FWC examines how informal chats about leaving can impact employment rights
The Fair Work Commission (FWC) recently dealt with a case that examined whether an employment relationship ended through resignation or dismissal.
Under section 365 of the Fair Work Act 2009, a worker filed a general protections application after her brief employment as a property manager ended.
The employer raised a jurisdictional objection, arguing the worker had voluntarily resigned. The Commission needed to determine how exactly the employment relationship ended, given the events that took place on the worker's final day.
The case focused on interactions between the worker and management on October 16, 2024, particularly a morning conversation about potentially leaving and an afternoon meeting that ended with the worker being told to pack her belongings and leave.
The employment had started on September 30, 2024, at a motel in Rockhampton. On October 16, the project manager-operations testified that around 9:30 AM, the worker told him: "I cannot balance for rollover. I am going back to my apartment to pack my bags and talk to her father and will be back at 1:00pm to hand the keys back."
After this conversation, the project manager contacted the CEO to report what he interpreted as a resignation. The worker returned around 1 PM for a meeting with two project managers that evolved into a disagreement about her performance.
During this meeting, according to evidence submitted, one project manager stated: "I'm not going to continue with the meeting, as per your instruction this morning, you were resigning and leaving, I suggest we finish this meeting you can go and pack your things hand in your keys and leave the premises."
The Commission identified several factors suggesting no legally effective resignation had occurred, including the worker's stated intention to consult her father and her attempt to discuss workplace issues at the afternoon meeting.
The Commission referenced the Full Bench decision in Bupa Aged Care, which stated: "There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the 'heat of the moment' or when the employee was in a state of emotional stress or mental confusion."
The CEO testified that the project managers lacked authority to dismiss the worker and that he hadn't authorized such action.
The employer had subsequently paid the worker one week's wages in lieu of notice, citing the probationary period clause in her employment contract.
The Commission concluded: "This case falls within the category of an ostensible resignation where [the employer] decided to rely on the resignation rather than clarifying or confirming that [the worker] genuinely intended to resign. That constituted a termination at the initiative of [the employer] and a 'dismissal' within the meaning of s.386(1)(a) of the FW Act."
Regarding the authority to dismiss, the Commission found: "[The project managers] misstated the legal position to [the CEO] who then acted on that incorrect advice. That essentially means [the CEO] made the decision to 'dismiss' [the worker] within the meaning of the FW Act based on the incorrect advice he received."
The Commission dismissed the employer's jurisdictional objection, and the matter was scheduled for conciliation in late January 2025.
