Employer fires worker after rendering his resignation – is it dismissal?

The Fair Work Commission (FWC) recently dealt with a case involving a worker alleging contraventions against his former employer associated with his dismissal.

Before his alleged dismissal, the worker started employment as a technical consultant for a private cybersecurity company providing services nationally, mainly to corporate clients.

In the four months of employment, the worker had several absences due to surgery and took a dislike to the employer's attitude towards him. Thus, he decided to resign.

Was there a dismissal?

The worker emailed his employer informing him of his resignation on 16 December 2022, noting that the email provided four weeks' notice.

Thus, four weeks from the said date meant that the resignation was intended to take effect on 13 January 2023.

The worker, however, continued performing his role after his resignation and worked remotely from 16 to 21 December. He argued that he was on unpaid leave from 22 December to 13 January 2023.

Meanwhile, in December 2022, the employer decided to terminate the worker's employment effective immediately after the company found that the worker was promoting on LinkedIn a business under his name and a product considered to compete with the services offered by the company.

Hence, one of the company's staff communicated through the telephone with the employer to "notify him of the termination of his employment and the immediate revocation of access" to the company's in-depth systems.

However, on 20 January, the worker phoned his employer and expressed his frustration as he did not receive a termination payment asserting that his workplace rights had been breached by non-payment.

The worker further argued that he "earlier resigned but was subsequently dismissed on 23 January 2023 and took this legal action because he was entitled to do so after what he says were threats of legal action against him by the employer," the FWC noted.

He further said that "if he was dismissed earlier than 23 January 2023 (for example, on 21 December 2022 as alleged by the employer), an extension should be granted because firstly the employer's communication following his resignation was ambiguous such that he could not reasonably have understood that he had been dismissed prior to his resignation taking intended effect," the Commission said.

Nonetheless, the employer contended that the words said by the company's representative expressly notified the worker of dismissal.  It further argued that the worker received no final payment as nothing was owed. 

HRD previously reported on a case involving a worker claiming he was dismissed even before his employment began. In its defence, the employer contended that the worker was not dismissed as the latter was not the company’s employee in the first place.

In another story, a worker was left fuming after he was dropped from his new work before his first day in the office.

FWC's decision

In its decision, the Commission noted that the employment relationship ended on the worker's initiative when his resignation took effect on 13 January 2023. Thus, the worker's employment is terminated by resignation and not dismissal.

The FWC also found that the company representative's communication with the worker concerning his dismissal was not "a plain and unambiguous notification of dismissal despite the intention that it be so."

"For a dismissal to take effect inside a notice period of resignation the dismissal decided upon needs to have been communicated in plain and unambiguous terms otherwise the employment relationship continues until the point in time that the resignation takes effect," the Commission said.

Ultimately, the FWC dismissed the worker's "application to deal with contraventions involving dismissal" as it had no jurisdiction over the case.