Worker argues ‘heat of the moment’ resignation amid frustrated conversation
The Fair Work Commission (FWC) recently dealt with a general protections application involving dismissal. On 23 May 2025, a worker lodged a general protections application with the Fair Work Commission.
The worker claimed that her employer took adverse action against her under sections 340 to 343, 351, and 352 of the Fair Work Act 2009.
The employer raised a jurisdictional objection that the worker was not dismissed under section 386 of the Act, as the worker resigned from her employment on 5 May 2025. The worker contested the objection, arguing that there was no resignation on 5 May 2025.
Alternatively, the worker argued that if she did resign on 5 May 2025, it was a resignation in the heat of the moment and was not subsequently affirmed.
On 3 March 2020, the worker commenced employment with the employer. At the time of her dismissal, the worker was employed in the position of ANZ sales coach. The employer was a company that provided human resources advice and work, health and safety advice.
The employer had previously accommodated the worker's relocation from Brisbane to Sydney and from Sydney to Perth. Since mid-last year, the worker had been working towards opening her own business providing sales training, which she described as a "side hustle". The worker said she was open with the employer regarding this ambition.
Family illness and leave arrangements
In late March 2025, the worker was informed that her mother had been diagnosed with cancer.
The worker texted her manager on 21 March 2025: "I'll be in tomorrow. I'm not flying to QLD just yet. Today was to discuss with the family what's likely going to happen in the next month, Mums cancer is back and will be having a double mastectomy on April first."
The worker took leave from 7 April 2025 to 11 April 2025. On 14 April 2025, the worker sent a message to her manager asking:
"Could we catch up about my option on paying out my notice period? My mum is looking at coming to WA for her recovery, and I'd like to be able to take the time to spend with her."
The worker explained that what she meant by this message was that she was enquiring if she could resign and still be paid out her two-month notice period without working that period.
The manager then called the worker to discuss her message, and the worker reportedly verbally advised that she no longer wanted to work with the employer and did not want to work out her notice period.
The manager suggested that he would need to ask senior leaders about her request to be paid out of the notice period. From 18 April to 27 April 2025, the worker was on a period of approved annual leave.
On 29 April 2025, the worker obtained a medical certificate certifying her as unfit for work until 27 May 2025.
On 30 April 2025, a head of inside sales emailed the HR team asking that the worker's systems access be deactivated:
"Can we please cancel/deactivate [the worker's] systems access ASAP, she is off work for a month on sick leave and we don't wish for her to be able to use company systems."
A senior HR advisor replied asking whether this had been communicated with the worker first.
The head of inside sales replied: "Yes all good to proceed to deactivate, if anything changes we can reactivate. Not the first time this has happened for [the worker] [smiley face emoji]."
Disputed conversation between parties
On 2 May 2025, the worker was due to receive her pay, but did not receive any money. She contacted the employer regarding this issue and was later informed that there had been a payroll error.
On 5 May 2025, the manager called the worker. The employer stated that the conversation was a "welfare check" as the worker was on an extended period of personal leave. The worker denied that the call was a welfare check and stated that it was regarding the payroll issue.
During the course of this conversation, the manager stated that the worker "inferred" that she was resigning.
The manager indicated in testimony: "As part of that, as all employees, we check and make sure their welfare is okay. And during that conversation, [the worker] made it very clear, as per the statement, that she was looking to move to a fly-in-fly-out and continue to run her sales [training] business, and she did not care about her job or what we thought."
The worker contested this characterisation of events and stated that the manager told her words to the effect that taking extended periods of leave "does not look good for your reputation or your career."
The worker denied stating that she did not care what the employer thought. Instead, she said that she used the words "my career and my reputation are not my priority at the moment."
The worker denied mentioning her business during the conversation with the manager. The manager denied stating that the leave the worker was taking didn't "look good".
