Danubia Ros Frandin v Coho Property Pty Ltd
[2025] FWC 951
•4 APRIL 2025
| [2025] FWC 951 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Danubia Ros Frandin
v
COHO Property Pty Ltd
(U2024/13831)
| COMMISSIONER CRAWFORD | SYDNEY, 4 APRIL 2025 |
Application for relief from unfair dismissal – not small business employer – minimum employment period completed – dismissal at the initiative of employer – no valid reason – no procedural fairness – unfair dismissal – compensation ordered.
Background
Roderick Salmon operates the Kinala Group of companies, which has a wide range of commercial interests. Mr Salmon is the sole director and owner of Coho Property Pty Ltd (Coho) and holds various other corporate roles within the Kinala Group. Danubia Ros Frandin performed cooking and cleaning duties at Mr Salmon’s apartment in The Rocks in Sydney from 15 January 2024 until 18 November 2024. For the duration of her employment, Ms Ros Frandin lived at Mr Salmon’s apartment. Ms Ros Frandin filed an unfair dismissal application on 19 November 2024 which alleged she was dismissed by Coho on 18 November 2024. Coho filed an employer response form on 2 December 2024. The response form indicated Ms Ros Frandin commenced employment on 15 January 2024 and resigned on 17 November 2024. The response form also indicated Coho had five employees when Ms Ros Frandin’s employment ended. The response form gave rise to jurisdictional issues concerning whether Ms Ros Frandin had completed the minimum employment period and whether she was dismissed within the meaning of s.386 of the Fair Work Act 2009 (FW Act).
I issued directions for the filing of evidence and submissions regarding the jurisdictional issues and listed a hearing in Sydney on 19 February 2025. Ms Ros Frandin represented herself at the hearing and Mr Salmon represented Coho. Unfortunately, the hearing resulted in both parties raising their voices, and an unnecessarily hostile approach was taken by Mr Salmon in relation to his questioning of Ms Ros Frandin.[1] At the end of the hearing, I directed Mr Salmon to provide evidence about his Kinala Group of companies so I could determine whether Coho and its associated entities had less than 15 employees when Ms Ros Frandin’s employment ended. Mr Salmon complied with this direction. However, Mr Salmon also proceeded to send a series of emails to chambers and Ms Ros Frandin which contained unnecessary and inappropriate comments about Ms Ros Frandin’s visa status, the nature of the work she has performed in Australia, her nationality, and her mental health.
Provisional views
Given the unpleasant hearing on 19 February 2025 and the subsequent inappropriate emails from Mr Salmon, I caused my chambers to send the following email to the parties on 26 February 2025:
“Dear Parties
Commissioner Crawford has reviewed the latest material filed by the parties.
The Commissioner is concerned about how this matter is progressing. The hearing on 19 February 2025 resulted in a significant amount of yelling from both parties. The yelling disturbed other Commission staff members on Level 11.
The Commissioner is also concerned that Mr Salmon is making unnecessary personal statements about Ms Ros Frandin in circumstances where Ms Ros Frandin has been experiencing mental health issues.
The Commissioner is also concerned that Ms Ros Frandin is raising alleged underpayment issues which he does not have the jurisdiction to resolve in an unfair dismissal application.
In the circumstances, the Commissioner has decided to express the following provisional views about the key issues that arise for consideration in relation to Ms Ros Frandin’s unfair dismissal application:
1. The Commissioner considers Ms Ros Frandin was engaged as an independent contractor while performing work at poker games hosted by Mr Salmon. The Commissioner considers the payment of a flat rate in cash for work performed by Ms Ros Frandin at these occasional events is not consistent with a casual employment relationship. The Commissioner has not identified any evidence that suggests Ms Ros Frandin was a casual employee of any of Mr Salmon’s businesses during this period. The Commissioner also notes Ms Ros Frandin indicated on her Form F2 unfair dismissal application that her employment did not commence until 15 January 2024.
2. Ms Ros Frandin was employed on a part-time basis by Chatswood Hotel Pty Ltd from around 14 January 2024 to around 3 November 2024. Ms Ros Frandin’s part-time employment was transferred from Chatswood Hotel Pty Ltd to Coho Property Pty Ltd on around 3 November 2024. This is demonstrated by the emails sent by Mr Buncombe and Ms Staas on 11 November 2024 and the payslips provided by Ms Ros Frandin. The Commissioner considers Ms Ros Frandin’s period of service with Chatswood Hotel Pty Ltd should be counted as service with Coho Property Pty Ltd in accordance with s.22(5) of the Fair Work Act 2009.
