FWC sheds light on when a resignation could be considered a dismissal
The Fair Work Commission (FWC) recently dealt with a dispute involving a worker’s resignation and whether it amounted to an unfair dismissal under the Fair Work Act 2009 (Cth).
The worker claimed she had no real choice but to leave her job due to persistent wage delays, unpaid entitlements, and a stressful work environment. She argued that the employer’s actions left her in a position where resigning was the only reasonable option.
The worker stated that her wages were repeatedly paid late, which put her under financial strain. She also raised concerns about unpaid superannuation contributions.
Additionally, she described a deteriorating work environment marked by poor communication from management, internal disputes, and uncertainty about the future of her role. The employer denied these claims and argued that the worker resigned voluntarily.
The worker was employed full-time as a performer at an entertainment venue. She had expected long-term employment, but she encountered repeated wage delays, which also affected other staff and contractors. These delays created uncertainty in the workplace.
In addition to financial instability, the worker described an unhealthy workplace environment. She said a senior creative team member, who was responsible for show production, faced bullying and harassment. She argued that this situation added to the stress and disorder in the workplace, affecting her ability to perform her duties.
By November 2024, the worker had gone three weeks without receiving wages. She informed the employer that she would not return to work until she was paid. The employer made partial payments on 8 November 2024 and completed payment on 12 November 2024. However, the worker pointed out that other performers and crew had not been paid, which made it difficult to continue rehearsals and performances.
The FWC directed the employer to submit witness statements, documents, and other supporting materials by 12 February 2025 to demonstrate that the worker had not been dismissed. However, the employer did not meet this deadline.
Instead, in the early hours of 21 February 2025—just before the scheduled hearing—it submitted an unsigned and unsworn affidavit from its director, referencing possible insolvency proceedings.
The FWC ruled that this affidavit could not be admitted into evidence. It found that the late submission had unfairly prejudiced the worker, particularly because the employer’s director was not available at the hearing to answer questions about its contents.
Additionally, the employer’s legal representative sought leave to withdraw from the hearing, leaving no one to present the employer’s case.
With no substantial evidence from the employer, the FWC relied on the worker’s statements and other documents that had been submitted in accordance with procedural directions.
Under section 386(1)(b) of the Fair Work Act, an employee is considered dismissed if they resign due to conduct by the employer that leaves them with no real choice but to resign. The FWC examined whether the employer’s actions made it unreasonable for the worker to continue in her role.
In an email sent on 14 November 2024, the worker expressed concerns about the lack of clarity regarding upcoming performances and workplace conditions. She wrote: “The work environment over the last few weeks has been extremely stressful. I haven’t been sure if I would get paid or if I would even still have a job because of all of the issues with the finances.”
The employer responded on the same day, stating: “Your mental health is more important than whatever is happening at the moment. Please make sure you look after yourself and do what is needed.” The worker later provided a medical certificate stating that she was unfit for work due to mental stress from 14 to 22 November 2024.
During a final meeting on 19 November 2024, the worker asked the employer how it planned to pay her accrued leave and superannuation. The employer’s director indicated that annual leave payments might be reviewed and suggested that the worker had not worked enough hours to justify full payment, despite payslips showing otherwise.
On 20 November 2024, the worker formally submitted her resignation. In her resignation email, she wrote: “Following our meeting yesterday, I am writing to formally resign from my position… effective immediately, as of 20 November 2024.” She also asked for clarification on when she would receive outstanding payments.
The FWC determined that the employer’s actions had effectively forced the worker to resign. It stated: “Termination of [the worker’s] employment was the probable result of [the employer’s] conduct such that [the worker] had no effective or real choice but to resign.”
The FWC also noted that the employer’s payment of overdue wages shortly before the worker’s resignation did not erase the ongoing financial and workplace instability she had experienced.
