It was voluntary resignation, argues employer
The Fair Work Commission (FWC) recently dealt with a case involving allegations of unfair dismissal and general protections violations.
The dispute centred around a worker who claimed they were dismissed after exercising workplace rights related to employment entitlements, family responsibilities, and temporary absence due to illness.
This case highlights the issues that can arise when employment relationships break down, particularly when there are disagreements about the nature of a worker's departure. It serves as a reminder for employers to carefully manage terminations and clearly communicate the status of employment agreements.
The crux of the matter revolved around whether the worker had resigned or been dismissed. The employer argued that they were simply accepting a previous resignation, while the worker contended that they had been unfairly terminated.
The case traced back to February 2024, when the worker had initially submitted a resignation. However, subsequent discussions led to an agreement for the worker to continue employment with a flexible working arrangement. This agreement allowed the worker to take alternative Fridays off for childcare purposes.
The situation came to a head on 2 May 2024, when the worker left work early due to illness. In response to a message from the employer about cancelled arrangements, the worker explained:
"I went home sick. I came in this morning to help what was needed to be done... There is no one to look after [our daughter]. [My wife] has already been home all week caring for her as I couldn't because we are too busy. I won't be in tmrw".
The employer replied: "Ok, we will now accept your resignation".
Later that same day, the worker received an email from the employer stating:
"Hi, this is to notify you about the termination of employment. This is effective today May 2, 2024 as per the advice of our Directors. We will process your last pay, annual leave and sick leave credits. If you have questions, please do not hesitate to reach out."
This email became a crucial piece of evidence in determining the nature of the employment termination.
The FWC noted that the clear language in this communication indicated a dismissal rather than an acceptance of resignation.
It's important to note that the worker had been employed by the company from 4 November 2016 until 2 May 2024. The initial resignation submitted by the worker on 20 February 2024 was set to take effect on 19 March 2024. However, this resignation never came into effect due to a subsequent agreement between the parties.
In the days following the February resignation, the employer and worker reached an agreement for the worker to continue their employment. This new arrangement included a flexible working schedule allowing the worker to take alternative Fridays off for childcare.
The employer also reminded the worker of expectations regarding punctuality and attendance. During these discussions, the worker mentioned their intention to leave at the end of the year due to family relocation plans.
The FWC noted that this new agreement was largely put into effect. The worker continued working after 19 March 2024, and the flexible working arrangement commenced from 19 April 2024.
While there were some absences in late March and early April, the FWC found no evidence that these absences were unauthorised or that the worker was not entitled to take them.
The FWC ultimately found in favour of the worker, concluding that they had been dismissed at the initiative of the employer. The Commission rejected the employer's argument that they were simply accepting the worker's earlier resignation from February.
In its decision, the FWC emphasised:
"The clear words of the letter of termination of 2 May 2024 (extracted above) put the question beyond doubt. It is not undone by the resignation of 20 February 2024, which was replaced by an agreement subsequently reached between the parties about [the worker] remaining in employment."
This finding underscores the importance of clear communication and documentation in employment matters. The FWC further noted:
"The resignation was no longer operative and it was not open to [the employer] to revive [the worker's] resignation unilaterally on 2 May 2024."
Lastly, the Commission concluded:
"I find that [the worker's] employment was terminated at the initiative of [the employer] on 2 May 2024."
These statements highlight the FWC's view that once a new agreement had been reached following the initial resignation, the employer could not unilaterally revert to the previous resignation as grounds for termination.
The case serves as a reminder of the importance of clear communication and proper documentation in managing employee departures and employment agreements.
