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Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Joshua Condello
v
Eco Garage Doors Pty Ltd
(C2024/6337)
DEPUTY PRESIDENT CROSS SYDNEY, 20 NOVEMBER 2024
Application to deal with contraventions involving dismissal – jurisdictional objection – no
dismissal - performance issues – resignation
[1] On 5 September 2024, Mr Joshua Condello (the Applicant) lodged an application (the
Application) in the Fair Work Commission (the Commission) pursuant to s.365 of the Fair
Work Act 2009 (Cth) (the Act), against Eco Garage Doors Pty Ltd (the Respondent).
[2] The Applicant commenced employment with the Respondent on 29 January 2024. The
Applicant claimed to have been dismissed by the Respondent by way of a forced resignation
on 30 August 2024.
[3] In the hearing of the matter the Applicant represented himself. The Respondent was
represented by Mr David Smith, the State Manager for the Respondent. The Respondent is a
garage door manufacture which sells direct to the public, builders and other resellers. The
Respondent raised the jurisdictional objection to the Application, being that the Applicant was
not dismissed.
[4] On 8 October 2024, directions were issued to program the manner in which the
Application was to proceed to hearing (the Directions). In response to the Directions:
(a) On 28 October 2024, the Applicant filed a Statement;
(b) On 6 November 2024, the Respondent filed a bundle of materials and a Statement
from Mr Smith; and
(c) The Applicant did not file any materials in Reply.
[5] The Hearing of the Application occurred on 19 November 2024, by way of a
Determinative Conference (the Hearing) with the consent of the parties.
Background Facts
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DECISION
AUSTRALIA FairWork Commission
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[6] The Applicant commenced working for the Respondent on 29 January 2024.
[7] Throughout his employment the Applicant was advised that there was a need for him to
improve in his working knowledge. The Applicant was employed as a Sales Representative and
he was not achieving the sales targets as advised by Management on a daily and weekly basis.
[8] The Applicant received daily Sales Result reports from the Director, a Sales vs Budget
Report from Mr Smith, at least three times a week. Every Friday at around 2:00pm a sales
meeting was held to discuss the sales statistics for that week. The Applicant was made aware
of his under-performance, and he was mentored by his Manager on how he could make
improvements.
[9] Mr Smith had weekly meetings with the Applicant to help him to develop in his role
within the Respondent. The Applicant had requested to be promoted to the Sales Co-Ordinator
role, however Mr Smith did not consider the Applicant had the skills and experience required
for that position.
[10] In the week from 26 to 30 August 2024:
(a) On 26 August 2024, Mr Smith issued an email to all Salespersons including the
Applicant attaching a Month to date sales update;
(b) On 27 August 2024, the Applicant, and two other Salespersons, received an email from
Mr Smith regarding quotes per week. It recorded that the Applicant, in comparison to a
“Min 25 + P/W Quote objective” had issued 11 quotes in the last week and 54 quotes
for August total;
(c) Once again on 28 August 2024, Mr Smith issued an email to all Salespersons including
the Applicant attaching a Month to date sales update; and
(d) Finally, on 30 August 2024, the Respondent sent a further email to all Salespersons,
which provided the sales report for all Salespersons including the Applicant dated 24
August 2024.The Applicant was recorded on both month to date and year to date as
having met only 53% of budget.
[11] An unplanned meeting occurred around 4.00pm on Friday the 30 August 2024 (the
Performance Meeting), where the Respondent sought to raise the performance issues with the
Applicant. The various statements regarding what occurred at the Performance Meeting were:
(a) The Applicant:
On Friday, 30th August at approximately 4:00 PM, as I was preparing to leave the office,
I was unexpectedly approached by my manager, David Smith, who asked for a quick chat.
This conversation was unanticipated, and I was neither prepared nor given prior notice.
During the discussion, David began by addressing my performance and inquiring about
how I’ve been feeling recently. I explained that I have been doing my best, especially
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given the current market conditions. I highlighted that this month marked my highest
budget achievement since I started with the company, which has been 6 to 7 months.
However, the conversation took a different turn when David informed me that both he
and the business no longer saw me as part of their future plans. He then asked me what I
would like to do. Caught off-guard, I asked for clarification, and he responded by
implying that I could either choose to resign or face a “hard and messy” situation.
He repeated several times that my employment with Eco had come to an end and insisted
that I had a decision to make. At this point, I felt I had no real choice but to resign, as
David had put significant pressure on me. I want to make it clear that I never had any
formal discussions about my performance leading up to this. No performance
management plans were initiated, and no official documentation was signed or agreed
upon regarding any performance issues. Our discussions prior to this had always been
informal, typically over coffee or during routine conversations about targets, customers,
and budget progress.
(b) Mr Smith:
As per original response & the attached resignation email I received from Josh post our
1:1 meeting, the Applicant officially resigned from ECO Garage Doors on Friday 30th
August and this was by no means a forced resignation & the Respondent does not accept
the Applicant’s claim for general protections provisions in part 3-1 of the Fair Work
Act2009.
