FWC: When does taking leave become a resignation?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a concrete truck driver claimed he was dismissed after taking emergency leave. He argued that his employer ended his employment without proper notice while he was dealing with a family matter.
According to the worker, he followed proper procedures by informing his employer about needing immediate leave. When he tried to follow up about his annual leave payment, he received an unexpected email about processing his "final settlement," which he hadn't requested.
The case examined whether a dismissal actually occurred under section 386 of the Fair Work Act 2009 (Cth), which defines dismissal as either termination at the employer's initiative or forced resignation due to employer conduct. The worker did not claim forced resignation.
On August 25, 2024, at 7:31 pm, the worker emailed requesting immediate annual leave, stating he needed "to be away for sometime [sic]" due to a family emergency requiring overseas travel. Though he didn't travel abroad, he testified that his mental state made it unsafe for him to work.
The events that followed became disputed. In his written submission to the FWC, the worker stated he tried calling about his leave payment on September 6, 2024. Unable to reach anyone, he received an email that evening from "Accounts, PNR Transport" stating his "final settlement will be processed on Tuesday 10.09.2024."
The operations manager, who oversaw the worker's employment, gave evidence that during their conversation on September 6, the worker requested to be paid all leave entitlements as he "may not be coming back." The company then arranged these payments.
The unfair dismissal application named "PNR Transport Pty Ltd" as the employer, but Xpress Agi Hire responded to the claim.
The worker had been engaged in business operations under "PNR Transport," receiving correspondence from email addresses containing "pnrtransport."
The operations manager wrote to the worker on September 13, 2024: "As per our telephonic conversation, first you have gone on infinite annual leave and wanted to clear all of your leaves. And you didn't confirm if you wanted to come back and resume the work. So in that case, we settled and cleared all your paid leaves."
The worker responded on September 14: "I went on emergency leave which is a legal right of every Australian citizen. And should have been given the same position after I come back from holidays. But you decided to expel me from my job without any notice which doesn't come under any Australian law."
The FWC heard evidence that the transport company offered the worker alternative work at their Lidcombe site until a position at his previous Artarmon location became available. A company manager testified he asked the worker both verbally and via text message to provide his availability.
The FWC found: "I am not satisfied that [the worker] has established that he was dismissed by [the employer]. He asked to be paid out his accrued entitlements on the basis that he may not be returning. He did not engage with the company's attempts to have him return to the workforce."
The Commission further noted: "The repeated attempts by [the operations manager] from and after 13 September 2024 to arrange for [the worker] to return to work are inconsistent with [the operations manager] having told [the worker] on 6 September 2024 that the business did not need him."
After examining all evidence, the FWC determined: "[The worker] has not demonstrated that any action by [the employer] was the principal contributing factor which resulted, directly or consequentially, in the termination of his employment."
The application was dismissed as no dismissal had occurred under the Fair Work Act.
