Is it a 'heat of the moment' resignation? FWC looks into intention, timeline
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a security guard and his former employer, a security services company.
The case centred around whether the worker had been dismissed or had voluntarily resigned, and the timing of the employment's end.
It also highlighted the issues around workplace communications, since what began as a heated exchange had allegedly caused the worker's departure.
The worker had been employed as a casual security guard since May 2023. His duties included guarding psychiatric patients and prisoners at a hospital. On 18 January 2024, the worker alleged he was assaulted by a patient during his shift.
According to the worker's testimony, a patient punched him in the left shoulder when he prevented the patient from leaving the room for a cigarette. The worker claimed he notified his supervisor via two-way radio, but no incident report was filed.
Following this incident, the worker did not return to work, citing mental health injuries exacerbated by the assault. He later attended a doctor who diagnosed him with various mental health injuries, which he claimed were an exacerbation of previous mental injuries from his time with Victoria Police.
The crux of the dispute arose from a phone call between the worker and the employer's chief operating officer (COO) on 24 January 2024. During this call, the worker admittedly used strong language, including the phrase "I quit."
The employer interpreted this as a resignation, while the worker later claimed he only meant to quit working at that specific hospital location.
The worker argued that his words were spoken in the heat of the moment and should not have been taken as a formal resignation from the company. He claimed he had merely intended to express his unwillingness to work at the specific hospital location where the incident occurred. The worker also stated that he had provided multiple incapacity to work certificates to the employer.
The employer, on the other hand, maintained that the worker's words and subsequent actions clearly indicated his intention to end the employment relationship. They pointed to follow-up conversations and emails that seemed to confirm the resignation.
The employer's COO testified that the worker had said, "you can go and get fucked and I'm suing you and the hospital I quit," before hanging up.
The employer also noted that they were unaware of any significant incident involving the worker on the shift starting 18 January 2024, describing it as a "small altercation with a patient, nothing of note."
Meanwhile, the worker said: "When I spoke with [the COO] on 24 January 2024, I was angry and while I can't recall the exact words I used in the heat of the moment I did express my disgust at [the employer’s] failure to take an interest in my well-being. Whilst I did make the point that I would be unable to return to work I don't recall using any words which indicated that I was resigning my employment. I did however state to [the COO] that 'I quit'. This was in reference to the Bendigo hospital," he said.
The FWC had to consider several factors in determining whether a dismissal had occurred:
The Commission referred to previous cases, including Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli, which provided guidance on how to interpret resignations given in emotional states.
"If clear and unambiguous words are used to convey a resignation and these are understood by the employer, then the proper conclusion to draw is that the employee has resigned," the FWC said.
After consideration of the evidence and arguments presented, the FWC concluded that the worker had not been dismissed but had voluntarily resigned. The Commission found that:
The Commission emphasised the importance of clear communication in employment relationships, particularly during emotional or tense situations.
The decision highlighted that while caution should be exercised in accepting certain types of resignations, employees cannot unilaterally withdraw a resignation once given.
The Commission also noted that the worker's last shift was on 18 January 2024, and it took until 29 February 2024 for him to claim that his intentions may have been miscommunicated.
The worker did not provide a persuasive explanation for this delay.
“To the extent that this narrative can be seen as a 'heat of the moment' resignation, there are insufficient circumstances to mitigate a finding that the resignation should be accepted as evincing an intention to end the employment relationship between [the worker] and [the employer],” the FWC said.
The case serves as a reminder for both employers and employees about the importance of clear communication, proper documentation, and prompt clarification of intentions in employment matters.
It also underscores the legal weight that can be given to words spoken in emotional moments, highlighting the need for caution and clarity in workplace interactions.
