Unfair Dismissal by Constructive Resignation: Does Persistent Non-Payment of Wages and Award Underclassification Force an Employee to Resign, and How Should Compensation Be Calculated?

Based on the authentic Australian judicial case [2025] FWC 1570 (U2025/2081), this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Fair Work Commission
Presiding Judge: Commissioner
Cause of Action: Application for unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth)
Judgment Date: 24 June 2025
Core Keywords:
Keyword 1: Authentic Judgment Case
Keyword 2: Unfair dismissal
Keyword 3: Constructive dismissal
Keyword 4: Wage non-payment
Keyword 5: Award underpayment and classification
Keyword 6: Compensation assessment

Background

The Applicant worked in a small education business operated by the Respondent. Over a sustained period, the Respondent repeatedly paid wages late, and on many occasions did not pay wages at all. The Applicant raised concerns through emails and internal communications, and later sought assistance from the Fair Work Ombudsman. The Respondent began paying a correct award rate at one point, but the historical non-payment and arrears remained unresolved. Eventually, the Applicant stopped work and ended the relationship after issuing a clear ultimatum: pay what is owed by a set date, or the Applicant would cease work and resign.

At the centre of the matter was a question that often confuses workers and employers alike: when a worker resigns, can the law still treat the end of employment as a dismissal if the employer’s conduct made resignation the only realistic option?

Core Disputes and Claims

Core legal focus questions the Commission was required to determine:

1. Dismissal threshold: Was the Applicant “dismissed” within the meaning of s 386(1)(b) of the Fair Work Act 2009 (Cth), despite resigning, because the resignation was forced by the Respondent’s conduct or course of conduct?

2. Unfairness merits: If there was a dismissal, was it harsh, unjust or unreasonable under s 387, having regard to the absence of a valid reason and the practical impact on the Applicant?

3. Remedy and quantum: If unfair dismissal was established, was reinstatement inappropriate, and if so, how should compensation be calculated under s 392, including the period the employment would have continued, mitigation, contingencies, and the statutory cap?

Relief sought:

• Applicant: Compensation for unfair dismissal.
• Respondent: Dismissal of the application on the basis that there was no dismissal because the Applicant resigned, and an argument that compensation was not appropriate.

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Chapter 2: Origin of the Case

The dispute did not begin as a single dramatic confrontation. It built slowly, through a pattern that many employees recognise: the pay day that does not arrive, the message that promises “next week”, the explanation that cites business pressures, and then the next missing pay.

The Applicant’s working relationship with the Respondent began in a way that blurred the line between training and productive work. The Applicant commenced in an “intern” arrangement that was unpaid and was described as not creating an employment relationship. Yet the work performed was not confined to observation or structured training. The Applicant performed administrative tasks that supported the business’s day-to-day operations, including dealing with students, fees, scheduling, and general administration.

After this unpaid period, the Applicant moved into paid employment under contracts describing a receptionist and student services role. Over time, the Applicant’s duties expanded further, particularly after a campus manager departed and was not replaced. The Applicant’s evidence was that the Respondent required the Applicant to take on additional operational responsibilities previously handled by that role.

The financial interweaving became unavoidable. Repeated wage delays meant the Applicant could not plan ordinary life expenses with certainty. The Applicant’s evidence described reliance on a spouse for support, and family responsibilities that amplified the stress caused by missing wages. In practical terms, the relationship began to resemble a person trying to keep rowing a boat while the other party kept removing the oars: the employment could continue in theory, but not in any workable way.

Decisive moments that led to litigation:

• The Applicant repeatedly complained about late and missing pay in writing across many months.
• The Applicant sought assistance from the Fair Work Ombudsman when internal complaints did not resolve the issue.
• After further non-payment, the Applicant issued a final written demand giving a defined period for payment and warning that employment would end if arrears were not resolved.
• When the deadline passed and wages remained unpaid, the Applicant ceased work and ended the relationship.
• The Applicant then commenced unfair dismissal proceedings on the basis that the resignation was forced, not voluntary.

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Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

1. Written communications demonstrating persistent wage complaints

– A sustained series of emails and messages in which the Applicant repeatedly raised missing and late wages, often in practical terms, such as needing wages to meet living expenses.

