Can employee conduct signify their resignation?

In a recent case, the FWC considered whether an applicant’s employment ended due to his resignation or his employer’s termination. The applicant worked as a casual welder for a small business in Brisbane from March 2019 until November 2020. In his role, the applicant usually performed light fabrication welding. In August 2020, the applicant was assigned a heavy welding project. The respondent deemed his work insufficient on this project, and another welder completed the job. Although no further heavy welding tasks were assigned to the applicant, the respondent never raised any performance issues with him. The respondent submitted that, in July 2020, he advised the applicant that “work was running out”. Despite this, the applicant asserted that he was never clearly notified that this would jeopardise his employment.

Within the next few months, the respondent submitted that the workload had been reduced such that it needed to terminate a welder. On 20 November 2020, after finishing his workday, the applicant called his supervisor. He was frustrated by the workplace’s toxic atmosphere and the respondent’s inability to manage the company. Although the applicant did not expressly mention an intention to leave the business, the supervisor interpreted the applicant’s words as a resignation.

Shortly after the telephone call, the applicant checked his email to see a message from the respondent, which had been sent earlier that afternoon, stating that the applicant’s services were “no longer required”.

The respondent submitted that the applicant resigned from his employment and, therefore, there was no dismissal at the employer’s initiative. The Commission rejected this, finding that the employment relationship was ended by the respondent’s email, not the applicant’s telephone call.

The applicant’s separation certificate provided that his employment ceased “due to a shortage of work”. The Commission also refuted this, stating that, given the company was still advertising for welding positions at the time, the applicant’s dismissal was based on his performance, not a lack of work.

Given the respondent never explicitly addressed concerns with the applicant’s performance, the Commission held this did not represent a valid reason for the applicant’s dismissal. The Commission found an unfair dismissal had occurred and ordered compensation of $6,240.00.

Key Takeaways:

• Employers should not assume that an employer’s conduct signifies their resignation
• Employers must raise performance concerns with an employee before dismissing them