3. The Commissioner considers Coho Property Pty Ltd, and its associated entities, employed 15 or more employees when Ms Ros Frandin’s employment ended on 18 November 2024. The Commissioner considers that is established by the material filed by Mr Salmon. The Commissioner also notes payroll records have not been provided for all companies in the Kinala Group in accordance with his direction.
4. Based on the provisional views above, the Commissioner considers Ms Ros Frandin had completed the minimum employment period of six months for a non-small business and was eligible to make an unfair dismissal application.
5. The Commissioner considers the evidence indicates Mr Salmon made the decision to terminate Ms Ros Frandin’s employment during a meeting on 17 November 2024. The Commissioner accepts Mr Salmon and Ms Ros Frandin have differing accounts of what was said during this meeting. The Commissioner considers the best evidence is the emails sent after the meeting where Mr Salmon purports to communicate Ms Ros Frandin’s resignation on her behalf and Ms Ros Frandin immediately disputes this. The Commissioner does not consider a legally effective resignation can be communicated by an employer in circumstances where the resignation is disputed by the employee.
6. The Commissioner considers that Ms Ros Frandin was unfairly dismissed by Coho Property Pty Ltd on 18 November 2024. The Commissioner considers the dispute that arose about Ms Ros Frandin’s duties did not constitute a valid reason for dismissal. The Commissioner considers Ms Ros Frandin was also denied procedural fairness in relation to the dismissal. In the alternative, the Commissioner considers Ms Ros Frandin’s dismissal was harsh in all the circumstances.
7. The Commissioner considers an appropriate remedy for Ms Ros Frandin’s unfair dismissal is for Coho Property Pty Ltd to pay Ms Ros Frandin compensation equating to four weeks of pay, which is $3,840 gross. The Commissioner considers the employment relationship was in the process of breaking down when Ms Ros Frandin was dismissed on 18 November 2024 and that Ms Ros Frandin would only have remained employed for a further period of four weeks, if she was not unfairly dismissed on 18 November 2024.
The Commissioner directs the parties to confirm whether they oppose any of the provisional views above by 5:00pm on Monday, 3 March 2024.
If the Commissioner’s provisional views are opposed, a further brief hearing will be convened. The Commissioner intends to ensure any further hearing is strictly confined to the legal issues he must determine in this case and is conducted in a calm and respectful manner. If that cannot occur, the hearing will be adjourned.
If the Commissioner’s provisional views are not opposed, the Commissioner will finalise his decision and compensation order and the matter will be concluded.”
Ms Ros Frandin confirmed later in the day on 26 February 2025 that she did not wish to contest my provisional views. Mr Salmon confirmed on 26 February 2025 that he wished to continue arguing Ms Ros Frandin resigned from her employment with Coho and requested a further hearing.
Another hearing was listed in Sydney on 4 March 2025. Mr Salmon provided a medical certificate on 3 March 2025 which confirmed he was unfit to attend the hearing on 4 March 2025. The hearing was vacated. A further hearing was listed in Sydney on 17 March 2025. On 13 March 2025, Justin Sammut from LAS Lawyers sent an email to chambers indicating that Mr Salmon would be on a holiday on 17 March 2025 and would not be able to attend the scheduled hearing. I decided to vacate the hearing on 17 March 2025 and instead listed a conference in lieu of the hearing. I directed Mr Salmon to attend the conference or to provide instructions to Mr Sammut to act on his behalf. The matter did not resolve at the conference on 17 March 2025.
Mr Sammut indicated during the conference that the only provisional view that Coho wished to contest was that Ms Ros Frandin was “dismissed” by Coho. Mr Sammut indicated Mr Salmon maintained that Ms Ros Frandin resigned. I decided to list a further hearing in Sydney on 26 March 2025 to hear evidence from Ms Ros Frandin and Mr Salmon about the end of Ms Ros Frandin’s employment. I granted permission for Coho to be represented at the further hearing on the basis that it would enable the matter to be dealt with more efficiently.
Ms Ros Frandin represented herself at the hearing on 26 March 2025. Mr Sammut represented Coho.
