Manager sent messages saying worker ‘very likely’ would not have a job unless something changed
The Fair Work Commission (FWC) recently dealt with a general protections dismissal application from a worker who alleged he was dismissed from his employment.
The worker said that the company dismissed him as he had no option but to resign.
The worker applied to the Commission under section 365 of the Fair Work Act. The company objected to the worker's application on the basis that it did not dismiss him.
Background to contract loss
The worker's evidence largely aligned with the evidence of the company's regional technical lead, who was the worker's direct manager. In or around January 2025, the company was informed that it would lose its contract with Main Roads WA, effective 22 July 2025.
The company undertook a transition process where this was openly communicated to impacted staff. This included potential redeployment opportunities.
The manager informed the worker both verbally and in writing that the company would be exploring redeployment opportunities up until the end of the contract.
In around May or June 2025, the worker was in discussions with the incoming service provider, who was taking over from the company in servicing the Main Roads WA contract.
The manager and the worker provided their Microsoft Teams and text messages in June 2025.
From the Microsoft Teams messages, the worker spoke openly with the manager about the offer from the new contract holder.
On 25 June 2025, the worker messaged the manager on Microsoft Teams asking if he could transition to the new role on 30 June, or if it would cause issues with notice.
The manager told the worker that he could move to the new role on 30 June, but that he would need to hand in his resignation letter that day, outlining his final day.
In the afternoon of 25 June 2025, the manager messaged the worker on Microsoft Teams and via SMS, following up on the resignation letter, as he needed a resignation letter if the worker was starting with the new contract holder the next week.
The next day, the worker messaged the manager stating that he could not accept the contract with the new contract holder as they had not agreed to match his salary with the company.
The manager sent the worker messages including: "ok but it means you very likely won't have a job with us, unless something changes", "are you confident you will find a job elsewhere that will match your current salary? You could end up with no job, or on even less", and "if you're with us I will keep looking for opportunities but I'm just concerned for you that you may not end up with a job".
Resignation and worker's submissions
A few days later, the manager and the worker exchanged SMS messages where the manager asked the worker for an update on whether he would be going over to the new contract holder.
The worker indicated that he needed to check further about the position and would get back to the manager to confirm whether he had accepted the offer with the new contract holder.
The manager responded with, "OK, thanks for [the] update...leaving it pretty late", and "I hope they don't withdraw the offer". The worker then informed the manager that he had accepted the offer. The two discussed the worker's finish date with the company.
Later, the worker sent an email to the manager which stated: "I am writing to formally tender my resignation from my position at [the company], with my final scheduled employment day to be Friday, 18 July 2025, as I have annual leave booked from 4 July to 18 July 2025. This decision has been made in light of the upcoming business transition of the managed services contract at Main Roads, and my acceptance of a role with [the new contract holder], who will be continuing the delivery of services from 22 July 2025. I understand that there is currently no ongoing role available for me within [the company] following this transition."
The worker submitted that the manager's messages made it clear that if he did not accept the incoming provider's offer, he risked not having a job at all.
Redeployment was not a viable option. He had already delayed the commencement of his new role, partly due to pre-booked annual leave. He believed that if he delayed the commencement further, the offer from the new contract holder would be withdrawn.
The worker said that because of the above reasons, his resignation was not a genuine voluntary decision. He had no real choice but to resign and accept the incoming provider's role.
Dismissal definition examined
The FWC examined whether the worker was dismissed.
The Deputy President referred to the definition of "dismissed" which provided that a person has been dismissed if the person's employment with his or her employer has been terminated on the employer's initiative, or the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
The Deputy President stated that the definition of dismissal had two parts. The first dealt with "termination on the employer's initiative" and the second, "resignation in circumstances where the person was forced to do so because of conduct or a course of conduct".
The Deputy President referred to a Full Bench decision which noted there may be a dismissal within the first limb where a resignation was made in the "heat of the moment or when the employee was in such a state of emotional stress or mental confusion that they could not reasonably be conveying a real intention to resign".
The test for a "forced" resignation under the second limb was whether the employer engaged in the alleged conduct with the intention of ending the employment, or whether termination of employment was the probable result of the employer's conduct, given that the employee had no effective or real choice but to resign.
Though not explicitly stated, the worker relied on the second limb.
The onus was on the worker to prove that he did not resign voluntarily. It was well recognised that it was a narrow line that distinguished conduct that left an employee with no choice but to resign, compared to an employee resigning by choice, but that this narrow line must be "closely drawn and rigorously observed".
No dismissal finding made
The Deputy President stated: "Based on the evidence, I find that [the worker] was not dismissed. I accept that [the worker] resigned as [the company] had lost its contract with Main Roads WA, had not yet secured him a redeployment opportunity, and he did not want to miss out on the role with the new contract holder. [The worker] made a conscious decision to find other employment and to resign."
The decision said: "I find that [the company] did not engage in conduct with the intention of ending [the worker's] employment. [The company] engaged in a proper and appropriate consultation process given the loss of the Main Roads WA contract."
The Deputy President accepted that the manager sent messages to the worker following up on whether he would be resigning and expressing sentiments such as "I hope they don't withdraw the offer".
The decision added: "I find that these were reasonable messages from [the manager] given that [the worker] had shared with [the manager] his concerns about the offer and the delays in hearing back from the incoming contract holder. I do not find that [the manager's] messages constitute conduct intended to end the employment relationship."
The FWC also found that the worker had choices other than resigning. It accepted the evidence of the messages that redeployment into another role was looking unlikely, but that the company was still actively exploring different options for the worker.
The worker could have also waited to be made redundant and receive the appropriate redundancy payment for his five-plus years of service.
The worker did not provide evidence that he had tried to negotiate a later start date with the incoming contract holder; he simply stated that he believed the offer would be withdrawn if he sought a later commencement date.
"Accordingly, I find that [the worker] was not dismissed within the meaning of s 386 of the Act. I order that his application be dismissed for want of jurisdiction," the FWC concluded.
