Employer argued worker had multiple subsequent opportunities to withdraw resignation, but never did
A senior speech pathologist challenged her employer's argument that she resigned, contending that resignation expressed while experiencing significant stress from health issues and communication challenges was not legally effective.
The worker argued that she said words when in a vulnerable state and crying, the employer should have clarified her genuine intention to resign, and the resignation was forced by the employer's conduct, leaving no real choice.
The employer maintained that the worker clearly resigned and discussed the notice period over two meetings, had multiple opportunities to retract the resignation during the four-week notice period, but never attempted to do so, and no employer conduct forced the resignation.
Worker's employment and complaints about feedback
The employer operated a speech pathology and occupational therapy service. The employer employed the worker as a senior speech pathologist on a part-time basis. Her employment started on 8 January 2024 and ended on 4 July 2025.
The worker was a neurodivergent person, with diagnosed autism and attention deficit hyperactivity disorder. Her neurodiversity affected her interoceptive awareness and executive functioning, which in turn affected communication. She disclosed her neurodiversity and its effects to the employer.
In April 2025, the worker gave a presentation to her colleagues during a training day. Feedback from the training day included criticisms that the worker considered were undermining, personal, disrespectful and unprofessional.
The worker made a complaint to the employer's director about the criticisms and sought her assistance. While the feedback was anonymous, it appeared that the worker and director knew which team member was responsible for the criticism that caused the worker's concern.
The worker said that the director seemed unable to manage the conflict. The worker suggested that they change the employment arrangement to a subcontractor arrangement; this appeared to be so that she would not have to participate in team meetings where she would need to interact with the person who made the criticisms.
The worker said that the director's response was, "We can work something out, you deserve to feel safe at work." The director stated that the primary reason no action had been taken was that the relevant team member was on leave for four weeks immediately following the presentation. The director was of the view that it was not appropriate or necessary to contact the team member while she was on leave.
When the team member returned to work, the director said she had a conversation with the team member. The team member's position was made redundant; this was unrelated to the worker's complaint, but partially resolved the worker's concern about participating in team meetings with this team member.
Messages about calling in sick
On 28 May 2025, the worker was unwell with a fever. She contacted the director to inform her, then the practice manager to ask that the practice manager re-arrange her appointments to be telehealth instead of face-to-face.
The practice manager replied that the client had rejected the telehealth service, and the mother was really not happy. The worker worked part-time, and Thursday was not a working day for her.
On 30 May 2025, the worker was still not well enough for face-to-face appointments and contacted the practice manager at 9:32 am to ask the employer to cancel one client's appointment and offer telehealth to another client.
The practice manager responded at 9:54 am as follows: "Calling in sick two minutes after your shift starts or even 15 minutes before really put us in a tricky spot. You're meant to be our senior speechie, and it honestly looks really unprofessional when we're cancelling a session that was meant to start five minutes ago. With your GP appointment this morning. If you've got something like that booked before work, you need to let us know ahead of time in case you're not going to make it in. We totally get that things happen, but we can't be finding out at the last second. Same thing with the client situation on Wednesday, her family drives 40 minutes to get here, and we had to cancel with basically no notice. It just makes us look silly and I am the one copping all the slack."
The worker then found that her calendar was blocked out as sick leave. The worker and director had a supervision meeting later that day. During this meeting, the worker asked the director to begin a formal performance management process if the director was of the view that she was not meeting the expectations of the practice.
The worker said that the director was silent in response. The worker then arranged for a debrief meeting between her, the director and the practice manager for the following Monday.
Worker said 'I'm done' during the meeting
On 2 June 2025, the worker met with the director and practice manager. The meeting discussed the prior week's communications. The worker expressed that the practice manager's message felt like a personal attack on her professionalism and integrity.
The worker said that she again brought up that she would appreciate a formal performance management process, to which the director said that she received that as a threat and a dare. The director agreed that she said those words.
During the meeting on 2 June 2025, the worker said: "If I'm not good enough, then I would really like to put in my resignation. I'm done." The worker said that when she said this, she was extremely upset and crying. She said that the words themselves were accurate, but that she told them when she was in a vulnerable state.
She said that she was "done" with the inconsistent treatment, and she had requested performance management because she could not understand where she had gone wrong and what she needed to do.
The director's evidence was that: "I broke down and said that I had failed the worker by not supporting her and that I didn't want her to leave, but if there was nothing I could do, that's how it needed to be."
The worker recalled that the practice manager said, "There's no need to resign," and suggested a further meeting the following day.
Following this, there was a brief discussion about the worker's notice period. The worker and director both recalled that there was a discussion around a notice period and that four weeks was agreed upon as that aligned with the end of a term.
Further meeting the following day
On the following day, Tuesday 3 June 2025, the worker again met with the director and practice manager. The worker invited the practice manager to start the meeting because she said all three sat in silence for a period.
The worker said that the practice manager then replied that she hoped the worker had changed her mind.