Ms Ros Frandin and Mr Salmon provided oral evidence about the end of Ms Ros Frandin's employment during the hearing. This oral evidence supplemented the written evidence that both parties had previously filed.
Initial matters – uncontested provisional views
Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a)whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c)whether the dismissal was consistent with the SBFDC;
(d) whether the dismissal was a case of genuine redundancy.
Filing period
It is not disputed, and I find, that Ms Ros Frandin’s application was filed within 21 days of her employment ending on 18 November 2024.
Was Ms Ros Frandin a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(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.
I confirm my provisional view that Coho and its associated entities employed 15 or more employees when Ms Ros Frandin’s employment ended on 18 November 2024. That means Coho was not a small-business employer.
I confirm my provisional view that Ms Ros Frandin was employed on a part-time basis by Chatswood Hotel Pty Ltd from around 14 January 2024 to around 3 November 2024. I confirm my provisional view that Ms Ros Frandin’s part-time employment was transferred from Chatswood Hotel Pty Ltd to Coho Property Pty Ltd on around 3 November 2024 and the businesses were associated entities.
I confirm my provisional view that Ms Ros Frandin had completed the minimum employment period of six months for a non-small business employer.
There is no dispute that Ms Ros Frandin’s annual rate of earnings was below the high-income threshold. I consider Ms Ros Frandin’s duties at Mr Salmon’s residence would also be covered by a modern award. It is not necessary to identify the correct award given the parties did not provide evidence or submissions concerning modern award coverage.
I find Ms Ros Frandin was a person protected from unfair dismissal.
Small Business Fair Dismissal Code
I have determined that Coho was not a small-business employer, the Small Business Fair Dismissal Code is not relevant.
Genuine redundancy
Coho did not argue that Ms Ros Frandin’s employment ended by reason of genuine redundancy. I find Ms Ros Frandin’s employment did not end due to a genuine redundancy.
Initial matters – contested provisional view
Coho maintains that Ms Ros Frandin voluntarily resigned from her employment and was not “dismissed” within the meaning of s.386 of the FW Act. A person is not protected from unfair dismissal unless they have been “dismissed” within the meaning of the FW Act.[2]
Evidence
The breakdown of the employment relationship between Ms Ros Frandin and Coho is largely captured in text messages and emails which were provided by the parties.
The most contentious part of the evidence concerns Ms Ros Frandin and Mr Salmon’s differing views about what was said in meetings between them on Wednesday, 13 November 2024 and Sunday, 17 November 2024.
Ms Ros Frandin and Mr Salmon both agree a discussion occurred between them on 13 November 2024. There is no dispute that Mr Salmon raised concerns about a heavily stained piece of carpet not being cleaned. Ms Ros Frandin’s account is that Mr Salmon was indicating she should have cleaned the carpet. Mr Salmon gave evidence during the hearing on 26 March 2025 that he just wanted to discuss why the carpet was stained and how it would be cleaned. Mr Salmon says he was open to hiring carpet cleaners and that Ms Ros Frandin had access to his American Express card. Ms Ros Frandin says Mr Salmon ended the meeting by walking into his room. Mr Salmon did not dispute this.
It is clear from text messages sent by Ms Ros Frandin after the meeting on Wednesday, 13 November 2024 that Mr Salmon’s concerns about the carpet triggered an emotional response from Ms Ros Frandin because she had been feeling overworked and underappreciated by Mr Salmon for a while. The discussion about the carpet appears to have been a “final straw” for Ms Ros Frandin.
I consider the text messages exchanged between Ms Ros Frandin and Mr Salmon after their meeting on Wednesday, 13 November 2024 were professional and appropriate. Ms Ros Frandin was raising concerns about her work expectations and duties, which she is entitled to do as an employee. Mr Salmon was making suggestions about changes that could be made to accommodate Ms Ros Frandin’s concerns. That was an appropriate response from an employer. Ms Ros Frandin referred to feeling like nothing she did was ever good enough for Mr Salmon. The text messages end with Mr Salmon suggesting that Ms Ros Frandin “take the week off” to deal with her stress, and that Mr Salmon hoped Ms Ros Frandin felt better.
