When does asking about notice periods become a resignation?
The Fair Work Commission (FWC) recently dealt with a case where a worker filed a general protections application under section 365 of the Fair Work Act 2009.
The worker, who had been a leading hand of the afternoon/night shift maintenance team, claimed he was dismissed after raising safety concerns and other misconduct issues within the organisation.
The application's success depended on whether the worker was actually dismissed under the Fair Work Act 2009. Under the Act, a person is considered dismissed if their employment was terminated on the employer's initiative or if they were forced to resign due to the employer's conduct.
At the heart of the dispute was whether the worker's text message about notice periods constituted a resignation. The employer argued there was no dismissal, stating the worker voluntarily resigned through his message and subsequent actions.
The worker was employed from March 2021 to September 2024 at a construction materials company. In May 2024, he raised a safety incident complaint, though the Commission noted it wasn't necessary to make findings about this or other alleged incidents to address the jurisdiction question.
On 13 September 2024, the worker approached his supply chain manager about alternative positions. During this discussion, he stated he "had enough of Nerang (where he worked) due to concerns about safety, not being appreciated or recognised for the work he did and the business not doing enough to replace staff who had left."
The manager informed him that alternative positions were unlikely but emphasised that any safety concerns should be reported to senior management or the Mines Department.
On 16 September 2024, after a discussion where his supervisor expressed being upset about the worker "running other staff down," the worker sent a text message to his supervisor and quarry manager, stating: "Hope its not too late in the night, sorry if it is, if you two want to work out between you both what length of notice you need from myself to move on and let me know please."
Management decided to end the employment immediately with one week's pay. The worker challenged this through another message on September 17: "Hey so I'm trying to understand how a message asking what notice is required has resulted in myself getting less than what the eba says? [...] Feels like my family is being [financially] punished cause I asked a question."
When offered a face-to-face meeting to discuss the situation, the worker declined, instead focusing on notice period payments. By September 18, evidence showed he had already secured two other job offers.
The Commission found that the worker's text message of September 16, viewed by a reasonable person, indicated "an intention to end the employment, the only outstanding issue being to enquire as to how much notice is required."
The Commission determined that "when [the worker] questioned how his text message about what notice was required could be a resignation, he was referring to at what point his resignation would become the trigger for when the notice period was to be counted."
Ultimately, the Commission concluded that "[the worker] did not intend to resign with immediate effect. Instead, [the worker] wanted to ensure he would be paid out his full notice in accordance with the Enterprise Agreement for his length of service."
Based on these findings, the Commission upheld the jurisdictional objection and dismissed the application for an unlawful termination remedy.
