Marketing executive's sudden departure raises questions about workplace communication
The Fair Work Commission (FWC) recently dealt with a dispute where a worker challenged whether her departure constituted a dismissal under the Fair Work Act 2009. The case centred on whether her manager's directive to "finish up" amounted to termination of employment.
The Commission discussed the interpretation of section 386 of the Fair Work Act 2009, which outlines when an employee is considered dismissed.
The worker brought her case under section 365 of the Fair Work Act 2009, claiming the dismissal contravened Part 3-1 (General Protections) of the Act.
The worker began a fixed-term contract on 18 July 2024 as a marketing executive – gifting, set to conclude on 18 July 2025. She reported to the general manager – new ventures.
During her interview, she had disclosed pre-arranged August holiday plans, which both her prospective manager and another general manager had agreed to accommodate.
On 26 July 2024, her manager attempted to modify these holiday arrangements, citing changed business requirements. The manager requested that the worker either cancel her holiday, reduce its length, or work remotely during this period.
The worker raised these concerns with the human resources department on 12 August 2024. After this complaint, her manager advised that remote work during the holiday would no longer be required.
On 2 September 2024, during a meeting the worker had arranged, she testified that her manager said she "should finish up next Friday." The Commission found significant that this testimony "was not directly challenged in cross-examination."
The next day, following a meeting with another general manager, the worker sent an email at 5:11 pm stating: "Please accept this as my formal notice of my resignation from my position as Marketing Executive at [the employer]. My last day of employment will be Friday 13 September 2024."
The Commission stated: "I am satisfied on the evidence of [the worker] that she was told by [the manager] on 2 September, that [the worker] was to finish on Friday 13 September 2024. This was communicated in clear terms to [the worker] and constituted a termination of [the worker's] employment on [the employer's] initiative within the meaning of s.386(1)(a)."
In reaching its decision, the Commission referenced established legal principles: "The provision does not require [the employer] to pull the trigger but only to load the gun... Its focus is upon, however it might have ended, at whose initiative this occurred."
The Commission found: "Even if [the general manager] had not discussed with [the manager] what was said to [the worker] about 'finishing up next Friday' when she spoke with [the manager] on that day (something which I think is inherently unlikely), I am satisfied that [the worker] told [the general manager] what [the manager] had said and did so early in the discussion on 3 September."
The decision concluded: "I do not accept that [the worker] could have continued in her employment beyond 13 September 2024 had she made a different decision and not sent the 'resignation' email. The only effective options that [the worker] had was to send the email as suggested to her by [the general manager], or not."
The Commission dismissed the employer's jurisdictional objection and scheduled the matter for conference.
