FWC: Did employer initiate dismissal?
The Fair Work Commission (FWC) recently dealt with a case involving a dispute between a worker and his employer over whether he had been dismissed or had resigned. The matter highlighted the issues that can arise when employment ends in ambiguous circumstances.
The worker found himself in a contentious situation following an altercation with a colleague. He argued that he never submitted a formal resignation, either verbally or in writing.
Instead, he claimed that his employer's actions, including taking back the company vehicle and failing to contact him, were the real reasons his employment ended.
The worker insisted that statements he made about not being able to continue were uttered when he was upset about an alleged assault and should not have been interpreted as a resignation.
The worker was employed as an installer for a steel fabrication company that supplies and installs steel for construction projects. On June 4, 2024, he was working at a shopping centre construction site alongside another leading hand who had come to assist him and maintain the builder's confidence in the work.
That morning, an argument arose between the two workers. The colleague accused the worker of mimicking and embarrassing him in front of the site manager. There were conflicting accounts of what followed, with the worker alleging he was headbutted by his colleague.
After the incident, the worker tried to call the company owner but couldn't get through. He then decided to report the altercation to the builder's site office. He made a written report before speaking to the owner.
When the owner called back, the worker told him about the incident. The worker claims the owner said, "we will lose all work if a complaint is made" and offered him money to withdraw the report, which the owner denied.
The employer argued that the worker had voluntarily resigned through his words and actions. They pointed to the fact that the worker repeatedly told the owner he "can't do this anymore" and "didn't want to be here anymore" both over the phone and in person later that day.
The owner interpreted these statements as a resignation. In his evidence, he stated:
"[The worker] goes, I can't do this anymore and he basically implied that he's quitting; that's basically how I understood it..."
The employer also noted that the worker returned the company vehicle, removed his personal tools, and failed to show up for work the next day or contact them about returning.
For his part, the worker denied ever submitting a resignation, either verbally or in writing. He argued that his statements about not being able to continue were made when he was upset about the alleged assault and should not have been taken as a formal resignation.
The worker contended that the employer's actions in taking back the vehicle and failing to contact him were the real reason the employment ended. When the employer emailed him stating they had "received your resignation yesterday," the worker promptly replied:
"Can you please clarify how you came to the conclusion that I resigned as I never submitted any form of verbal or written resignation."
After weighing the evidence, the FWC determined that a dismissal had occurred at the initiative of the employer, rather than a voluntary resignation by the worker.
The Commission emphasised that determining whether a dismissal occurred requires an objective assessment of the parties' conduct, not just their subjective beliefs. As the decision stated:
"A finding whether there has been a dismissal is based on a consideration of the evidence as a whole, including inferences reasonably drawn from the conduct of the parties."
While acknowledging the employer genuinely believed the worker had resigned, the FWC found their actions in unilaterally declaring the employment over without proper clarification were unreasonable in the circumstances. The decision stated:
"In an objective sense, this was unreasonable conduct by [the employer]. It was unreasonable because [the owner] knew that no express oral or written resignation had been communicated. Although he formed the belief of resignation in good faith, [the owner] did so by drawing inferences."
The Commission concluded that the employer's conduct "was the principal contributing factor which led to the termination of the employment relationship." It found the reason for dismissal was the owner's "genuine but mistaken belief that [the worker] had resigned."
This case highlights several important points for employers to keep in mind when dealing with potential resignations. The Commission noted:
"As a general principle, a resignation, given its consequences, should be expressed by words or conduct that clearly discloses a considered and voluntary intention to cease employment if it is to be relied upon by [the employer] as ending the employment relationship without any further inquiry on its part."
The decision also emphasised that even if an employer believes an employee has resigned, they should take reasonable steps to confirm this before treating the employment as over. As the FWC stated:
"[The employer] had the opportunity on the morning of 5 June to contact [the worker] and clarify or confirm whether [the owner's] belief that he had resigned was in fact correct. It did not do so. Rather, [the owner] unilaterally declared to the office staff, based on a genuinely made assumption (but assumption nonetheless), that [the worker] was no longer employed."
