This extract from a recent decision of the Fair Work Commission in an unfair dismissal case is one of the relatively rare instances of the Commission concluding that a resignation constituted a dismissal for the purposes of the Fair Work Act.
“The facts of the matter
[15] In this matter the Applicant resigned when faced with the failure of the employer to pay
her wages for more than 10 weeks of work. Had the employer not failed to pay wages, the
Applicant would not have resigned. Unlike Mohazab, Mrs Buaal was not faced with an
ultimatum, rather the employer not paid wages earned for work performed.
[16] Mrs Buaal entered into a contract of employment with The Fruit Hustle (ABN 19 658
105 276)5
reporting to Kayce Nguyen, she commenced employment on 1 July 2022 to perform
duties of an assistant accountant for the Respondent and its related family companies.6
.
[17] Earlier on 24 June 2022, Mr Lon Nguyen provided a signed letter as Director of the
Fruit Hustle (ACN 649 293 112)7
confirming the Applicant’s transfer of entitlements (annual
leave, sick leave and long service leave) from Forevergreen Fresh Pty Ltd (ABN 431 233 130
84)8
and Fresh Food Centre Pty Ltd (ABN 88 113 095 438)9
to The Fruit Hustle.
[18] Mrs Buaal commenced with Fresh Food Centre on 6 June 2016 and transferred to related
entity Forevergreen Fresh Pty Ltd. Her employment ceased on 26 June 2022 when Mr Nguyen’s
father Loi declared bankruptcy. However, Mr Lon Nguyen offered employment with the Fruit
Hustle with a transfer of the Applicant’s employment entitlements.
[19] Mrs Buaal tendered into evidence weekly text messages she sent to her manager Kayce
Nguyen asking that she be paid her wages. These messages and often phone calls went
unanswered. Mrs Buaal was not paid any wages from 22 September 2025 until 19 December
2025 and she submits that her wages were often late from January 2025. On termination of
employment, she still had owing in addition to her 3 months of overdue wages, her annual leave,
long service leave and notice pay. The financial impact of the failure to receive wages was an
inability to maintain home loan repayments resulting in the sale of the family home and a move
to regional Victoria.
[20] Mrs Buaal submits that Mr Nguyen did not dismiss her but denied her weekly wages,
which she supposes was because he thought she might resign. She submits that when his father
declared bankruptcy, the accountant was dismissed without payment of his entitlements. The
accountant succeeded in an unfair dismissal claim, and she submits that Mr Lon Nguyen who
witnessed the proceedings most likely tried to avoid a similar fate.
[21] Mrs Buaal submits that she has struggled to find employment. She has applied for roles
as accounts officer, accounts payable, accounts receivable, payroll officer and other
administrative positions. These efforts have been unsuccessful but also hampered with the
responsibility of having to sell the family home, relocation, including relocating her children to
new schools etc.
Consideration
[22] In this matter it is evident that the Respondent repudiated the contract of employment
because it abandoned its duty under common law to pay the employee for work performed. The
employer’s conduct of failing to pay wages for more than 10 weeks before the Applicant’s
[2026] FWC 2098
5
resignation is a clear breach of contractual obligations. Consequently, Mrs Buaal accepted the
repudiation and terminated the employment relationship. She communicated her decision by
tendering her resignation in writing, explaining the reasons (the Respondent’s conduct of failure
to pay wages and gave 4 weeks’ notice. Had the Respondent not breached its contractual
obligations the employment relationship would have continued. Payment of wages to an
employee for time worked is a fundamental obligation, and failure to pay wages earned sends
a clear message that the Respondent had no intention to be bound by the contract and reasonably
the Applicant had a right to accept the repudiation. On any objective basis the conduct of the
employer would on any reasonable view have the effect of or probable result of dismissal.
[23] The right of an employee to accept a repudiation is very similar to the circumstances
where an employer has a right to accept the repudiation or the conduct amounting to serious
misconduct and where a dismissal is proportionate. Relevantly, a full bench in Gelagotis v Esso
Australia Pty Ltd 10 reasoned:
[119] It was reasonably open to the Deputy President to additionally conclude that the
conduct was serious misconduct, repudiatory, and that Mr Gelagotis’ dismissal was a
proportionate response to that conduct. As Gillard J observed in Rankin v Marine Power
International Pty Ltd: ‘There is no rule of law that defines the degree of misconduct
which would justify dismissal without notice’. Further, it was not necessary for his
Honour to consider intent when considering whether there was repudiation at common
law. The test for repudiation is whether the conduct of the employee is such as to convey
to a reasonable11 person, in the position of the employer, renunciation either of the
contract as a whole or of a fundamental obligation under it. The issue turns upon
objective acts and omissions and not on uncommunicated intention.12 In any event, the
conduct was wilful.
[24] Mrs Buaal’s conduct in resigning was justified because of the conduct of the
Respondent. Had the Respondent continued to pay wages, a resignation was unnecessary.
Rather a resignation to bring the employment relationship to an end was entirely justified due
to the serious breach in performance of the Respondent’s contractual obligations.
[25] Payment of wages is a fundamental term of the contract of employment and failure to
pay wages exhibits an intention to not be bound by the contract. It is this conduct that caused
the Applicant’s resignation and therefore is a dismissal within the meaning of s.386 (1)(b) of
the Act. I observe that decisions of this Commission (and its predecessor) concerning failure to
pay wages is considered a termination at the initiative of the employer,
13 and not, where the
breach is not so serious and on an objective basis taking into consideration all of the
circumstances that resignation was not the probable result or that the person did not have any
real choice but to resign.14
[26] I am satisfied that Mrs Buaal’s resignation was an acceptance of her employer’s
repudiation of the contract and falls within the meaning of dismissed in s.386(1)(b) of the Act.
[27] Having determined that Mrs Buaal has been dismissed I now turn to the criteria for
considering harshness. Section 387 of the Act requires consideration of a range of factors as to
whether the dismissal was harsh, unjust or unreasonable.”
Mrs Amandeep Kaur Buaal v The Trustee For L N Family Trust [2026] FWC 2098 delivered 5 June 2026 per Yilmaz C