'You don't want to be here so you can finish up now,' says director
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed he was dismissed after resigning, while his employer maintained that he had voluntarily resigned.
This case highlights the issues that can arise when an employee resigns but then leaves earlier than the original notice period.
It serves as a reminder for both employers and employees to clearly communicate about notice periods and final work dates to avoid misunderstandings.
The worker had been employed as a PM Manager at a transport company since June 2023. On 20 March 2024, he submitted his resignation with one month's notice, intending to finish on 19 April 2024.
However, his employment ended abruptly on 28 March 2024 following a phone conversation with the company's owner/director.
The worker's relationship with his direct manager had been strained, and he had raised concerns about his work environment.
After submitting his resignation, the worker filed a grievance report alleging bullying and constructive dismissal. This action further complicated the workplace dynamics.
The main point of contention was whether the worker had been dismissed or had resigned. This distinction was crucial because only a person who has been dismissed can make a general protections claim under the Fair Work Act.
The case hinged on the interpretation of the phone conversation between the worker and the owner/director on 28 March 2024.
Both parties provided slightly different accounts of this conversation, but neither mentioned any discussion about payment for the remaining notice period.
The worker claimed that during the phone call, the owner/director told him:
"Things are not working out. You don't want to be here so you can finish up now. Give your work phone and fuel card to [the manager] and leave."
He argued that this constituted a dismissal, as he was not given a choice to work out the remainder of his notice period. The worker also maintained that he had continued to perform his duties diligently after giving notice, often working long hours.
On the other hand, the employer said that the worker had been unhappy in his role and had expressed a desire to leave early. They argued that the conversation on 28 March was about giving the worker the option to leave immediately if he wished, without any obligation to do so.
The owner/director said:
"[The worker] did call and the discussion was about the option of him working out his notice or leaving on his own accord ... [He] agreed that the situation was deteriorating [and] was happy to move on, on his own accord."
The employer also presented evidence suggesting that the worker's performance had declined after he gave notice, citing missed deadlines and failure to attend meetings.
The case further revealed complex workplace dynamics. The worker had filed a complaint about his direct manager, alleging bullying. The latter, in turn, had expressed concerns about her safety in working with the worker. These tensions likely contributed to the ambiguity surrounding the worker's departure, the FWC noted.
After considering the evidence, the FWC determined that the worker had indeed been dismissed. The Commission emphasised that the crucial factor in such cases is whether the employee had a real choice to work out the full notice period with pay.
The FWC stated:
"Because there was no discussion at all about working the balance of the notice period for pay, or paying the balance of the notice period, or not paying the balance of the notice period, it cannot be said that [the worker] freely agreed to make his resignation effective immediately."
This highlights the importance of clear communication when discussing early departure after a resignation notice has been given.
The Commission added:
"I am satisfied that the employment ended at the initiative of the employer when [the owner/director] initiated discussion with [the worker] about finishing his employment earlier than the date specified in the resignation notice. On the evidence I am not satisfied that [the worker] freely chose to bring forward the effective date of his resignation."
The decision underscores the need for employers to be cautious when discussing early departure with employees who have given notice. Without clear agreement on all terms, including payment, such discussions could potentially be interpreted as dismissal.
The case also highlights the complexities surrounding the definition of "dismissal" under the Fair Work Act. Even when an employee has given notice to resign, subsequent actions by the employer could potentially turn the resignation into a dismissal, opening the door for unfair dismissal or general protections claims.
Consequently, the FWC scheduled the matter for further conference.