1. Formal demand emails and ultimatum

– A written demand giving a defined time window to resolve outstanding wages.
– A follow-up communication reaffirming that failure to pay by a specified date would lead the Applicant to cease work.

1. Evidence of the magnitude and duration of arrears

– At resignation, the Applicant asserted six fortnightly pays, approximately 12 weeks, were outstanding, with some wages unpaid for months.
– The Applicant asserted unpaid superannuation in a quantified amount.

1. Evidence of external escalation

– Contact with the Fair Work Ombudsman, and evidence that the Respondent became aware of that contact.

1. Role and duties evidence relevant to award classification

– A position description provided during employment describing receptionist and student services responsibilities.
– Evidence that, after the campus manager left, the Applicant undertook additional duties beyond the base role.

Legal characterisation advanced by the Applicant:

• The resignation was not a free choice, but a necessary step to remove the Applicant from unlawful non-payment.
• The conduct constituted a course of conduct that “forced” resignation, enlivening s 386(1)(b).
• Because there was no valid reason tied to capacity or conduct, unfairness was established.
• Compensation should reflect what would likely have occurred but for the forced resignation, including proper award classification.

Respondent’s Main Evidence and Arguments

1. Jurisdictional objection: no dismissal

– The Respondent argued the Applicant resigned, and therefore there was no dismissal.

1. Internal grievance procedure argument

– The Respondent asserted the Applicant did not exhaust an internal grievance procedure referenced in an employee handbook, though the content and practical operation of the procedure lacked clarity in evidence.

1. Explanations for non-payment

– Broad claims of market instability and external pressures, including visa refusal rates and business challenges.
– These assertions were not supported by detailed evidence.

1. Superannuation position

– Evidence that superannuation was paid quarterly via the Australian Taxation Office pathway, though detail was limited.

1. Competing position description attempt

– The Respondent produced an alternative position description said to relate to the role; the Commission did not accept it as aligning with the contracted role.

Core Dispute Points

1. Constructive dismissal fact: Did the Respondent’s repeated non-payment and delayed payment leave the Applicant with no real choice but to resign?
2. Credibility and weight: Whose evidence was preferred where there were conflicts, and how did that affect findings on duties and arrears?
3. Award classification: If compensation is to be assessed, what award level most closely matched the work performed?
4. Remedy choice: Was reinstatement inappropriate given the history of non-payment and the Applicant’s loss of trust?
5. Quantum mechanics: How should the Commission apply the s 392 factors, mitigation, contingencies, and the cap?

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Chapter 4: Statements in Affidavits

Although the proceeding was determined by a determinative conference and oral evidence, the persuasive function of written evidence operated in the same way affidavits often do in unfair dismissal matters: each party attempted to turn a messy workplace history into a coherent legal narrative.

How the Applicant Built a Persuasive Narrative

The Applicant’s written materials did three things effectively:

1. Chronology discipline
   The Applicant presented the pay problem as a continuous sequence, not isolated events. This mattered because s 386(1)(b) focuses on conduct or a course of conduct. A single late payment may be misconduct, but it may not “force” resignation. A persistent pattern can.

2. Objective anchors
   The Applicant grounded assertions in documents: emails, messages, and contemporaneous demands. This reduced reliance on memory and created an evidence chain the Commission could test.

3. Reasonableness posture
   The Applicant’s ultimatum was framed as giving the Respondent an opportunity to fix the problem. This supported a conclusion that resignation was not impulsive, but compelled after reasonable steps.

How the Respondent’s Written Materials Weakened Its Position

The Respondent’s approach carried two strategic vulnerabilities:

1. Vagueness without documentary support
   Claims about business pressures were not supported with detailed financial material or a clear explanation of why wages could not be paid when due.

2. “Procedure” without substance
   The internal grievance argument lacked operational detail. Where an employee has already complained repeatedly in writing about wages, the persuasive force of “you should have complained properly” tends to collapse unless the employer can point to a real, workable mechanism that would likely have produced payment.

Strategic Intent Behind Procedural Directions

The Commission’s procedural handling reflects a practical truth about employment cases: when parties are self-represented, the forum often adopts a process that maximises clarity and fairness. The determinative conference is designed to test the evidence efficiently, identify jurisdictional issues early, and prevent parties from being buried in technicality.

