Husband says wife 'never coming back' to work
How should an employer react if, one day, an employee’s partner calls HR and tells the management that they would no longer show up at work?
In a case filed before the Federal Circuit and Family Court of Australia (FCFCOA), a husband allegedly talked to the employer on the phone and said his wife was “never coming back”.
The wife was a production worker at a ready-made pizza production business in Victoria. It distributes products to wholesalers and food retailers.
In May 2020, a short while after the wife started her shift, she was called by the HR manager for a meeting. After a few hours, she left work “partway through her shift.” She also did not clock off as she left the workplace.
Around mid-day of the meeting, the HR manager called the wife’s mobile phone, but she gave it to her husband. The HR manager and the husband talked. Among other things, the former alleged that the husband said that his wife was “never coming back”.
Immediately in the afternoon of the same day, the wife received a letter from the HR manager advising her that her resignation from employment had been accepted.
A few hours after receiving the letter, the wife replied to the email, clarified that she had not resigned from employment, and attached a copy of a medical certificate.
A few days later, the wife asked the employer to confirm that she remained employed, but it said that her resignation had been accepted and she was no longer employed.
The phone conversation
According to records, the husband and the HR manager agreed on the following points of discussion during their phone conversation:
- The husband complained that his wife had been bullied and harassed, without providing any specifics;
- The husband said his wife had come home upset, and she was too upset to look after the kids;
- The husband said words to the effect that what was happening to his wife was illegal or that bullying and harassment in Australia is a “no”;
- That the HR manager said he did not personally know anything about any alleged bullying or harassment;
- When the HR manager asked if the wife would be returning to work, the husband said words to the effect that he and his wife would take the matter to “Fair Work.”
Can an employee’s partner resign on behalf of the employee?
No. The FCFCOA ruled that the employment contract was between the employer and the wife. The agreement between them contained a clause that stated that the “only parties able to terminate the contract are the employer and the employee”.
“That is unsurprising. It is a generally accepted principle of contract law that only the parties to the contract are able to terminate the contract,” the court ruled.
The court added that there was no evidence of any written authority under which the employee conferred authority on her husband to terminate the contract on her behalf. The HR’s evidence is that he “assumed” the husband had the authority to speak on behalf of the wife.
When the court asked why he made that assumption, the HR manager answered, “Because when I introduced myself, she told me that I had to speak to her husband, so I reasonably believed that, you know, whatever he said, that she agreed with.”
The court reminded HR leaders not to act based on assumptions. It also said that any authority given by an employee to speak on their behalf on the telephone “could not extend to any authority to terminate the contract of employment.”
The court also noted that it was not reasonable for the HR manager to believe that “whatever the husband says, the employee agreed with.”
“It is difficult to think in the modern age of any circumstances in which a wife can be assumed to agree with what her husband says. The days of husbands making decisions for their wives, or determining contractual relations on behalf of their wives, are long gone,” the court said.
The interpretation of “she’s never coming back”
“It can be seen how such words may be interpreted as notice of resignation by some people, particularly by persons inexperienced in employment and human resources matters. The circumstances here, however, are far removed from that situation,” the court explained.
“The HR manager was an experienced human resources professional. He was calling to conduct a welfare check. He learned not only that the employee (wife) was apparently so upset she could not look after her children or speak on the phone, but also that she had allegedly been subject to bullying and harassment.”
“Despite that, it seemingly never occurred to him that whatever the husband may have said may have been said in the heat of the moment. It seemingly never occurred to the HR manager to speak to the employee directly,” the court said.
Takeaways for HR leaders
- Generally, only the parties in an employment contract could terminate it;
- Authority should never be assumed. It always requires proof;
- “Heat of the moment” exchanges should always be clarified;
- In case of a misunderstanding, directly talk to the involved employee and not their representative.
