Worker cries unfair dismissal after absence during 1-week notice

A worker recently filed a dismissal application against his employer, claiming that his termination date was not certain. On the other hand, the employer argued the worker was aware of the date and that he failed to work during the required one-week notice.

In June 2023, the worker, Evgeny Vlasov, filed an application before the Fair Work Commission (FWC) seeking a remedy concerning his dismissal by his employer, Momillions Pty Ltd.

The worker's employment began on 19 September 2022, when he became a full-time chef. His compensation for this position amounted to approximately $35.00 per hour. There was no evidence that the worker faced any performance management procedures or received warnings related to his conduct during his tenure.

Following his work on 14 May 2023, the worker had a telephone conversation regarding his employment with the employer.

The next day, his work schedule included shifts from Tuesday to Sunday, excluding work on 15 May. On the very same day, he informed the employer about having twisted his ankle while mowing the lawn, making him unable to work for a few days.

The worker did not provide a medical certificate, and the employer also did not request one from him. After a few days, on 19 May, the worker forwarded an email to the employer, along with a resignation letter. In the letter, he gave one week's notice.

‘Your employment is deemed abandoned’

In response, the employer replied:

"As we hadn't heard from you for 5 days, we have moved forward with [a] new team member. After receiving your email, which didn't follow the unfit for work protocol and not receiving a docs certificate. As a result, after 5 days with no correspondence from you, your employment is deemed abandoned. Please note we will be finalising your employment from your last day of work, which was last Sun the 14th of May."

The worker said he was unfairly dismissed on 19 May 2023 and sought an order for compensation.

The employer argued that the employment ended on 14 May 2023 by the provision of one week’s notice (i.e. so that the effective date of dismissal would be 21 May 2023). However, it further said that the worker failed to work out the one week’s notice given to him on 14 May.

The employer said the dismissal was on 14 May, with a proposed effective date of termination being 21 May. However, it then said that because the worker did not work during the notice period, the effective date of dismissal was 14 May. The worker argued that the dismissal occurred on 19 May.

Should the employer pay compensation?

“Nothing about the alleged termination on 14 May was unambiguous,” the FWC said.

It noted that the conversation the parties had “was that the finalisation of the termination was conditional on the [worker] contacting [the employer] to confirm the details of the exit.”

“On 19 May, the [worker] attempted to resign with one week’s notice. In response, he was told that the employment had already ended.”

Furthermore, the Commission said the employer “did not allow [him] to work out the notice that he provided. It did not make a payment in lieu of the notice that the [worker] had provided.”

It also said that the worker was not given an opportunity to respond to the allegations against him before he was terminated. He was also not warned of any negative performance review. Thus, the FWC said the worker’s dismissal was unfair and ordered compensation.