Here, the Commission ensured:

• The Respondent was on notice of the hearing date.
• The Respondent’s late adjournment request was refused where the reason was not acceptable and alternatives were available.
• Oral evidence was taken from the Respondent’s principal representative.
• The Commission openly evaluated credibility where a witness did not attend for questioning.

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Chapter 5: Court Orders

Before the final determination, the Commission made procedural arrangements typical of unfair dismissal proceedings, including:

• Directions setting the matter for an in-person determinative proceeding.
• Scheduling of a mention hearing and reminders of attendance obligations.
• Requirements for filing submissions, with the Respondent filing first due to a jurisdictional objection.
• Management of an adjournment request made shortly before the hearing, which was refused.
• Acceptance of filed material from a non-attending witness, but with weight assessed in light of the inability to test that evidence by questioning.

These directions reveal a practical lesson: procedural fairness is not only about letting parties speak, but about ensuring each side has a meaningful opportunity to test the other’s case.

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Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

Process Reconstruction: Live Restoration

The determinative conference unfolded around two axes: credibility and causation.

On credibility, the Commission made an explicit comparison:

• The Applicant was described as clear and forthright, with significant supporting documents.
• The Respondent’s key witness gave answers that were often vague, meandering, and not responsive, and shifted position on important points such as awareness of Fair Work Ombudsman involvement.

This credibility assessment mattered because constructive dismissal often turns on whether the employee truly had no effective choice. That inquiry requires the Commission to form a firm view about what was happening, not simply what each side asserts.

On causation, the Commission focused on whether the Respondent’s conduct was the principal contributing factor leading to the resignation. The Commission’s approach was not abstract. It asked: what did the Applicant do, what did the Respondent do, what options realistically remained, and what was the probable result of continuing the relationship?

Core Evidence Confrontation

The decisive confrontation was not about a single incident. It was about the accumulation of unpaid wages.

The key facts that drove the confrontation:

• The Applicant was paid on time only once across the employment period.
• Multiple pays were late, and a significant number were not paid at all.
• At resignation, arrears were substantial, in the range of many weeks of wages.
• The Applicant gave notice and a final opportunity to rectify arrears.
• No meaningful rectification occurred by the deadline.
• Post-resignation, a partial payment occurred, but large arrears remained outstanding even by the determinative conference.

In cross-examination style testing, the Respondent’s explanations were pressed for detail. The evidence did not support a credible justification for why wages were repeatedly unpaid when due. The Commission treated these vague explanations as insufficient.

Judicial Reasoning With Original Quotation

The Commission applied an objective lens to the parties’ conduct and drew the line between a voluntary resignation and a resignation forced by the employer’s conduct.

“It is hard to imagine what else the Applicant could have done to extract from the Respondent her lawful right to be paid for her work.”

This statement was determinative because it captures the legal heart of constructive dismissal: resignation is treated as forced when the employer’s conduct removes realistic alternatives. By finding that the Applicant had already taken reasonable steps, including repeated written complaints and involving the Fair Work Ombudsman, the Commission concluded the resignation was not an exercise of free choice.

The Commission also emphasised that constructive dismissal is not automatic whenever underpayment occurs, and that the line must be closely drawn. The decisive factor here was the persistent, virtually continuous pattern of late and missing pay, coupled with the failure to rectify arrears even after escalation and ultimatum.

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Chapter 7: Final Judgment of the Court

The Commission determined:

1. Dismissal finding
   The Applicant was dismissed within the meaning of s 386(1)(b) of the Fair Work Act 2009 (Cth) because the Applicant resigned but was forced to do so by the Respondent’s conduct or course of conduct.

2. Unfair dismissal finding
   The dismissal was harsh and unjust, and therefore the Applicant was unfairly dismissed within the meaning of s 385.

3. Remedy
   Reinstatement was inappropriate given the breakdown of trust, ongoing unpaid entitlements, and the Applicant’s circumstances.

4. Compensation order
   The Respondent was ordered to pay compensation of AUD $27,424.88 gross, less taxation as required by law, plus superannuation at 11.5%, within 14 days.

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Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This decision is a clear, practical demonstration of how workplace law treats wages as the oxygen of the employment relationship. If an employer persistently withholds wages, the law can treat the employee’s resignation as a dismissal. The jurisprudential value is not in novelty, but in clarity: the Commission mapped the doctrine of constructive dismissal onto a real-world pattern of wage non-payment, and then applied the compensation framework in a disciplined way, including award classification analysis.