Ms Ros Frandin states she took the following day, Thursday, 14 November 2024, off work but returned to work on Friday, 15 November 2024. Mr Salmon does not dispute this but questions whether Ms Ros Frandin was adequately performing her duties when she returned to work. Mr Salmon complained about over-cooked eggs and that Ms Ros Frandin was giving him the “silent treatment” around the house, Mr Salmon explained during the hearing on 26 March 2025 that he believed this conduct meant his housekeeper had “turned into a wife”, and queried “what right [did Ms Ros Frandin] have to be doing this?” For her part, Ms Ros Frandin accepted she was still upset when she returned to work but denied that she did not perform her required duties and denied ignoring Mr Salmon.
Mr Salmon states that he decided on Sunday, 17 November 2024 that the breakdown in the relationship between himself and Ms Ros Frandin had to be addressed. The following text messages were then exchanged:
Mr Salmon: “I want to have a meeting with you at 5 pm. Today.”
Ms Ros Frandin: “I’m free now, I’m going out later”
Mr Salmon: “5pm. Downstairs.”
Ms Ros Frandin: “I can’t make it, I’m meeting my girlfriends at 4pm. Can we leave this for tomorrow morning?”
Mr Salmon: “That will be the worst decision you have made this year. Up to you.”
Ms Ros Frandin: “We can talk now” and then “I’m here.”
Mr Salmon: “5 pm. I will be at the piano lounge. Your choice.”
There is no dispute that the meeting occurred at 5pm on Sunday, 17 November 2024. There are vastly different accounts about what was said.
Ms Ros Frandin says Mr Salmon was aggressive from the beginning of the meeting and he stated that for what Ms Ros Frandin is paid she should be required to perform cleaning work on Sundays. Ms Ros Frandin states she made suggestions about how the workload could be managed and offered to move out of the apartment and attend the apartment to perform 24 hours of work each week. Ms Ros Frandin states Mr Salmon swore at her and told her to leave the apartment at the end of the meeting. Ms Ros Frandin states she left the apartment at the end of the meeting and returned to sleep later that night so she could pack up her possessions early in the morning.
Mr Salmon states he started the meeting calmly and intended to defuse the situation. Mr Salmon says Ms Ros Frandin started verbally attacking him and asking for an assistant. Mr Salmon gave evidence that a conversation to the following effect occurred:
Mr Salmon: “You need to agree with me 100% of the time. Can you agree with me?”
Ms Ros Frandin: “I can’t agree with you.”
Mr Salmon: “If you can’t agree with me, you can’t work for me. If you are not going to agree with me, you are resigning.”
Ms Ros Frandin: “If that is the case, okay.”
Mr Salmon: “You need to leave the apartment now.”
There is no dispute that Ms Ros Frandin left the apartment at the end of the meeting.
At 7:17pm on Sunday, 17 November 2024, Mr Salmon sent the following text message to Ms Ros Frandin:
“Dani resignation.
Thank you for your time today. I understand that you do not wish to continue with the role due to the overwhelming nature of the job. Including Thank you for your service over the last 10 months. I accept your offer to move out tomorrow morning Monday the 17th November. Jared Buncombe will be your contact person for all outstanding entitlements. I wish you all the best. Regards Rod Salmon.”
At 7:20pm on Sunday, 17 November 2024, Mr Salmon sent the following email to Mr Buncombe and Ms Ros Frandin:
“Hi Jared.
Copy of Dani’s is resignation.
Dani resignation.
Thank you for your time today. I understand that you do not wish to continue with the role due to the overwhelming nature of the job.
Thank you for your service over the last 10 months.
I accept your offer to move out tomorrow morning Monday the 17 th November.
Jared Buncombe will be your contact person for all outstanding entitlements.
I wish you all the best.
Regards Rod Salmon.”
Ms Ros Frandin sent an email response to Mr Salmon and Mr Buncombe at 7:39pm on Sunday, 17 November 2024 which stated:
“Dear Rod Salmon,
I would like to clarify some points regarding my departure. At no time did I resign. I simply expressed my concerns about the workload being beyond what I could reasonably handle and noted that I lacked the necessary training to meet all the expectations of the role.
I was surprised to receive your decision to terminate my contract, which makes it clear that this decision was initiated by you, not me.
I also expect to receive everything I am entitled to for the time I worked, and I wish you all the best moving forward.
I appreciate the opportunity I had over the past 10 months, and I remain available for any further clarification.
Kind regards,
Danubia”
Mr Salmon sent a further email later on Sunday, 17 November 2024 to Mr Buncombe and Ms Ros Frandin which relevantly stated:
“Jared could you handle this.
Dani said she was overwhelmed and unless I got her help then she could not continue.
