Prepared resignation letter showed true intent
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed he was forced to resign from his position. The worker argued that he had been subjected to "wrong allegation, lies and pretence" that ultimately forced him to submit his resignation letter, despite what appeared to be standard resignation language in that document.
At issue was whether the worker's application under section 365 of the Fair Work Act 2009 could proceed. For such an application to be valid, the worker needed to establish he was "dismissed" as defined by the Act - either through termination on the employer's initiative or by being forced to resign due to the employer's conduct.
The worker maintained that an ongoing investigation by his employer into his performance and conduct had left him with no choice but to resign.
The case addressed the boundary between voluntary resignation and constructive dismissal. With the worker failing to provide evidence supporting his claims after multiple directions from the FWC, the Commission had to determine whether the resignation was genuine based primarily on the documentary evidence provided by the employer, including the worker's resignation letter.
The case began when the worker filed an application under section 365 of the Fair Work Act 2009. This section allows employees who believe they were dismissed in contravention of the general protections provisions to apply to the Fair Work Commission to deal with the dispute.
The worker was employed as a machine operator at the Melton Recycling Centre until February 2025. When he filed his application, the threshold question became whether he was actually "dismissed" within the meaning of the Fair Work Act 2009.
The FWC decision explained the specific meaning of "dismissed" under the Act: "Section 365 of the Act applies to employees who were 'dismissed' and [the worker's] claim under s365 cannot go ahead unless he was dismissed.
The term 'dismissed' has a particular meaning under the Act and means either: His employment with his employer was terminated on the employer's initiative; or He resigned from his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his employer."
The employer submitted a resignation letter from the worker dated 7 February 2025 as evidence that no dismissal had occurred. In this letter, the worker wrote: "Dear Management, I am writing to formally announce my resignation from my position as a Machine Operator at the Melton Recycling Centre. This decision comes as I look to advance my career. I would like to express my gratitude for the opportunity to work at the Melton Recycling Centre. It has been a rewarding experience, and I truly appreciate the support and opportunities I have received during my time here."
The letter continued with the worker offering future assistance, noting concerns about superannuation payments, and ending with well wishes for the company. The employer accepted this resignation on the same day it was submitted.
The FWC issued formal directions on 25 February 2025 after the case was allocated. These directions required the worker to file and serve any material supporting his claim that he was dismissed or forced to resign by 12 March 2025.
The directions clearly warned the worker about the consequences of non-compliance: "Failure to comply with these Directions or to attend any conference or hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission."
The documentary record showed the worker did not file any supporting material by the deadline. He also did not provide any explanation for his failure to comply and made no attempt to contact the Commission.
On 14 March 2025, the FWC sent further correspondence to the worker noting his non-compliance with the earlier directions. This communication directed him to file all required materials by 5:00 pm that day, along with reasons for his non-compliance. The correspondence again warned that failure to respond might result in his case being dismissed without further notice.
The Commission received no response from the worker to these directions or any evidence supporting his claim of being "forced" to resign. This left the FWC with only the resignation letter and the employer's materials to consider in determining whether a dismissal had occurred.
The Commission's decision focused on the evidence of the worker's intention when submitting his resignation letter. The resignation letter itself contained language expressing gratitude and a professional desire to advance his career, rather than indicating duress or coercion.
The FWC found: "[The worker] resigned and did so voluntarily, as is clearly reflected in his resignation letter. That letter was not at the initiative of [the employer] and there is no evidence before me that convinces me that [the employer's] acceptance of it somehow took place in a situation such that [the worker] could not reasonably be understood to be conveying a real intention to resign."
The Commission drew an important distinction between a prepared resignation letter and a heat-of-the-moment statement: "Indeed, it is difficult to conclude how a prepared resignation letter might be considered action in the 'heat of the moment' such that submitting it would not reasonably – and objectively - be understood to be conveying a real intention to resign."
While the worker claimed in his application that he was "forced" to resign due to allegations against him, he provided no evidence to support this assertion. When addressing the employer's investigation that the worker referenced, the Commission stated:
"The limited evidence before me of [the employer's] investigation does not rise close to the level of constituting a forced resignation. An investigation process without more does not 'force' a resignation that might be made in the face of that investigation."
Without evidence showing the resignation was forced, the Commission concluded the worker was not "dismissed" within the meaning of the Fair Work Act 2009. This meant his application under section 365 could not proceed:
"As [the worker] was not 'dismissed', his application fails and itself must be dismissed." The FWC issued a separate order dismissing the application based on this determination.
