Sumit Kumar Aneja v New Century Investment and Trading (Australia) Pty Ltd - [2025] FWC 513

[2025] FWC 513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sumit Kumar Aneja
v

New Century Investment and Trading (Australia) Pty Ltd

(U2024/6754)

COMMISSIONER PERICA

MELBOURNE, 13 FEBRUARY 2025

Application for an unfair dismissal remedy

On Saturday 15 June 2024, Mr. Sumit Kumar Aneja made an application under s 394 seeking compensation, alleging he had been unfairly dismissed from his employment with New Century Investment and Trading (Australia) Pty Ltd (“New Century”).

The matter was heard in person by a formal hearing on Friday, 13 September 2024. Mr. Aneja appeared, gave evidence and represented himself. New Century was represented by Mr. Rohan Millar of counsel after leave was granted. Mr. Keyim Yasin, the General Manager of New Century gave evidence.

For the reasons I set out below I find:
· Mr. Aneja was dismissed on 29 May 2024.
· The dismissal was harsh, unjust and unreasonable.
· An order for payment of compensation is not appropriate in the circumstances of this case.

When can the Commission order a remedy for unfair dismissal?

Section 390 of the Act provides that the Commission may order a remedy if:

(a)the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b)the Applicant has been unfairly dismissed.

Both limbs of this section must be satisfied. I am therefore required to consider whether Mr. Aneja was protected and whether he has been unfairly dismissed.

When is a person protected from unfair dismissal?

Section 382 of the Act provides that a person is protected from unfair dismissal, at a time if, at that time:

(c)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

(d)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.

Mr. Aneja was employed by New Century for around 15 months, which exceeds the minimum employment period.

For the first three months of his employment, Mr. Aneja was paid a retainer.[1] After that, he was paid entirely by commissions for the business sales he procured. The evidence establishes he was paid a considerable amount in commissions. The high-income threshold does not apply to remuneration received by way of commission. This is because payments where the amount cannot be determined in advance are not included in a calculation of earnings under s 332(2)(a) of the Act.

It was not contested that Mr. Aneja was a person entitled to protection from unfair dismissal.

When has a person been unfairly dismissed?

Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a)the person has been dismissed; and
(b)the dismissal was harsh, unjust or unreasonable; and
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d)the dismissal was not a case of genuine redundancy.
Mr. Aneja’s employment with New Century ceased on 29 May 2024. He lodged his application for relief on 15 June 2024 within the requisite time period.

New Century argues Mr. Aneja was not dismissed but resigned. The matters referred to at points (c) and (d) are not in issue.

The first question I must decide is whether Mr. Aneja was dismissed. If I find he was dismissed, I will consider if the dismissal was harsh, unjust or unreasonable within the meaning of s 385.

Before turning to consider whether Mr. Aneja was dismissed, it is convenient to set out some of the factual background relevant to the proceedings.

BACKGROUND FACTS

On 30 January 2023, Mr. Aneja commenced work at New Century as a Business Sales Consultant which is a role that includes listing, marketing and selling businesses. He reported directly to Mr. Yasin.[2]

Mr. Aneja was employed under a written contract of employment dated 30 January 2023.[3] The contract was a “commission only” contract. Remuneration is dealt with in Clause 3 of that contract.[4] Under that term, his remuneration package included superannuation and “Commission for listing and selling real estate in accordance with Schedule 2”. Schedule 2 included the following:
“1. Commission
a) Commission payable to the employee is 40% of net amount of Commission… received by the employer on a settled sale which has been made by the employee, plus 20% of the …commission received by the employer if the settled sale has been made by the employee. The Superannuation will deduct from the commission and will send to the nominated super fund directly.

b) In the event that the employment relationship is at end and the employee have left behind some of the case which is to be settled and need to look after by employer under settlement then the Commission payable to the employee is 35% of net amount of commission…received by the employer on a settled sale which has been made by the employee, plus 15% of the…commission received by the employer, if the listing of settled sale has been made by the employer.

…

2. The employer will make appropriate PAYG tax deductions from the commission payable to the employee.”[5]

On 30 January 2023, Mr. Aneja also signed a document entitled “The New Century Business Broker (“Company”) Rules and Common Understanding” which establishes certain conduct and work-related rules related to the business including rules in relation to the payment of Commission’s including:
“42. If the business sold by the vendor to a purchaser who is not come from us and couldn’t prove the purchaser who is not come from us and couldn’t prove the purchaser is come from any agent then after we receive net commission the listing fee goes to the listing agent.

43. If agent has a potential purchaser who is actively processing of the purchase but the vendor either sold the business to someone else therefore the vendor doesn’t want to provide documents then if the purchaser able to put the offer in written with some deposit then the agent will receive 30% commission and the listing agent receive listing fee after new century successfully receive the commission from the vendor.

44. If a purchaser sign the contract and given some deposit for new century but both parties do their transaction of sale by privately and we are able to prove it then the agent will receive the agreed fee for listing and agreed fee for sale after the company received the commission.”[6]

Mr. Aneja worked without incident until May 2024 where the events which precipitated the cessation of his employment commenced.

First May meeting(s)

Statement of Mr. Aneja

On or about 20 May 2024, after Mr. Aneja had returned from a family holiday in Vietnam, he visited Mr. Yasin’s office. In his 14 August 2024 Statement, he described that meeting as follows:

“A few days before the end of my employment…I visited Mr. Yasin’s office, presented him with a copy of my Diploma of Property (Agency Management), and expressed my intention to become a licensed estate agent. I mentioned the possibility of setting up my own agency eventually, although I was not entirely certain about it. My motive for sharing this was to maintain complete transparency with him.

Mr. Yasin was taken aback when I expressed my desire to apply for my own license. He began to inquire about my intentions, asking if I planned to poach his staff or clients. Mr. Yasin mentioned that he had addressed similar situations with former employees through legal means. I reassured him that I had no plans to take his clients and that I would provide at least 30 days' notice before any future resignation. Mr. Yasin said words to the effect of, "If you are going to resign, I'd rather you leave immediately instead of in 30 days, as we don't want someone in the office compromising our client information." He added, "We have employees like Colin who earn more than you and don't need their own license. It's no big deal for me; I can replace you by tomorrow." His negative reaction was unexpected and perplexing to me.”[7]

Statement of Mr. Yasin

Mr. Yasin gave oral evidence at the hearing. During that evidence, Mr. Millar tendered parts of the Form F3 response which had been filed in the proceeding. That form contained a first-person narrative of the relevant events by Mr. Yasin including the following:

“Around 16 May 2024[8] [Mr. Aneja] came into my office and handed me a copy of the Diploma and told me that he had completed the mandatory course and he intended to apply for his Real Estate Agents Full Licence. He was asking me whether he should apply it through our agency or apply by myself directly. I advised him that he should apply to BLA directly in his own name.

Around 19 May 2024 the applicant came to my office again and asked me a second time whether he should apply for his full licence under his personal name or under his company. I told him that that is depending what is your intention after you get your licence. I told the applicant that if you still intend to work for us you just need to get a licence under your name, but if you intend to open your own agency then you may need to apply for it under your company. Then he told me that he wants open his agency from the beginning of the new financial year (1 July 2024) by partnering up with one of his friends who is also a licenced agent in residential sales in his local area. That time it was a surprise to me to hear this. Then I told the applicant that he was doing quite good job and making a very good income therefore he should keep the momentum and stay with us. l also told him that he had only been in the real estate industry merely a year and he may don't have enough experience to run his own agency. He told me that "we, humans are greedy by nature and we always want more". He further told me that he is only 35 years of age and he wants to do the things he wants to do now rather than wait until he is 50 or 60 years old. I told him that if that is what your decision is, then it is fine. As we were ending our conversation I also told him that the industry is big enough for all of us to make our living, however after your leave you can't take our data base and solicit any of our clients. He says he knew and he wouldn't do it.”[9]

From the evidence, it is not clear whether these conversations took place over the course of one or two meetings. In any event, Mr. Aneja was cross examined about the conversations that occurred.

Cross examination of Mr. Aneja on the meeting(s)

In cross examination, Mr. Millar took Mr. Aneja to his narrative of what occurred at this meeting in the Form F2, which is substantially the same as his witness statement but varies slightly:[10]

MR. MILLAR: But you told Kim at that meeting that you were planning to apply for your own licence, that's right?‑‑‑

MR. ANEJA: Correct.

MR. MILLAR: And you say that he was quite shocked; he appeared quite shocked by that and when he asked you why you needed a full licence, you told him, 'Well, I might establish my own agency in the new financial year'?‑‑‑

MR. ANEJA: Yes.

MR. MILLAR: And the new financial year was only a few weeks away, this is the end of May. New financial year is, what five weeks or so away?‑‑

MR. ANEJA: Yes. I said the new year, but I didn't necessarily mean in a few weeks' time…In the new financial year? ‑‑‑Yes, but the new financial is still a year.

He then stated, asking me some very strange questions like whether I'm going to take his staff or his clients, et cetera.[11]

MR. MILLAR: That's what he asked you?

MR. ANEJA: Yes.

MR. MILLAR: Why do you say that was strange? You've told him you're going out on your own in, potentially a few weeks' time. There was nothing strange about asking whether you were going to take his clients and staff, is there?‑‑‑

MR. ANEJA: Well, firstly, I will make it very clear, I had no intention to resign in a few weeks' time. I simply said that I'm going to buy - I'm going to look at setting up my own agency in the new year and that could mean maybe a few months - a few months' time, in six months, but I didn't, like, I didn't give him a date or anything like that.

