Heated email exchange reveals workplace confusion
The Fair Work Commission (FWC) recently dealt with a dispute where a worker claimed his employer had unfairly dismissed him. The worker argued that while he believed he had voluntarily resigned, an email from his employer weeks later suggested he had actually been fired for misconduct and poor performance, prompting him to seek legal remedy.
The dispute highlighted confusion about how the employment relationship had ended. The worker maintained he had resigned and taken immediate leave instead of working his notice period. Meanwhile, the employer initially processed his departure as a standard termination, but later characterized it as a dismissal for misconduct.
The case raised important questions about employment termination communication and the legal timeframes for challenging dismissals.
The worker's application hinged on whether the FWC would accept his explanation for filing outside the standard timeframe, based on his understanding that his resignation had been recharacterized as a dismissal only weeks later.
The worker filed his application with the FWC on 26 September 2024, claiming he had been dismissed on 13 September 2024. This filing would have been within the required 21-day timeframe under section 366(1)(a) of the Fair Work Act 2009.
However, the electrical company raised a jurisdictional objection, arguing that the worker had actually been dismissed on 28 August 2024, which would place the application outside the permitted timeframe.
During the proceedings, a further jurisdictional issue arose when the worker stated that he had actually resigned voluntarily rather than being dismissed. This significantly complicated the case, as the worker's reason for delay in filing was directly connected to the question of whether he had resigned or been dismissed.
The FWC needed to determine whether "exceptional circumstances" existed to extend the timeframe for filing.
The worker started employment as an electrician with the electrical company in March 2024. Performance issues developed between the parties, culminating in a discussion between the worker and one of the company directors on 28 August 2024.
According to the worker's testimony, he resigned the next day and advised the employer he would take "immediate leave" instead of working his notice period.
The company elected to pay the worker for two days of leave (29-30 August) and paid out his remaining leave entitlements in his final pay. The worker's final payslip stated that his employment ended via "normal termination."
The worker questioned why his annual leave loading hadn't been included in his final pay. After receiving no response to his initial inquiry, on 13 September the worker received an email from a company director stating he "was fired due to misconduct, insufficient work quality and refusing to follow instructions." This prompted the worker to reply: "I was not fired... I quit without notice, agreed in the moment."
During the hearing, the company director testified she thought the worker had been given a termination letter dated 7 August 2024. She gave contradictory evidence, first saying she was unaware the worker hadn't received the termination letter, then claiming he had received it but disregarded it.
The worker testified that while a discussion about his performance had occurred with a director, he was never given any termination letter or told his employment was being terminated. Instead, he claimed they had agreed to work on improving their working relationship.
The director admitted she had written in her 13 September email that the worker was terminated "in the heat of the moment." The FWC found her evidence "at times evasive and inconsistent." Notably, the other company director who allegedly had the termination discussion with the worker did not give evidence at the hearing.
The FWC emphasised: "a dismissal does not take effect unless and until it is communicated to the employee." The employer provided no evidence that a dismissal had been communicated to the worker. The worker's evidence was found to be "credible and consistent," leading the FWC to determine he had resigned voluntarily on 29 August 2024.
The FWC considered whether the employer's decision to pay out the worker's remaining leave might constitute termination at the employer's initiative but concluded it did not. With approximately 38 hours of unused leave entitlements, the FWC did not view this payout as transforming a resignation into a dismissal.
The confusion arose from the director's 13 September email, which first suggested to the worker that he had been dismissed. However, since the evidence established the worker was not actually dismissed, the FWC found no exceptional circumstances existed for extending the application filing deadline.
The FWC determined that without an actual dismissal having occurred, it lacked jurisdiction to hear the general protections application. Section 365 of the Fair Work Act 2009 specifically requires a dismissal for such applications to proceed.
"As outlined above, I am of the view that [the worker] resigned. As such, on the evidence before me, I do not consider that [the worker] was dismissed at the initiative of [the employer] on 28 August, or at any other time, as per s.386(1)(a) of the Act. It is [the worker's] evidence that he voluntarily resigned from his employment on 29 August 2024. He does not assert, nor is there any evidence, that he was forced to do so because of the conduct of [the employer]."
"Having also determined that [the worker] resigned from his employment, I find that the Commission does not have jurisdiction to deal with his general protections application," the FWC concluded in dismissing the case.
