Worker says she 'merely tidied it at the start of the week'
The Fair Work Commission (FWC) recently dealt with a case involving a general protections dispute. The matter centred around the termination of a worker's employment and raised important questions about what constitutes dismissal under the Fair Work Act 2009.
In this case, the worker argued that she had been unfairly dismissed, claiming that her employment had ended later than the date asserted by her employer.
She maintained that she had not ‘cleared out her desk’ as alleged, and pointed to a separation certificate that contradicted her employer's version of events.
The worker also said there were ongoing communications with the company's accountant, which she believed indicated her continued employment.
Background of the case
The worker had been employed by the company since 30 October 2023. The employer claimed that the employment ended on 20 June 2024 when the worker allegedly “cleared out her desk.” However, the worker maintained that her employment ended on 28 June 2024, as shown on her separation certificate.
On 19 June 2024, the employer messaged the worker via WhatsApp, offering to provide a positive reference. The worker acknowledged this and requested a formal separation letter advising her of the redundancy.
The situation took an unexpected turn when the worker sent a message to her employer on 21 June 2024 at 6:06 am, requesting personal and domestic paid leave until 1 July 2024. The worker's message stated:
"Due to unforeseen circumstances, I need to take time off as personal and domestic paid leave. Effective as of Friday 21/06/2024. I am hoping to be able to return on Monday 01/07/2024. I apologise for the short notice."
The employer promptly responded at 6:07 am, stating: "Unfortunately, that is not going to work... Today will be your last day."
‘Cleared out desk’
The employer argued that the worker had cleared out her desk on 20 June 2024, indicating her intention to leave. They provided an affidavit from a friend of the company director, stating that he had seen the worker's desk decorated at other times, but it was bare of personal items at approximately 8:00 am on 21 June 2024.
Conversely, the worker denied clearing out her desk, stating that she had merely tidied it at the start of the week. She provided an affidavit from her father to support her claim, although the employer objected to this evidence, stating that they had never seen the worker's father at the premises.
The worker believed she was still employed between 21 and 26 June 2024, as she was in communication with the company's accountant regarding evidence to support her need for personal leave.
On 28 June 2024, the worker received a separation certificate which stated that her employment ended on 28 June 2024. The employer's name appeared on the certificate, though he said he did not sign it, and it appeared to have been prepared by the company's accountant.
Legal considerations and outcome
The FWC had to determine whether the worker was dismissed within the meaning of section 386(1)(a) of the Fair Work Act 2009. After considering the evidence, the Commission concluded:
"On the basis of the evidence, I am satisfied that [the worker] did not voluntarily resign from her employment on 20 June 2024 and instead that the employment relationship was brought to an end at the initiative of [the employer] by the message sent to [the worker] on 6:07am on 21 June 2024."
This determination meant that the worker's application was filed seven days out of the statutory 21-day period. However, the FWC has the discretion to extend this period if exceptional circumstances exist.
In assessing whether to grant an extension, the FWC considered several factors, including the reason for the delay, any actions taken to dispute the dismissal, potential prejudice to the employer, the merits of the application, and fairness considerations.
The Commission found that the worker's confusion about her termination date was understandable, given the lack of clear communication and the contradictory information on her separation certificate.
The FWC stated:
"In all of the circumstances it is not unreasonable that [the worker] was at least confused about her date of termination, having not been told a date of termination and then being provided a Separation Certificate by [the employer] stating that her date of termination was 28 June 2024."
The FWC also noted that the worker had been engaging in communications with the employer's accountant during the week of 21 June 2024, seeking approval for paid leave. These communications suggested that the worker did not understand she had been dismissed.
Ultimately, the FWC decided to grant an extension of time, concluding:
"Having considered all of the matters I am required to take into account in section 366 of the Act, I am satisfied that there are exceptional circumstances in this case justifying a further period of seven days to allow [the worker] to file her application."