The case also highlights a structural reality in smaller workplaces: employers sometimes attempt to rely on informality, cash-flow excuses, or internal “process” language. The Commission’s reasoning shows that none of those themes displace a basic statutory obligation: pay wages lawfully and on time.

Judgment Points

1. Constructive dismissal remains a jurisdictional threshold, not a sympathy exercise
   The Commission treated “dismissal” as a jurisdictional fact requiring proof. The Applicant carried that burden by showing a causal chain between employer conduct and resignation.

2. Persistent wage non-payment can constitute a “course of conduct” that forces resignation
   The Commission did not treat the case as one late payment. It treated it as a pattern occurring across virtually the entire employment.

3. Conduct includes omission
   The employer’s failure to pay wages when due is not a neutral absence. It is actionable conduct for the purpose of s 386(1)(b).

4. The employee’s reasonableness and escalation steps matter
   The Applicant’s repeated complaints, and the escalation to the Fair Work Ombudsman, supported the conclusion that resignation was not impulsive, but compelled.

5. Remedies are discretionary, but discretion must be anchored in s 392 factors
   Even after an unfair dismissal finding, compensation was not automatic. The Commission moved through the statutory factors, mitigation evidence, contingencies, and the compensation cap.

6. Award classification can materially affect compensation quantum
   By concluding the Applicant should have been classified at a higher award level for compensation purposes, the Commission increased the assessed lost remuneration.

Legal Basis

Key statutory provisions and legal principles applied:

• Fair Work Act 2009 (Cth) s 386(1)(b): A person is dismissed if the person resigns but was forced to do so because of conduct or a course of conduct by the employer.
• Fair Work Act 2009 (Cth) s 385: Defines unfair dismissal elements, including dismissal and harshness, injustice, or unreasonableness.
• Fair Work Act 2009 (Cth) s 387: Factors to consider in harsh, unjust, or unreasonable determination, applied to the extent relevant.
• Fair Work Act 2009 (Cth) s 390: Remedy threshold requiring protection and unfair dismissal.
• Fair Work Act 2009 (Cth) s 392: Compensation criteria, including viability, service length, lost remuneration, mitigation, contingencies, taxation treatment, misconduct, and cap.
• Educational Services (Post-Secondary Education) Award 2020: Used to assess correct pay rates and classification for compensation modelling.

Comparable authorities referenced in the decision’s reasoning framework and applied principles:

• Tao Yang v SAL HR Services Pty Ltd [2023] FWC 1325: Summary of constructive dismissal principles, including objective assessment and causal connection.
• Doumit v ABB Engineering Construction Pty Ltd (Print N6999, 9 December 1996): Warning that the line between forced resignation and voluntary resignation is narrow and must be closely drawn.
• Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371: Valid reason standard as “sound, defensible or well founded”, not capricious.
• Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681: Commission does not stand in employer’s shoes, but assesses fairness under statute.
• Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 2: Framework for compensation assessment and contingencies in unfair dismissal.

Evidence Chain

Victory Point 1: Proving the course of conduct through documents
Conclusion: The Respondent’s repeated non-payment constituted a course of conduct.
Evidence: A long trail of emails and messages showing frequent wage complaints and unmet commitments, combined with the Respondent’s lack of credible rebuttal.
Statutory anchor: s 386(1)(b) focuses on conduct or course of conduct that forces resignation.
Why it mattered: Constructive dismissal cases often fail when evidence is sparse or purely oral. Here, the Applicant supplied an evidentiary spine.

Victory Point 2: Demonstrating lack of real choice
Conclusion: The Applicant had no effective or real choice but to resign.
Evidence: The timeline showed repeated complaints, escalation to the Fair Work Ombudsman, and a final ultimatum that was ignored.
Statutory anchor: “forced to do so” in s 386(1)(b) requires a causal connection, not mere dissatisfaction.
Why it mattered: The Commission was persuaded that resignation was the probable result of continuing non-payment.

Victory Point 3: Undermining the Respondent’s explanations as vague and unsupported
Conclusion: The Respondent’s asserted justifications did not displace the inference that the Respondent was flouting legal obligations.
Evidence: General claims of market instability were not supported by evidence capable of explaining months-long wage arrears.
Statutory anchor: The unfairness assessment under s 387 and remedy discretion under s 392 require evidence, not assertion.
Why it mattered: Vague excuse narratives tend to fail where the obligation breached is basic and measurable.