MR. MILLAR: And then he has asked you questions about whether you're taking staff and clients which you regarded as strange?‑‑‑

MR. ANJEA: Yes. It's just the very last - it was, like, very negative, he was shocked about what - why you're suddenly getting your own licence and (indistinct). So just the way he asked it just sounded so negative to me and I have certainly had no intention of taking his clients or staff or any of that.

MR. MILLAR: You've then gone on to tell him that, 'Well, I'll give you 30 days' notice if I'm going to resign'?‑‑‑

MR. ANEJA: Yes. If - in the future, if I'm going to resign. So I'm trying to reassure him that I'm not just going to walk out of here and say, 'I'm leaving today. I will give him at least 30 days' notice in the future, if I resign.

Mr. MILLAR: You've told him of your intention to depart and start your own business. You've told him of your intention to resign?‑‑‑

ANEJA: Possible. Possible.[12]

The cross examination continued:

MR. ANEJA: …So I said to him that I am going for my licence and I've got a couple of options. Number 1 is my friend who is also a real estate agent, I could potentially partner up with him in the future, he does residential and maybe I can do business sales and then we can work together. Or the other option I have got is continue working for you, or the third option that I've got is I previously had an offer, but I haven't taken that seriously. It was from Hodges Real Estate and they mainly deal with residential and I didn't think it was a good idea to join that company that mainly does residential, as I do business sales.[13]

….

MR. MILLAR And then you said to him, 'We humans are greedy by nature and we always want more'?‑‑‑

MR. ANEJA: I didn't use the word, 'Greedy.' I said, 'Look, at the end of the day, whether we earn 200k, 300k, or a million, it's never enough. We always want to do bigger and better things and that - and you know, it's just we always want to earn more money.'[14]

MR. MILLAR…And you said to him, 'Well, you're only 35 and you want to do the things that you want to do now rather than wait until you're 50 or 60'?‑‑‑

MR. ANEJA: Yes, correct.[15]

MR. ANEJA: Yes. Look, he said, 'You're still young. You shouldn't be doing this.' I said, 'Look' - in fact, if I'm correct, I think Mr. Yasin would have been the same age as me when he started his own agency.
MR. MILLAR: He wanted you to stay in the business.
Mr. ANEJA: Yes

MR. MILLAR: And you were telling him, 'Look, you know, the time has come for me to go off and try and earn some more money by working on my own.' That's what you were saying?

MR. ANEJA: Yes, possibly in the future, yes.[16]

Discussion concerning offer from Hodges Real Estate

In the Form F3 received into evidence, Mr. Yasin states that on 28 May (the day before Mr. Aneja’s employment ended) there was a discussion concerning an offer of employment that Mr. Aneja had received from “Hoagies” Real Estate. Mr. Aneja denies it occurred on 28 May. Mr. Aneja’s evidence is that it occurred in the first conversation about him obtaining his full licence which occurred “a few days earlier”.[17]

Mr. Aneja was cross examined on this topic as follows:[18]

MR. MILLAR: All right. So that was a few days earlier, you've mentioned Hodges?‑

MR. ANEJA: Yes, yes.

MR. MILLAR: and Hodges isn't the company that you were - or isn't the business you were looking at joining your friend to run?‑‑‑

MR. ANEJA: No.

MR. MILLAR: So that was another possibility, another potential competitor that you were looking at joining and you told him about it?‑‑‑

MR. ANEJA: … I had no intention of joining them. They had offered me a job back in February and I didn't take their offer very seriously because they do residential and they're doing it themselves. So this would be completely new to them and I didn't take that offer very seriously even though they were offering more money.

MR. MILLAR: But you've gone to Kim and told him, 'Well, look, I'm in discussions with Hodges and they've made an offer of 80 per cent commission', is what it says?

MR. ANJEA: I didn’t say I was in any discussions. I simply said that here's the offer that they made to me last time, but I didn't take it very seriously, but I think you should offer me more money and I will - can give you - can work for you for a long time.'

MR. MILLAR: And you were looking to him to match this 80 per cent commission figure, is that right?

MR. ANEJA: I didn't ask for him to match it.

MR. MILLAR: And you told him that you were - that this other agency was talking about 80 per cent commission?

MR. ANEJA: I told him I have received an offer from them in February.

MR. MILLAR: He says that you even showed him a message from Hodges?

MR. ANEJA: I did.

MR. MILLAR: And that showed that they were offering you 80 per cent?‑

MR. ANEJA: Back in February, yes.

MR. MILLAR: Well, did you say that, 'Look, this is going back a few months'?—

MR. ANEJA: I did.

MR. MILLAR: Well, you were, however, emphasising that you felt you were worth more money than you were receiving from him because Hodges had already made you a more lucrative offer in the past?

MR. ANEJA: I did say to him, I said, 'Look, this is the offer that they made me, but I don't expect you to match it because they are a residential agency, whereas we're in business here. The law is a little bit different, but I still feel that I should get more money.'

Mr. Aneja’s application for an Estate Agent’s Licence from the Business Licensing Authority

Between this first exchange (whether it occurred in one or two meetings) and the next meeting, Mr. Aneja applied for his own real estate licence. Mr. Aneja’s evidence was a follows:

“On 27 May 2024, I submitted my application for an estate agent's licence to the Business Licensing Authority. Before applying, I meticulously verified the eligibility criteria for the licence. A key requirement is at least 12 months of full-time experience as an agent's representative, a criterion I was confident I had fulfilled, having worked full-time from February 2023 to May 2024. My work week easily reached 50 hours, well above the standard full-time threshold of 38 hours.

On May 28, 2024, I received a letter from the Business Licensing Authority (BLA) indicating that my employer had registered me as a part-time employee. They requested additional information to verify my full-time employment status. I discovered that Mr. Yasin and Ms. Keremu from OIEC had provided the BLA with inaccurate information regarding my employment…”[19]

28 May 2024 meeting

There is no dispute that following receipt of this rejection letter, Mr. Aneja approached Mr. Yasin in his office. What transpired at this meeting is contested. Mr. Aneja’s evidence is:

“…When I approached Mr. Yasin with the BLA's letter seeking assistance, he informed me that New Century registers all employees as "part-time," irrespective of the number of hours worked weekly. He said words to effect, “if they ask me anything about your hours, we’ll just deny it”. I then asked him to compose a letter to BLA confirming my full-time employment, to which he responded, "let's discuss it again".”[20]

Mr. Yasin’s evidence of what occurred is as follows:

“Around 28 May 2024 the applicant came to my office again and handed me a copy of letter from the BLA and told me that his application had been rejected (attached). Some parts of the letter have been highlighted by the applicant. He told me that the reason for the rejection was that he was working as a part time employee. He told me that he didn't know a part-time worker is not qualified for full licence until he works for 3 years. I told him that I didn't know what was the current requirement to get a full licence because I got my licence 24 years ago…As our conversation continued he told me that he noticed from the BLA Letter that if a full-time employee for 12 months can apply for a full licence straight away without waiting for 3 years. Then he asked me whether I can do a favour for him and tell the BLA that he works as a full time. I told him that I can't lie to the BLA, plus in your employment agreement it already states that you work as a part time. Then he keeps telling me that BLA doesn't care or check. He keeps saying that all I have to do is just write a simple letter to say that he works as a full time. As N kept rejecting his suggestion he told me that if I write a letter as he requested to BLA then he would be happy to stay longer working for us but if we don't write such a letter then he will open an agency next to us to compete when he gets his licence. In other words, he started to make a kind of threat which I didn't like it. I told him that we had been in the business for more than 20 years and we don't frighten from the competition and I told him that we don't like people to making threats. Then he changed his tone and told me that how about if l write a letter to BLA rather than stating that he works as a full time, just told BLA that he works from Monday to Friday and he also answer client's phone call and emails at home .I told him that it may possible and I can consider.”[21]

In cross examination, Mr. Aneja denied Mr. Yasin’s version of events and asserted his own. He relevantly said:

MR. MILLAR: And you told him that you wanted a letter that was going to help you get your full licence?‑

MR. ANEJA:‑‑I was simply asking them to write what they already knew, that I work fulltime. And in fact, they did it, all of it, they did write that letter after the dismissal, so they could have written that letter on that very day.

…

MR. MILLAR: In any event, at the end of that meeting, he was going to think about whether he might be able to write that letter?

MR. ANEJA: Yes.

MR. MILLAR: And after you left, he did write that letter?

MR. ANEJA: After I was sacked, yes, he did write the letter because I asked him.”[22]

29 May 2024 meeting

The meeting at which Mr. Aneja’s employment at New Century ended occurred in Mr. Yasin’s office. The accounts of what transpired that day differ. Due to a motion activated camera (which had no audio) the interaction between Mr. Aneja and Mr. Yasin was recorded on video. Mr. Aneja claims this video recording has been doctored.

Mr. Aneja’s evidence

In his 14 August statement Mr. Aneja gives the following account of what transpired that day (with emphasis added).

On the 29th of May, 2024, I went to Mr. Yasins office to discuss some urgent work-related issues. It was a crucial day for me as one of my buyers had made a binding offer on a business I listed in Pakenham. Just minutes before my termination, this buyer sent me a signed contract of sale, and I was certain the vendor would accept the offer since we had previously discussed it. I was engrossed in these tasks, confident that this sale would net us close to $17,000. Additionally, I was in the midst of negotiating the sale of businesses and had sent out two heads of agreement to the respective purchasers that same day. Therefore, resigning was certainly not on my agenda for that day.[23]

During a discussion about work-related matters with Mr. Yasin, he unexpectedly shifted the conversation to an upcoming payment for a [Cafe in South Melbourne].[24] This was quite unusual as we had never previously talked about payments before the issuance of a payslip and the actual transfer of funds into my account.

The South Melbourne Café was a listing of mine. In April 2024, I discovered that the vendor had bypassed us and sold their business to another party during the exclusivity period. We corresponded with the vendor and threatened legal action. Subsequently, they agreed to pay $13,200 as a full and final settlement to our agency. Typically, the respondent would pay me 50 percent of the total commission, but on the day of dismissal, Mr. Yasin stated he would only pay me 20 percent (the listing fee) and retain 80 percent of the commission. This was particularly distressing as he had consistently paid me 50 percent in similar situations. It seemed likely that Mr. Yasins actions were intended to provoke me into resigning immediately. His behaviour caused me considerable emotional distress

I expressed my dissatisfaction to Mr. Yasin, presenting him with three payslips from similar cases where he had paid me 50 percent, as well as a recent one from a Gelato business in Blackrock (where I received full commission. However, he stated that going forward, he would only pay 20 percent for these matters. Regarding the Gelato Shop , Mr. Yasin said words to the effect of “ I paid you full commission because you had the photos of the buyers”. Dissatisfied with Mr. Yasins explanation and in the heat of the moment, I offered to resign with a 30-day notice. This offer was made in a moment of frustration, with the hope that Mr. Yasin would deescalate the situation, considering my significant contribution of over $500,000 in gross commission to the company in the last 15 months. However, I never formally resigned. Yet, upon hearing the word 'resign,' Mr. Yasin immediately told me "well you can go home now, pack up your things, and return the key." I was left feeling humiliated. Mr. Yasin did not seek to understand if my offer to resign was genuine, nor did he request a written resignation. Instead, he seemed to seize upon my emotional state to terminate my employment at the mere suggestion of resignation. (emphasis added)

I had no choice but to go to my office to gather my personal items. While I was packing, Mr. Yasin phoned me on the landline, instructing me to take only my personal belongings and refrain from handling any work-related documents.

Shortly after departing from the office, I discovered that my access to the work email account had been terminated. I then realised that Mr. Yasin had not provided a valid reason for the termination of my employment. Within minutes of being terminated, I sent a text message to Mr. Yasin requesting that he send a notice of termination to my personal email address, specifying the reasons for my dismissal, but I never received such a notice.”

Mr. Aneja gave more detail in his oral evidence. In that evidence he stated he went into Mr. Yasin’s office discussing “normal work stuff.”[25] Mr. Yasin was sitting at his desk. In the oral evidence, Mr. Aneja stated the conversation turned to the disputed matter concerning the South Melbourne Café and the letter of demand that had been sent concerning the private sale the owner had entered into in breach of the exclusive authority in the sale agreement. He went on:

“And we managed to settle the matter for 13,000 and all I told her was that we resolved the matter and I don't know whether Mr. Yasin overheard me saying that and he said, 'What was that about?' I said, 'I just said that matter's been resolved.' And he goes, 'Do you know with that matter, you do know that from now on you're only going to get 20 per cent.' I said, 'Why is that because you always paid me 50 per cent in those matters.' And he goes, 'No, no, no. This is in our employment agreement. I can show you this.' I said, 'Well, you have always paid me 50 per cent. I have proof of that and I can show you in my payslips.' And then I went to my - get - I went to my office to get those payslips for Mr. Yasin and I even showed him. I said, 'Look here, you paid me this 50 per cent and more.' And he got - and he was not willing to, you know, discuss it. He said, 'No, no. From now on, you're only going to get 20 per cent and I will keep 80 per cent', and that was very distressing for me because I felt like I was being untreated - treated unfairly.” So in the heat of the moment, I said, 'Look, if you want, I can give you my resignation with 30 days' notice.'[26]

…

But I certainly did not resign. I certainly not - did not put anything in writing and as soon as I mentioned the word, 'Resignation', he said, 'Well, you can go home now. You pack up your things and return the key.' So that was it. I had no choice. I went back to my office. I started to pack up my material, all my stuff that I had, personal belongings and then Mr. Yasin rang me on landline. He said, “Well, make sure you don't catch any of the paperwork. Make sure you only take your personal belongings.”[27]

In cross examination he explained the “provocation”:

“…I was entitled to be upset about this because my commission had suddenly been cut 20 percent, whereas in the past I got fifty percent and I have got proof of it. In the exact same matters I received 50 percent and all of a sudden he’s saying “Now you’re going to get 20 percent. So I have very upset. It was very distressing to me.”[28]

Later on, he added:

“I offered to resign in the heat of the moment, It was not on my mind. I did not go to his office with the intention of resigning. It was simply “he provoked me into resigning.”[29]

Mr. Yasin’s account of the 29 May meeting

Mr. Yasin in the Form F3 gives the following account of what transpired at that meeting (with emphasis added):

“Around 29 May 2024, he came to my office to discuss something else. At the end of the meeting I was discussing with him about one of his upcoming payments and he didn't agree with my view on this matter. As I was using our employment agreement to prove my point he suddenly started to getting angry and told me that he was giving me 30 days' notice to resign. Though I knew he had been talking about leaving anyway but this still happened so suddenly and as I was thinking how to respond to him, he told me that if I don't mind he can leave today” (29 May 2024).

Without choice l accepted his immediate resignation and told him that I don't mind. Then he went to his room and packed up his things and returned the office key to me as he walking.”[30]

The argument over the commission at this meeting

The dispute over the commission on the South Melbourne Café business sale was over Mr. Aneja’s expectation that he would receive a higher commission. The owner of the South Melbourne Café business had sold it privately in breach of the sale agreement. As a result, Mr. Yasin argued that Mr. Aneja was only entitled to a 20 percent commission for the listing rather than commission for the sale because he had not brought the purchaser to the sale.

Mr. Aneja argued he had three precedents which he asserts were in similar circumstances in that he had not secured the purchaser. He gave three examples: a repair business, a beauty salon business in Cranbourne North and a gelato shop in Blackrock where he received a fifty percent commission.[31] He bought those pay slips to Mr. Yasin to convince him to pay the higher commission.

There is a dispute over the document which Mr. Yasin showed to Mr. Aneja to justify his position on the commission. Mr. Yasin says it was a provision of Mr. Aneja’s employment contract which stated that he was only entitled to the higher commission “if the settled sale has been made by the employee.”[32] Mr. Aneja claims he was showing him a copy of the New Century Business Broker Rules and Common Understandings.

In his evidence in chief, Mr. Yasin gave evidence of why he thought the lower commission applied:

MR. YASIN: So what happens (indistinct) that if the vendor sold the business privately, to try to cut us - cut us off, if we find it - and I worked myself, I worked hard. I say, 'Look, if you find that that vendor sold the business to privately', which we find out to be the case, and then I say that, 'If you just listing it, you get 20 per cent', but, however, if you have a buyer and you're working so hard, and if you are about to have an offer, but the vendor sold to someone else, if you prove that you have a buyer and all of these I give them the (indistinct) per cent. In this case, in the other two cases which is [the beauty salon] and [the repair shop], Sumit showed me tons of messages, email messages and other messages (indistinct).

MR. MILLAR: Can we take those separately. So what happened with the Nail Salon?

MR. YASIN: So the Nail Salon is the vendor, sold it privately to a buyer, not to Sumit's buyer, but Sumit had other buyers about to make an offer and he showed me all of his text messages, email message and whole lot of things, and plus that's only one person income and small commission, and I said, 'Okay, Sumit. I make this your buyer. I give you 30 per cent', because he has someone looking at quite expensive, but in the [South Melbourne Café] what can he tell me that is about. Someone sold it privately, and (indistinct) I get all of the communication only with an offer to get (indistinct). That's what I thought on this. It's not the same case because other - that was - that's a bigger business and we're still holding that.

MR. MILLAR: What about [the North Cranbourne Repair Business]Yes.

MR. YASIN: They're the same things there. It's (indistinct) vendor. As soon as these things, the vendor sold privately. Again, if you look at the - his evidence. He brought me up a photo of - many, many photos of his inspection and his text message. He has the buyer. Should the vendor didn't sell, that buyer, he will be able to have a buyer and I said okay. I choose and I gave him (indistinct) per cent.

There is a dispute in the evidence over whether Mr. Yasin had said that Mr. Aneja would only get 20 percent commission where he did not secure the sale from now on or just for the sale of the South Melbourne Café business.

Security Camera Footage

During the hearing, twelve minutes of security camera footage was played during the evidence of Mr. Aneja and Mr. Yasin. Mr. Yasin explained the camera was installed for security reasons following two break-ins to the Box Hill Office.[33] It is motion activated.

As I am not a proficient lip reader, the utility of this video recording to the matters in issue here are limited. I will nonetheless describe what I observe and then reference the evidence Mr. Yasin and Mr. Aneja gave on observing the four videos at the hearing.

First video from 29 May 13.41 to 13.47

The first video which is time stamped 13.41 to 13.47 on 29 May records an interaction between Mr. Aneja and Mr. Yasin in Mr. Yasin’s office. Mr. Aneja gave evidence that what is depicted in the first video is firstly a normal discussion about a heads of agreement[34]

Mr. Yasin on viewing this video denied it depicts the discussion about the heads of agreement but the South Melbourne Café commission. In examination in chief, he explained what was happening this way:[35]

MR. YASIN: He was very happy and he said, 'Thank you. It's a good (indistinct)', and in front of him, at 1.32 pm, I replied to the email, back to the vendor's solicitor. I said, 'Yes, we received your offer.' Then I came back to Sumit to say then, 'Look, Sumit, that's good. (indistinct) 20 per cent for this matter as a commission', and he said, 'You should pay me 50 per cent.' I said, 'No, this is 20 per cent. That's what we agreed', and at 1.35 pm he left the room because before he left he said, 'You pay me 50 per cent on similar case in the past', and I - then he went to his room and this is when he came back with three payslips and tried to show me that, 'You paid me 50 per cent for (indistinct).' I explained to him that, no, this is not the same case and not a similar case, because he had only been with us for a year. He hasn't seen much. I explained this, where I am explaining about – he's talking about payslips and I'm talking about payslip.

MR. MILLAR: Okay. So this is about [the South Melbourne Café} or it's not?‑‑‑

MR. YASIN:.... Yes.

Mr. Yasin’s evidence is the papers Mr. Aneja are holding are the three pay slips where he was paid higher commission.

Second Video: 29 May 13.47 to 13.51

The second video is time stamped 13.47 to 13.51 on 29 May. Mr. Aneja’s evidence was this depicts the discussion concerning the South Melbourne Café. Towards the end of the video Mr. Yasin retrieves a yellow folder from a cabinet behind his desk. The essence of what is recorded on the video is aptly described in cross examination of Mr. Aneja;[36]

MR. MILLAR: So we might perhaps pause there, just to make sure we're on the same page. At this stage you're listening to what's obviously a lengthy explanation from Keyim about why it is that you only get 20 per cent listing commission if you haven't made the sale?‑‑‑

MR. ANEJA: Yes. He was just trying to tell me what, you know, how he thinks that I should only get 20 per cent.

MR. MILLAR: Okay, and you agree? I mean you are largely listening at this point, aren't you?‑‑‑

MR. ANEJA: Yes.

Mr. MILLAR: So although we have seen some hand gestures from Keyim, you're relatively calm, or at least your demeanour suggests that there's nothing heated at this moment. Do you agree with that?‑‑‑

MR. ANEJA: Nothing heated at this moment.

In examination in chief, Mr. Yasin identified the folder and why he retrieved it:

THE COMMISSIONER: You get out a yellow folder (indistinct)?‑‑‑

MR. YASIN: It was about that time I realised what I have explained he doesn't listen. He doesn't. He couldn't accept it. That's why I thought maybe I have to show him the written agreement.
…

MR. MILLAR: What was happening then?‑‑‑

MR. YASIN: At that time I thought with my explanation, all of the different cases and (indistinct) I then realise that (indistinct). I just don't know what I - I can see then Sumit was losing his patience, so this is where I - if you continue. I'm so sorry. Just a bit longer. If you go two or three more seconds and then I - then I realise, look, I can't complete the same words. I say – I need to grab the employment agreement to show him this is what we agreed, because this one he may have seen what – that was intended to be (indistinct).[37]

Third Video: 29 May from 13.51 to 13:54

In the third video, which is time-stamped 13.52 to 13.54 on 29 May, Mr. Yasin is holding a piece of paper and explaining something to Mr. Aneja. Mr. Aneja in his evidence indicates the discussion concerning the South Melbourne Café commission continued until Mr. Aneja points upwards indicating he wanted to go upstairs and get the three pay slips where the higher commission had been paid.

Mr. Yasin gave evidence that this video captures the alleged resignation of Mr. Aneja.

MR. YASIN: ….So this is (indistinct) because after I grabbed .. that file…and once I showed him the agreement I think that Sumit didn't like with what we agreed, because at the time… So if you look at the first one to 10 seconds, I'm still talking about that employment agreement.

Yes. From that, after he realised this is what we agreed, and then he must realise that he has nothing to talk to me so he piled up the folder, leaving his bag on the floor and he tell me, 'I resign it', and he handed his notice, and I didn't respond to him for at least five seconds. So once he told me he resigned and give his notice I don't know how to respond to him, so I keep talking. Next five seconds I keep talking. Again, that is what I thought, if I could talk him - then talk him out of his resigning decision because he is a good salesperson. If he stay longer with me he gave me more revenue. There is not any reason he - even if I give him one week because he sells so much. If I give him one week extra I get in more revenue, especially if he's on commission base. There's no expense on - if I give him one week extra sobeit. So I kept talking to him. I was hoping that I can talk him out of resignation. If you can, please, keep playing the next three seconds, please.

… and then Sumit must have had enough and he say, 'If you don't mind, I finish up today.' That time, when I was asked, I can tell from him that he's done with me. I think he just decided he resign it. I couldn't see any hope that I was still able to keep him, and then he just say, 'If you don't mind, I finish up today.' That time I realised it's done. He resigned it. He's gone. So I say, 'If you can leave extra key.' I say, 'Do you mind?' He just handed it up. He just handed, lean on the table, packed up his file and he walked out. [38]

Fourth Video: 29 May from 14.09.33 to 14.12.02

The fourth video depicts the time after Mr. Aneja has gone upstairs. Other employees of New Century come into Mr. Yasin’s office. About thirty seconds into the video, Mr. Aneja comes downstairs with a full black bag. He comes into Mr. Yasin’s office and places a key on Mr. Yasin’s desk and appears to leave the premises.

At about a minute into the video, Mr. Aneja comes back into the office, he stands at the door of Mr. Yasin’ s office and gestures to point upstairs. Mr. Yasin in his evidence stated that Mr. Aneja asked him if he could go upstairs to retrieve some documents he had printed out.[39] Mr. Aneja’s evidence was after he had walked out, he realised he had forgotten to take his pay slips which he had printed out earlier to establish he was a full time worker.[40] He asked Mr. Yasin whether he could go upstairs to retrieve them, and Mr. Yasin said he could.[41]

At about two minutes twenty into the video (the time stamp says 14.12.05), Mr. Aneja walks down the stairs and shows Mr. Yasin a wad of documents in his hand. He shows the documents to Mr. Yasin and leaves.

Mr. Aneja’s claims about the video evidence

Mr. Aneja refutes Mr. Yasin’s evidence that the third video includes the incident where the resignation or dismissal occurred. He claims none of the events captured on the video show the incident where he alleges he made the offer to resign in 30 days and where he alleges Mr. Yasin asked him to leave immediately. He questions “the integrity and completeness of the video evidence”.

To support his claim, he filed an expert report from a Mr. Paul Tierney of the firm Scientific Services dated 11 September 2024. Mr Tierney is a physicist who has expertise in analysing audio and video evidence. Mr. Tierney reaches the following conclusion based on his review of the videos:

“From my review of the metadata, I am unable to determine if the questioned file, file 1 has been edited or if the break in the footage between 13:53:16 to 13:54:20 is due to motion sensitivity settings of the CCTV system. I have identified that file 1 has been opened in software that has enabled changes to be made to the format and then resaved on 5 August 2024 (6 August Melbourne time). The opportunity has therefore existed to edit this file at this time.”

Text exchange after Mr. Aneja left the office at around 2.17PM

If the time stamp of the video recording is accurate, literally five minutes after he left the office, at 2:17 PM (according to the time stamp on top of the texts in evidence) he entered into a text exchange with Mr. Yasin as follows:[42]

MR. ANEJA
Hi Kim, since you told me to go home, can you please send me a termination of employment letter to my email? [email protected] Thanks!
MR. YASIN
I didn't send you go home. You told me you resigned and packed up left.
MR. ANEJA
I was giving you 30 day notice but you told me to go home. I feel humiliated. Anyway I'm speaking with BLA and I'm going to provide all the evidence.

And also full load settled, the email was sent to you and marketing fee for evodia was paid. Please pay those two accounts and send me the payslips. Thanks
MR. YASIN
Sumit, with respect you told me you want to resign and give me 30 days. And you told me if I don't mind you can finish up today. Then I say yes, I don't mind. Then you pack up left and returned the key to me. It is your resign and don't understand how come you feel humiliated for your own decision.
MR. ANEJA
Kim I'm not going to argue about this. I didn't want to leave the company this way. I was really hoping i could leave on cordial terms. Anyway now i can at least do whatever is necessary to get my licence and tell the truth to BLA
MR. YASIN
Nor do i. But I don't why you chose that way

This concludes my analysis of the background facts.

WAS MR. ANEJA DISMISSED?

I have considered the entirety of the three sets of submissions and three witness statements Mr. Aneja has filed in this proceeding. For the sake of brevity, I do not rehearse each of the arguments he makes. Throughout his submissions and witness statements Mr. Aneja makes a series of allegations of illegality against New Century most of which are not relevant to matters I am required to consider here.

In relation to the circumstances his employment ceased, he makes several arguments:

· He did not resign at the 29 May 2024 meeting but merely “offered to resign on 30 days notice.”[43]
· If he did resign it was “in the heat of the moment”. It was an emotional spur of the moment offer to resign in response to the Respondents provocative actions.”[44]
· It was a forced resignation “co-erced by the Respondent’s conduct.”[45]

Did he resign?

Mr.Aneja was adamant that at no point did he resign from his employment; he merely “offered to resign”.[46] His evidence was that on 29 May, he attended Mr. Yasin’s office to discuss “normal work things” and then Mr. Yasin began talking about the commission on the South Melbourne Café. He argues it was “inconceivable” that he would resign at this meeting. In his submissions he states:

“It is inconceivable that I would choose to resign in the middle of the day, particularly just minutes after receiving a binding offer on one of my listings in Pakenham. If I had genuinely intended to resign that day, I would have either done so at the end of my workday or communicated my resignation via email from home. The timing of my resignation offer with 30 days’ notice was influenced by the provocative circumstances created by Mr. Yasin, rather than a premeditated decision to leave.

This was a crucial day for me. Just minutes before my dismissal, I had received a binding offer from a client and had also sent heads of agreements to two other purchasers on the same day. Given these significant developments, it would be illogical for me to consider resigning at that moment. Just as a surgeon would not choose to resign on the day of a critical surgery, I had no intention of resigning on such an important day.”[47]

The facts leading up to this meeting support an inference that Mr. Aneja was, at least, considering resigning in the near future. On or after 20 May 2024, Mr. Aneja had:

Presented his Diploma of Property (Agency Management) to Mr. Yasin and expressed his intention and to become to become a licenced real estate agent.[48]
Told Mr. Yasin that he may “set up a new agency with a friend in the new financial year” (bearing in mind that this conversation took place in late May within six weeks of the start of the financial year).[49]
Told Mr. Yasin that “I will give you 30 days’ notice in the future if I resign.”[50]
Had shown Mr. Yasin a message from Hodges real estate agents made in February offering Mr. Aneja a job with 80 percent commission.[51]
On 27 May 2024 he had applied to the Business Licensing Authority for his real estate agent’s licence.[52]

During the conversation with Mr. Yasin about his options once he got his real estate licence Mr. Yasin noted that Mr. Aneja was only relatively new to the industry, and he perhaps did not have enough experience to run his own agency. In response, he said:

“'Look, at the end of the day, whether we earn 200k, 300k, or a million, it's never enough. We always want to do bigger and better things and that - and you know, it's just we always want to earn more money.”[53]

Money is a strong motivator for Mr. Aneja. On the material, it is clear he is a gifted agent. I accept his evidence that he “made a significant contribution to New Century”. The evidence before me established his total earnings from 1 July 2023 to 30 June 2024 to be at least $199,290.41.[54]

The dispute that saw the cessation of his employment was over money. Based on his previous 50 percent commissions for the Cranbourne North Repair Shop, the Cranbourne North Beauty Salon, and the Black Rock Gelato Shop, he argued that he should receive the same commission. Mr. Yasin pointed to either his contract of service which stated on a “settled sale which has been made by the employee” or the Rules and Common Understanding to explain why he was only entitled to 20 percent commission.

Mr. Aneja explained how this dispute escalated to an “offer to resign” as follows:

“I expressed my dissatisfaction to Mr. Yasin, presenting him with three payslips from similar cases where he had paid me 50 percent, as well as a recent one from the [BlackRock Gelato Shop]where I received full commission. However, he stated that going forward, he would only pay 20 percent for these matters. Regarding [the BlackRock Gelato Shop], Mr. Yasin said words to the effect of “I paid you full commission because you had the photos of the buyers”. Dissatisfied with Mr. Yasins explanation and in the heat of the moment, I offered to resign with a 30-day notice. This offer was made in a moment of frustration, with the hope that Mr. Yasin would deescalate the situation, considering my significant contribution of over $500,000 in gross commission to the company in the last 15 months. However, I never formally resigned.”[55]

His previous discussions with Mr. Yasin concerning setting up his new business in the new year, and his previous mention of resigning on 30 days’ notice support an inference that at this meeting he did in fact resign.

This inferential evidence is supported by the text messages he wrote five minutes after he left the office on 29 May 2024 (with emphasis added):

“I was giving you 30-day notice but you told me to go home. I feel humiliated. Anyway I'm speaking with BLA and I'm going to provide all the evidence.”

…

“Kim I'm not going to argue about this. I didn't want to leave the company this way. I was really hoping i could leave on cordial terms. Anyway now i can at least do whatever is necessary to get my licence and tell the truth to BLA”

This is a contemporaneous text made minutes after leaving the office. It is not styled in terms of an offer to resign but an actual resignation. He was “hoping he could leave on cordial terms”. This is crucial evidence which I take to represent the fact: Mr. Aneja resigned from his employment and hoped to leave on cordial terms.

The assessment that Mr. Aneja actually resigned orally and gave thirty days’ notice is supported by inferences deriving from the discussion leading up to this meeting where Mr. Aneja indicated that if he did resign, he would do it on thirty days’ notice.

I find that Mr. Aneja did resign on 29 May 2024. The next question is whether the resignation was forced or made in the heat of the moment.

Bupa: heat of the moment and forced resignations

The test for whether a course of conduct leading to a resignation could amount to either a dismissal at the initiative of the employer under s 386(1)(a), or a course of conduct leading to a forced resignation in 386(1)(b), is dealt with in the Full Bench decision Bupa Aged Care Australia v. Tavassili (Bupa):[56]

“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 probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”

I will now apply these principles to the resignation in this case.

Was the resignation made in the heat of the moment?

The question whether the resignation was offered in the heat of the moment under s 386(1)(a) involves an analysis of whether Mr. Aneja was in a state of emotional stress or mental confusion such that the employer could not reasonably be understood to be conveying a real intention to resign.

In his own statement Mr. Aneja gives the following reason for “offering” the resignation:

“The offer was made in frustration, with the hope that Mr. Yasin would de-escalate the situation, considering my significant contribution of over $500,000 in gross commission to the company in the last six months.”

In his evidence, Mr. Aneja says he did not go into the office with the intention of resigning. He said Mr. Yasin “provoked him” into resigning. In cross examination, he explained the context he made the offer:

“… I was telling my employer that:
I'm not happy about this. You paid me 50 per cent in the past. You always said that I was going to get 50 per cent, and now that we're having these issues about the - with the proper writing a letter to (indistinct) which you're not happy with and all of that, now you suddenly want to reduce my commission. I'm not happy about this.”[57]

Mr. Yasin and Mr. Aneja were engaged in a dispute about the amount of commission he was entitled to for the sale of the South Melbourne Café business. Whether or not he was “provoked” is not the question in a decision whether a resignation was “heat of the moment”. The question is whether Mr. Aneja was in such a state of emotional distress or mental confusion as cannot reasonably understood to be taken to have resigned.

It is not clear on the evidence that Mr. Aneja was emotionally distressed at the time he resigned. His own statement states that his offer of resignation was made because he was “frustrated”, and he was “not happy”. It was made “in the hope that Mr. Yasin would de-escalate the situation”.

This was a situation where two businessmen were going toe to toe about the appropriate compensation. Mr. Yasin was seeking to explain why he was only entitled to 20 percent commission. Mr. Aneja felt he was being short changed, treated unfairly and had previously been paid 50 percent commission in similar circumstances. “In frustration”, Mr. Aneja decided to offer to resign in the hope that Mr. Yasin would deescalate the situation. This was tactical rather than emotional. It was a tactic that did not pay off. In the circumstances, Mr. Aneja was the initiator, not Mr. Yasin.

Further, the evidence establishes that Mr. Aneja had put the potential of his resignation “In the new financial year” on the agenda. This would counter an argument that his decision was “heat of the moment”.

The video evidence in this case is of limited utility. Mr. Yasin asserts it captures the entirety of the 29 May meetings. Mr. Aneja alleges it was either doctored to remove the segment where he resigned, or it was not included. Mr. Aneja’s expert is of the opinion that there was an “opportunity for the footage to be edited”.

In all the circumstances, it is inherently unlikely the footage was doctored or edited in any way. On the balance of probabilities, I accept Mr. Yasin’s evidence the visuals of the entire exchange between Mr. Yasin and Mr. Aneja on 29 May are recorded on the footage in evidence. From my observation of Mr. Aneja, his body language, and posture on the footage are not suggestive of emotional distress or confusion.

In Bupa, the Full Bench refers to the English case Kwik Fit (GB) Ltd. v. Lineham which is an authority for the proposition that the “intellectual make up of an employee” may be relevant to a heat of the moment resignation.[58]

Mr. Aneja could not be more different than Ms. Tavassoli in the Bupa case. She was an Iranian refugee with limited English skills and was 55-year-old. Mr. Aneja presents as an intelligent, sophisticated person who has had early success in his career as an agent. Given his make up, it would be unlikely that a dispute over a commission would lead to a state of emotional stress or mental confusion.

Was the resignation forced?

The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct. Has New Century engaged in conduct such that Mr. Aneja had no choice but to resign?[59]

The conduct of the employer must be repudiatory. The test for repudiation is whether the conduct of the employer, when judged objectively, showed an intention to no longer be bound by the employment contract.[60]

The dispute which leads to the resignation is over the question whether, where a vendor had sold a business privately, Mr. Aneja was entitled to the commission on the settled sale of 50 percent even though it had not been “made by the employee”.

Mr. Aneja’s employment contract clearly stated that the Commission payable to employees “is on settled sales made by the employee”. It is unarguable the sale of the South Melbourne Café business, which the vendor undertook privately against the exclusivity agreement of New Century, was not made by Mr. Aneja.

The sort of circumstances which lead to forced dismissals involve clear breaches of the employment relationship such as a nonconsensual reduction of wages or status, or a change in the place of work or duties which fall outside the scope of the contract of employment.[61] A repudiatory breach, of its nature, requires a clear breach of contract.

Mr. Aneja argued that on three previous occasions, Mr. Yasin had paid a higher commission of 50%. I accept Mr. Yasin’s evidence that these circumstances were not directly similar because in those cases Mr. Aneja had done more to secure a sale even though the sale had not been “made by him”.

Mr. Aneja, in the prosecution of his case, did not point to a contractual term which entitled him to the higher commission where the sale was not made by him. The contract stated commission is payable on “settled sales made by the employee.” The fact Mr. Yasin had paid higher commissions in different circumstances beyond the contractual entitlement does not raise the failure of Mr. Yasin to agree to pay the higher commission to a repudiatory level.

This logic applies even if Mr. Yasin had said, as Mr. Aneja asserts, that from now on where the sale is not made by him, Mr. Aneja would only be paid a commission of 20 percent. On a balance of probabilities, it is more probable the discussion was limited to the commission over the South Melbourne Café.

In those circumstances, I cannot find the dispute over whether he was entitled to the higher commission, based on previous circumstances, exhibited either an intention by Mr. Yasin to bring the employment to an end nor that the termination of Mr. Aneja’s employment was the probable result of the employer’s conduct. Mr. Yasim was asserting the terms that Mr. Aneja had agreed in his employment contract. This cannot be repudiatory.

Mr. Aneja had a choice whether to resign in the circumstances. It follows his resignation cannot be said to be forced.

Did Mr. Yasin terminate Mr. Aneja’s employment after he resigned?

I have found that Mr. Aneja resigned from his employment giving 30 days’ notice on 29 May 2024. I have found this resignation was neither made in the heat of the moment nor forced as those terms are understood following the analysis of the Full Bench in Bupa.

There is question whether after he offered his resignation Mr. Yasin terminated his employment. In his evidence Mr. Aneja stated:

… - I…did not put anything in writing and as soon as I mentioned the word, 'Resignation', he said, 'Well, you can go home now. You pack up your things and return the key.' So that was it. I had no choice. I went back to my office. I started to pack up my material, all my stuff that I had, personal belongings and then Mr. Yasin rang me on landline. He said, 'Well, make sure you don't catch any of the paperwork. Make sure you only take your personal belongings.[62]

Mr. Yasin’s evidence conflicts with this account. On his account, Mr. Aneja asked to leave immediately following his resignation:

“Yes. From that, after he realised this is what we agreed, and then he must realise that he has nothing to talk to me so he piled up the folder, leaving his bag on the floor and he tell me, 'I resign it', and he handed his notice, and I didn't respond to him for at least five seconds. So once he told me he resigned and give his notice I don't know how to respond to him, so I keep talking. Next five seconds I keep talking. Again, that is what I thought, if I could talk him - then talk him out of his resigning decision because he is a good salesperson. If he stay longer with me he gave me more revenue. There is not any reason he - even if I give him one week because he sells so much. If I give him one week extra I get in more revenue, especially if he's on commission base. There's no expense on - if I give him one week extra sobeit. So I kept talking to him. I was hoping that I can talk him out of resignation. If you can, please, keep playing the next three seconds, please.… and then Sumit must have had enough and he say, 'If you don't mind, I finish up today.' That time, when I was asked, I can tell from him that he's done with me. I think he just decided he resign it. I couldn't see any hope that I was still able to keep him, and then he just say, 'If you don't mind, I finish up today.' That time I realised it's done. He resigned it. He's gone. So I say, 'If you can leave extra key.' I say, 'Do you mind?' He just handed it up. He just handed, lean on the table, packed up his file and he walked out.”[63]

The account Mr. Yasin gives on what happened following the resignation does not seem credible. Mr. Aneja was a good salesperson who had made a lot of money for New Century. If Mr. Yasin had wanted to “talk him out of his resignation decision”, why did he keep trying to persuade Mr. Aneja on the commission issue? Surely, if Mr. Yasin wanted to talk him out of the resignation, he would have said “don’t resign” or I “don’t want you to resign”. It also stretches credulity that Mr. Aneja would resign on 30 days’ notice and then, moments later, ask to leave immediately.

The text exchange between Mr. Aneja and Mr. Yasin following Mr. Aneja leaving the office is instructive. I will not reproduce it here, but Mr. Yasin asserts that Mr. Aneja resigned and then asked to leave immediately. Mr. Aneja texted “I was giving you 30-day notice but you told me to go home. I feel humiliated.” and went on “I was really hoping I could leave on cordial terms”. Once again, the text message reveals the fact Mr. Aneja resigned and then Mr. Yasin asked him to leave immediately.

After considering all the evidence on balance of probabilities it is more likely than not that after Mr. Aneja resigned and gave notice, Mr. Yasin asked him to leave immediately.

The truncation by an employer of a notice period after the employee has resigned can be a termination at the initiative of the employer.[64] I find this is what occurred here. Mr. Aneja raised the issue of the cessation of his employment by effectively giving 30 days’ notice. Mr. Yasin asked him to leave immediately. In so far as this ended the employment relationship before the expiration of the notice period, it was at Mr. Yasin’s initiative. In not giving Mr. Aneja the ability to work out his notice, this is a dismissal at the initiative of the employer as required by s 385(a).

WAS THE DISMISSAL HARSH, UNJUST AND UNREASONABLE?

As I have determined Mr. Aneja was dismissed at the 29 May meeting following his resignation, I am required to consider whether the dismissal was harsh, unjust or unreasonable under s 385(b).

In considering whether a dismissal was harsh, unjust and unreasonable, I must take into account the matters prescribed in s 387. I now consider each of those matters.

(a)Valid reason

The dismissal was a reaction to Mr. Aneja verbally giving 30 days’ notice of his resignation. For a reason to be valid it must be sound, defensible or well founded.[65]

Mr. Yasin may have been concerned that, if Mr. Aneja had worked out his notice, he had a capacity to poach clients, because Mr. Aneja had discussed potentially setting up his own firm. Mr. Millar in his closing arguments put it this way:

“He had presented all sorts of worrying signs to the employer about the potential of a rival business, he's talking about joining another agency, he's talking about starting a business with a friend of his. He had said he was going to leave and then has provided, in my client's submission, his resignation. The debate then was only about whether he should have been paid out for the duration of the notice period. In my submission, within the real estate industry, it would be quite unusual for someone who says that they're going to leave the employer, especially if they're joining a rival business, or establishing a rival business, that they would be able to work out their notice period and continue to establish a customer connection and to source new work for the employer.”[66]

The reason for termination must be defensible or justifiable on an objective analysis of the facts.[67] It is true Mr. Aneja did raise the issue of starting his own business, however, Mr. Millar’s assertion that “it would be unusual in the real estate business for someone to allow a person to work out their notice if they indicated they would set up a rival firm” does not reach the level of objective fact.

Mr. Yasin’s decision to ask him to leave immediately was no more than a reaction to Mr. Aneja’s resignation. If the risk of Mr. Aneja having an opportunity to poach clients was the reason, that was not articulated by Mr. Yasin. I do not consider Mr. Yasin’s reaction rises to the level a valid reason for the termination.

(b)Whether the person was notified of the reason

Given the circumstances where Mr. Yasin’s termination of Mr. Aneja’s employment was a reaction to Mr. Aneja orally resigning, no reason was identified or expressed.

(c)Whether the person was given an opportunity to respond to any reason related to capacity or conduct

Given the way the termination occurred, no reason was proffered by Mr. Yasin. It follows Mr. Aneja was not given an opportunity to respond to it.

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

If Mr. Yasin wished Mr. Aneja to leave immediately, rather than work out his notice, it would have been preferable if a discussion had taken place addressing that issue with the assistance of a support person on request. This counts towards a finding that the dismissal was harsh, unjust and unreasonable.

(e)If the dismissal was related to unsatisfactory performance whether the person had been warned about it

The termination of employment was not related to unsatisfactory performance but was a reaction to Mr. Aneja’s resignation. This factor is therefore neutral to a consideration of whether the dismissal was harsh, unjust or unreasonable.

(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

As I assess the facts of this case, the decision to ask Mr. Aneja to leave work immediately was reactive to Mr. Aneja’s expressed intention to resign. As New Century is a relatively small business, the lack of procedure and reactive nature of the dismissal is understandable.

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

New Century is a relatively small business run by Mr. Yasin. A dedicated human resource manager may have been able to facilitate a discussion between Mr. Aneja and Mr. Yasin on the contested commission payments that did not end in Mr. Aneja resigning and Mr. Yasin asking him to leave immediately.

In the circumstances of the business and the manner the termination took place, I do not consider this factor contributes to a finding that the dismissal was harsh, unjust or unreasonable.

Was Mr. Aneja’s dismissal harsh, unjust and unreasonable having regard to the s 387 factors?

I have considered each of the prescribed factors:

· There was no valid reason for the dismissal following Mr. Aneja giving notice of his resignation under s 387(a).
· As no reason was proffered by Mr. Yasin for his decision to ask Mr. Aneja to leave immediately, Mr. Aneja was not notified of a reason under s 387(b).
· As no reason was given, Mr. Aneja was not given an opportunity to respond under 387(c).
· It was unreasonable for Mr. Aneja not to be offered the assistance of a support person to assist him in a discussion on an agreed process by which Mr. Aneja could leave the business before the expiry of the 30-day notice period under s 387(d).
· All other factors under ss 387(e) to (g) are neutral considerations.

Based on my consideration of each of the factors I am satisfied that dismissal was harsh, unjust and unreasonable.

IS REINSTATEMENT APPROPRIATE?

Mr. Aneja only seeks a remedy of compensation in his application. In his outline of submissions, he states “I believe reinstatement would not be an appropriate remedy in this case, as my working relationship with the respondent is irreparably damaged.”[68]

In its pro forma “Outline of Arguments Merits”, New Century argues that reinstatement is not appropriate because ‘the applicant has already moved to new employment with another company”.[69]

After a consideration of the evidence and the submissions filed by both parties, I am satisfied that reinstatement is not an appropriate remedy due to irreparable breakdown in the employment relationship.

THE APPROPRIATENESS OF A COMPENSATION ORDER AND THE FACTORS RELEVANT TO A COMPENSATION AMOUNT

Having determined reinstatement is not appropriate, it does not automatically follow that payment of compensation is appropriate. As the Full Bench noted in Selvachandran; “the question whether to order a remedy in a case where dismissal has been found to be unfair remains a discretionary one.”[70] Where an Applicant has suffered financial loss because of the dismissal this may be a relevant consideration in the exercise of the discretion.[71]

In this case, the dismissal occurred after Mr. Aneja had resigned on 30 days’ notice. His pay slips establish that, unlike most employees, he continued to receive a considerable amount of remuneration from his former employer after he was terminated. He commenced a new job in less than a month from the date he was terminated.

In those circumstances, the question whether I should exercise my discretion to order compensation would be assisted by working through the factors relevant to the assessment of compensation under s 392(2) and I do so now.

COMPENSATION FACTORS TO BE TAKEN INTO ACCOUNT

Section 392(2) requires all the circumstances of the case to be taken into account when determining an amount to be paid as compensation in lieu of reinstatement, including seven prescribed factors. I will now address each of those factors.

(a)Effect of an order on the viability of New Century’s enterprise

Neither party tendered evidence nor made submissions on this factor. I therefore regard it as a neutral factor in the calculation of compensation.

(b)The length of Mr. Aneja’s service with New Century

Mr. Aneja commenced employment with New Century on 30 January 2023 and was dismissed on 29 May 2024. 15 months might be regarded as a relatively short length of employment. It is, however, not so short as to require a reduction in the amount of compensation ordered.

(c)The remuneration that Mr. Aneja would have received or who have been likely to receive, if Mr. Aneja had not been dismissed

The approach the Commission should apply in relation to this factor was considered by the Full Court of the Federal Court in He v. Lewin:[72]

“In determining the renumeration the Applicant would have received or would have likely to receive… the Commission must address itself to the Question whether, if the actual termination has 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 the likelihood of a further termination in order to assess the amount of remuneration the employee would have received or would have likely received, if there was an actual termination”.

The circumstances of this case are unusual. The dismissal occurred after Mr. Aneja had orally resigned and given thirty days’ notice. I have found this resignation did not occur in the heat of the moment nor was it forced. I have also found that the resignation was tactical and at Mr. Aneja’s initiative. In those circumstances, Mr. Aneja by resigning on notice has limited the period of remuneration I must consider through this factor.

If he had not been dismissed, the notice period would have been worked out by him and his employment would have ceased at the expiration of the notice period after 30 days on 28 June 2024.

It follows the remuneration he would have received from New Century, had he not been terminated, must be an estimation of the remuneration he would have received during the 30 days of the notice period.

Mr. Aneja has provided pay slips for the period 4 April 2023 to 13 August 2024. I have decided the best way to determine what 30 days’ remuneration would be is to average the commission he received over the twelve months leading up to his termination and then, based on that average, calculate the amount he would have received during those 30 days.

Mr. Aneja filed his payslips for the period 4 April 2023 until 13 August 2024 which state the “total wages and entitlements” he earned with each commission.[73] The following table refers to each pay slip and the gross amount earned from 1 May 2023 until 14 May 2024.[74]

Date of pay slip	Gross “Total Wages and Entitlements” ($)
1 May 2023	815.30
22 May 2023	6,733.03
8 June 2023	10,009.05
21 June 2023	16,841.35
29 June 2023	8,396.54
5 July 2023	11,799.43
11 August 2023	7,162.16
11 August 2023	450.45
29 August 2023	9,135.14
31 August 2023	9,135.14
22 September 2023	12,181.82
2 October 2023	7081.08
16 October 2023	486.49
23 October 2023	9,135.14
31 October 2023	3,045.05
10 November 2023	4,427.51
10 November 2023	729.74
21 November 2023	1642.09
28 November 2023	8162.16
1 December 2023	11837.84
5 December 2023	6090.09
11 December 2023	9135.14
12 December 2023	9135.14
9 January 2023[75]	9135.14
6 February 2024	733.03
9 February 2023[76]	2166.09
21 February 2024	3045.05
21 February 2023[77]	9135.14
15 March 2024	9135.14
22 March 2024	9341.53
18 April 2024	9135.14
14 May 2024	5068.42

The total gross pay over this 380-day period is $220,461.56.[78] The average daily amount is $580.16 and therefore the average over 30 days would be $17,404.86.

New Century tendered a Xero “Payroll Employee Summary” for the period 1 July 2023 to 30 June 2024 (which includes the commissions Mr. Aneja received in the month following his termination) which stated he earned $199,290.41 for that period.[79] This is suggestive the amount Mr. Aneja earned is less than what is recorded on his pay slips. I am prepared to accept the pay slips he was issued are more accurate.

On the basis that Mr. Aneja would have received income from New Century for 30 days following his resignation (had he not been terminated), I calculate, on the basis the average commission received in the preceding year, would be $17,404.86.

(d)Efforts to mitigate the loss suffered by Mr. Aneja because of the dismissal

When considering ordering compensation, it is necessary to consider what steps Mr. Aneja has taken to mitigate his loss. An applicant is required to provide evidence that they have taken reasonable steps to minimise the impact of their dismissal.

There is evidence that Mr. Aneja took steps to obtain another job. He addressed this in his 14 August witness statement:

“After my dismissal, I had no choice but to seek a new job at another business brokerage firm. I applied to several agencies, but many of their terms were unfavourable. Specifically, most agencies included a restraint clause in their employment contracts, restricting me from working for up to six months. This made it impossible for me to accept their offers, even though they dealt with the same types of businesses I had previously sold. I applied to the following agencies:

a. New Gen Business Agents (Mount Waverley)
b. First Choice Business Brokers (Box Hill)
c. ARM Real estate & Business Brokers (Glen Waverley)
d. Valentine Business Brokers (Malvern East)
e. Aslan Business Brokers (Docklands)
f. National Business Sales & Valuations (Clayton)
g. BF Brokers (Glen Iris)
h. CRE brokers (Carrum Downs)

On June 26, 2024, I finally secured a position at CRE Brokers in Carrum Downs, but it meant starting from scratch. At the time of my dismissal, I had over 100 listings, but at my new job, I had to begin with zero listings. Before I joined CRE Brokers, they had no one specialising in small businesses like I do, as their focus was mainly on motels and hotels. It might take months before I start earning income in this new role. CRE Brokers were the only company willing to reduce the restraint period to one month; previously, they had also proposed a six-month restraint in my employment agreement.”[80]

Mr. Aneja tendered the offer he received from New Gen Business Agents dated 3 June 2024, four business days after his termination.[81] New Gen was offering to pay Mr. Aneja “the same as what New Century was paying me”.[82] He refused the offer because of the proposed contractual term that would have required him not to work for “another business broking firm for a period of six months”. The post-employment restriction in the offer states:

“You further agree not to work with another business broking agent or independently for the period of six months from the date of his last day of service…”

In his oral evidence, he elaborated on the other job applications he made:

· First Choice “never got back to him”.[83]
· ARM made him an offer in mid June but he rejected the offer because the indicated they would register him as a part time employee rather than full time.[84]
· Valentine made an offer “but for less money”.[85]
· Aslan made an offer but with a “six month restraint period”.[86]
· National Business Sales also wanted a six month restraint.[87]

On June 26, 2024, after a negotiation, he accepted an offer of employment with CRE Brokers in Carrum Downs less than one month from the date of his termination.

In the period after his termination, he made six applications and received five offers. The first of which was made to him four business days after his termination. He rejected three based on the length of the post-employment restraint; one because it was for a part time employment; and one because it was less money.

Mr. Aneja made considerable efforts and was strongly motivated to get a new job. The reasons he has given to reject the offers seem reasonable in circumstances where he has made multiple applications and could anticipate being employed quickly.

In the circumstances I find Mr. Aneja took reasonable steps to mitigate his loss. It follows this factor does not count against compensation being awarded.

(e)The amount of remuneration from employment or other work during the period between the dismissal and the making of the order for compensation

Mr. Aneja continued to receive commissions earned during his employment with New Century following his termination on 29 May 2024. These sums are “remuneration from employment” relevant to this factor. According to his payslips, he received the following commissions in June, July and August 2024 after his termination:[88]

Date of pay slip	Gross “Total Wages and Entitlements” ($)
1 June 2024	733.03
1 June 2024	11,017.20
4 June 2024	9,135.14
18 June 2024	738.74
TOTAL FOR JUNE	21 624.11

7 July 2024	1,991.03
8 July 2024	9,147.19
14 July 2024	2,273.54
17 July 2024	1,958
22 July 2024	9, 704.96
TOTAL FOR JULY	25,074.72

13 August 2024

11,076.22

The pay slips for commissions he received during June, July and August after his employment ended amount to a total of gross amount of $57,775.05 composed of $21,624.11 in June, $25,074.72 in July and $11,076.22 in August.

