Can you rely on an employee’s oral resignation?

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker whose employment was terminated after implying that he intended to quit his job.

In its defence, the employer argued that the worker voluntarily resigned and was not dismissed from employment.

Escalating tension in workplace

Around September 2021, the worker commenced employment with the company as a casual warehouse store person. Almost a year later, he was engaged as a full-time employee in the same role.

The events that led to the case arose on 6 February 2023 when the worker attended work later than the scheduled 8:00 am starting time.

The manager was annoyed because he was the only other warehouse employee at the company’s operations in Adelaide and expected that the worker had some advance notice or explanation for his late attendance.

Minutes later, when the manager inspected the packages of goods, he could not find nor read the information that the worker was required to put on the outside of the boxes. He then raised these concerns to the worker.

The tension then escalated, and both the manager and the worker were speaking with raised voices, pointing to each other and the packages stacked on the pallet.

During that time, the manager raised concerns about the worker’s attitude, uncooperative behavior, and regular lateness for work.

Did worker quit?

At that point, the worker said, in a “highly emotional manner,” something to the effect that he had enough and wanted to or would quit his job.

Both parties had several exchanges of communications at that time and the manager stated that concerning the worker’s intention to quit and given his current behavior, he would “respect your choice” and it “seems that parting ways is the most appropriate course of action.”

Subsequently, the company’s administrator sent an “acknowledgment and acceptance of resignation notice” to the worker which read, “This is to confirm receipt and acceptance of your oral resignation notice, received at 9:22 am on Monday 06/02/2023.”

The employer argued that on multiple occasions the worker did not follow task instructions and was repeatedly warned that he should obey correct processes in the workplace.

It further said that the Commission lacked jurisdiction to deal with the case because the worker voluntarily resigned and was not dismissed.

Meanwhile, the worker said that it was unfair that the company did not give him a warning or a chance to improve his work performance. Hence, the dismissal was unlawful and reasonable.

He further argued that it was “paradoxical” of the employer to argue that he voluntarily resigned while also mentioning behaviour issues such as his alleged repeated lateness and absence from work.

HRD previously reported about an employee’s partner who called HR to tell the management that his wife would no longer show up at work.

FWC’s decision

After examining the case, the Commission found that the manager, on behalf of the employer, brought the worker’s employment to an end at the employer’s initiative.

It noted that while the worker did say words to the effect that he intended to quit his job, this was stated during a highly emotional discussion. Hence, it could not be said that an actual resignation occurred.

Moreover, the Commission found that while the worker’s conduct, performance, and attitude during the day in question were inappropriate, his dismissal was harsh and unreasonable as there was no valid reason for the worker’s employment termination.

The FWC also found that the worker was not notified of the reason for his dismissal before the decision to terminate and was not given the chance to respond to any reason related to his conduct.

Hence, the Commission found it appropriate to make an award of compensation to the worker amounting to over $4,000 plus superannuation contributions, instead of reinstatement.