Are you required to pay a worker's notice period?

Fair Work decides on worker's claim amid his resignation

Are you required to pay a worker's notice period?

The Fair Work Commission (FWC) recently dealt with a case involving a worker who alleged that his employer had dismissed him from his employment in contravention of the Fair Work Act 2009 (Cth).

The employer objected to the worker's application, asserting that the worker had not been dismissed but had, in fact, resigned from his position.

The FWC had to examine the evidence and submissions presented by both parties to determine the nature of the worker's departure from the company and whether it had jurisdiction to hear the matter.

The worker's employment and resignation

The worker had been engaged as an NDIS Administrator on December 5, 2023, and his employment came to an end on December 22, 2023.

On that day, the worker sent an email to the employer's Human Resources Manager, thanking her for the opportunity to work in a lovely environment but stating that, for personal reasons and family issues, he was resigning from his position. He requested that his one-week notice period end on December 29, 2023.

The HR manager responded via text message, accepting the worker's resignation but informing him that, as he had only been with the company for two weeks, there was no need to provide an extra week of notice.

She wished him the best for the future and asked him to contact the company if his circumstances changed.

Dispute over the notice period

The worker and the HR manager provided slightly different accounts of a phone call that took place shortly after the text message exchange. The worker claimed that he had specifically asked if he would be paid out his notice period and was told he would not.

The HR manager stated that the worker had sounded distressed and explained he needed to travel due to a family emergency. She claimed she had told him there was no need to come to work and had offered to keep the position open for him.

The worker later lodged a request for assistance with the Fair Work Ombudsman (FWO) regarding the payment of his one week's notice. However, the FWO informed the parties that it was exercising its discretion not to investigate the request.

The parties’ submissions

The worker submitted that, under the relevant award, an employer and employee may agree to a shorter termination notice period, but he had not agreed to this.

He argued that he had a workplace right to one week's notice and that the employer had terminated his contract by denying his request to work out his notice period to avoid their obligation to pay him.

On the other hand, the employer submitted that there had been a mutual agreement to waive the notice period. They further argued that, even if the decision to shorten the notice period had been unilateral, it would not constitute a dismissal.

The employer maintained that the actual issue in dispute was the payment of the notice period, which they claimed they were not obligated to pay.

The FWC's consideration

In its decision, the FWC had to determine whether the worker had been dismissed, as defined in the Fair Work Act 2009 (Cth). The Act states that a person has been dismissed if their employment has been terminated “on the employer's initiative” or if they have resigned but were “forced to do so” because of the employer’s conduct.

The FWC found that the worker had not been dismissed. It found that the worker had sent an explicit written resignation email, and there was nothing to suggest that the resignation had been forced or had originated from the employer's conduct.

Whether there was a mutual agreement to waive the notice period or whether the employer had waived it unilaterally did not change the fact that the worker had clearly resigned.

The FWC determined that the employer had not influenced the worker's resignation. The worker's grievance was effectively about whether he was owed the payment of a notice period, which was a matter outside the jurisdiction of the application. Consequently, the worker's application was dismissed for want of jurisdiction.

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