I advised her that that “was the job” and if she could not fulfil it she should resign. I was not changing her role to suit her inexperience
Which she accepted.
She agreed to move out by Monday midday…”
Ms Ros Frandin subsequently sent an email to Mr Buncombe, not including Mr Salmon, which relevantly stated:
“Jared,
First, I want to make it clear that I did not agree to resign. Rod made the decision to terminate my employment after becoming very aggressive during a conversation. He also asked me to leave his house, immediately which I have respected…”
Ms Ros Frandin responded to Mr Salmon’s earlier text message at 8:12pm on Sunday, 17 November 2024. Ms Ros Frandin’s message stated:
“I appreciate the opportunity to have worked with you over the past 10 months. It was a valuable experience for me, and I am grateful for the whole time.
I will handle all outstanding matters with Jared moving forward as instructed.
Wishing u all the best!
Danubia”
Ms Ros Frandin sent a further email to Mr Salmon and Mr Buncombe on Monday, 18 November 2024 which stated:
“Rod
I’m writing to inform you that I was unexpectedly terminated and asked to vacate the property yesterday (Sunday) at 5:30pm, which was technically my day off. This situation has left me with very little time to arrange alternative accommodations or manage my belongings.
Unfortunately, I won’t be able to leave by midday as requested. I kindly ask for an extension until the end of the day and at the very least to pack and move everything properly.
Thank you for your understanding in this matter.”
Mr Salmon replied to Ms Ros Frandin’s email later on Monday, 18 November 2024 and stated:
“Please have all your items packed and at the front door by 1pm.
You can stay in the apartment till 5pm.
I have interviews from 6pm with a new housekeeper/cleaner.
Regards
Rod Salmon”
Consideration – was Ms Frandin “dismissed” by Coho?
Dismissal at the initiative of Coho
In Bupa Aged Care[3] (Bupa) the Full Bench explained how a “dismissal” at the initiative of an employer can arise where the potential resignation of an employee has been discussed:
“(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.”
Mr Salmon’s evidence about what was stated during his meeting with Ms Ros Frandin on Sunday, 17 November 2024 was to the following effect:
Mr Salmon: “You need to agree with me 100% of the time. Can you agree with me?”
Ms Ros Frandin: “I can’t agree with you.”
Mr Salmon: “If you can’t agree with me, you can’t work for me. If you are not going to agree with me, you are resigning.”
Ms Ros Frandin: “If that is the case, okay.”
Mr Salmon: You need to leave the apartment now.”
Even if I accept Mr Salmon’s evidence about this conversation, I do not consider it constitutes Ms Ros Frandin communicating a legally effective resignation. I consider the conversation would constitute Mr Salmon deciding at the initiative of Coho to terminate Ms Ros Frandin’s employment. Mr Salmon stating that Ms Ros Frandin is resigning and Ms Ros Frandin stating “If that is the case, okay” does not constitute a legally effective resignation. Based on Mr Salmon’s evidence, it was Mr Salmon that decided to end the employment relationship on behalf of Coho and then he then attempted to compel Ms Ros Frandin to resign.
Ms Ros Frandin denied stating that she was resigning at any point during the conversation on Sunday, 17 November 2024. Ms Ros Frandin’s account is supported by the text messages and emails exchanged after the meeting. Mr Salmon attempts to record in writing that Ms Ros Frandin resigned and Ms Ros Frandin immediately disputes this. This is consistent with Mr Salmon making the decision to end the employment relationship on behalf of Coho and Mr Salmon attempting to characterise the cessation of employment as a resignation.
I prefer Ms Ros Frandin’s evidence that she did not refer at all to resigning during the meeting on Sunday, 17 November 2024 because it is supported by the documentary evidence.
I find that Ms Ros Frandin was notified by Mr Salmon on behalf of Coho that she was being dismissed during the meeting on Sunday, 17 November 2024. On balance, I find the employment ended the following day when Ms Ros Frandin packed up her possessions and left the property.
Even if I had preferred Mr Salmon’s evidence about the conversation on Sunday, 17 November 2024, I would still find that Ms Ros Frandin was dismissed by Coho. I consider that Mr Salmon’s evidence does not constitute Ms Ros Frandin communicating a legally effective resignation. It would still be a dismissal at the initiative of the employer within the category identified by the Full Bench in Bupa.
