-based 
issues raised by KOR. 

[146] On the first point, there was insufficient evidence to make any meaningful conclusion. 

[147] On the second factor, there are differing accounts. Mr Costigan maintains that he had a 
high workload and this is what caused the errors to which he admits. Mr Roberts says that from 
June Mr Costigan’s workload was “stripped down purely for Mr Costigan to do his job”51 and 
he was counselled on methods to improve his work. 

[148] Assistance to Mr Costigan included advising him to implement a system of blocking 
time to focus on specific tasks so as to avoid multi-tasking, to use the meeting rooms or Mr 
Roberts’ office or headphones to create a distraction free workspace and to limit disruptions 
and to use a system of self-review at the end of each task.52 For the reasons stated previously, I 
prefer Mr Roberts’ evidence.

[149] Mr Costigan has gone to significant effort to apportion blame for the errors and 
unsatisfactory work as alleged by KOR. In saying that the “punishment” of termination is 
disproportionate to his conduct, Mr Costigan fails to grasp the seriousness of the consequences 
of his mistakes. As a witness, he displayed no contrition for his errors and denied that his actions 
had caused damage to KOR, illustrating a disregard for, or lack of, basic commercial awareness 
of the situation in which KOR found itself. 








[2022] FWC 176

33

[150] In the same vein, Mr Costigan’s view that scrutiny of his work increased after he had 
asked for a pay rise, do not accord with the evidence from his employer. His work was 
scrutinised because he was making errors and not performing to the standard required from his 
employer. 

[151] Mr Costigan lists what he considers are his achievements whilst working at KOR. These 
were not canvassed in any meaningful way, and I do not make any findings on this issue. 
Against the background of the May, June and July meetings, I do not consider the list of 
achievements relevant. 

Is the Commission satisfied that the dismissal of Mr Costigan was harsh, unjust or 
unreasonable?

[152] KOR dismissed Mr Costigan because he could not perform his job to the required 
standard and could not be relied upon to deliver accurate work. He was provided with feedback 
over several months, opportunities for improvement and two warnings.

[153] Mr Costigan was dismissed because he could not perform the job that was required of 
him. 

Conclusion 

[154] Having considered all the matters specified in s. 387 of the Act, KOR’s dismissal of Mr 
Costigan was not harsh, unjust or unreasonable. Accordingly, I find that Mr Costigan’s 
dismissal was not unfair.

[155] An order will be issued with this decision dismissing the application.

COMMISSIONER

Appearances:

The Applicant on his own behalf

Mr Denton for the Respondent

Hearing details:


MISSION COM THE SEAL THE THE FAIRE MORA




 



[2022] FWC 176

34

2021 

Melbourne (video using Microsoft Teams)

15 December

Final written submissions:

3 November 2021, 25 November 2021 (Applicant)

18 November 2021 (Respondent)

Printed by authority of the Commonwealth Government Printer

PR737797








[2022] FWC 176

35

Annexure A


Performance Notes Classification Date of Response Attachment(s) Discussion 25/05/2021 Incorrect entry of truck information into Dynamics. Missed the WXmodel, could have cost KOR Misunderstanding Early in my time managing the supply chain, I met with Thomas Pewtress to review the various naming conventions of each truck model. We had a $100k + in lost revenue number of instances where the same truck was listed with variants of the same name. During this process, additional letters such as LUX were not uncommon. I discussed how each would be recorded in order to clean up the records, and to this I was told to disregard the LUX part. Having no formal knowledge or training on each truck model, I never questioned this. 03/06/2021 Missed a MBPG payment. Initially missed in the creditor batch & missed again when the PM Misunderstanding I believe that I informed the CFO verbally about this payment to be made requested we review and confirm payments were made. 02/06/2021 Sent brittney a confidential employment contract for a new staff member. Lack of care / common Error Understood sense 16/06/2021 Miscoded a editor invoice for Birrell. Invoice clearly said Motors Pty Ltd, andit was coded to Error Understood, this was at the very beginning of me doing the work for these entities. Motors properties Unit Trust 17/06/2021 Sent Krystle's employment pack to the wrong address, despite clear instructions from David in Misunderstanding Refer attached email, I was notified by Brittney that she had received an address from David Gurrie, and I sent the pack to that address - trusting the Krystle Employment Pack. pdf writing and verbal verification on the same day. address was correct. No verbal confirmal ton of the previous address was ever provided 02.07.21 Rangedale invoice review - historical prices were not reviewed. Risk of sending out invoices with Misunderstanding 22/07/2021 Sean andI had prepared monthly invoice review from April 2021, up to this point, with a consistent procedure of checking that discounts were applied, higher price when the customer specifically putus on notice that there was an Issue with consistent priding. and determining the profit margin. When the email was sent to customer still hadreversed invoice for hose correction on the summary In this instance I prepared the monthly review consistent with prior months, and after the usual review concluded, it was requested that I print the historical prices, andstaple them to the back of each invoice. I followed this instruction and finalised the month as normal. At the point of sending them out, Sean noted the reason for this request, and criticized my lack of review over historical pricing (which was a new item that had not been mentionedonce for review). My understanding was that we were mainly tasked with reviewing the discount - which was not always applied to this customer 05.07.21 Employment Hero - email prematurely sent out to ops staff for certifications. Whether this was an Other 22/07/2021 "Lack of understanding of the project" is not an accurate reflection of this issue. error or not it displayed a lack of understanding of a project you were leading and reflected poorly on the finance team and KOR's HR function. The software in question hada toggle for "Setup mode", while this mode was turned ON the system would disable emails going out to employees. During one instance of the sytem being in setup mode (I confirmed this was the case before and afterward when the instance occurred) I was setting up license and training for oper ations staff, and upon completion the sytem issued requests to the staff I had listed I was informed immediately by a colleague, and I quickly checked the setup mode stats - which was still "On". This Issue was promptly raised with the Employment hero team, as well as 09.07.21 Had to ask about Devereux Properties Pty Ltd again. This had been communicated before and the (CFO had to repeat 22/07/2021 To clarify, suppliers for some entites would issue invoices to the trustee company, but I would then needto enter data into the trust in Xero, which in with Sean. register of entities was shown to you himself) some cases had a different entity name. In this instance, I had received the instruction about the trust for this entity, but after a few weeks had misplaced my note - and requested the information again. I disagree that the entity register was provided beforehand. 15.07.21 Credit applications for customers were not being sent to Brittney. We missed 2x applications. Bad 1st N/A 22/07/2021 I tested this process extensively before handing it on to brittney. Following the meeting where Sean brought this up, I immediately submitted a experience for customers. I have not checked Brittney's emails yet. when I do and if the emails are discovered creditor application on the link we were providing to o'editors - and the system correctly issued an email to Brittney. The process was working this will be deleted correctly, however because our Admin staff missed these emails (despite my training and testing) I was being blamed for this. We also had no further errors after this incident. I would like to make a point also that Brittney frequently made mistakes, and would deflect blame when these instances occurred When I spoke with Sean on this matter during this meeting he was very abrupt and dismissive. I suggested he check Brittneys emails, and that I was confident that she will have the emails for the applications, rather than check for himself, Sean was very c'itical and said "You were managing this", and that it was still my fault for not testing it properly. The un der lined disdaimer about delet ing this note was also not present during the meeting, and was added afterward. 16.07.21 Stock in transit and spare parts audit workpapers were not ready. By not managing the process a Late Task 22/07/2021 My response to this is in two parts: significant body of work was handed to Brittney approximately 10 business hours before the due date. This 1. The workload that is handed on to brittney was a one off, however I was consistently working long days, and evenings. I hada full work load, and 1 resulted in 6.5 hours of overtime for Brittney on a Sunday. When we met on 21.07 you could still not articulate had urgent priorities at this time (such as the stocktake and financial year end reports which were still being finalised and are part of my KPIs). which shipments were in transit 2. Sean was asking for clarification of stock in transit on the 21/07, however I explained that I had not yet gone through the data after brittney's data entry (as noted was done on the Sunday), so I could not provide feedback until I had recond led the ledger. 22/07/2021 I sent out an email to all staff about this, and verbally informed Sean immediately. Refer attached email 05.07.21 19.07.21 Found out EH emails were sent out late June (was never informed). This is in addition to the issue on Error email) EH June (request all to disregard EH July (request all to disregard email)_pdf 19.07.21 sent an email to Craig Bolton instead of Craig Brattan. Easy mistake tomake, not material if it wasn't Error 22/07/2021 Understood for the quantity of errors above 19.07.21 conversation was had with you that MPG creditor payments were over due which was unacceptable. Late Task 22/07/2021 Per the attached, the auditors from Stannar ds were present at the premises, and I spent a considerable amount of time working through the audit with Auditors - Stannards.pdf This was identified as an immediate priority. I had to follow up with you again on 20.07 as I had heard nothing them, as well as assisting with setting up meeting rooms and so forth. This affected everything else on my to do list. I also had meetings with the external IT implementaiton team 20.07.21 Bank account error for Sharp and Howells. Risk of losing $ 10k. No verbal verification notes, which is Error 22/07/2021 I accept that I made this error, and I did not make any others like it. Bank Details - Sharp and the agreed and understood procedure. Three opportunities to verify. Carter pdf 1 = sighting invoice Regarding the verification process, in this instance I did not have the requried per missions to enter them in at the time of verification (see attached). 2 = input into Xero Almost two hours after verification I entered in the bank information, however I clearly transposed two numbers, and I understand my error. 3 = during verbal verification with customer