Victory Point 4: Winning credibility findings
Conclusion: Where evidence conflicted, the Commission preferred the Applicant’s evidence.
Evidence: The Applicant was assessed as clear and forthright; the Respondent’s evidence was assessed as evasive and inconsistent.
Statutory anchor: Objective analysis of conduct requires reliable factual findings.
Why it mattered: In constructive dismissal, credibility can decide whether the conduct was truly compelling resignation.

Victory Point 5: Framing the problem as unlawful wages, not interpersonal conflict
Conclusion: The heart of the dispute was legal entitlement, not personality or workplace friction.
Evidence: Wage arrears and underpayment were admitted or effectively not disputed in material respects.
Statutory anchor: A wage obligation is enforceable and its breach can constitute relevant conduct.
Why it mattered: This kept the case from being reframed as an employee “walking away”.

Victory Point 6: Shaping compensation around a realistic counterfactual employment period
Conclusion: But for the forced resignation, employment would likely have continued for a further period.
Evidence: The Applicant wanted to continue working absent non-payment; the Respondent praised performance and sought continuation.
Statutory anchor: s 392(2)(c) requires the Commission to consider remuneration likely to have been received but for dismissal.
Why it mattered: This enlarged the assessed loss period beyond the formal contract expiry because the evidence supported ongoing employment.

Victory Point 7: Award classification analysis increased the compensation baseline
Conclusion: The Applicant was not correctly classified at the lowest award level for compensation modelling; a higher level better matched duties.
Evidence: Position description plus additional duties after the campus manager’s departure, and the absence of credible evidence that those duties were done by someone else.
Statutory anchor: Compensation modelling depends on the rate the employee would have received.
Why it mattered: A higher classification increased the estimated lost remuneration, directly influencing the compensation figure.

Victory Point 8: Mitigation evidence prevented unnecessary deductions
Conclusion: The Applicant took reasonable steps to mitigate loss and obtained new work.
Evidence: The Applicant secured fixed-term employment, with quantified earnings presented.
Statutory anchor: s 392(2)(e) and (f) require deductions for earnings during relevant periods.
Why it mattered: The Commission applied deductions on evidence, then declined further speculative deductions about future earnings where evidence did not support it.

Judicial Original Quotation

“I am satisfied having regard to the undisputed facts that the Respondent has, by continually paying the Applicant her wages late or not at all over virtually the entire period of her employment, engaged in a course of conduct that left the Applicant with no choice but to resign.”

This passage is determinative because it links the factual pattern to the statutory test in one sentence: repeated wage non-payment is the course of conduct, and the absence of real choice is the legal consequence. It also shows that the Commission anchored its conclusion in undisputed facts rather than inference.

Analysis of the Losing Party’s Failure

1. Over-reliance on the word “resignation”
   The Respondent treated resignation as conclusive. The statute does not. Where resignation is forced, it is legally a dismissal.

2. “Internal grievance procedure” argument lacked evidentiary content
   An employer cannot rely on a vague internal procedure to defeat a claim when the employee has already complained repeatedly and the core obligation is non-payment of wages.

3. Failure to produce credible, detailed evidence explaining non-payment
   General business hardship narratives may explain reduced profits, but they do not justify not paying wages. The Respondent did not present material capable of showing payment failure was temporary, isolated, or promptly rectified.

4. Credibility damage
   Inconsistent answers, evasiveness, and unpreparedness reduced the weight of the Respondent’s case and strengthened the Applicant’s documentary chain.

5. Remedial posture came too late
   Partial payment after proceedings had commenced did not cure the earlier course of conduct. The legal question was what caused the resignation at the time it occurred.

Implications

1. Wages are not a “negotiable” term of employment
   If wages are persistently unpaid, the law may treat the relationship as effectively broken by the employer, even if the worker is the one who says “I am done”.

2. Document your reality while it is happening
   You do not need perfect legal language. Simple, dated emails and messages can become the backbone of a case because they show a pattern.

3. Give clear notice before you exit when safe and practical
   A defined demand and deadline can show that resignation was compelled after reasonable opportunity to fix the problem.