Later in the day on 5 May 2025, a board sales director emailed the worker:
"Dear [worker], [The manager] told me earlier that you have resigned today with immediate effect, advising that 'you do not care about your future career or what the company thinks of you'. As this is your second conversation regarding resigning from your position, this email is to acknowledge and confirm acceptance of your immediate resignation."
Worker disputed resignation
According to evidence, there was a company practice to conduct a data check prior to releasing emails, which could sometimes cause a delay.
The Commissioner accepted that the director sent the email on 5 May 2025 at 9:28 pm, but the worker did not receive the email until 8 May 2025 at 12:49 pm.
On 7 May 2025, the worker received a text message from the employer's administration officer to make arrangements for the return of company property.
The worker replied: "Im on sick leave at the moment I haven't resigned or been fired (yet). I can't seem to get a straight answer from anyone either."
The employer's administration officer replied, noting a "leavers form" had been signed by the manager and the head of inside sales, noting that the worker had resigned. The worker stated, "Nope, didn't resign".
The manager explained during the hearing that a leaver's form was for asset management, and it was company practice to upload a blank document when an employee resigned verbally, and there was no resignation letter to upload.
On 7 May 2025, the worker emailed various members of the employer's staff entitled 'Letter of Demand for Outstanding Wages and Clarification of Employment Status'.
The email stated: "I also wish to state clearly that I have not resigned from my position. I am aware that a leavers form has been backdated to falsely imply that I resigned, and I reiterate that this is inaccurate, contrary to internal policy, and unlawful."
On 9 May 2025, the worker replied to the director's email stating: "It seems you have either been misinformed, blatantly misled or feigning ignorance to continue a false narrative."
The worker said: "I mentioned to [the manager] that 'my career and reputation can not be my priority under my current circumstances' when threatened that my absense (sic) would affect both." The worker lodged her general protections application on 23 May 2025.
Objective test for resignation
The FWC examined whether the worker resigned. The Commissioner stated: "It is well accepted that the fact of resignation is an objective question."
The Commissioner referred to case law, which said the question did not depend upon the parties' subjective intentions or understandings, but rather what a reasonable person in the position of the parties would have understood was the objective position.
The Commissioner stated: "I find it probable that the [worker] did use words to the effect of 'I don't care' regarding her career or what the [employer] thought of her. This is consistent with the [worker's] evidence that she was under stress at the time, and she was also agitated regarding the payroll issue."
The Commissioner stated: "The [worker's] statement that she does not care what the [employer] thinks of her is disrespectful, particularly when considering the steps taken by the [employer] to accommodate her relocations. That being said, I understand the [worker] was experiencing personal issues at the time. However, the [worker's] statement does not rise to the level of a clear and unambiguous intention to resign."
The Commissioner stated: "I find that the [employer] formed a subjective view that the [worker] wanted to leave. Whether this is correct or not is beside the point. Taking [the manager's] evidence at its highest, the [worker] indicated that she did not care about her job and that she wanted to work on her business. Inferring that one wants to leave their job is different to an employee actually stating that they are leaving."
The Commissioner stated: "The [worker] did not clearly or unambiguously state that she resigned. An enquiry regarding whether her notice period could be paid out does not get to the threshold of a resignation. At the time, the [employer] advised that further approvals would have to be obtained for the notice to be paid out and, subsequently, there was no follow through by the [worker]."
The Commissioner stated: "The [employer] acted in haste. Perhaps the [worker's] attitude and approach to the situation was not entirely professional and the [employer] was frustrated with the [worker], however, these are not reasons that should be considered when determining whether there was a resignation in fact."
The Commissioner stated: "I find that the [worker] did not resign. Therefore, the [employer's] decision to 'accept' the [worker's] resignation on 5 May 2025 was a dismissal within the meaning s.386(1) of the Act. The [worker's] employment was ended at the initiative of the [employer]."
The jurisdictional objection was dismissed, and the matter would be scheduled for a conference.
