FWC: Recent case clarifies employer rights during notice periods
The Fair Work Commission (FWC) recently dealt with an application that questioned when releasing an employee early from their notice period could be considered a dismissal.
The case also explored whether withdrawing a potential job offer based on views expressed in a resignation letter amounted to discrimination.
The worker argued two main points: first, that his employer's decision to send him home early during his notice period, despite continuing his pay, counted as a dismissal.
Second, he said a promised job at a related company was withdrawn because of political views he expressed in his resignation letter.
The case provided important clarification about notice periods and what constitutes dismissal under the Fair Work Act. It distinguished between withdrawing a potential job offer and terminating existing employment.
In October 2024, the worker sent a retirement letter to his employer, Kinetic Group Services Pty Ltd, stating his last day would be 22 November 2024. The employer responded by relieving him of his duties from 29 October 2024 but maintained his pay until the originally agreed retirement date.
While the worker argued this early release constituted a termination, the FWC took a different view. The decision explained that maintaining employment payments, even without requiring work, meant the employment relationship continued:
"Even if [the employer's] decision not to require [the worker] to work during the notice period entailed some breach of contract (there is no evidence of this), that decision did not end the employment relationship."
The Commission relied on section 386 of the Fair Work Act and the precedent set in Khayam v Navitas English Pty Ltd to support this finding.
A separate issue arose with U-Go Mobility Pty Ltd, a company with substantial ownership links to Kinetic. The worker said he had reached an agreement with U-Go's general manager on 24 August 2024 to start work after retiring from Kinetic. However, this opportunity was withdrawn on 29 October 2024.
The withdrawal occurred after the worker's resignation letter to Kinetic included a controversial email address and statements about Australian history. U-Go's official response to the FWC stated:
"[The employer] was considering employing [the worker] but decided to withdraw from the process when it became aware of [the worker's] inappropriate conduct, by which it meant the content of the resignation letter."
U-Go maintained that the content wasn't political opinion but should be characterised as "transphobic, racist and not conducive to valuing diversity."
The FWC's jurisdiction became a central issue. The worker acknowledged during the hearing that U-Go hadn't dismissed him, as no employment had actually begun. The Commission agreed with this position:
"It has not been substantiated that any contract was formed between those parties, and in any event the proposed employment never commenced and therefore could not have been terminated."
The decision made two crucial points about jurisdiction:
"[The worker] stated at the hearing that he did not claim to have been dismissed by [the second employer]. In my view this concession is properly made."
"A person may make an application under s 365 of the Act only if he or she has been dismissed. [The worker] was not dismissed by either of [the employers] and therefore had no standing to make his application."
