Employer fights back, calls application for unfair dismissal 'premature'
The Fair Work Commission (FWC) recently dealt with a case involving a worker whose employment was terminated after he sought increased remuneration.
In its defence, the employer argued that the worker’s unfair dismissal application was filed prematurely. Hence, the Commission first needed to determine whether the employer’s contention was true.
Employee files for unfair dismissal
Prior to his dismissal, the worker performed the role of a senior financial advisor for the company starting 19 July 2021.
Around September 2022, there were a few discussions between the worker and the company’s director, and the financial advisor about the worker’s request seeking increased remuneration.
On 18 October 2022, the worker again met with the director and both parties had different versions of what transpired during that time.
According to the worker, the director advised him that the company could not meet his salary expectations and that his employment would be terminated effective immediately.
The worker further argued that he was required to hand over the company’s equipment and was advised that his final pay would be paid weekly over the next four weeks.
Therefore, the worker submitted that his employment ceased on 18 October 2022 and that his unfair dismissal application was not premature.
Employer says parties agreed to end relationship
Meanwhile, the employer contended that after advising the worker that it could not meet his salary expectations, both parties agreed to cease the employment relationship so that the worker could pursue other opportunities.
The employer further noted that the worker requested his notice payment to be paid out on a weekly basis rather than a lump sum to which the employer agreed, before inviting the worker to provide a letter of resignation.
“The [employer] submitted that the [worker] was paid his notice period on a weekly basis and therefore the employment did not cease until at least 11 November 2022,” the FWC stated.
“In support of this submission, the [employer] submitted that the [worker] continued to accrue annual leave and receive superannuation payments for this period,” it added.
However, on 20 October 2022, the worker received an email from the company’s practice manager stating, “Also, as discussed on Tuesday please forward the email confirming your employment ended 18/10/2022 and that you would like the 4 weeks’ notice period and annual leave paid on a weekly basis rather than as a lump sum payment (assume this is still your preference).”
HRD previously reported about a tech worker who discovered that her employer posted a listing for her job while offering a much higher pay than what she's getting. So, she decided to apply for it.
Commission’s decision
Ultimately, the Commission was satisfied that the employment relationship ended on 18 October 2022. Hence, the application was not filed prematurely.
In deciding the case, the Commission noted that while the parties were in dispute on what transpired in the meeting on 18 October 2022, the email sent by the company’s practice manager supported the worker’s argument that the employment indeed ended in October.
“In relation to the payment of superannuation contributions and accrual of annual leave over the period up to 15 November 2022, I do not consider that is determinative of whether the employment relationship remained on foot beyond 18 October 2022,” the FWC stated.
It further noted that the decision of whether the employment relationship ended by way of resignation, at the employer’s initiative, or by mutual agreement would be an issue to determine as part of the substantive proceedings.
