A recent Fair Work Commission (FWC) decision highlights the significant risks for employers when disciplinary and show cause processes are mishandled. In Hoang v Endeavour Energy Network Management Pty Ltd [2025] FWC 3225, Deputy President Wright found that an employee was effectively forced to resign because of the employer’s conduct, meaning she was dismissed within the meaning of section 386(1)(b) of the Fair Work Act 2009 (Cth).

What Happened?

Ms Hoang commenced employment with Endeavour Energy as an Inclusion & Diversity Specialist in March 2024. After raising concerns about diversity and inclusion practices, she was placed on a performance improvement plan (PIP) shortly before the end of her probation period. She completed the PIP successfully by October 2024.

Five months later, she attended a meeting with three managers (with her support person attending remotely). During that meeting, she was issued a show cause letter containing adverse findings about her performance, including a missed Workplace Gender Equality Agency (WGEA) deadline and delays in planning an International Women’s Day (IWD) event. She was asked to show cause why she should not be dismissed.

A week later, distressed and feeling she had no alternative, Ms Hoang resigned.

Why the FWC Said the Resignation Was Not Voluntary

Deputy President Wright determined that the resignation resulted from the employer’s conduct, which left the employee with no effective choice but to resign. The key reasons included:

Failure to raise or investigate performance concerns

• Endeavour did not communicate any concerns to Ms Hoang following the completion of her PIP.
• The employer failed to investigate its alleged concerns before issuing the show cause letter, providing no satisfactory explanation for this omission.

Adverse findings made without due process

• The show cause letter presented adverse findings as if they had already been established, despite no investigation or opportunity for Ms Hoang to respond.
• The letter stated that dismissal was the only disciplinary outcome being considered, even though other options existed and should have been communicated.
• The Deputy President emphasised that a reasonable person in the employee’s position would have believed dismissal was inevitable.

Support person unable to attend in person

• Ms Hoang’s support person joined remotely, limiting their ability to assist her during a stressful and unexpected disciplinary meeting.
• Evidence showed she was shocked by both the meeting and its contents, making it difficult for her to ask questions or advocate for herself.
• An in-person support person could have helped her understand the process, request breaks, or seek clarification.

Distinguishing from other cases

The employer relied on previous authorities, but the Deputy President distinguished them on the basis that:

• Those cases involved comprehensive investigations,
• Undisputed allegations,
• No predetermined outcome of dismissal, and
• No unfairness in the process.

Here, the lack of investigation and the presentation of dismissal as the only option created an unfair and coercive situation.

Outcome

Even though the employer may not have intended to end the employment, the probable result of its conduct was termination. The FWC therefore found that Ms Hoang had been dismissed and allowed her general protections claim to proceed.

Key Lessons for Employers

This decision illustrates several critical process failures that employers must avoid. In particular:

1. You must investigate disputed concerns before issuing a show cause letter

Jumping straight to adverse findings without investigation is procedurally unfair and legally risky. A show cause process must be based on factual findings formed after a fair inquiry.

2. Communicate performance concerns early and consistently

Surprising an employee with allegations months after a completed PIP — and without prior discussion — undermines trust and fairness.

3. Do not present dismissal as the only option unless it truly is

If lesser disciplinary outcomes remain possible, the show cause letter must say so. Otherwise, the process becomes coercive.

4. Ensure support persons can participate meaningfully

Encourage employees to bring a support person who can attend in person wherever possible, especially for serious or unexpected discussions.

5. The “practical effect” of your actions matters

Even without an intention to dismiss, an employer’s conduct may amount to constructive dismissal if the employee has no real choice but to resign.