FWC examines whether operations manager’s medical leave affects notice period
The Fair Work Commission (FWC) recently dealt with a jurisdictional objection in a general protections application involving dismissal. The case examined whether a worker was dismissed during her notice period or had repudiated her employment contract.
The worker argued she had properly resigned with four weeks' notice and continued to provide medical certificates throughout her notice period, showing her intention to maintain the employment relationship. She claimed the employer unfairly terminated her employment before the notice period concluded.
The employer countered that the worker had repudiated her employment contract by returning company property early and making an inappropriate comment to another staff member, which she claimed showed an intention not to complete the notice period.
The worker started employment with a law firm as business operations manager in May 2024. Before joining the firm, she had worked for a local private school where she received a bursary for her daughter's tuition fees.
When the worker joined the law firm, one of the principals sent a letter to the school agreeing to sponsor the worker's daughter's tuition fees "for the duration of her enrolment." The worker claimed this arrangement wasn't tied to her continued employment, while the employer maintained it was.
In mid-October 2024, the worker felt a change in her relationship with the firm's principals. On 28 October, she called in sick, providing a medical certificate valid until 4 November. After discussing her situation with her wife, the worker submitted her resignation on 1 November 2024, giving four weeks' notice as required by her contract.
In her resignation letter, she stated: "My last day of employment with the firm will be Friday 29 November 2024. I will continue to update you on my medical status for the duration of my notice period, however, it is unlikely that I will be deemed medically fit to return to the workplace."
On 4 November, the worker returned her office keys, laptop, garage remote, and work shirts to the office. According to testimony, she made a remark to the firm's accountant that included profanity. The accountant informed the principals, who concluded the worker had repudiated her employment contract.
That same day, the worker emailed a new medical certificate stating she was unfit for work until 18 November. Despite this, on 12 November, the employer sent a letter stating they accepted her "repudiation" of employment, backdating the termination to 4 November.
The worker disputed this characterisation, saying her actions were consistent with continuing her employment until the end of the notice period. She filed a general protections application on 18 November.
The Commissioner noted the dispute could have been avoided: "It strikes me that the whole matter could have been avoided if [the principals] had simply called or texted [the worker] to ask why she returned her property before the end of her notice period."
The FWC examined whether the worker had been dismissed within the meaning of the Fair Work Act. The worker claimed she was either dismissed during her notice period or forced to resign.
The FWC rejected the forced resignation claim but focused on whether returning company property constituted repudiation. The Commissioner observed that repudiation must be assessed objectively - would a reasonable person conclude the worker no longer intended to honour her employment contract?
The worker argued she returned the items because she was worried that failing to do so would result in deductions from her final pay. She also stated she didn't need these items to perform her duties during sick leave.
The Commissioner found it significant that the worker sent a medical certificate the same day: "The fact which is not readily reconcilable with an objective intention to no longer perform the employment contract is that [the worker] sent [the employer] a copy of her new medical certificate on the afternoon of 4 November 2024."
The FWC determined that the worker had not repudiated her contract and that the employer's termination of her employment constituted dismissal at the employer's initiative.
"While an employee must be ready, willing and able to perform work, an employee is also within their rights to take sick leave if they are sick," the Commissioner stated, adding that "repudiation should not be lightly inferred. A temporary absence while on sick leave will not objectively establish that the employee does not intend to perform the employment contract."
The Commissioner concluded: "Once the totality of the conduct of [the worker] on 4 November 2024 was considered, it could not be objectively determined that [the worker] evinced an intention to no longer be employed by [the employer]."
The FWC also noted concerns about the employer's understanding of wage payment obligations. The employer claimed they could deduct four weeks' pay if the worker failed to give proper notice - a claim the Commissioner found incorrect and in breach of the Legal Services Award 2020. The Commissioner referred the matter to the Fair Work Ombudsman.
The case highlights the importance of clear communication during notice periods and proper understanding of obligations related to sick leave and employment termination.