I find Ms Ros Frandin was “dismissed” by Coho on Monday, 18 November 2024 within the meaning of s.386(1)(a) of the FW Act.
Forced resignation
In Kylie Bruce v Fingal Glen Pty Ltd (in liq) the Full Bench endorsed, with one point of clarification, an earlier summary of the principles applicable to assessing whether an employee was forced to resign from a Full Bench of the Australian Industrial Relations Commission (AIRC). The Full Bench stated:
“The four authorities cited above were summarised by a Full Bench of the AIRC in O’Meara v Stanley Works Pty Ltd (O’Meara) as follows:
‘In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. 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.
Subject to the comments below, we accept and adopt this as a summary of the principles applicable in determining whether an employee has been forced to resign because of the conduct of the employer within the meaning of s.386(1)(b) of the Act…
First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee”. There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The “limb” of the O’Meara test relating to resignation as a probable result of an employer’s conduct should be read in this light.’”[4]
The onus to prove that a resignation was not voluntary lies with the employee alleging constructive dismissal occurred.[5] Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative, is a narrow one, which must be “closely drawn and rigorously observed.”[6]
If I had accepted Mr Salmon’s evidence about the conversation with Ms Ros Frandin on Sunday, 17 November 2024 and found that it had the legal effect of Ms Ros Frandin communicating a legally effective resignation, I would still find that Mr Salmon intended to force Ms Ros Frandin to resign. Mr Salmon’s evidence was that he told Ms Ros Frandin she had to resign and Ms Ros Frandin stated: “If that is the case, okay.” That conversation can only be interpreted as reflecting that Mr Salmon intended on behalf of Coho to force Ms Ros Frandin to resign.
I also consider Mr Salmon’s evidence that he told Ms Frandin she had to agree with him if she wanted to remain employed is conduct of a nature that would have made resignation a probable result. The relationship between Ms Ros Frandin and Coho was one of employment. This was not a master and servant relationship between Mr Salmon and Ms Ros Frandin. Ms Ros Frandin was entitled to query her workload and Mr Salmon’s direction that Ms Ros Frandin had to agree with him would not be a lawful and reasonable direction from Coho.
If I had found that Ms Ros Frandin communicated a legally effective resignation, I would have found that she was “dismissed” within the meaning of s.386(1)(b) of the FW Act because she was forced to resign due to Mr Salmon’s conduct on behalf of Coho.
Consideration – unfair dismissal
Given my findings above in relation to the initial matters, I am required to consider the merits of Ms Ros Frandin’s unfair dismissal application.
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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
(h) any other matters that the FWC considers relevant.
I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me.[7]
Was there a valid reason for dismissal related to Ms Ros Frandin’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[8] and should not be “capricious, fanciful, spiteful or prejudiced.”[9] 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.[10]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[11] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[12]
I find that Coho decided to dismiss Ms Ros Frandin because she had raised concerns about her workload and due to her dispute with Mr Salmon on 13 and 17 November 2024. I do not consider this constitutes a valid reason for dismissal related to Ms Ros Frandin’s conduct.
This factor weighs in favour of finding the dismissal was unjust and unreasonable.
Was Ms Ros Frandin notified of the reason for dismissal?
Proper consideration of s.387(b) requires a finding to be made as to whether Ms Ros Frandin “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[13]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[14] and in explicit[15] and plain and clear terms.[16]
Ms Ros Frandin was not notified of the reason for dismissal before Mr Salmon communicated the dismissal during the meeting on 17 November 2024.
This factor weighs in favour of finding the dismissal was unjust and unreasonable.
Was Ms Ros Frandin given an opportunity to respond to the valid reason?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their 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.[17]
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.[18] 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.[19]
Ms Ros Frandin was not provided with an opportunity to respond to the reason for dismissal before Mr Salmon communicated her dismissal during the meeting on 17 November 2024.
This factor weighs in favour of finding that Ms Ros Frandin’s dismissal was unjust and unreasonable.
Did Coho unreasonably refuse to allow Ms Ros Frandin to have a support person present to assist at discussions relating to the dismissal?
This is a neutral factor given there were no genuine discussions relating to the dismissal before it was communicated to Ms Ros Frandin.
Was Ms Ros Frandin warned about unsatisfactory performance before the dismissal?
