Worker planned to serve his notice, but the employer had other plans
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim brought by a worker against his employer. The worker argued that after resigning with two weeks’ notice, the employer abruptly terminated his employment, preventing him from working through the notice period.
The worker contended that this action amounted to an unfair dismissal and sought compensation for lost earnings.
The worker claimed he had been fulfilling his role despite ongoing challenges at work. While the employer had raised concerns about performance, the worker believed he had not been given a fair chance to address the issues before the dismissal.
He insisted that his resignation was made in good faith and should have been honoured rather than overridden by summary termination.
The worker started as a casual employee in January 2023, initially working 20 hours per week. By March 2024, his hours had increased to 40 per week, and he was later promoted to a full-time managerial role in August 2024. His employment was covered by an industry-specific award, which set out his entitlements and obligations.
As a full-time employee, the worker’s schedule consisted of 50 hours per week, spanning Thursday to Monday. However, performance concerns arose in late 2024, particularly regarding his failure to complete end-of-day checklists and incidents where perishables were left out overnight.
These issues led to a meeting on 31 October 2024, where the employer formally raised concerns and requested a written response from the worker.
Conflicting accounts emerged regarding the meeting. The employer presented a written record suggesting that a final warning had been issued, while the worker denied receiving such a warning. The FWC found that no final warning had been given, only an opportunity for the worker to provide a response.
On 2 November 2024, the worker submitted a resignation letter, stating he would work for two more weeks. However, later that day, the employer issued a termination letter, citing “repeated and continued serious misconduct” under his employment contract.
The termination letter was sent just over an hour after the worker resigned. As a result, the worker was denied pay for the two-week notice period and any accrued annual leave. The employer claimed that the dismissal was justified and in line with the Small Business Fair Dismissal Code.
The worker then filed an unfair dismissal claim, arguing that his resignation should have been honoured rather than overridden by an immediate termination.
The FWC first determined whether the worker had been dismissed under section 386 of the Fair Work Act 2009. Since the worker had resigned but intended to serve his notice period, the Commission found that the employer’s letter of termination constituted a dismissal.
“[The employer] intervened by dismissing [the worker] by its letter of termination at 3:07 pm that afternoon, and so my conclusion is, and my finding is, that there was a dismissal within the meaning of the Act,” the decision stated.
The Commission then assessed whether the dismissal was unfair by considering whether it was harsh, unjust, or unreasonable. While the employer argued that the dismissal complied with the Small Business Fair Dismissal Code, the FWC found that the worker’s alleged misconduct did not meet the threshold for summary dismissal.
The FWC emphasised that the employer had failed to follow a fair process. While performance concerns had been raised, the worker was not given a proper opportunity to improve before being dismissed. Additionally, the employer’s decision to issue a termination letter after the worker had already resigned was deemed excessive.
“The action of then intervening in the notice period by way of providing a letter of termination which gave effect to a dismissal immediately… was an overreaction to the resignation,” the Commission stated.
Given these findings, the FWC ruled that the dismissal was unfair and ordered the employer to compensate the worker with three weeks’ pay. This amount reflected the two weeks’ pay for the notice period and one week’s worth of unpaid annual leave.
The FWC reminded employers to ensure that warnings and disciplinary actions are properly documented and that employees are given reasonable opportunities to respond before being dismissed.