 



[2022] FWC 176

36


Performance Notes Classification Date of Response Attachment(s) Discussion From our discussion you agreed your performance was not acceptable and an improvement was required. You 22/07/2021 I consistently notified Sean that my workload was excessive - his advice was not to be afraid to push back tasks when people asked me to do things. noted that you 'blaze' through tasks andoften jumping from job to job. We agreed you need to introduce your Our weekly 1:1 was often rushed and Involved me noting my most urgent tasks own self review and chunk time to work on important tasks. You noted workload as a factor, specifically in the last month. I do not accept this as it has never been previously raised and the current worldoad is manageable. You know I have an open door policy for any issues, especially workload and prioritisation. We have a weekly 1:1 and any concerns should be raise then. 15/07/2021 - John's mobile number was incorrectly written down ... N/A 31/08/2021 This was not done by me, and is also BEFORE the previous meeting. Brittney was back from maternity leave by this time, and had assumed all Outgoing late approval of creditor invoices. Not managed / urgency not communicated responsibilities of this nature. Late Task 31/08/2021 I had been instructed by Sean (CFO) that I receive specific instruction for each creditor as to the approval c'iteria. I was to meet with Sean regar ding Invoice approval (AGL) 1 week each new creditor as they arose, and establish the reasonable limits for approval. I consistently requested time to meet with Sean to go over these - to |later.pdf then allow approvals to be done, and this was consistently delayed and pushed back. I then began emailing Sean each time I had a new or editor invoice, but these also were not always replied to in a timely manner (per attached). 17/08/2021 Budget Task: The instructions were: For now please import the monthly budget we have for BU for Misunderstanding | 31/08/2021 The original instruction was to import the budget, and when it was discussed that the import show the various divisions, I proposed the various ways Cappellotto and run a budget vs actual for July and send to David and I. Once verified we work through next Budget Import 1.pdf to split the overall budget. In response to this, Sean accepted option 2- to prepare one import file for each division. The following comment then Budget Import 2.pdf steps. required me to import one of these three for verify. (Refer "Budget Import 1") As at 27/08/2021 this had still not been complete, and significant work above and beyond these instructions Sean is stating that on the 27/08/2021 this had not been complete, I had imported the first budget before this - however I was also instructed to find a were performed. Waste oftime and did not take instructions. better way to report on the divisional breakdown when our software has not been built to do this very well. I received no formal training on this, but I was expected to generate a report within Business Central to fully demonstrate the business unit breakdowns. I spent some time following the import discussing this with our software expert, experimenting with the software and doing my own research. Refer "Budget Import 2" where I noted that I 23/08/2021 It was discussed that the recond ling the primus balance sheets was high priority. As at 27.08 this 31/08/2021 Within 3 business days of the end of financial year I prepared and printed the draft BAS, and placedit on Sean's desk. About a month later he Jor understood. was still working out the best way to present the information. The system is not very user friendly, so not all reports within Business Central are known Late Task was still not complete. requested I fully recondle the balance sheet (this requires some analysis, and account tidy up, This took longer than normal because the software is keyboard based and not as simple to work with]. I prepared reconciliations based my workpapers from last year, as I did not have access tothe financials. After review (a few weeks after I had done this) from Sean, he provided me with the link to the financials (mid august). When comparing the totals I was working with, and the new figures, there was a discrepancy with the GST which I was struggling to reconcile - and ultimately did not 30-Day Account. Michael was responsible for checking trade references. ControlTech applied on 03/08. On |complete prior to my dismissal. Late Task 19/08 references had still not been checked, reflecting poorly on KOR. 31/08/2021 I understand that I did not complete this task, this was a new process for me and I was struggling with other items. I had requested a number oftimes that I have some support and if it were possible for this to be done by another staff member, but this was not accepted. On the same day as I received this task I was also asked to close out the fringe benefits tax by the end of the day, and I was pushing to finalise month endreporting for July to meet one of my KPIs. I generally found that the week before month end, and the two weeks following month end were my busiest times, so tasks like this were not always accomplished until I had completed the tasks which related to my KPIs, and were generally urgent. 13/06/2021 Another Xero creditor error. Invoices were input net of GST. Invoice short paid resulting in Watson Error 31/08/2021 This occurred BEFORE I spoke with Sean in July. [Young calling James Morphy to enquire "What is going on?" Reflecting poorly on James and myself. I can accept that I made an error here, however this is the only time I did this. This also falls within the timeframe of the first meeting with Sean, and is not an error that I made following our first meeting in July. As noted on the audit history (provided by the defendant) the transaction was enter ed on the in June