4. Remedies depend on evidence, not feelings
   Compensation can rise or fall based on award classification, mitigation, and the likely future of employment. Collect the documents that prove duties and pay.

5. Employers cannot hide behind organisational smallness
   A small workplace may have fewer formal procedures, but it still has the same fundamental obligations. A “family business” structure does not soften statutory wage duties.

Q&A Session

Q1: If I resign because my pay is late, can I always claim unfair dismissal?
A: Not always. The legal line is narrow. A single late pay may not be enough. A persistent pattern, substantial arrears, and evidence that you had no real choice can make a constructive dismissal argument stronger.

Q2: What evidence is most persuasive in constructive dismissal cases?
A: Contemporaneous documents: emails, messages, pay records, and any written demands. Evidence showing repeated complaints and the employer’s failure to rectify is particularly powerful.

Q3: Does getting a new job reduce compensation?
A: Often, yes. Earnings after dismissal are commonly deducted because compensation aims to reflect loss caused by dismissal, not to provide a windfall. However, strong mitigation efforts can prevent further deductions based on speculation.

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Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Employment and Workplace Disputes — Unfair Dismissal by Constructive Resignation involving persistent wage non-payment and alleged award underclassification
Judgment Nature Definition: Final Judgment

2. Self-examination of Core Statutory Elements

Execution Instruction Applied: The following are detailed reference standards based on this case type. They are not absolute outcomes and must be assessed against the specific facts and evidence available.

Core Test: Unfair Dismissal — Fair Work Act 2009 (Cth)

Step 1: Threshold — Are you protected from unfair dismissal?
– Minimum employment period: You must usually have completed the minimum employment period with the employer. For many employers, this is 6 months, and for some small businesses it tends to be 12 months, depending on statutory definition and circumstances.
– Award or enterprise agreement coverage: You are commonly protected if a modern award covers you, or an enterprise agreement applies, or your earnings are below the high income threshold.
Practical evidence checklist:
– Employment contract start date and end date
– Pay records confirming employment period
– Award coverage indicators, classification, payslips, and role description

Step 2: Dismissal — Were you dismissed, even if you resigned?
– Dismissal by employer initiative: The employment was terminated on the employer’s initiative.
– Constructive dismissal: You resigned, but were forced to do so because of conduct or a course of conduct by the employer.
Practical test indicators that tend to strengthen constructive dismissal:
– A repeated pattern rather than an isolated event
– Substantial breach such as persistent wage non-payment, serious safety risks, or coercive conduct
– Evidence you attempted reasonable internal resolution
– Clear causal connection showing resignation was the probable result and you had no effective real choice
Practical evidence checklist:
– Emails and messages showing complaints and requests
– Pay records showing late or missing wages
– Written notice giving a reasonable opportunity to rectify
– Any external escalation records, such as Fair Work Ombudsman contact

Step 3: Unfairness — Was the dismissal harsh, unjust, or unreasonable?
Factors the Commission must consider include:
– Whether there was a valid reason related to capacity or conduct
– Whether you were notified of that reason
– Whether you had an opportunity to respond
– Support person issues in relevant dismissal discussions
– Warnings for unsatisfactory performance where relevant
– Size of enterprise and HR expertise impacts
– Any other relevant matters, including personal impact
Practical evidence checklist:
– Any warnings, performance plans, or allegations
– Any meeting notes, letters, or procedural documents
– Evidence of impact such as financial hardship, where relevant and appropriate

Step 4: Remedy — Reinstatement or compensation
– Reinstatement tends to be considered where it is practical and trust is not irreparably damaged.
– Compensation is discretionary and assessed under s 392.
Compensation mechanics that tend to be determinative:
– How long employment would likely have continued but for the dismissal
– Correct rate of pay and classification for the counterfactual scenario
– Mitigation steps and earnings after dismissal
– Contingencies deductions
– Statutory cap application
Practical evidence checklist:
– Proof of job applications and interviews
– New employment contract and earnings summaries
– Role descriptions and duty evidence supporting award classification

Core Test: General Protections — Fair Work Act 2009 (Cth)
– Was adverse action taken because you exercised a workplace right, such as complaining about pay, making a complaint or inquiry, or contacting a regulator?
– Reverse onus may apply in some contexts, meaning an employer may need to prove the reason for action was not a prohibited reason.
Practical evidence checklist:
– The complaint or inquiry record
– Timing between complaint and adverse action
– Employer communications showing reasons given

