The fine line between employee resignation and dismissal

Throughout his employment, the applicant, a truck driver, had raised the fact that he had not received pay slips several times. In light of the respondent’s continual failure to produce his payslips, as well as its allegedly inconsistent COVID-19 directions, the applicant became increasingly frustrated throughout 2020.

In a meeting with his employers in August 2020, the applicant reiterated his payslip issue once again. The employers denied the issue, with one employer calling the applicant “a liar and a moron”.

Furious with this, the applicant stood up, swung around and knocked his fist into the plasterboard wall. He left the meeting room and walked to the truck parking area. One of the employers caught up to him and told him to go home, as he was not in the “right head space”. The applicant told the employer that he was stressed about the lack of payslips and was going to see his doctor immediately.

The applicant saw his doctor the next day, who provided him with a medical certificate to take sick leave for the following five days. During this time, the applicant received a text message from the respondent explaining that, given his alleged indication that he would “not be back”, they would discuss his final payment. Following the conclusion of his sick leave, the applicant returned to work. On his first day back, the respondent told the applicant he was no longer an employee at the company.

The issue for the Commission, therefore, was whether the applicant resigned, or whether his employment was (unfairly) terminated at the initiative of the respondent. The Commission did not accept the respondent’s submission that the applicant had uttered words to the effect of a resignation. Further, given the applicant left the workplace at the suggestion of the respondent, the Commission found his employment was terminated at the respondent’s initiative.

The Commission accepted that the applicant’s conduct in damaging the wall provided a valid reason for his dismissal. However, it found the mitigating factors that led to the applicant’s frustration, as well as the lack of procedural fairness surrounding the dismissal, rendered it unfair. Compensation of $13,496.24 (less taxation) was awarded to the applicant.

Key Takeaways:

• The line between resignation and dismissal is sometimes blurred
• Employers must ensure that employee dismissals comply with the procedural requirements set out in the Fair Work Act 2009 and the relevant Award/Enterprise Agreement