 



[2022] FWC 176

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Performance: Notes Classification Date of Response Attachment(s) Discussion items raisedin October and November 2020 were in the form of short term feedback, andI promptly worked on these concerns. Sean's feedback on the 26th May 2021 provides a reflection of my overall work prior to the meetingsin July and August The effort and contribution you've made over the past 11 months has been exceptional 26/05/2021 This demonstrates that I worked hard, and provided meaningful contributions to KOR You've worked at a level below your qualifications and experience - fully commend what you have done 26/05/2021 This supports my comment that I was focussed on a long term perspective at KOR. Salary expectation and feedback notes 26/05/2021 I have provided my reasoning for salary expectations in the TIMELINE. Note: - Sean commented already that I taken on a role well below my qualifications and experience, even commenting that I had taken a pay "hair cut" in our 6 week probation meeting. During this meeting he had also indicated that we would get my salary to 100K within 2 years. - The budget for my role had been 70K, and a further 70K was budgeted for a supply chain worker, I filled both roles at 65K, saving KOR money. I believed that my pay rise should reflect a correction of what my salary should have been, and also a correction on the value of the new role as Business Analyst. On checking the market, I found 100K to be a fair reflection of the role and tasks I was performing, and was also on par with similar roles in the office at KOR. The items not finalised, or expectation gaps were largely impacted by workload, I closed out a lot of tasks each day, and these were the types of lower priority tasks which I often struggled to find time to complete.




 



[2022] FWC 176

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1  Fair Work Act 2009 (Cth) (the Act) s. 385(a).
2 Applicant’s outline of position filed 25 November 2021, para 10.
3 The Act s. 386(2).
4 Transcript of Determinative Conference at PN105.
5 Applicant’s outline of position filed 25 November 2021, para 12.
6 Transcript of Determinative Conference at PN106.
7 Ibid at PN107.
8 Ibid at PN108.
9 Ibid at PN110.
10 Applicant’s outline of position filed 25 November 2021, para 1.
11 Wadey v YMCA Canberra [1996] IRCA 568.
12 The Act s. 385(a).
13 (2006) 58 AILR 100.
14 PR974876.
15 Witness statement of Mr Sean Roberts, para 14-24. 
16 Ibid, exhibit SR-03.
17 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941, [47].
18 PR974876.
19 [2019] FWC 3242.
20 Transcript of Determinative Conference at PN611.
21 Ibid at PN107.
22 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
23 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
24 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
25 Crozier v AIRC [2001] FCA 1031; (2000) 50 AILR.
26 Witness statement of Mr Sean Roberts, paras 14-28.
27 Ibid, para 31.
28 Ibid, paras 30(a)-(e).
29 Transcript of Determinative Conference at PN486.
30 Ibid at PN489-PN490.
31 Witness statement of Mr Sean Roberts, para 24.
32 Transcript of Determinative Conference at PN493-PN495.
33 Ibid at PN686.
34 Applicant’s outline of position filed 25 November 2021, para 12.
35 Annexure A.
36 Ibid.
37 Ibid.
38 Ibid.
39 Ibid.
40 Applicant’s outline of position filed 3 November 2021.
41 Transcript of Determinative Conference at PN605.






http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf


[2022] FWC 176

39

42 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton 
SDP, Cribb C, 11 May 2000), [75].

43 RMIT v Asher (2010) 194 IR 1, 14-15.
44 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
45 Transcript of Determinative Conference at PN607.
46 Ibid at PN607.
47 Witness statement of Mr Steven Cusworth, para 9.
48 Transcript of Determinative Conference at PN566.
49 Ibid at PN263.
50 Form F2 Application; transcript of Determinative Conference at PN255.
51 Transcript of Determinative Conference at PN744.
52 Witness statement of Mr Sean Roberts, para 24. 

Cases cited by this decision: