1 Fair Work Act 2009 s.365—General protections Luke Farrugia v Mandows Enterprises Pty Ltd and Rocky Mandow (C2025/1510) COMMISSIONER SLOAN SYDNEY, 5 JUNE 2025 Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant was dismissed or resigned – applicant found to have been dismissed – objection dismissed [1] Luke Farrugia was employed as a supervisor by Mandows Enterprises Pty Ltd, which trades as Mandows Powder Coating. His employment commenced on 19 February 2024 and came to an end on 13 February 2025.1 [2] On 26 February 2025, Mr Farrugia commenced proceedings in the Commission under section 365 of the Fair Work Act 2009 (“Act”).2 He alleged that he had been dismissed for engaging in industrial activities in contravention of sections 346 to 348, and due to a physical or mental disability in contravention of section 351. The respondents to the application (“Respondents”) are Mandows Enterprises and Rocky Mandow (who is described in the application as the “owner” of Mandows Enterprises). [3] The Respondents have raised a jurisdictional objection to the application (“Objection”). They deny that Mr Farrugia was dismissed from his employment. They contend he resigned without notice. [4] This decision relates to the Objection. Determination [5] I have determined to dismiss the Objection. These are my reasons. Relevant law and principles [6] Section 365 relevantly provides that if a person “has been dismissed” and they allege that the dismissal contravened Part 3-1 of the Act, they may apply to the Commission to deal with the dispute. Given the language of the section, a person must have been dismissed for it to apply. [7] The Act defines “dismissed” in section 386(1). That section contemplates two scenarios. [2025] FWC 1557 DECISION [2025] FWC 1557 2 [8] First, a person will be have been dismissed if their employment was terminated on the employer’s initiative: section 386(1)(a). A termination will be “on the employer’s initiative” if it is brought about by the employer without the employee’s agreement. The question is whether an action on the part of the employer was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment.3 [9] Second, a person will have been dismissed where they resigned from their employment, but were forced to do so because of conduct, or a course of conduct, engaged in by their employer: s 386(1)(b). This reflects the common law concept of constructive dismissal.4 Procedural history [10] On 21 March 2025 I conducted a directions hearing. Mr Farrugia attended. The Respondents were represented by Casundra Fioramonte, who I understand to be an employee of Mandows Enterprises. After a discussion between the parties, it appeared that the matter may have been resolved. I adjourned the proceedings to allow the parties to finalise their discussions. Unfortunately, I was subsequently informed that the parties remained in dispute. [11] As a result, I conducted a further directions hearing on 9 April 2025, at which I made directions to allow me to determine the Objection. The directions required the Respondents and Mr Farrugia to file and serve “an outline of submissions, witness statements and other documentary material” on which they intended to rely in respect of the Objection by particular dates. The parties were directed to indicate in their submissions whether they wished to be heard on the Objection or were content for me to determine it “on the papers”. [12] On 24 April 2025, the Respondents filed statements by each of Mr Mandow and Ms Fioramonte, together with an audio file and several images. They did not file submissions. [13] We did not receive any material from Mr Farrugia by the due date. I arranged for my Chambers to follow him up. On 23 May 2025 we received an email from Mr Farrugia, informing us that he had sent his material to Mr Mandow’s email address only. On the same day, Mr Farrugia sent us via email a series of screen shots of SMS exchanges he had had with Mr Mandow and Ms Fioramonte. He did not file a statement or submissions. [14] On 23 May 2025 I arranged for an email to be sent to Mr Farrugia, copied to Ms Fioramonte, in these terms: “Dear Mr Farrugia We have received your emails and the various attachments. However, you do not appear to have complied with the directions made on 9 April 2025. Those directions required you to file ‘an outline of submissions, witness statements and other documentary material’ on which you intended to rely. While we have received ‘documentary material’, we have not received submissions or a witness statement. In short, the Commissioner does not know what to make of the documents you have sent through. [2025] FWC 1557 3 At the directions hearing on 9 April 2025, the Commissioner explained to you what was required. It was further explained in the page attached to the directions titled ‘Preparing Documents for Filing’. In the circumstances, and unless the respondents inform us by 4.00pm on Tuesday, 27 May 2025 that they object to him doing so, the Commissioner will proceed to determine the jurisdictional objection ‘on the papers’ – that is, having regard only to the information that you and the respondents have provided. He will not conduct a hearing.” (Emphasis in original) [15] We received no response to that email from either Mr Farrugia or the Respondents. [16] Consequently, I have determined the Objection based on a reading of the parties’ material “at face value”. I have drawn my own conclusions from those documents having regard to the relevant legal principles outlined above. Factual context [17] Mr Mandow gave the following evidence (reproduced verbatim): “Incident - 11 February 2025, at around 2.15pm I was upstairs in my office with Casundra; directly on top of the kitchen area. I heard Luke yelling and swearing and banging things inside the kitchen. I got up from my chair and went downstairs into the kitchen. I approached Luke who was on his phone and said to him ‘Give me your phone’. Luke gave me his mobile phone which I gently placed on the table and stood approximately one metre away from him and said: ‘why are you on your phone, when you should be working?’ He did not respond but nodded his head. I said: ‘You are not the person I hired, and I have lost respect for you.’ Luke then responded with; ‘Well I can’t work at a place that doesn’t respect me, I’m giving my two week’s notice.’ Luke then packed up all his belongings including tools and paint cans and put them in his car. I went to the factory floor to supervise my remaining employees. I saw Luke go upstairs to speak with Casundra I assumed and came out about 10mins later and left the factory in his car.” [18] About an hour later, Mr Farrugia sent a text message to Mr Mandow apologising for being “so disrespectful”. The following exchange then took place (reproduced verbatim): Mandow: It’s okay bro, I’m not offended. But you should hear me out. You’re going down a destructive path. You are not the same person who you were when you came stated here last year. You came here very optimistic. Who ever it is on the other side of the phone that you talk to has made you toxic. Yelling and screaming and driving off every few days is not someone I can respect. And it’s hard to be around. You are not thinking about the impact you are having on everyone else on the team. Today was the last day. I shouldn’t have to feel uncomfortable in my own work place because of this toxic relationship you have. [2025] FWC 1557 4 Farrugia: I am sorry i understand where you are coming from its not acceptable i just couldnt handle the honesty i am meant to be leading by example they say everyday they look up to me and I havent been one for abit i am sorry for that. I dont want anyone to feel uncomfortable rock, I would like to earn your respect back if I can have the chance please.. Mandow: I told you already. You have to earn it. That means a lot of work for you. No more personal calls. No more texting or any of this shit you have been doing. You have to start again. Earn your respect with the team. Think about how your actions affect them. Be that guy you once were. If I can see that, I can respect you. Farrugia: I will rocky and j wont use my phone for anything other than work, thankyou im sorry again. Ill see you tomorrow. Mandow: Let’s let the emotions settle and then come back to work. I’ll explain to the team what is going on. I think chill at home a bit. Come back on Friday and have a word with the team too Farrugia: Sounds good mate [19] Ms Fioramonte gave evidence that on 12 February 2025, Mr Mandow told her that he was allowing Mr Farrugia to return to work, but as a general hand. He told Ms Fioramonte that she would have to supervise Mr Farrugia. [20] On 13 February 2025, Mr Farrugia had the following text exchange with Ms Fioramonte (reproduced verbatim): Farrugia: Hey cas justbdouble checking, so rocky wants me to come in tomorrow still? Fioramonte: Yes Rocky told me you are coming back on a trial basis Farrugia: Okay what changes does that include? Fioramonte: You are a general hand and team member not the supervisor You are starting from scratch and have to prove you are capable of the role of team leader … Farrugia: How is that fair starting from scratch i get i done wrong by being on the phone but we all know the way he talked about her and me was not acceptable either he snatched the phone off me and hung it up Farrugia: Why does he want to get so technical now? Farrugia: Im team leader cause im overqualified for anything else [2025] FWC 1557 5 Farrugia: Is that going tk affect my pay also? Fioramonte: This isn’t going to work. I did appreciate having you for a year. I hope it all works out for you and good luck out there. Farrugia: Whats not going to work? Farrugia: Whats going on now cas this