Worker misheard hours reduction and became extremely upset—clarified the next day that she wanted to keep her job, but the employer refused
A receptionist who worked three days per week at a podiatry clinic told her employer she may as well quit during a heated discussion after misunderstanding his statement about reducing her hours.
The employer had told her he was cutting her hours to 2.5 days per week but she thought he said "two half days" per week and became very upset.
The receptionist sent an email the following day clarifying the confusion and stating she would like to continue her employment, but the employer replied two days later saying he felt it was in the best interests of both to stay with the decision she made.
Employer sent receptionist home early
The receptionist was employed from 2019 on a part-time basis, three days per week. The employer operated a podiatry clinic and employed the receptionist and one other employee as receptionists.
The employer advised the receptionist to go home for the afternoon as no patients were scheduled.
She asked if she was going to be paid for the afternoon and was told by the employer that she was not.
A short time later, the employer also informed her he was going to cut her hours back to 2.5 days per week.
The receptionist misheard him and thought he said "two half days" per week. She became very upset and a short, heated discussion then took place, in which the receptionist told the employer that she may as well quit.
She said she was extremely upset and anxious. The receptionist left the premises a short time later.
Employer emailed about ending relationship
The employer sent an email to the receptionist saying he was sad and sorry they ended their employer-employee relationship the way they did.
He stated she had always been his best employee and he respected her for her work ethic and helping him in circumstances out of her work scope.
He explained the reason he cut her hours this winter only was because business was considerably down this year so he had to cut costs, and wages and superannuation were his biggest expense and had been increasing every year. He stated he understood this did not help her and it was right that she look for another job.
The receptionist replied, stating she too was saddened by what happened, and it was not her intention to react the way she did, but felt he put her in a position that was not in the best interest of either of them.
She explained what she heard him say was that he was cutting her hours down to two half days not 2.5 days hence why she was taken aback. She stated she would like to continue her employment and was happy to discuss the reduced hours in a more conducive environment.
Employer refused to accept withdrawal
The employer replied, thanking her for the email and saying he thought they were both upset their working relationship ended the way it did. He stated, however, it had enabled him to reevaluate his situation with the current cost of living crisis and his practice winding down.
He explained the business cash flow had reduced more than normal, and as she was aware, he was entering the last year of his working life. He stated he had decided to reduce the overall hours the reception desk was manned and therefore felt it was in the best interests of both to stay with the decision she had made.
The receptionist sent an email asking for clarification regarding her employment. She stated there was confusion in the conversation regarding the hours, and in that discussion, she said a few things she didn't mean to convey and clarified in her email, advising that she would like to continue her employment and did not wish to resign.
She stated that her understanding of his email was that, due to the company restructuring, her position had been made redundant, and asked him to confirm her notice of termination formally.
Receptionist turned away from workplace
The receptionist attended the workplace. She said the employer was sitting at the reception when she arrived, and she started unpacking her bag. The employer told her she had no right to be there because she had resigned and asked her to leave.
The receptionist says she told the employer she had not formally resigned and had a right to be at work. The employer then asked her to return the keys to the clinic and leave, which she did.
Later that day the employer sent an email stating he raised with her returning to her original hours of 2.5 days per week during winter when historically business was slower. He stated that at that time, it was very clear he was talking about returning to 2.5 days per week, not two half days per week, which she had since claimed and made no sense.
He stated she immediately resigned without notice, which he accepted, and she further clarified this by clearing out her desk before leaving. He stated that, as an employer, he had the right not to accept a withdrawal of resignation if he thought it was in the best interests of the business, and he did not think her position was tenable after her reaction.
Heat of moment resignation found
The receptionist submitted her resignation was given in the heat of the moment. The employer submitted that he accepted her resignation on the day it was given and chose not to accept the withdrawal of her resignation because she had not apologised for the way she had spoken to him, and there was a history of increasingly disrespectful behaviour.
The commission found there may be a dismissal where the employee has given a resignation in the heat of the moment or when the employee was in a state of emotional stress such that the employee could not reasonably be understood to be conveying a real intention to resign.
In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination at the initiative of the employer.
The commission found the evidence supported a finding that the receptionist's resignation was given in the heat of the moment and she did not genuinely intend to resign.
In particular, she sought to clarify with the employer the following day that she had misunderstood what he had said and clearly stated she did not wish to resign. The commission was satisfied this constituted a termination of her employment at the initiative of the employer.
Dismissal found harsh and unfair
The commission found the receptionist was dismissed because her resignation was given in the heat of the moment and she did not genuinely intend to resign. The reason for her dismissal was therefore not due to her conduct or capacity.
The employer was a small business with no dedicated human resources expertise and this impacted on the dismissal because the employer genuinely believed he was entitled to accept the receptionist's resignation in the circumstances.
Having considered each of the required matters, the commission was satisfied the receptionist's dismissal was harsh and therefore unfair. This was because the receptionist did not intend to resign. The commission found reinstatement was inappropriate and an order for payment of compensation was appropriate.
The evidence was clear the employer's business had ceased operating around five weeks after the receptionist's employment ended. In these circumstances the receptionist's employment could not have extended beyond a further five weeks. The receptionist had had around eight years of service with the employer.
The commission was satisfied the receptionist would have received a further five weeks' pay, that being the likely length of her employment had she not been dismissed.
The commission ordered the employer pay the receptionist five weeks' pay being $4,090.50 gross less taxation required by law to be paid within 14 days based on an average of 22.5 hours per week.
