A Melbourne worker has walked away with over $27,000 after the Fair Work Commission ruled she had been constructively dismissed. The worker argued she had been forced to resign because she was consistently underpaid or not paid on time, to the tune of over $9,000.
In this article, we’ll look at the events of this constructive dismissal case – Mrs. Sanuri Rathnayaka Herath Mudiyanselage v Greenhill Education Group Pty Ltd [2025]. Later, we’ll explore another case involving a hospitality worker who was fired after complaining about underpayments.
Herath Mudiyanselage moved to Melbourne in March 2023. She started working for Greenhill Education Group (which trades as Greenhill Institute of Technology) as an unpaid full-time accounts intern in June 2023. After working in this role for three months, Mrs. Mudiyanselage was offered a paid part-time contract role for one year as a “Receptionist-Student Service Officer.” This was later converted to a full-time, limited-term contract from 28 May 2024.
A crucial element of this constructive dismissal dispute concerned Greenhill Education Group’s failure to meet its legal obligations regarding pay. Mrs. Mudiyanselage claimed that from the time she started working under the part-time contract and throughout her period of paid employment, the company “regularly and consistently” failed to pay her wages on time.
In December 2024, Mrs. Mudiyanselage sought assistance from the Fair Work Ombudsman. She said that she repeatedly raised the pay issue with Greenhill Education Group. She provided the Fair Work Ombudsman evidence of numerous emails and Microsoft Teams messages detailing her protests against the late payments since early February 2024.
Following the Fair Work Ombudsman’s intervention, Greenhill Education Group commenced paying the correct Level 1 rate under the applicable award from 6 January 2025. However, the company failed to rectify the historical underpayments or pay all outstanding salaries and superannuation.
A few weeks later, Mrs. Mudiyanselage issued a formal demand requiring Greenhill Education Group to pay her outstanding payments within 14 days. If it didn’t, she said that she would stop working. The company’s CEO responded by praising her work. She also promised that the company would “sort it out.” Despite this, no payment was made. At this point, Mrs. Mudiyanselage alleged that she was owed $13,000 plus $4,466 in superannuation. However, Greenhill Education Group claimed that it only owed her $9,000.
On 31 January 2025, after no payment was received, Mrs. Mudiyanselage resigned from her position. By the time of her resignation, she was owed six fortnightly salaries or 12 weeks’ pay, with one of those pays having been outstanding for over five months.
Mrs. Mudiyanselage lodged an unfair dismissal application with the Fair Work Commission. She argued that she was forced to resign due to the conduct of Greenhill Education Group. She contended that her resignation should be properly characterised as a constructive dismissal. She highlighted Greenhill Education Group’s continuous failure to pay her entitlements, even after FWO involvement.
Mrs. Mudiyanselage argued that this failure conveyed that the company had “no intention” of complying with its legal responsibilities and that no meaningful resolution was possible. She submitted that her resignation was not an “exercise of free choice” but a necessary step to remove herself from an “exploitative” and unlawful situation.
In response to the constructive dismissal claim, Greenhill Education Group raised a jurisdictional objection. The company argued that Mrs. Mudiyanselage was not fired and had resigned voluntarily. It was “adamant” that she was not in a position where she had no choice but to resign. Furthermore, Greenhill Education Group vaguely submitted that Mrs. Mudiyanselage had not exhausted internal grievance procedures.
The company also referenced vague claims of frequent legislative changes, market instability and a sharp rise in student visa refusals as reasons for the payment failures. Greenhill Education Group also argued that a compensation order was inappropriate because Mrs. Mudiyanselage had resigned. The company did not provide substantive evidence as to the effect of any potential compensation order on the viability of the enterprise.
At Mrs. Mudiyanselage’s initial unfair dismissal hearing in April 2025, Greenhill Education Group paid her $4,000 in underpayments. As of writing, the company hasn’t made any other payments to her. Mrs. Mudiyanselage’s constructive dismissal claim was formally heard by the Fair Work Commission in June 2025. It found that she had been terminated within the meaning of the Fair Work Act 2009. The Commission noted that the line between a voluntary resignation and a forced resignation must be “closely drawn and rigorously observed.” However, it concluded that the Greenhill Education Group’s conduct went beyond that line.
The Commission described Greenhill Education Group’s conduct as continuing to “flout” its legal obligations. It noted that it still had not paid Mrs. Mudiyanselage despite repeated requests, Fair Work Ombudsman intervention and a clear ultimatum. It deemed that this left Mrs. Mudiyanselage with no choice but to resign. Greenhill Education Group’s conduct was described as continuing to “flout its legal obligations.”
In her constructive dismissal claim, Mrs. Mudiyanselage noted to the Fair Work Commission that, following the retirement of the campus manager, she was required to undertake additional tasks. She argued that she should have been classified at a higher level than the Level 1 she was being paid under the Educational Services (Post-Secondary Education) Award 2020 (the Award).
