The dismissal was unjust and harsh, the Fair Work Commission finds
Accepting a 4:31am resignation without question cost Hutchison Ports an unfair dismissal ruling. The Fair Work Commission's 20 April 2026 decision explains why.
When David Gourlay sent a resignation email to his employer, Sydney International Container Terminals Pty Ltd, trading as Hutchison Ports, in the early hours of 26 September 2024, the company processed and accepted it by 11:02am the same morning. Twenty-two minutes later, Gourlay was trying to take it back.
In a decision handed down on 20 April 2026, the Fair Work Commission found Hutchison Ports had unfairly dismissed Gourlay, whose employment had spanned nearly eight years. The central finding was that the resignation was not valid because Gourlay was in a state of mental confusion when he sent the email, and once concerns about that were raised, the company failed to make meaningful enquiries into whether the resignation was genuinely intended.
What made the case significant for HR professionals was not the timing alone, but what unfolded over the rest of that day. The email had been sent on Gourlay's first day back after approximately 10 weeks of leave. Two of his co-workers separately contacted a Hutchison Ports manager, Geoff Hughes, to raise serious concerns. Barry McGrath told Hughes he believed Gourlay was not in his right mind to make such a life-changing decision and needed medical help. Dan Hanford, who had spoken to Gourlay by phone that morning, described him as paranoid and delusional and told Hughes he was, in Hanford's view, incapable of making a rational decision to resign. MUA official Paul Keating called Hughes at approximately 6:32pm with similar concerns.
Gourlay had already called Hughes at 6:20pm, but Hughes missed the call and rang him back at 6:24pm. The conversation lasted one minute and 16 seconds. Hughes concluded Gourlay seemed lucid, told him his resignation had been processed and his final pay would go in overnight. Hughes did not ask about Gourlay's health, did not raise the concerns from co-workers, and did not enquire about the circumstances of the 4:31am email. When Keating pressed for Gourlay to be allowed to rescind, Hughes refused, citing Gourlay's reliability record and economic conditions, though he offered to provide Gourlay with access to the company's employee assistance program.
Later that evening, Hughes sent a text message to McGrath that read: "Hi Baz, I have spoken to both Keato and Dave. It doesn't sound like he is in a good way at all. I think he genuinely needs some help and I am happy to provide assistance. Keato and I will discuss further tomorrow."
The Commission found this inconsistent with Hughes's earlier conclusion that Gourlay seemed fine. Commissioner Sloan also noted, echoing a finding he had made in an earlier decision in the same matter, "a clear flavour of opportunism" in the decision not to allow the retraction, observing that Hughes had regarded Gourlay as an unreliable employee who had previously been placed on six absence management plans.
The case had a winding path to this outcome. An earlier Commission decision from 31 March 2025 sided with Hutchison Ports, but a Full Bench appeal overturned it in December 2025, ruling that circumstances becoming known after a resignation is accepted can still affect whether that resignation was valid. The matter was referred back for rehearing, leading to the 20 April 2026 decision.
On remedy, the Commissioner was unable to make a determination. Gourlay is seeking reinstatement, but he had been convicted of stalking a celebrity and, as of January 2026, was in gaol with an expected release of March 2026 "at the earliest." The Commissioner noted he had received no update on Gourlay's status by the time the decision was handed down. Questions also remain about his eligibility to hold a maritime security identification card, a legal requirement for unescorted work at the terminal. A further hearing has been ordered.
The case crystallises several practical considerations for HR leaders. Resignations received outside business hours, particularly from employees who have recently returned from extended leave and followed by an almost immediate retraction, may warrant a pause before processing. When co-workers raise credible welfare concerns about a resigning employee, a brief phone call to that employee is unlikely to constitute adequate enquiry.