The worker then became upset. There then followed a discussion about the prior week's communications, the worker's health, and the employer's calendar system. Both the worker and director recalled that there was further discussion about the worker's notice period and that the worker would work to the end of Term 2.
The worker recalled that the director asked whether the worker was going to write her resignation or whether she would like the director to do it; to which the worker responded: "You do it."
The director disagreed and recalled only that she may have said something along the lines of: "This needs to be put in writing." The meeting ended suddenly when the practice manager hurt her thumb.
On 10 June 2025, the director sent an email to the worker. The subject of the email was "Confirmation of Resignation" and attached a letter dated 8 June 2025 that was headed "Resignation Acceptance Letter," which stated: "This is to acknowledge receipt of your verbal resignation.
To confirm a few details, your last day of employment will be Friday, July 4th. You will be paid up to and including your final working day.
We will organise payment of your entitlements and final pay and have it paid to your account on Wednesday, July 9th. On your last day with us, we ask that you bring your company-supplied laptop, phone, uniform, and keys with you to your final meeting with me."
The worker replied, "Received." After the above letter, the worker and director communicated via messages about the possibility of the worker continuing to work with her clients as a sole clinician.
The worker replied to say that her employment contract was very strict about that. The director explained that in the past, a client had moved with a clinician, where it seemed in the best interest of the client and with an acknowledgement between the employer, the clinician leaving the team and the client's family.
The worker then proposed a subcontracting arrangement. The proposal was detailed and commenced with: "I am proposing the transitional arrangement to shift my engagement from permanent part-time, recently resigned, to a temporary subcontractor role."
Resignation legally effective
The Commissioner accepted that the worker was experiencing stress that was magnified by her neurodiversity and other personal health matters of which the employer was aware.
But the Commissioner was satisfied that the words she used and the discussion about her resignation in the meetings of 2 and 3 June 2025 were such that the employer could reasonably understand that she had conveyed a real intention to resign.
The Commissioner was not satisfied that the employer dismissed the worker, considering the entirety of the circumstances.
The Commissioner found it may have been a situation where resignation was not legally effective if the employer had acted only on the worker's initial words: "If I'm not good enough, then I would really like to put in my resignation. I'm done." But the meeting on 2 June 2025 did not end at that point.
There was further discussion after the worker said those words. The practice manager said that there was no need to resign and scheduled a meeting the following day.
The worker discussed with the director and practice manager what her notice period was. The worker gave evidence that after this meeting, she checked her contract of employment to confirm that she was required to provide four weeks' notice because that was what had been discussed.
The worker met again with the director and practice manager on the following day, Tuesday 3 June 2025. The worker recalled that the practice manager said she hoped the worker had changed her mind.
The employer had not yet acted upon the worker's resignation of the prior day; while the practice manager's statement did not clarify whether the worker had resigned or not, it was an opportunity for the worker to explain that she did not want to resign if that had been the case.
Instead, the worker returned to the discussion of the prior day about the communications around her ill health the prior week, reiterated her resignation and further discussed her end date.
There were other opportunities for the worker to withdraw her resignation before her employment ended.
She could have replied to the email that enclosed the resignation acceptance letter to say that she had not resigned. She did not; she simply acknowledged that she received it.
When the worker and director communicated about clients and continued client care, the worker's reply acknowledged her resignation with the words "recently resigned" when she proposed transitioning from employment to a sub-contractor arrangement.
No conduct forcing resignation
The Commissioner was of the view that, taking account of her distress during the meeting, the acute ill-health she experienced in the prior week and may have still been experiencing, and her neurodiversity, the worker nevertheless clearly resigned, and at no stage attempted to retract that resignation.
Although the worker did not make arguments relevant to whether resignation was forced, for completeness, the Commissioner considered whether there was any conduct or course of conduct by the employer that left the worker with no real or effective choice but to resign. The Commissioner was satisfied that there was not.
The Commissioner accepted that the worker made a complaint about the feedback she received and that she felt the director did not sufficiently act on that complaint. The director's reasons for not acting were known to the worker and entirely reasonable, even if the worker did not think so.
The Commissioner accepted that the worker attempted to resolve the issues by proposing a change to her form of engagement, from employment to subcontracting.
Irrespective of the acceptability of that, it would logically follow that her employment would have come to an end if that proposal had been agreed to.
Such an ending would not have been a dismissal within the meaning of the Act, because it would have been mutually agreed and not a termination at the initiative of the employer.
What precipitated the worker's resignation was communications from the practice manager to the worker about how the worker had given short notice of being unwell and unable to continue with face-to-face appointments.
The practice manager was clearly unhappy in her message to the worker about the short notice. The language was intemperate and expressed frustration. But there were alternatives available to the worker other than resignation.
The worker initiated the discussions; there was no evidence that the employer intended to take any disciplinary action against the worker for giving short notice.
The Commissioner also did not consider the practice manager changing the worker's diary entries to sick leave to be an act that forced resignation. The Commissioner found the employer did not dismiss the worker, and the application was dismissed.