Core Test: Sham Contracting
– Are you genuinely an independent contractor, or are you operating as an employee in substance?
Indicative factors often considered:
– Degree of control over how and when work is done
– Whether you provide tools and bear financial risk
– Whether you work for multiple clients
– Whether you are integrated into the business operations
Practical evidence checklist:
– Rosters, supervision evidence, task allocation records
– Invoicing patterns and payment method
– Business integration indicators, such as staff email accounts and internal systems access

3. Equitable Remedies and Alternative Claims

Execution Instruction Applied: Alternative legal avenues can be relevant where unfair dismissal pathways are limited or where additional remedies are sought. The following are pathways that may be feasible depending on facts and jurisdiction, expressed in non-absolute terms.

Procedural Fairness
– If a decision-maker denied you a real chance to be heard or there was an apprehension of bias, a procedural fairness argument may be relevant in administrative or regulatory contexts.
– In employment contexts, procedural unfairness can also be relevant to unfair dismissal fairness assessment, though constructive dismissal cases may focus more on causation and conduct.

Ancillary Claims
– If an unfair dismissal remedy is not available or is limited, pay recovery pathways may still be pursued.
– Unpaid wages and superannuation are commonly pursued through regulatory or civil recovery channels, and outcomes can depend on evidence and enforcement processes.
– If an unfair dismissal claim fails, a general protections claim may still be considered where the evidence tends to show adverse action connected to exercising workplace rights, such as raising wage compliance issues.

Unjust Enrichment and Equitable Concepts
– In employment, unjust enrichment arguments are less commonly the primary vehicle than statutory wage enforcement, but where unpaid labour occurs under labels such as “internship”, a restitution-style argument may sometimes be explored depending on legal characterisation and jurisdiction.
– The practical focus tends to remain on statutory wage obligations and employment relationship characterisation.

4. Access Thresholds and Exceptional Circumstances

Execution Instruction Applied: Identify hard thresholds and exceptions for this case type.

Regular Thresholds
– Unfair dismissal filing limit: An application is generally required within 21 days after the dismissal took effect.
– Minimum employment period: Must be satisfied to be protected, subject to statutory definitions and business size considerations.
– Coverage and earnings: Award or enterprise agreement coverage, or earnings below the high income threshold, commonly supports protection status.

Exceptional Channels
– Late filing: Extensions can be sought in limited circumstances, and the prospects depend on reasons for delay and overall justice, assessed case-by-case.
– Constructive dismissal: Resignation can still be treated as dismissal where employer conduct effectively leaves no real choice.

Suggestion
Do not abandon a potential claim solely because one threshold appears difficult. Carefully compare your facts to recognised exceptions and gather documentary evidence early, because the success of exception arguments tends to depend heavily on evidence quality.

5. Guidelines for Judicial and Legal Citation

Citation Angle
It is recommended to cite this case in submissions or advice involving:
– Constructive dismissal arguments where resignation followed persistent wage non-payment.
– Cases where the evidentiary chain relies on emails and pay records showing a continuing course of conduct.
– Compensation assessment where award classification and likely continuation of employment are contested.

Citation Method
As Positive Support
– Where your matter involves a sustained pattern of unpaid wages and credible documentary escalation, citing this authority can strengthen an argument that resignation was forced and thus a dismissal.

As a Distinguishing Reference
– If the opposing party cites this case, you may emphasise differences such as an isolated payment delay, prompt rectification, absence of substantial arrears, or a resignation that occurred without giving the employer a reasonable opportunity to fix the breach, depending on your facts.

Anonymisation Rule
Do not use real party names in your own case narrative. Use procedural titles, such as Applicant and Respondent, and describe roles and conduct precisely.

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Conclusion

This decision demonstrates a grounded legal truth: when an employer repeatedly withholds wages, the law may treat an employee’s resignation not as a choice, but as the endpoint of an employer-driven course of conduct. The practical lesson is simple: build an evidence chain early, escalate reasonably, and understand that remedy and compensation depend on proof of loss, proper classification, and mitigation.

Golden Sentence: Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Fair Work Commission ([2025] FWC 1570), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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