Important to note that @ absolutely no point during our 1:1 meeting on Friday 30th
August did I say that Josh’s employment @ ECO had come to an end, as we had just
finished our weekly Sales Team meeting and I advised Josh that I’ll be reviewing his
final August Result in further detail with him on Monday 2nd September, as respectfully
achieving 59.5% of his Sales Budget after 7 months of employment is both disappointing
& concerning and I reinforced to Josh that he needed to improve his performance results
moving forward, which was further impacted with numerous site measure & builder
issues over the previous months, which resulted in additional financial costs to ECO
For the record, I had been discussing Josh’s performance in person & by
correspondence on a regular & sometimes daily basis throughout his employment &
Josh was well aware of his Job Description and the Importance of achieving his monthly
Sales Budgets & Quote Objectives and August was no difference, as Josh had previously
only achieved his Feb & April Budgets, which represented 2 of 7 months that Budgets
were achieved during his employment & I’ve included a Sales & Quote Summary to
discuss further for your reference.
[12] Even if only the correspondence sent to the Applicant in the week from 26 to 30 August
2024 (Paragraph [10] above) is considered, it is impossible to accept that there were never had
any formal discussions about the Applicant’s performance, no performance management plans
were initiated, or no official documentation was signed or agreed upon regarding any
performance issues as the Applicant claims.
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[13] The Applicant was provided with particulars of his sub-par performances in advance,
and he was aware that he was performing below the expected level. In particular:
(a) In the email dated 30 August 2024, attached was a report of the year. It relevantly
illustrated the following with respect to the Applicants performance in relation to his
quotes:
1. In April 2024 the Applicants Objective was 90 he achieved 61 with a percentage of
67.8%
2. In May 2024 the Applicants Objective was 100 he achieved 56 with a percentage of
56.0%
3. In June 2024 the Applicants Objective was 100 he achieved 53 with a percentage of
53.0%
4. In July 2024 the Applicants Objective was 100 he achieved 75 with a percentage of
75.0%
5. In August 2024 the Applicants Objective was 100 he achieved 54 with a percentage
of 54.0%
(b) With respect to the Applicants performance in sales:
1. In July 2024 the Applicants Budget was $80,000 he achieved $42,663 with a
percentage of 53.3%
2. In August 2024 the Applicants Budget was $100,000 he achieved $59,554 with a
percentage of 59.6%
[14] It is clear that the Respondent was continuing to address performance issues, and Mr
Smith candidly stated at the Hearing that the following Monday there would be “tough
discussions”, however those discussions were to relate to the further performance management
of the Applicant.
[15] At 5.07pm on 30 August 2024, the Applicant sent an email (the Resignation), which
relevantly stated:
Good afternoon,
I formally resigned as of today and I wish eco as whole success moving forward.
Thanks & Regards
Josh Condello
Issues for Determination
[16] The jurisdictional issue that arises in this matter is whether the Applicant was dismissed.
[17] Section 12 of the Act defines the word “dismissed” by reference to s 386 of the Act.
Sub-section (1) of s.386 relevantly provides:
386 Meaning of dismissed
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(1) A person has been dismissed if:
(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.
[18] What must be shown is that the conduct of the employer was intended to bring the
employment to an end. I do not consider the conduct of the Respondent throughout the
Applicant’s employment in general, or during the month of August 2024 in particular, was
conduct intended to bring the Applicant’s employment to an end. On the contrary, I find that
the Respondent sought to address the Applicant’s performance issues. As the Respondent made
clear at the Performance Meeting, they advised the Applicant that further discussions would
ensue once the sales results were formalised.
[19] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Tavassoli),1 the Full Bench
of the Commission conducted a detailed analysis of authorities relating to whether particular
resignations constituted dismissal pursuant to various legislative schemes. After that analysis,
the Full Bench provided the following distillation:
[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:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a)
where, although the employee has given an ostensible communication of a
resignation, the resignation is not legally effective because it was expressed in
the “heat of the moment” or when the employee was in a state of emotional
stress or mental confusion such that the employee could not reasonably be
understood to be conveying a real intention to resign. Although “jostling” by
the employer may contribute to the resignation being legally ineffective,
employer conduct is not a necessary element. In this situation if the employer
simply treats the ostensible resignation as terminating the employment rather
than clarifying or confirming with the employee after a reasonable time that the
employee genuinely intended to resign, this may be characterised as a termination of
the employment at the initiative of the employer.
(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 probably 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.
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[48] It is necessary for an applicant for an unfair dismissal remedy whose employment
has terminated because the employer has acted on a communication of resignation on the
part of the employee to articulate whether they contend they were dismissed in the first
or the second scenario above (although it may be possible for both scenarios to arise in
a particular factual situation). Where the applicant is self-represented or inadequately
represented, it may be necessary for the member of the Commission hearing the matter
to clarify with the applicant the precise basis upon which it is contended that the applicant
was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.
[20] I do not consider that there existed any stress or confusion and consider the Applicant
had resolved not to return to work, due to the issuing of the Resignation and despite the
Respondent not crystallising any decision with respect to his underperformance. The
Respondent had the intention of placing the Applicant on a performance plan and continuing
ongoing employment with him. The Respondent engaged in no conduct with the intention of
bringing the employment to an end, and accordingly there was no dismissal.
Conclusion
[21] For the reasons set out above, I am satisfied that the Applicant was not dismissed by the
Respondent.
[22] As the Applicant was not dismissed, he could not apply for relief under Sub-division A
of Part 3-1 of the Act. The Application must be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Condello the Applicant.
Mr D Smith on behalf of the Respondent.
Hearing details:
19 November 2024.
10AM.
Sydney.
OF THE WORK THE SEAS NOISSINNE
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Printed by authority of the Commonwealth Government Printer
PR781374
1 [2017] FWCFB 3941.
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