Ms Ros Frandin was not dismissed due to unsatisfactory performance. Mr Salmon’s evidence was that Ms Ros Frandin needed to resign if she was unable to agree with him one hundred percent of the time. Although Ms Ros Frandin raised concerns about her workload, that does not demonstrate unsatisfactory performance by Ms Ros Frandin.
To what degree would the size of Coho’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
I accept Coho is a small business when considered as an isolated legal entity and that this substantially impacted on the procedures that were followed in effecting Ms Ros Frandin’s dismissal, particularly because the nature of Ms Ros Frandin’s employment meant that she lived in Mr Salmon’s home. I consider this factor reduces the weight that should be given to the procedural fairness issues in the overall assessment of unfairness.
To what degree would the absence of dedicated human resource management specialists or expertise in Coho’ enterprise be likely to impact on the procedures followed in effecting the dismissal?
I accept the absence of dedicated human resource specialists had a substantial impact on the procedures that were followed in effecting Ms Ros Frandin’s dismissal. I consider this factor reduces the weight that should be given to the procedural fairness issues in the overall assessment of unfairness.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Neither party argued there were any other relevant factors that should be considered. I find there are not any other relevant matters.
Conclusion
I have made findings in relation to each matter specified in s.387 of the FW Act. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[20]
Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Ms Ros Frandin was unjust and unreasonable. There was not a valid reason for Ms Ros Frandin’s dismissal relating to her conduct or capacity. The process implemented to dismiss Ms Ros Frandin was also extremely flawed, although I accept the lack of professional support for Mr Salmon contributed to this.
I find Ms Ros Frandin was unfairly dismissed.
Remedy
Is reinstatement of Ms Ros Frandin inappropriate?
Ms Ros Frandin does not seek reinstatement. I find reinstatement is inappropriate. The relationship between Ms Ros Frandin and Mr Salmon has irretrievably broken down.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one.”[21]
Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[22]
Ms Ros Frandin has suffered financial loss in circumstances where I have found she was unfairly dismissed. In all the circumstances, I consider that an order for payment of compensation is appropriate.
Compensation – what must be taken into account in determining an amount?
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to Ms Ros Frandin in lieu of reinstatement including:
(a) the effect of the order on the viability of Coho’s enterprise;
(b) the length of Ms Ros Frandin’s service;
(c)the remuneration that Ms Ros Frandin would have received, or would have been likely to receive, if Ms Ros Frandin had not been dismissed;
(d)the efforts of Ms Ros Frandin (if any) to mitigate the loss suffered by Ms Ros Frandin because of the dismissal;
(e)the amount of any remuneration earned by Ms Ros Frandin from employment or other work during the period between the dismissal and the making of the order for compensation;
(f)the amount of any income reasonably likely to be so earned by Ms Ros Frandin during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
I consider all the circumstances of the case below.
Effect of the order on the viability of Coho’s enterprise
I have no evidence about the viability of Coho's enterprise, and it is part of the broader Kinala Group of businesses operated by Mr Salmon. I do not have any viability concerns that weigh in favour of a lower compensation order.
Length of Ms Ros Frandin’s service
Ms Ros Frandin was employed by Coho for less than one year, including her prior service with Chatswood Hotel Pty Ltd. This is a reasonably short period of employment. I consider this factor weighs marginally in favour of a lower compensation order.
Remuneration that Ms Ros Frandin would have received, or would have been likely to receive, if Ms Ros Frandin had not been dismissed
As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the employee would have received, or would have been likely to receive… [the Commission must] address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[23]
Taking all the evidence into account, I find Ms Ros Frandin would likely have remained employed with Coho for a further four weeks is she had not been unfairly dismissed. This is the “anticipated period of employment.”[24] I consider the relationship between Ms Ros Frandin and Mr Salmon was breaking down because Ms Ros Frandin was becoming dissatisfied with her workload and perceived that her work was not appreciated by Mr Salmon. I consider Ms Ros Frandin’s employment was likely to have ended for one reason or another within four weeks from the dismissal date of 18 November 2024, which is 16 December 2024.
Ms Ros Frandin was paid $960 gross per week. I calculate the remuneration Ms Ros Frandin would have been likely to receive working for Coho for four weeks from 18 November 2024 to 16 December 2024 to be $3,840.00 gross plus superannuation.