The Commission considered the duties Mrs. Mudiyanselage performed prior to her forced resignation, including the additional tasks taken on from the former campus manager. It was satisfied that she should have been classified as a Level 3.1 General Staff under the Award at the time of her sacking.
The Fair Work Commission found that there was a complete absence of a valid reason for Mrs. Mudiyanselage’s termination, deeming that its impact was harsh. The continuously delayed salary meant Mrs. Mudiyanselage had to “rely on her husband” to financially support her, meaning she lost any financial independence she had. It was also noted that her parents were financially dependent on her.
The Commission found that reinstatement was inappropriate due to the breakdown of trust and Mrs. Mudiyanselage’s emotional stress. Compensation was therefore deemed appropriate. This was calculated based on the Level 3.1 pay rate. Greenhill Education Group was ordered to pay her $27,424.88 plus superannuation.
Another recent unfair dismissal case that involved underpayment is Jian Zhang v WLMM Food Pty Ltd [2025]. Gold Coast-based Jian Zhang started working at the Benowa Highland Court Chinese Restaurant in January 2019. He worked around 15 hours per week. The events that led to Mr. Zhang’s termination began when he received a letter from the Australian Taxation Office in February 2025. The letter pointed out a discrepancy between his reported wages and the amount declared by his employer WLMM Food.
This prompted Mr. Zhang to review his records and conclude that he had been underpaid between July 2023 and July 2024. He worked out that he should have been paid $348.45 per week for the 15 hours he worked, based on the minimum wage of $23.23 per hour at the time. Later that same day, Mr. Zhang verbally raised his concerns about being paid below the minimum wage with his boss, Yunpeng Guan. Eleven days later, on 22 February 2025, Mr. Zhang was fired. He claimed that when he finished his shift on that day, his boss verbally told him not to come back.
Mr. Zhang lodged an unfair dismissal claim with the Fair Work Commission. He said that he had been fired on the spot without any prior warning or written notice. Mr. Zhang claimed that the reasons for his sacking offered by WLMM Food were inconsistent. He said that Mr. Guan initially cited “economic reasons,” but later mentioned “misconduct” verbally. Mr. Zhang was never provided with any documentation or evidence to back up either reason. He argued that the timing of his sacking could indicate a possible “retaliatory motive.”
Mr. Zhang visited the restaurant after his sacking to request his notice of termination, three weeks’ payments for failure to give notice and a separation certificate. Despite the purported economic struggles of the restaurant, he noticed that his boss had already recruited a replacement for him. Mr. Zhang claimed to the Fair Work Commission that Mr. Guan refused to give him his termination letter or a separation certificate. He also refused to pay three weeks’ payments of notice and his remaining leave entitlements.
WLMM Food eventually provided a response to Mr. Zhang’s unfair dismissal claim after being prompted several times by the Fair Work Commission. The company raised a jurisdictional objection, claiming it was a small business and had complied with the Small Business Fair Dismissal Code. WLMM Food contradicted Mr. Zhang’s claim that he had been employed by the business since 2019. The business said that he had only commenced his role on 11 June 2024.
WLMM Food said that the reason for his sacking was that Mr. Zhang had “verbally abused” colleagues and stole ingredients. The business also alleged that he went on strike while on duty, which disrupted business operations.
Despite filing the jurisdictional objection, WLMM Food failed to file any material or submissions for the final hearing. This was despite follow-up from the Fair Work Commission and confirming receipt of directions. Mr. Zhang’s final hearing of her unfair dismissal claim went ahead in July 2025, with the matter decided on her submitted material alone. The Commission noted that WLMM Food was aware of the proceedings but had “decided not to participate.”
The Commission first addressed the business’s jurisdictional objection regarding the Small Business Fair Dismissal Code. It noted that as it didn’t participate in the proceedings, there was no evidence to support the objection. The Commission therefore concluded that WLMM Food had not complied with the Small Business Fair Dismissal Code when it fired Mr. Zhang.
Given that the Fair Work Commission only had Mr. Zhang’s evidence to work with, it ruled that MLMM didn’t have a valid reason to sack him. Also given the lack of contrary evidence, it ruled that Mr. Zhang was not provided with procedural fairness. It concluded that he wasn’t given the reason for his termination prior to his sacking. Also, that he wasn’t given an opportunity to respond to the reason.
The Commission also considered the timing of Mr. Zhang’s sacking. It concluded that the fact it happened shortly after complaining about underpayments “leads to a clear inference” that it was due to making the complaint.
Ultimately, the Fair Work Commission ruled that Mr. Zhang had been unfairly dismissed. As he didn’t want to be reinstated, the Commission ordered WLMM Food to pay him $7,953 plus superannuation. The compensation was calculated based on Mr. Zhang’s weekly earnings of $361.50. The Commissioner noted to Mr. Zhang that any claim for underpayment of statutory entitlements was a separate matter for a “different jurisdiction.”
Read more: The 13 Funniest Ways to Quit a Job: Resigning in Style with Dramatic and Hilarious Flipsides
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