isn’t what was happening Farrugia: Cas please.. [21] Mr Farrugia sent a number of further text messages to Ms Fioramonte on 14 February 2025. Ms Fioramonte did not respond until late that day. In her message, she made it clear that Mr Farrugia would not be permitted to return to work. [22] On 20 February 2025, Mr Mandow sent a letter to Mr Farrugia titled “Termination of your employment”. The letter contained a litany of Mr Farrugia’s alleged shortcomings during his employment, which it is not necessary to explore. The letter set out Mr Mandow’s version of the events of 11 to 14 February 2025. The letter contained the following statements: “On 14 February 2025 Casundra called you and told you that we accepted your resignation and will not be asking you to return because you could not follow simple instructions and refused to earn your position after you disrespected and abused your position. … Based on your length of service, you started on 19 February 2024 and provided your registration [sic – resignation] verbally on 11 February 2025; you are not with our company for a year. Your notice period would have been a week; however, you declined to return. Therefore, your employment ended on Tuesday, 11 February 2025. As per Mandows Private Employment Agreement section 14 – Termination of Employment, you refused to provide a minimum of one weeks notice, therefore you did not give the required notice. You also refused to perform reduced or modified duties. We will be withholding one weeks wages due to you from your annual leave accrued and hours worked on Monday 10 February and the 2 hours you worked on Tuesday 11 February 2025.” [23] I note that there was evidence of further correspondence between Mr Farrugia (and his mother) and Ms Fioramonte on and after 14 February 2025. To my mind, that evidence has no bearing on the question of whether Mr Farrugia was dismissed. Accordingly, I will not traverse it. Consideration [24] Having regard to their evidence, and in particular the letter of 20 February 2025, the Respondents’ case in respect of the Objection would appear to come down to these propositions: [2025] FWC 1557 6 Mr Farrugia resigned from his employment on 11 February 2025; he was offered a new position; and, when he rejected that position, his resignation stood. [25] I do not accept those propositions. In the first place, the text exchange between Mr Farrugia and Mr Mandow on 11 February 2025 makes it clear that Mr Mandow agreed to allow Mr Farrugia to retract his resignation. Although Mr Mandow referred to the need for Mr Farrugia to “start again” and “earn respect”, there was nothing in that exchange (or in Mr Mandow’s statement in these proceedings) to suggest that he told Mr Farrugia that it was a condition of his continued employment that he take a demotion. This seems to be something first suggested by Mr Mandow to Ms Fioramonte on 12 February 2025. [26] As the resignation had been retracted with Mr Mandow’s agreement on 11 February 2025, it was no longer capable of being “accepted” by Mandows Enterprises. Further, Mandows Enterprises could not subsequently add conditions to allowing Mr Farrugia to return to work; he remained a supervisor with Mandows Enterprises on his existing terms and conditions. [27] It follows that there was no apparent legal basis on which Mandows Enterprises could put Mr Farrugia on “trial” or effect his demotion. It had no basis to challenge Mr Farrugia for having “refused to perform reduced or modified duties”. [28] However, Mandows Enterprises took the position that Mr Farrugia would not be permitted to return to work unless he agreed to perform those “reduced or modified duties”. I find that it was that conduct on the part of Mandows Enterprises that was the principal contributing factor which resulted in the termination of the employment. That is, the termination was on the employer’s initiative. Mr Farrugia was dismissed within the meaning of section 386. Conclusion [29] In light of that finding, Mr Farrugia was entitled to make an application under section 365. It follows that the Objection must be dismissed. [30] The proceedings will be listed for conference under section 368(1). The parties will separately be notified of the details of that conference. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR787959> [2025] FWC 1557 7 1 The respondents contend that the employment came to an end on 11 February 2025. The reasons for which I have determined that the termination date was 13 May 2025 will become clear. 2 In this decision, all references to legislative provisions are to sections of the Act 3 Saeid Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75], citing Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 4 Explanatory Memorandum for the Fair Work Bill at par 1530; City of Sydney RSL & Community Club Limited v Roxana Balgowan [2018] FWCFB 5 at [9] and [13]