Disputed phone call creates conflicting claims about whether employment ended voluntarily
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application that highlighted the critical distinction between resignation and dismissal.
A worker claimed he was unfairly dismissed from his job, while his employer maintained that he had actually resigned from his position.
The case centred on a fundamental disagreement about what was said during a crucial phone conversation between the worker and his manager.
The worker argued that his manager had told him "you have no choice but to quit," effectively forcing him out of his job.
He maintained that he never actually resigned and refused to provide written confirmation because he believed none had occurred.
The employer's position was markedly different, claiming the worker had voluntarily given notice weeks earlier and confirmed this decision during their phone conversation.
The worker had been employed as a plumber at a small business with two employees plus the owner-manager.
When he applied to the FWC claiming unfair dismissal, the employer raised two objections: that as a small business it had followed the Small Business Fair Dismissal Code, and that the worker had actually resigned rather than been dismissed.
The employment relationship deteriorated when the worker told the manager around 15 January 2025 that he intended to resign within two weeks.
This distressed the manager, who had invested significantly in the worker's training from apprentice to qualified tradesperson. The manager's response revealed his expectations about the worker's commitment.
The manager sent a message stating: "Hey, I'm very stressed about this [worker]. Like I said on the phone, I expected you to hang around the full 6 years. I really need you to commit to that [worker]. I've worked too hard with you and put too much in for you to walk away now. I wanted to pair you up with a first year later this year so you can teach them the ropes and then move on when you're finished and licenced."
Both parties then negotiated a solution. They agreed to defer the resignation's effective date while seeking a replacement and negotiated a $100 weekly pay increase as an incentive.
The employer immediately advertised on SEEK for a new apprentice, demonstrating acceptance of the eventual departure.
The situation became complicated in early February 2025 when the worker injured his knee. On 5 February, he sent a late-night text informing the manager he would not be at work the following day.
The worker then provided medical certificates showing he was unfit for work until 6 March 2025.
The turning point occurred during a phone conversation on 7 February 2025. According to the manager's evidence, which the FWC later accepted, he and the worker "had a good chat over the phone" during which the worker said he would "stop work immediately" and agreed to send written confirmation of his resignation for payroll purposes.
However, the worker strongly disputed this version. He argued that the manager told him "you have no choice but to quit" and maintained that he never actually resigned during this conversation.
The worker's position was that because he did not quit, he saw no reason to send a resignation letter.
The day after this disputed conversation, the manager collected the company vehicle and found that all the worker's tools had been removed, which he interpreted as confirmation of the resignation.
When the manager's attempts to contact the worker over the following week failed, he sought advice from Fair Work and subsequently sent a message stating:
"Hey, I haven't heard from you in a week now to discuss your work situation. I am formally terminating your employment effective immediately."
The FWC examined the legal definition of "dismissed" under section 386(1) of the Fair Work Act 2009, which covers two scenarios: termination at the employer's initiative, and forced resignations resulting from employer conduct.
The Commission relied on established case law showing that resignations made during emotional stress might not be legally valid, particularly if employers fail to clarify genuine intent after a reasonable time.
Previous cases also established that resignations "forced" by employer conduct constitute dismissals when "the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer's conduct such that the employee had no effective or real choice but to resign."
Another precedent established that termination at the employer's initiative occurs when "the action of the employer is the principal contributing factor which leads to the termination of the employment relationship" and that "had the employer not taken the action it did, the employee would have remained in the employment relationship."
The FWC found the manager's evidence credible and noted no dispute about the worker's initial resignation notice on 15 January 2025.
The Commission found no suggestion that this initial resignation resulted from employer pressure or misconduct. The worker did not challenge the manager's witness statement about these conversations.
The subsequent agreement to defer the resignation was viewed as practical accommodation rather than withdrawal of the resignation.
The Commission stated: "This did not, however, nullify or change the fact that the [worker] had resigned."
Based on evidence presented, the Commission concluded: "Given the [worker] had already advised the [employer] he was resigning on or around 15 January, I find that on balance it is more likely than not that the [worker] did confirm his resignation during the telephone call on 7 February. The resignation took effect from that date."
The FWC identified the manager's termination message as a procedural error, noting: "Unfortunately, the advice [the manager] received from 'Fair Work' was incorrect. He ought to have simply confirmed in writing his acceptance of the [worker's] resignation rather than saying the [worker] was dismissed."
However, the Commission explained this message came "after the [worker's] resignation had already taken effect."
The FWC reached a clear conclusion about the employment termination. The Commission stated:
"As a result, I am satisfied that this was not a termination at the initiative of the [employer] and as a result I find the [worker] was not dismissed within the meaning of the Act."
This finding meant the FWC lacked jurisdiction to hear the unfair dismissal claim, and the application was dismissed.
The Commission provided alternative analysis: "For completeness, if I am wrong and the [worker] was dismissed, I would have found that the dismissal was not unfair. This is because the [worker] undisputedly told the [employer] he was resigning, and with that, he clearly evinced an intention to bring the employment relationship to an end. He did so completely of his own accord."
The Commission also noted: "Finally, the [worker] also confirmed he had alternative employment and so even if the [worker] had been unfairly dismissed, any compensation would have been minimal if anything."
