Is it voluntary resignation? FWC decides
The Fair Work Commission (FWC) examined whether a third-year apprentice was dismissed or resigned voluntarily after the employee attended work as normal but finished early without signing out or prior approval and approached a project manager asking who he needed to notify about his resignation.
The next morning, during the meeting, the employee attended site in plain clothes, reversed his car to the side of the shed, and proceeded to collect all his tools before driving away.
The employee sent a text message to the manager shortly afterwards, stating he didn't see him and to call when he got a chance. The employee alleged he was forced to resign due to conduct or course of conduct engaged in by the employer.
Employee notified manager about back injury
The employee completed a health and medical declaration, noting he had spinal flare-ups occasionally.
Shortly after signing an apprenticeship training contract with the employer to complete a certificate in cabinet making and timber technology, the employee was paid an overnight travel allowance totaling $480 over several months.
The employee said he believed he tweaked his lower back when he was left at a job by himself and had to lift a benchtop by himself.
The employee notified the manager in the evening that he wouldn't be able to work the next day as he had pulled his back pretty badly. The employee's timecard recorded that he finished work that day as per his standard shift.
Manager changed work schedule after clarification
A few days later, the employee noted he wouldn't be able to do any heavy lifting. On the employee's first day back at work, the employer submitted a request for clarification from the employee.
The manager said he sought clarification from the employee about what he had done to his back, and the employee advised him that it was an old injury, he just deals with it through physiotherapy and advised that he will not be able to perform any lifting above his head.
The manager said he changed the work schedule immediately and sent another employee to perform site work and told the employee to stay in the workshop and avoid work above head height so that he could be monitored and ensure he did not aggravate his injuries.
The manager's evidence was that he spoke to the employee again a few days later to ask how it was going, and the employee expressed disappointment that he couldn't find a good physio in the area.
Employee approached project manager about resignation
The manager's evidence was that the employee never submitted an incident report and never brought up in the daily meeting that he had injured his back at work.
The manager said the first time there had been any indication of a workplace incident or injury was upon receipt of the employee's workers compensation claim, which came after he resigned and realised his funding to fast track his apprenticeship had been retracted.
A few weeks later, the employee attended the office and complained to the project manager about not performing full kitchen installations.
The employee was informed that he was to accommodate his request not to perform overhead lifting, and in response, the employee indicated he could perform the work provided he had someone to help him with any overhead lifting.
Employee asked project manager about giving notice
The next day, the employer submitted that the employee attended work as normal but finished early without signing out or prior approval to do so.
Before leaving, he approached the project manager asking who he needed to notify about his resignation. Upon being informed about this, the manager attempted to telephone him unsuccessfully.
The project manager's unchallenged evidence was on the day the employee left work he got back from being away from workshop and approached him as he was in workshop and asked "is it you I give my 2 weeks notice to". The employee accepted he said that to the project manager.
The employee submitted he has provided testimony that he felt he had no other choice than to leave the workplace on the day and on this day his evidence was he was on the verge of an almost total mental breakdown due to the behaviour of the management.
Employee collected tools next morning before driving away
The next morning during the team meeting, the employee attended site in plain clothes, reversed his car to the side of the shed, and then proceeded to collect all his tools before driving away.
This was not contested by the employee and therefore the employer's witnesses whose evidence was only in relation to this point were not cross examined. The manager received a text message from the employee shortly afterwards stating he didn't see him and to call when he got a chance.
The manager subsequently contacted the employee by phone and said that during the discussion, the employee resigned from his employment, indicating to the manager words to the effect that the workplace was not working for him, and he had decided that he was not going to come back, and he had made the decision to go elsewhere. In response, the employer accepted his resignation and wished him well for the future.
Manager discussed pay increase request from week earlier
During cross-examination, the manager said that about a week earlier, the employee had a conversation with him where the employee had said he wanted an increase in pay.
The manager said in his oral evidence they had a discussion about some of the issues the workplace was having and the employee was upset about previously working for the prior owner of the business.
The manager said once they went through all that, he accepted the employee's resignation, and he wished the employee all the best for the future and the employee thanked him for his understanding.
The next day, as the employer had not received a written resignation from the employee, the manager sent a message stating he was in the process of finalising the employee's last pay and asked him to send through in writing confirming that he resigned, even via a text message.
The employer said no response was ever received and the employee never returned to work. The employer submitted there was otherwise no reason for the manager to have sent this message had the employee not resigned earlier.
Employee provided generic medical certificate
Several days later, the employee provided a medical certificate to the employer for a period of time stating he was unfit for work as he was suffering from a medical condition. The medical certificate was generic and was not a workers compensation medical certificate.
There was also no mention of a workplace injury on the medical certificate.
Later that same day, the people and culture manager emailed the employee in response to the medical certificate, noting they accepted his resignation as per his conversation with the manager; therefore, there is no need to provide a medical certificate, and they will be paying out his entitlements.
Several weeks later, the employee received payment for his remaining leave entitlements from the employer.
FWC finds employee resigned voluntarily
According to the FWC, the evidence was clear that the employee resigned during a telephone call with the manager. The employee asserted he resigned but was forced to do so because of conduct or a course of conduct engaged in by the employer.
The evidence did not establish that the employer engaged in conduct that repudiated the contract of employment, and it did not establish that the employer engaged in conduct with the intention of bringing the employment to an end.
Based on the findings, the employee was not dismissed within the meaning of the Act and voluntarily resigned from his employment. As the employee was not dismissed, there was no jurisdiction for the commission to deal with the application for unfair dismissal remedy, and the application was dismissed.
