What happens when a simple admin request following a leave changes everything?
The Fair Work Commission (FWC) recently dealt with a jurisdictional objection in a general protections application involving a worker who claimed unfair dismissal following a workplace injury and subsequent absence.
The worker argued he was dismissed by his employer while recovering from a work-related accident, contending the dismissal occurred when his employer sent a letter assuming he no longer wished to continue his employment. He maintained he had been given until a specific date to respond about his return to work intentions.
At issue was whether the employer's letter constituted a dismissal, or if the worker's request for a Separation Certificate in response to that letter amounted to a voluntary resignation.
The worker sustained an injury on 22 April 2024 when he fell off a ladder at a plastering business. He immediately texted the general manager: "I have booked a doc appointment for a potential chiropractic consultation for 3.40pm as I have fallen off the trestle at my first job."
Later that day, the worker updated that his doctor recommended a day off work and possible CT scan. The general manager responded with "Okay no worries just let me know how you are feeling tomorrow."
A week later, the worker lodged a WorkCover claim and engaged lawyers for a common law workers' compensation claim. This began a period of tension, with the general manager contacting WorkCover multiple times expressing doubts about the claim's legitimacy.
In one communication to WorkCover on 9 July 2024, the general manager stated: "He was on the verge of being dismissed for failing to follow instructions repeatedly. There are just so many red flags with this claim."
The general manager, who had previously worked for WorkCover's compliance team, testified she became frustrated as the claim extended beyond the expected three to six weeks that WorkCover had initially indicated.
Despite the tensions, the general manager prepared a return-to-work plan in August 2024, offering administrative roles and light duties. These included office work, stock taking, and other modified tasks suited to the worker's condition.
A return-to-work meeting occurred on 8 October 2024 with the worker, general manager, and representatives from Konekt, the return-to-work coordination company engaged by WorkCover. During this meeting, the worker indicated uncertainty about his future in plastering and whether he wanted to return to the business.
The events following this meeting were disputed. The general manager claimed she was informed by Konekt's managing consultant in December that he was helping the worker update his resume and that the worker had no intention of returning. The worker gave contradictory testimony about his intentions and ability to return to his trade.
On 17 December 2024, WorkCover notified the general manager they had decided to finalise the worker's claim. The day after, the worker filed a common law compensation claim seeking damages until retirement for being unable to complete his apprenticeship or work as a plasterer.
The worker's WorkCover claim closed on 13 January 2025, with an expectation he would return to work the next day. When he didn't appear or communicate between 14-16 January, the general manager sent a letter on 17 January stating: "As I have not heard from you, I assume that you do not want to continue your employment... If you do not agree with the above or wish to discuss this further please contact me directly."
Instead of disputing this assumption, the worker requested a Separation Certificate the same day. He later explained he needed this for his Centrelink application: "In order to get Centrelink after WorkCover you need a resignation letter, a Separation Letter and also a document from WorkCover."
When provided with the Employment Separation Certificate, it had "employee ceasing work voluntarily" marked as the reason for separation. The worker claimed he did not notice this when he submitted it to Centrelink.
The FWC determined the worker ended the employment relationship voluntarily. The Commissioner stated:
"I am satisfied that when the 17 January 2025 letter and [the worker's] response and request for an Employment Separation Certificate are read together, a reasonable person would consider [the worker] conveyed an intention to end his employment at his own initiative, rather than to take up the offer to engage with [the employers]."
The FWC rejected the worker's claim he was given until 20 January to respond, finding it more logical the agreed date was 13 January, which aligned with his WorkCover payments ending.
"I am satisfied that the ending of the employment relationship was not the probable result of [the employers'] conduct such that [the worker] had no effective or real choice but to resign," the Commissioner determined, distinguishing this case from precedents where employers had more clearly terminated employment.
The Commissioner concluded: "It was [the worker's] conduct and not that of [the employers] that was the 'principal contributing factor which resulted' in the termination of the employment relationship."
The FWC dismissed the application due to lack of jurisdiction as it found no dismissal had occurred under section 386 of the Fair Work Act 2009, which defines dismissal as termination at the employer's initiative or forced resignation. Since neither scenario applied in this case, the Commission had no power to hear the general protections application.
