Woman argues it was 'short notice' termination but employer claims voluntary exit
In an unfair dismissal case, the Fair Work Commission (FWC) recently dealt with the case of a teacher who sent a “goodbye” message to her co-workers on WhatsApp, which the employer took as a voluntary resignation, among other acts.
Sabrina Collins, a former ESL teacher at Pacific Language School Pty Ltd in Queensland, filed an unfair dismissal application with the FWC, alleging that she was unjustly terminated from her position on October 3, 2023.
The school, which provides English language courses for non-native speakers, contested Collins' claims on several grounds.
Complaints about teacher’s abilities
According to Vickie Pollock, the Director of Studies at Pacific Language School, Collins was removed from teaching the intermediate evening class after several students complained about her inability to effectively control the class in accordance with the school's policies.
Pollock stated that she had intended to assign Collins to a less advanced class and had communicated this to her during a phone call on October 3, 2023.
However, Collins maintained that Pollock had only mentioned the possibility of allocating another class if one became available. The two parties also disagreed on the level of commitment Pollock made to finding Collins a new class.
Following the phone call, Collins sent a message to a WhatsApp group chat, expressing her concern about the short notice given and requesting a certificate of separation from the school.
Collins sent the following text: “English International Schools are very competitive these days. Well done for getting so many students through your doors. You have been an amazing team to have worked with.”
Employment Separation Certificate
After reading Collins’ Whatsapp message, Pollock told another staff member to “Please ring Sabrina C and tell her we will try and find something for her asap... She has posted a farewell message.”
Collins then made several calls to Pollock throughout the day, during which Pollock reiterated the reasons for Collins' removal from the intermediate class and the school's policy against allowing students to use their native language in class.
Later that day, Collins visited the school's reception, requesting a separation certificate and stating that she would be submitting an application to Fair Work.
She also entered a colleague's classroom, where she spoke to students about contract law and wrote "Fair Work 21 days" on the whiteboard.
Collins' final payslip was issued on October 4, 2023, and she was removed from the school's WhatsApp groups between October 3 and October 6.
The school provided her with an Employment Separation Certificate on December 8, 2023, following a conciliation conference with the Fair Work Commission. The certificate stated that Collins had resigned from her position on October 3, 2023.
Was the end of the employment relationship a resignation?
According to records, Collins maintained that her employment ended on December 8, 2023, and that she did not resign from her position. She asserted that the employer's claim of her resignation was an attempt by Pollock, the Director of Studies, to avoid accountability for breaking a verbal contract.
Collins argued that her dismissal was unfair, citing reasons such as the lack of a valid reason for her dismissal, the fact that other teachers were also breaking school rules, and that she was not given the opportunity to respond or have a support person present.
In contrast, the employer contended that the employment relationship with Collins ended on October 3, 2023. They point to several factors supporting this claim, including Collins' repeated requests for an Employment Separation Certificate following her removal from the intermediate class due to student complaints, her posting of a goodbye message on a company WhatsApp group, and her actions of informing an administrative staff member that she would be submitting an application to 'Fair Work' and writing 'Fair Work 21 Days' on a classroom whiteboard in front of students.
The employer argued that there was precedent for the Commission finding that an applicant resigned from their employment under similar circumstances. They also asserted that the issuance of an Employment Separation Certificate on December 4, 2023, should not be interpreted as evidence that the employment relationship continued beyond October 3, 2023.
Furthermore, the employer submitted that Collins breached company policy by allowing students to speak in their native language during classes, which led to several student complaints and her subsequent inappropriate conduct on October 3, 2023.
Unfair dismissal decision: Did the worker resign?
The FWC found that the employment relationship between Collins and her employer ended on October 3, 2023, due to Collins' resignation. The Commission relied on several factors in reaching this conclusion.
First, Collins' employment contract clearly stated that she was not guaranteed hours of work from week to week. Second, when Pollock informed Collins on October 3, 2023, that she was being removed from the intermediate class, Pollock assured Collins that she would try to find her other work, which was supported by Pollock's WhatsApp messages on the same day.
In response, Collins repeatedly requested an Employment Separation Certificate to apply for Centrelink payments. During cross-examination, Collins acknowledged that she understood an Employment Separation Certificate was proof that an employment relationship no longer existed, as she "didn't think that she could get Centrelink and be employed at the same time."
Furthermore, the FWC said that Collins was removed from the company's WhatsApp groups between October 3 and October 6, 2023. Although the employer did not issue the Employment Separation Certificate until December 8, 2023, the Commission determined that this did not change the objective facts that Collins had requested the certificate on October 3, 2023, knowing its significance, and did not perform any work for the employer after that date.
The Commission also noted that even if it was incorrect in finding that Collins was not dismissed from her employment, the evidence clearly showed that the employment relationship ended on October 3, 2023.
As a result, Collins was employed for a period of five months, which does not meet the minimum employment period. Consequently, the FWC said that Collins is not protected from unfair dismissal, and her application must be dismissed.
