By Gaby Grammeno Contributor

The worker was employed as a sales assistant in a real estate business. She had a number of concerns, including the hours she was required to work and whether she was entitled to be paid overtime and a car allowance.  

She raised these concerns with her supervisor and was called into a meeting two days later with her boss and a company sales associate. 

As a result of that meeting, her employment with the business came to an end. 

She filed an application with the Fair Work Commission alleging she’d been dismissed for exercising a workplace right, namely making enquiries about her pay and conditions, in breach of s 365 of the Fair Work Act 2009. 

Her employer, however, responded that she had not been dismissed but had resigned. This gave rise to a dispute, so the Commission first had to resolve that dispute, before it could consider her application.  

 

In the Commission 

The employer claimed the worker had openly acknowledged that she was not meeting her daily and weekly KPIs, and candidly admitted she didn’t feel capable of continuing in the position and was ‘stepping away from the role’. 

In response, the employer had asked if she’d like additional training or further support to assist her in meeting the expectations of the role, but she’d declined, saying ‘I don’t feel I can do this job’. 

Her supervisor had then politely asked her to return her name badge, work mobile and work-related data, which she did.  

He also asked her to confirm her resignation by email, to which she’d replied that she was unable to do so at that moment but would send it later that day from home. This was supported by evidence from the other person present at the meeting, who said that their interaction appeared to be ‘a mutual termination of employment by both parties’. 

Instead of receiving her resignation email, however, the supervisor was unexpectedly contacted by Fair Trading regarding the worker’s complaint. 

The worker’s evidence to the Commission painted a somewhat different picture of the meeting. 

She told Commissioner Damian Sloan that when her supervisor complained about her not meeting her KPIs and ‘doing a bad job’ he was ‘very upset, kept talking loudly, kind of shouting, all the time, didn’t allow me to explain or talk, he stopped me every time I tried to speak’. 

She said she’d asked if he or someone else could show her how to improve her performance, but he’d ignored her. After a short break while she answered the reception phone and he was absent for 10 minutes, he came back and asked if she would meet the KPIs or not. 

When she replied that it was really hard for her, and she didn’t think she could make it, he said ‘In that case you have to resign’. 

The sales associate present at the meeting gave evidence that the meeting had been called to ask the worker why she’d returned to the office at a time she was scheduled to be doorknocking houses.  

The sales associate said the worker had shown a ‘very negative’ attitude, had not accepted the KPIs set by the employer, and that the boss had told her, without raising his voice, that if she was not willing to listen or learn, they would need to consider ‘parting ways’, ‘which she agreed to’.  

Commissioner Sloan found the responses and evidence of the supervisor and the sales associate more credible than that of the worker, and on that basis, he did not accept that the employer had arranged the meeting in advance so as to effect the worker’s dismissal, or that the worker had sought additional support to meet her KPIs, or that the supervisor had refused to provide it. 

As the worker was new to the real estate business and had been less than three months in the job, Commissioner Sloan said he had difficulty accepting that it was appropriate for her to insist the level of performance required was unattainable and refuse the support she’d been offered.  

He accepted that her stance made an ongoing employment relationship untenable, but he did not accept the contention that she resigned. This view was supported by the fact that she’d sent her husband a message saying she’d been ‘fired’, which was inconsistent with her having volunteered her resignation or otherwise agreeing to the termination of her employment. 

Commissioner Sloan found that ‘[the manager’s] suggestion of a parting of the ways, as understandable as that suggestion was and as inevitable as that outcome may have been, was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment’. 

The Commissioner determined that the worker had been dismissed, giving her the green light to apply to the Commission to deal with her allegations that she was sacked for asking about her pay and conditions, in breach of the general protections of the Act.   

 

What it means for employers 

This case highlights the need to know how to avoid the pitfalls for employers when conducting performance appraisals, especially with workers whose job performance is not considered satisfactory. Employers can get free advice on how to properly handle a performance management meeting from Business NSW’s Workplace Advice Line on 13 29 59. 

 

Read the decision 

Mrs Yujie Fu v MS & EB Real Estate Pty Ltd T/A Belle Property Rochedale - [2025] FWC 1596