Worker 'took offence' after receiving email, says she had 'no choice but to resign'
The Fair Work Commission (FWC) recently dealt with a case that explored when a resignation might actually be considered a dismissal.
The worker argued that circumstances around her departure meant she had no real choice but to leave her role, despite having submitted a formal resignation.
The case raised questions about how much flexibility employers must show when handling resignation notices, and what happens when workers try to change their agreed resignation dates.
It also examined whether an employer's conduct after a resignation notice could turn a voluntary departure into a constructive dismissal.
The worker started with the employer in May 2021 as a full-time concierge at their facilities and later moved up to building manager. Problems emerged when she asked for five weeks of annual leave for overseas travel.
The employer denied this request because other staff members were already scheduled for leave during that time.
While the worker had verbally told her manager about wanting to take leave, she hadn't properly logged the request in the employee system as required by company policy.
On 24 July 2024, the employer suggested either different dates or a shorter leave period. The worker refused these options, saying she had already confirmed her travel arrangements.
The next day, they discussed the possibility of the worker changing from building manager back to casual concierge.
The people and culture manager wrote to confirm their discussion about changing roles. Less than an hour later, the worker sent her resignation. She initially wanted to end her employment on 22 August 2024, writing:
"For casual concierge role; due to my parenting and health concerns-I am unable to start straight away but in a few weeks time. Please provide the hourly rate for casual concierge from Connect Facilities."
The worker later changed her preferred end date to 2 August. Through further email exchanges, both sides agreed on 9 August 2024 as the final day. The worker received and reviewed her exit letter confirming this date.
After her agreed last day, the worker visited the workplace to collect personal belongings. This led to the employer sending an email about unauthorised entry and unreturned company property.
The worker took issue with the tone of this message and attempted to change her end date back to 22 August, offering to provide medical certificates to cover the additional period.
The FWC examined whether this situation constituted a dismissal. In their analysis, the Commission noted:
"[The worker] did not resign in the heat of the moment. At the time of her resignation [the worker] requested an alternative role within [the employer's] business citing personal reasons and [the employer] agreed to accommodate that request."
The Commission emphasised the sequence of events:
"It wasn't until 13 August 2024, when [the worker] received [the manager's] email with its harsh tones, to which she took offence that she attempted to unilaterally change the date of her resignation. [The worker] made no attempt to rescind her resignation, she sought only to change the date it was to take effect."
In making its final decision, the Commission stated:
"I am not persuaded that [the employer's] conduct resulted in [the worker] having no other option than to resign or that it would have that probable effect... I am not satisfied that [the worker] had no other option but to resign as a result of [the employer's] conduct."
The Commission dismissed the application as they found no dismissal had taken place. The evidence showed the worker had resigned voluntarily, agreed to an end date, and only tried to change this date after receiving an email she found offensive.
Under section 368 of the Fair Work Act, the FWC said that this meant she couldn't proceed with an unfair dismissal claim.