Efforts of Ms Ros Frandin to mitigate the loss suffered because of the dismissal
Ms Ros Frandin must provide evidence that she has taken reasonable steps to minimise the impact of the dismissal.[25] What is reasonable depends on the circumstances of the case.[26]
I do not have evidence before me about what steps Ms Ros Frandin took to find other employment after her dismissal. I consider that Ms Ros Frandin’s situation was more complicated than the average person because her dismissal meant she had to find new accommodation and resolve visa issues.
I find no deduction should be made for a failure to mitigate loss.
Amount of remuneration earned by Ms Ros Frandin from employment or other work during the period between the dismissal and the making of the order for compensation
There is no evidence Ms Ros Frandin received remuneration during the anticipated period of employment.
Amount of income reasonably likely to be so earned by Ms Ros Frandin during the period between the making of the order for compensation and the actual compensation
Given the anticipated period of employment has finished, I do not need to take this into account.
Other relevant matters
Neither party submitted that there were any other relevant matters.
Compensation – how is the amount to be calculated?
As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[27] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[28].”[29]
The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure to mitigate loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 1
I have estimated that Ms Ros Frandin would have remained employed by Coho for four weeks until 16 December 2024.
The remuneration Ms Ros Frandin would have received, or would have been likely to have received, from her dismissal on 18 November 2024 until 16 December 2024 is $3,840.00 gross plus superannuation.
Step 2
Only monies earned since termination for the anticipated period of employment are to be deducted.[30]
There is no evidence that Ms Ros Frandin received any remuneration during the anticipated period of employment.
For the reasons outlined above, I have not applied a deduction for failing to mitigate loss given Ms Ros Frandin’s circumstances.
A figure of $3,840.00 plus superannuation remains given there are no deductions to be applied.
Step 3
I now need to consider the impact of contingencies on the amounts likely to be earned by Ms Ros Frandin for the remainder of the anticipated period of employment.[31]
Ms Ros Frandin’s anticipated period of employment ended on 16 December 2024 and I have no evidence that she received any remuneration between her dismissal and that date. I therefore do not need to make a deduction for contingencies.
Step 4
I have considered the impact of taxation but have elected to settle a gross amount of $3,840.00 plus superannuation and leave taxation for determination.
Compensation – is the amount to be reduced on account of misconduct?
If I am satisfied that misconduct of Ms Ros Frandin contributed to the employer’s decision to dismiss, I am obliged by s.392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
I am not satisfied that Ms Ros Frandin engaged in misconduct. No deduction is required to be made for misconduct.
Compensation – how does the compensation cap apply?
Given Ms Ros Frandin’s rate of earnings, a compensation cap of $24,960 plus superannuation applies in accordance with s.392(6) of the FW Act.
Is the level of compensation appropriate?
Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.”[32]
The application of the Sprigg formula has resulted in an outcome where Ms Ros Frandin would be awarded compensation of $3,840.00 gross plus superannuation of $441.60.
I am satisfied that the level of compensation is appropriate.
For completeness, even if Ms Ros Frandin had earned remuneration during the anticipated period of employment, I would not have made a compensation order of less than $3,840 gross plus superannuation. I consider this is the minimum appropriate amount that Ms Ros Frandin should receive.
Compensation order
Given my findings above, I will make an order[33] that Coho must pay Ms Ros Frandin $3,840.00 less taxation, plus superannuation of $441.60 to be paid into Ms Ros Frandin’s nominated fund, with both payments to be made within seven (7) days of the date of this decision.
COMMISSIONER
Appearances:
Ms Ros Frandin representing herself.
Mr Sammut and Mr Salmon representing Coho.
Hearing:
2025.
In Sydney.
19 February.
26 March.
[1] For example, Mr Salmon made reference to cross-examining Ms Ros Frandin for several hours during the proceeding.
[2] Fair Work Act 2009 s.385.
[3] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
[4] [2013] FWCFB 5279 [18], [19] and [23].
[5] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009), [30].
[6] Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
[7] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[8] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[9] See ibid.
[10] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[11] Edwards v Justice Giudice [1999] FCA 1836, [7].
[12] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[13] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[14] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[15] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[16] See ibid.
[17] 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].
[18] RMIT v Asher (2010) 194 IR 1, 14-15.
[19] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[20] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[21] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[22] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
[23] He v Lewin [2004] FCAFC 161, [58].
[24] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[25] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[26] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[27] (1998) 88 IR 21.
[28] [2013] FWCFB 431.
[29] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
[30] See ibid.
[31] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
[32] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
[33] PR785835.
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