A kitchen salesman and designer who resigned after his employer withheld the second half of his commissions on a series of jobs was not dismissed, the Fair Work Commission has found. The worker had put the commissions he said he was owed at $39,994.36.
Deputy President O’Keeffe upheld a jurisdictional objection (an argument that the Commission has no power to hear the claim) from Kitcraft Kitchens Pty Ltd, trading as Kitchen Craftsmen. The company argued the worker had resigned of his own accord. The application, made under s.394 of the Fair Work Act 2009, was dismissed.
A 5% commission became 6%, in two halves
The worker’s 2018 contract gave him 5% commission on his sales, paid when the customer made the delivery payment. In around June 2024 his role expanded to taking projects through to completion. The company offered 6%, and it became the practice to pay 3% on the delivery payment (Part A) and 3% when the job was completed and the customer had paid in full (Part B).
That split was never written down. The parties signed an individual flexibility agreement (an agreement that varies employment terms for a single worker) recording “6% Commission payable on Kitchen Craftsment sales where applicable”. The Deputy President noted the words “where applicable” suggested the 6% would not always be payable. In December 2025 the company circulated a written commission procedure, HRP08.
The worker resigned on 29 January 2026, during a period of leave that began in December 2025. He applied to the Commission on 17 March 2026.
The worker’s two arguments
Under s.386, a resignation counts as a dismissal only in limited circumstances.
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.
The worker argued first that the company had repudiated his contract (conduct showing it no longer intended to honour a fundamental term), and that by resigning he had accepted that repudiation. The Deputy President rejected this. The conduct complained of began in 2024, but the worker did not act until January 2026. By continuing to work under the Part A and Part B system, and receiving both payments on many jobs, he “should be regarded as having affirmed the contract” (treated it as continuing).
The worker argued in the alternative that he was forced to resign. The test, from the Full Bench in Bupa Aged Care v Tavassoli, is whether the employer intended to end the employment or whether resignation was the probable result of its conduct, leaving the employee “no effective or real choice but to resign”.
that the withholding of commissions was “intolerable”, that it breached s.323 of the Act (which requires amounts payable to be paid in full, in money and at least monthly), and that the “chiseling away” of his entitlements showed an intention to deny him payment for work done. He also described the workplace as “toxic”.
that commissions were payable only once milestones were met, that where he met them he was paid in full, and that his resignation was unexpected. It submitted the worker “had real and effective alternatives to resignation”.
that he could not be satisfied the worker “was faced with no choice other than to resign”, so the employment did not end at the employer’s initiative.
Poorly handled, but not a forced resignation
The Deputy President found the company “has not handled the change particularly well”. The split was not captured in the flexibility agreement, and HRP08 did not mention Part A and Part B at all. Under questioning, chief executive Selwin Freese accepted that neither the procedure nor the discretion attached to it had ever been formalised.
The Deputy President said: “Any policy that involves potential financial entitlements needs to be very carefully drafted and explained as it will almost inevitably lead to disagreement where it is in any way unclear.”
He nonetheless found the worker understood the requirements, having been paid the full 6% on 59 jobs in 2024 to 2025. Where Part B was not paid, it was “in the main” because requirements were not completed, and he did not “get the sense that the Respondent has in any way arbitrarily selected” those jobs. Asked about jobs awaiting only a final payment request, the worker said these tasks “slipped to the bottom of the pile” because he was busy. The Deputy President said that response “does not assist his case”.
He drew a distinction between wages, which are payable for attendance, and commissions, which required the worker to complete tasks “in an error-free manner”. Where that had not happened, the question of non-payment “would not appear to arise”.
On the workplace, the Deputy President found no evidence that conditions were bad enough to cause, or even contribute to, a resignation. The worker said stress had affected him but produced no medical evidence, so the Deputy President could not judge how serious his condition was or how far it stopped him from acting. The worker had raised commissions with the company three times before resigning, and most of the jobs listed in his resignation letter had not been raised earlier. Options open to him included formalising his complaints, seeking a meeting or taking his commission claim to a court.
At a glance
- Parties: A salesman and designer v Kitcraft Kitchens Pty Ltd trading as Kitchen Craftsmen
- Citation: [2026] FWC 4162
- Decision-maker: Deputy President O’Keeffe, Perth, 26 October 2026
- Section: Fair Work Act 2009, s.394 and s.386
- Outcome: Jurisdictional objection upheld, application dismissed
- Who it affects: Employers paying staged or conditional commissions, and employees who resign over unpaid commission
The matter was heard in Perth on 24 August 2026, with final submissions received on 17 September 2026. The decision applies the Full Bench caution in Sydney Water Corporation v Yelda that the line between conduct leaving no choice but to resign and conduct that does not cause a resignation must be “rigorously observed”. It also illustrates that an employee who keeps working under a changed pay arrangement for a long period may be treated as having accepted it, which limits a later repudiation argument.
Source: [2026] FWC 4162
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