Was it a termination by the employer, a heat of the moment situation or an abandonment by the employee?

One Minute Summary

• The manager approached the employee who was obviously working slowly and asked him to pick up the pace.
• The employee responded that he was not going to work faster.
• The conversation deteriorated and the employee grabbed his belongings and walked out.
• The employer asked him not to abandon his employment. He sent him a text message later that day to check on him.
• The Fair Work Commission examined whether the termination was at the instigation of the employer or the employee. It dismissed the employee’s application stating the employer was entitled to conclude the employee would not be returning to work.

Mr Van Doorn made an unfair dismissal application to the Fair Work Commission claiming he was dismissed on 2 December 2025 because he would not agree to work faster and because he did not comply with his manager’s direction to complete training for his apprenticeship in his own time. The Respondent employer, Toffy Pty Ltd, objected stating the Mr Van Doorn voluntarily abandoned his employment.

The Commission’s decision deals with whether Mr Van Doorn was dismissed by the employer – which would invoke the unfair dismissal jurisdiction.

Mr Van Doorn was employed in April 2023. In April 2025 he commenced an apprenticeship in Light Vehicle Mechanical Technology. As part of his apprenticeship training Mr Van Doorn was required to spend one or two hours a month preparing for formal classes. When informed Mr Van Doorn was not preparing for classes Mr Tofalakis, Director, had a chat with him asking him why he was not preparing for classes. Mr Van Doorn responded, ‘I don’t want to – its eating up my family time.’  Mr Tofalakis stated that gaining the qualification was not compulsory and that it was for his benefit and left the conversation there.

On the morning of 2 December 2025, Mr Tofalakis stated he brought Mr Van Doorn a coffee as he had seen him dragging his feet and moving slowly around the workshop.

Mr Tofalakis:   “Come on Luke, you need to be focused today, you have been dragging your feet and I need you to pick up the pace. You are going to wear the soles of your shoes out.”

Applicant:        “Nah, this is as fast as I am prepared to go.”

Mr Tofalakis: “Luke you are going to wear the soles of your shoes out. This is our busiest period of the year. I need you to focus. This is not fair on me and the team.”

Applicant:        “Bad luck. I’m out of here.”

Mr Van Doorn collected his belongings and walked out. He did not return. The above conversation was witnessed by a number of people at the workplace.  One of those witnesses stated ‘the discussion appeared to begin in an amicable manner and then became louder but did not appear aggressive’.

Later that day Mr Tofalakis sent the Applicant a message “Hi Luke, it’s a shame the way things went this morning. I’m checking in to see if you are ok? Kind Regards, Chris”

Several days later, after no appearance of communication from Mr Van Doorn, Toffey paid him his final entitlements.

During proceedings Mr Van Doorn stated he briefly removed himself to deescalate the situation adding did not resign and he did not intend to abandon his employment.

The Commissioner then worked through a number of noted test cases noting a range of important principles in relation to an employee having abandoned their employment.

“‘Abandonment of employment’ is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract.”

…..the “Application of the test for abandonment of employment requires an objective assessment, of “whether the employee’s conduct is such to convey to a reasonable person in the position of the employer and based on the facts as reasonably known to the employer at the time, that the employee had repudiated their duty to meet their obligations under the contract of employment.”

In considering whether there was an abandonment of employment by the employee the Commission must determine whether there was in fact a termination by the employer.

Section 386 of the Fair Work Act states:

(1)     A person has been dismissed if:

(a)     the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b)     the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(This section also makes references to training contracts, fixed term/task contracts and demotions which are not relevant here.)

In this case Mr Van Doorn is not claiming he was forced to resign under (b) above. Therefore, the question is whether there is evidence a termination occurred by the employer under (a).

In examining the facts the Commissioner stated she accepted that

• Mr Tofalakis had asked Mr Van Doorn to work faster.
• Mr Tofalakis had stated it was the busiest time of the year and needed Mr Van Doorn to focus and that his work pace was not fair on the team.
• Mr Van Doorn responded he did not want to work faster.
• That there was an exchange which had become heated.
• Mr Van Doorn then stated ‘Bad luck. I’m out of here’.
• That Mr Tofalakis did not want Mr Van Doorn to leave and asked him not to. He told him he was abandoning his employment after he had collected his possessions and had begun to leave the workplace.

During proceedings Mr Van Door stated he had not intended to return to the workplace after leaving it because he “had been treated as abandoning employment”.  The Commissioner stated, “I do not accept that any such statement amounted to termination at the Respondent’s initiative.”

In relation to the message Mr Tofalakis had sent Mr Van Doorn that evening the Commissioner stated:     

‘To the extent that there was any doubt about the Applicant’s intentions in leaving his workplace, the text message was an ‘olive branch’. If it had not been the Applicant’s intention to leave and never return, the text message provided an opportunity for the Applicant to explain this.’

In dismissing the unfair dismissal application the Commission stated,

“Despite any subjective belief that may have been held by the Applicant about the events, an objective assessment of the Applicant’s conduct, based on the facts reasonably known to the Respondent, meant that the Respondent was entitled to conclude that the Applicant would not be returning to work and that the conduct amounted to renunciation of the contract as a whole”

Commentary

This case appears to be a hybrid of abandonment of employment (where an employee typically disappears) and a ‘heat of the moment’ walk out by the employee which usually takes place in the middle of a heated exchange.

In comparison to other heated exchanges the details in this case appear to indicate the heat was quite mild. The evidence suggests Mr Tofalakis appeared to approach Mr Van Doorn in a quite amicable manner.

Where employers sense a discussion may become heated it is recommended that they have a witness to those discussions.

What appeared to clinch the deal in this decision was the text message that was sent to the employee that evening which was described by the Commissioner as ‘an olive branch’ which provided Mr Van Doorn with an opportunity to come back.

Abandonment of employment case law appears to be much more complex than it should be with obligations on employers to take certain steps including following up with the employee. Strangely, the abandonment itself does not terminate the employment. This is done by the employer thereafter – based on the abandonment.

This is a classic case of no matter how reasonable an employer tries to be they can still get dragged into a full unfair dismissal with all the associated costs and time resources to defend themselves.

In potential termination situations employers must maximise their chances to ‘play hard ball’ with the employee’s lawyers – often no win no fee. Such lawyers avoid cases where their chance of winning are low as there is no money in it for them. However, they still prefer to scare employers into a compensation settlement.

Managers who wish to discuss their potential discipline or termination scenarios should contact Michael at Hunter Employee Relations.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au

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