Was it a resignation or dismissal?
The Fair Work Commission (FWC) recently dealt with a worker’s claim in resolving a dispute arising from allegations that she had been dismissed from her employment.
The case centred around a heated incident between the worker and one of the employers, which led to the worker leaving the workplace early and not returning.
The employers argued that the worker had resigned or abandoned her employment, while the worker maintained that she had been dismissed.
‘Heated incident’ at work
The worker started working for the employer on 26 October 2022, under the management of the employer’s son in their family-run funeral business.
She worked 35 hours per week and was paid through the employer's payroll system, as well as earning additional cash for officiating funeral services.
On 27 September 2023, an incident occurred between the worker and the employer, regarding an email the worker had sent “offering to help” the employer with her paperwork.
The employer was described as “very angry” and said that sorting out paperwork was the worker’s job. The following statements were allegedly said by the parties during their encounter:
Employer: “How dare you send me an email telling me that you are willing to help me with my paperwork! This is your paperwork not mine! Don't you run the Grafton office?”
Worker: “I do work here in Grafton yes, and do all the paperwork for the clients that myself and [your son, the manager,] meet here yes, but I have been told that I am not to touch any of your paperwork when you have met with clients here, and as you and your secretary at Maclean have strictly instructed me, I am not to touch any paperwork of yours.”
Employer: “Who told you that?”
Worker: “Your son. My manager here. I have always been told to listen to him and do what he says, and I am not to touch anything of yours or the Maclean offices as it will just cause a fight.”
Employer: “Well, you don't answer to him, you answer to me, right?”
Text messages about taking leave
According to records, the worker also tried to hug the employer since it was what she “would often do with people when they were upset.” The worker added that she thought the employer was “having a bad day.”
However, the latter told her, “Don’t touch me! Don’t hug me!”
After the incident, the worker left the workplace early and later sent text messages to the employer's son, referring to taking leave and having a doctor's appointment.
The son responded, mentioning putting the worker down for paid leave and expressing a desire for her to stay.
Letter of termination
The employer claimed to have overheard the worker saying to her son, "I can't work for that bitch. I'm going. That's it. I'm done."
She also relied on the worker leaving early without consent and not returning to work. On 5 October 2023, the employer's lawyer sent a letter to the worker, stating that she had "resigned without notice."
The letter further said that if the worker contended otherwise, her employment was "terminated effective 25 September 2023" due to her conduct having "irreparably harmed [her] working relationship with [her] employer.”
Was it dismissal or resignation?
The FWC referred to the relevant provisions of the FW Act, particularly s.386, which defines the meaning of "dismissed."
The FWC considered the parties' submissions and all the evidence in determining the matter.
It noted that the expression "terminated on the employer's initiative" in s.386(1)(a) refers to “a termination brought about by an employer and not agreed to by the employee.”
The employer argued that the worker had resigned or abandoned her employment, relying on the alleged overheard statement, the worker leaving early without consent, her husband's comments, and her failure to return to work.
On the other hand, the worker denied resigning or abandoning her employment and relied on text messages exchanged with her employer's son.
‘Definite decision to resign’
The FWC observed that where an employee uses unambiguous words of resignation, the employer is generally entitled to treat this as an effective resignation.
However, in this case, the employer did not contend that the worker had used unambiguous words of resignation or communicated directly to the employers that she was leaving or resigning.
“The worker said nothing to [the employer], which indicated that she had made a definite decision to resign or had, in fact, resigned,” the FWC said.
“[The worker] was absent from the workplace until she received [the employer’s termination] letter because she was on leave,” it added. Thus, the FWC said that the worker was dismissed at the employer’s initiative.
