Employer argues she resigned because she was 'unwell'
The Fair Work Commission (FWC) recently dealt with the dismissal claim of a manager who said she was fired during her notice period. She said she was effectively dismissed when the employer did not pay the balance of her personal leave.
Meanwhile, the employer argued that the employee experienced medical issues that rendered her incapable of completing her notice period and denied that she had any unused leave.
The worker started working as an office manager in April 2022. According to her, the employer's business experienced substantial growth from her start date until the end of June 2023. This expansion led to increased monthly invoicing and accounting-related responsibilities.
Tension with management and the worker’s medical condition
In mid-June 2023, a meeting took place involving the worker and several colleagues. The worker claimed that the management became upset due to the delay in sending out invoices for a specific project.
The worker became emotional during the meeting, expressing her distress by saying, "I cannot do this anymore, I don't need this. I don't need all this stress."
In contrast, a colleague said the management expressed concern about the delayed invoice but did not appear upset.
Toward the end of June, the worker underwent her performance review. Although she initially intended to resign, she reconsidered due to her financial situation. At the end of the review, she received positive feedback.
Shortly after, the worker informed the management about her decision to leave the company. The latter requested her to submit her resignation in writing. Consequently, the worker sent her formal resignation letter a few hours later. Her last day at work was 17 July 2023.
Following her departure, on 18 July 2023, the worker provided the employer with a medical certificate, citing her unfitness to work for the remaining notice period.
According to records, dispute arose regarding the worker's accrued personal leave. The employer argued that, at the time of her resignation, she had exhausted her personal leave entitlements. In contrast, the worker maintained that she still had personal leave available.
The evidence showed that the worker was physically incapable of fulfilling the remainder of her notice period, which the employer was entitled to request, given her health condition.
HRD previously reported about a manager who said he was fired after his employer saw “negative” messages that he sent on Microsoft Teams. Meanwhile, the company said he resigned on his own.
In another case, a worker said he was dismissed after he gave his resignation notice. On the other hand, the employer said it noticed significant performance issues after the worker handed in his intention to resign.
Was there forced resignation during the notice period?
According to the worker, she was effectively dismissed because the employer did not pay her for the balance of her notice period, emphasising her entitlement to what she believed was her "unused" personal leave.
In contrast, the employer said that she was dismissed and argued against the necessity of payment for the notice period, citing that she was “unwell” and denied any available paid personal leave.
“There is no question that [she] resigned,” the FWC said in its decision.
“[She] had a positive performance review only days before she resigned. Further, her resignation letter makes no suggestion of being forced to resign. On the contrary, the resignation letter is positive about her time with the [employer].”
“Finally, she had been working through her notice period until she became unwell. While the [worker] said she was subjected to bullying and an excessive workload, there is no evidence of a course of conduct of the employer that supports a finding that [she] was forced to resign,” it added.
“[The worker] provided a medical certificate clearly indicating she would not be able to work the remainder of her notice period. This is not a case where the [employer] unilaterally shortened the notice period given by the [worker].”
“The dispute about the entitlement to paid personal leave, then, does not change the undisputed facts that the [worker] resigned and was unable to work the balance of her notice period,” the Commission said. Thus, it ultimately rejected the manager’s application against the employer.