Fair Work looks into resignation test in disputed phone call conversation
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from an engineering surveyor who claimed he was terminated due to a lack of work.
The case arose when the surveying company director contacted the worker about reduced work availability, leading to disputed versions of whether termination or resignation options were presented during their telephone conversation.
The worker argued he was dismissed on the employer's initiative due to work shortage using "last-on-first-off" principles, claiming he was told his employment would end and to return company property.
The employer contested this version, maintaining that multiple options were presented, including continued employment at minimum contracted hours or resignation with payment benefits, and that the worker chose resignation after considering his preference for maximising earnings.
Work reduction triggers employment discussions
The employment relationship commenced in March 2024 when the engineering surveyor joined the company specifically to work on the level crossing removal project, which was projected to run for two years.
The worker was paid a base hourly rate of $65 with normal hours from 7:00 am to 3:30 pm, though he regularly worked longer hours and frequently requested additional work to maximise his income throughout his employment period.
A critical telephone conversation occurred on 5 May 2025 between the worker and the company director regarding reduced work availability going forward.
The director's evidence indicated he explained there would be less billable work available and offered alternatives given the worker's known preference for maximising earnings, including remaining employed at contracted minimum hours or resigning immediately with payment benefits.
The Commission found the director's version more credible, noting his willingness to continue employing the worker for 3-6 months at minimum contracted hours despite reduced profitability, with available billable work covering 70-80% of employment costs during transition periods.
Prior job searching activities revealed
Evidence emerged that the worker had been actively seeking alternative employment prior to the disputed telephone conversation, undermining his claims of unexpected termination.
A senior surveyor colleague testified that during their work together from late March to late April 2025, the worker had expressed intentions of leaving and was looking for other work opportunities.
Specific evidence included the worker requesting permission to attend a telephone job interview during work hours in mid-April 2025, though the worker characterised this differently as a general industry discussion.
The colleague's testimony indicated ongoing conversations where the worker disclosed frustration with management style and readiness to accept other employment offers when available.
The Commission found this evidence credible and significant, particularly given the worker's demonstrated capacity to recall other details while claiming inability to remember conversations about job interview outcomes.
The prior job searching activities supported the conclusion that the worker was receptive to leaving his employment when suitable alternatives became available.
Post-conversation actions support resignation conclusion
The worker's actions following the 5 May 2025 telephone conversation were consistent with voluntary resignation rather than unexpected termination.
He immediately contacted his former employer and secured casual employment commencing 12 May 2025, demonstrating proactive job seeking rather than a surprised reaction to dismissal news.
Company property was returned on 7 May 2025, and subsequent text message exchanges revealed the director seeking written confirmation of resignation while the worker insisted he had been terminated.
The director's consistent position throughout correspondence was that resignation had occurred, with requests for formal written confirmation rather than acknowledgment of termination decisions.
The Commission found it significant that the worker retained access to company systems for timesheets and payslips after the alleged termination date, which would be inconsistent with employer-initiated dismissal.
The worker's rapid securing of alternative employment and systematic return of company property supported the conclusion that he had chosen resignation over continued employment at reduced hours and earnings.
Legal test for dismissal not satisfied
Applying established legal principles for determining dismissal, the Commission found no evidence that employment was terminated at the employer's initiative or that the worker was forced to resign due to employer conduct.
The availability of continued employment at contracted minimum hours, even with reduced total earnings, provided a genuine choice rather than circumstances eliminating effective alternatives.
The Commission emphasised that while the continued employment option came with caveats about likely short duration, no specific deadline was imposed, and the terms remained consistent with contractual entitlements.
The worker's preference for maximising earnings did not transform voluntary resignation into forced departure when alternative employment arrangements were genuinely available.
The decision concluded that no dismissal occurred within the meaning of employment law, whether through employer initiative or forced resignation circumstances.
This finding eliminated Commission jurisdiction over unfair dismissal claims, making the determination of whether any dismissal would have been harsh, unjust or unreasonable unnecessary for case resolution.
