Employer refused to allow withdrawal, arguing his actions confirmed resignation
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed he was dismissed after his employer refused to allow him to withdraw his resignation.
The worker argued that he resigned under duress following a phone call about a LinkedIn comment he had made, and that his employer's refusal to accept his withdrawal of resignation amounted to a dismissal.
This case raised important questions about the nature of resignations and the circumstances under which they might be considered dismissals under Australian employment law.
The worker had been employed by the Australian Tax Office (ATO) since February 2000. On 7 May 2024, he commented on a LinkedIn post made by the ATO, publicly identifying himself as an employee.
His comment criticised the ATO's handling of taxpayer data and suggested the organisation was breaching the Privacy Act 1988.
This comment was referred to the ATO's Conduct and Review team as a potential breach of its social media policy. On 22 May 2024, a member of this team called the worker to discuss the matter. The worker said he felt bullied during this call and ended it abruptly.
The next day, on 23 May 2024, the worker emailed his resignation to his manager. In this email, he stated:
"I had discussed this with my wife Ann and considering our respective health issues that the decision has been made that I should advance my retirement plans by 12 month as that my heart is no longer with the ATO after yesterday's bullying and harassment of me..."
The worker then submitted a formal retirement application through the ATO's HR database and requested leave until his last day of work on 4 July 2024.
However, three weeks later, on 12 June 2024, the worker tried to withdraw his resignation. He claimed that he had resigned under duress. The ATO refused to accept this withdrawal.
The director who made this decision pointed out that the worker had discussed the decision with his wife, stated his heart was no longer with the ATO, and had already arranged his final leave.
The key question before the FWC was whether the worker was "dismissed" within the meaning of the Fair Work Act. The worker argued that the ATO's refusal to let him withdraw his resignation amounted to a dismissal. He also claimed that he was forced to resign due to bullying.
The worker said that the phone call on 22 May was "clandestine" and designed to "control the flow of information". He argued that this, along with the subsequent handling of his complaint, amounted to bullying that forced him to resign.
The ATO, on the other hand, said that the worker had resigned voluntarily and that his resignation had already been accepted when he tried to withdraw it. They argued that the phone call was simply to inform the worker about an upcoming email regarding his LinkedIn comment.
The FWC decided that the worker was not dismissed within the meaning of the Act. It found that the resignation was not given in the heat of the moment, as it was submitted in writing the day after the phone call that allegedly caused distress.
The Commission said:
"Importantly, it was not until three weeks later that [the worker] sought to withdraw his resignation, having sought and had approved various forms of leave to take him through to his last date of employment. Had [the worker] genuinely given his resignation in the heat of the moment, it would not have taken him three weeks to seek to withdraw it."
The FWC also said:
"I am also not satisfied that [the employer] engaged in any conduct with the intention of bringing the employment to an end or with the probable result that [the worker] had no real or effective choice but to resign."
In reaching its decision, the FWC referred to previous cases explaining what constitutes a dismissal:
"There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the 'heat of the moment' or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign."
The FWC found that this was not the case in this instance. The worker's resignation was considered and confirmed through multiple actions, including applying for leave and making a formal retirement application.
In conclusion, the FWC said:
"[The worker] has not discharged his onus to demonstrate that he had no real, effective or meaningful option but to resign in these circumstances. As a result, I am not satisfied that he was dismissed within the meaning of the Act."
This case underscores the importance of careful consideration before submitting a resignation and the potential difficulties in withdrawing a resignation once it has been accepted by an employer.