New Century tendered into evidence a Xero Payroll Employee Summary for the period 1 July 2024 to 31 August 2024 which states that Mr. Aneja earned a gross amount of $42,872.92 during that post employment period. This amount is less than the amount for those months in his pay slips, which come to a gross amount of $46,698.83.

He commenced employment with CRE brokers on June 26, 2024, which is 28 days after his termination. In his 14 August 2024 witness statement, he states he “had not earned any income to date”. According to the contract of employment which was tendered in evidence, it was a commission only contract.[89]

In the month after his employment, he received a gross amount of $21,624.11 in commission from his former employer. In the following two months, he received a gross amount of either $46,698.83 (if the calculations are based on his payslips) or $42,872.92 (based on the Xero document). From 26 June, he had the capacity to earn further commissions in his new job.

He has received a significant amount of remuneration from his employer after he was terminated. Around a month after he was terminated, he commenced work with another employer. This factor counts heavily against the award of any compensation arising from his dismissal. Unlike other employees where wages cease on termination, his commissions kept rolling in after his employment ended.

(f)The amount of any income reasonably likely to be earned by the person during the period between the making of the order for compensation and the actual compensation.

I have found Mr. Aneja gave notice that he would resign in 30 days. I have anticipated his employment would have ended on 28 June 2024. Other than evidence that Mr. Aneja claimed not to have received any commissions from CRE up until the date of the hearing, I have no evidence of the income earned by him from 13 September 2024 to the date of this decision

Given the 30-day anticipated termination date, I do not consider this factor is relevant to an assessment of compensation.

(g)Other relevant matters

I do not consider there are any other relevant matters to consider on the issue of compensation.

Sprigg formula

It is well established the approach to the assessment of compensation under s 392 is to apply the Sprigg formula derived from the Australian Industrial Relations Commission Full Bench in Sprigg v. Paul’s Licenced Festival Supermarket which has been adopted for application under the Fair Work Act in Bowden v. Homes Cobram and District Retirement Villages.[90] The first two steps in the Sprig formula are:

· Estimate the remuneration the employee would have received, or would have been likely to have received, if the employer had not terminated the employee; and then

· Deduct monies earned since termination. As Mr. Aneja has mitigated his loss there would be no reduction in the amount of compensation.

Step 1

I have found that prior to the termination of his employment, Mr. Aneja resigned giving 30 days’ notice which would have expired on 28 June 2024.

Based on an average of the commissions he received calculated from his payslips between May 2023 and May 2024, the remuneration he would have received for those 30 days would be $17,404.86.

Step 2

Unlike most employees Mr. Aneja continued to receive remuneration for commissions he had earned during his employment after he was terminated. Based on his pay slips he received gross amounts of $21,624.11 in June, $25,074.72 in July, and $11,076.22 in August.

The deduction under step 2 for monies received since termination, even if it is limited to the commissions he received in June alone, exceeds the estimated remuneration he would have received had be remained employed during his notice period.

IS IT APPROPRIATE TO MAKE A COMPENSATION ORDER?

The awarding of compensation for unfair dismissal is to compensate for loss of income suffered by reason of the dismissal. Here, Mr. Aneja continued to be remunerated by New Century for commissions he had earned while still employed.

According to his payslips he received a gross amount of $57,775.05 during the period of June, July and August 2024. On 26 June 2024, in less than a month from the date of his termination, he commenced employment with CRE Brokers, a business broking firm.

I have found Mr. Aneja gave 30 days’ notice of the resignation of his employment and was then told to leave the premises. The period he would have remained in employment with New Century, had his employment not been terminated, was limited to 30 days.

Given the role of compensation is to cover financial loss caused by the dismissal it would not be appropriate to award Mr. Aneja compensation where:

· I have found he had resigned giving 30 days’ notice and was then terminated;
· He continued to receive tens of thousands of dollars in commissions from his employer after his employment ceased; and
· Commenced employment with another employer within a month of being terminated.

Further, Mr. Aneja in all his extensive submissions did not quantify the financial loss he allegedly suffered.

In all these circumstances, I do not consider an order for compensation is appropriate in this case.

CONCLUSION

I find Mr. Aneja was dismissed from his employment on 29 May 2024. The dismissal was harsh, unjust and unreasonable. For reasons I have expressed above I do not consider an order for payment of compensation is appropriate in the circumstances of this case.

COMMISSIONER

Appearances:

Mr. Sumit Kumar Aneja, the Applicant, for himself
Mr. Rohan Millar of Counsel on behalf of the Respondent

Hearing details:

13 September 2024
11 Exhibition Street, Melbourne

[1] PN 763.

[2] Digital Court Book (DCB) at 32.

[3] DCB at 39-45.

[4] DCB at 39.

[5] DCB at 44.

[6] The rules and common understanding have many syntax and grammatical errors which I have not corrected.

[7] DCB at 34 which is paragraph 15 and 16 of Mr. Aneja’s 14 August statement.

[8] This meeting must have occurred on or after 20 May 2024. Aneja was in Vietnam on holiday until that date.

[9] DCB at 15. Mr. Aneja adopted the narrative in the F3 and it was tendered into evidence as R4.

[10] PN 351-371.

[11] DCB at 3: This is from the text of the F2 filed by Mr. Aneja which was written in the first person.

[12] PN 351-371

[13] PN 388.

[14] PN 400.

[15] PN 401.

[16] PN 388-406.

[17] PN 421.

[18] PN 422-437.

[19] DCB at 34 – Paragraphs 17 and 18 of Mr. Aneja’s 14 August statement.

[20] DCB at 34 – Paragraph 18 continued.

[21] DCB at 15: Exhibit R 4 (This excludes the conversation about Hodges).

[22] PN 445 to PN 450.

[23] DCB at 34 – 35: Aneja Statement paragraphs 19 to 24.

[24] New Century and Mr. Aneja agreed that it would be preferable if I did not mention the actual name of the café.

[25] PN 263.

[26] PN 268-270.

[27] PN 270

[28] PN545

[29] PN 558

[30] DCB at 15 – Exhibit R4.

[31] DCB at 130, 148 and 168 are copies of the relevant invoices.

[32] DCB at 44 – which is a copy of Schedule 2 Clause 1 of Mr. Aneja’s employment contract.

[33] PN 1057.

[34] PN 867-899.

[35] PN 1116-1117.

[36] PN 936 to 938.

[37] PN 1159–1161.

[38] PN 1168 to PN 1171.

[39] PN 1197.

[40] PN 983.

[41] PN 972 and PN 974.

[42] DCB at 174-175.

[43] DCB at 26 – from paragraph 13 of Mr. Aneja’s “Outline of Submissions”.

[44] Ibid.

[45] DCB at 239 from paragraph 26 of Mr. Aneja’s “Outline of Argument”.

[46] PN 270 for example.

[47] DCB at 36.

[48] DCB at 34.

[49] PN 355 and PN 385.

[50] PN 370.

[51] PN 433.

[52] DCB at 34 from paragraph 17 of Mr. Aneja’s 14 August statement.

[53] PN 400.

[54] PN 694.

[55] DCB at 35 – paragraph 22 of the 14 August Aneja statement.

[56] [2017] FWCFB 3941.

[57] PN 530-531.

[58] [1992] ICR 183.

[59] Bupa [2017] FWCFB 3941, [47](2).

[60] Elgammal v. Black Range Wealth Management Pty Ltd[2011] FWAFB 4038, [13].

[61] City of Sydney RSL v. Balgowan (2018) 273 IR 126, [18].

[62] PN 270.

[63] PN 1170.

[64] For example, the decision of Deputy President Easton in Scott Egginton v. Focus (NSW) Pty Limited[2024] FWC 1872. This case concerned a decision by the Deputy President on whether there had been a dismissal for the purposes of s 365.

[65] Selvachandran v. Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

[66] PN 1839.

[67] Rode v. Burwood Mitsubishi [Print R4471), [19].

[68] PN 31.

[69] PN 320.

[70] Selvachandran v. Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

[71] Walton v. Mermaid Dry Cleaners (1996) 142 ALR 681 at 685.

[72] [2004] FCAFC 161, [58]

[73] DCB at 129-173.

[74] DCB at 130-163.

[75] The payslips filed by Mr. Aneja appear to be filed in chronological order. On that basis, I have assumed those that are filed in “month” order but refer to the year 2023 should refer to 2024 and the 2023 reference is a typographical error.

[76] A similar typographical error.

[77] As above.

[78] The high income threshold does not apply to remuneration received by way of commission. This is because payments where the amount cannot be determined in advance are not included a calculation of earnings under s 332(2)(a) of the Act.

[79] Exhibit R1.

[80] DCB at 137-138

[81] Exhibit A7.

[82] PN 758.

[83] PN 774.

[84] Ibid.

[85] PN 782.

[86] PN 785.

[87] PN 788.

[88] DCB at 164-173.

[89] Exhibit 8 – see clause 10 “Sales Commission”.

[90] [2013] FWCFB 434.

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