Worker argues employer misinterpreted actions as resignation without clarification
The Fair Work Commission (FWC) recently examined a general protections claim involving a part-time film producer who argued she was dismissed from her employment at a small film studio after workplace tensions and disagreements.
The case arose when the worker collected her personal files from the employer's server and allegedly told a colleague she was "leaving," leading to a dispute over whether she had resigned or been dismissed.
The worker argued she had been dismissed, maintaining that despite the employer's assertion that she had resigned, her actions could not be understood as conveying an intention to resign.
She contended that the employer used assertive language and deactivated her work accounts without properly clarifying or confirming whether she genuinely intended to resign.
The employer contested the worker's claim, raising a jurisdictional objection that there was no dismissal as the worker had resigned from her employment.
The company argued that, based on her telling a colleague she was "leaving" and beginning to transfer personal files, it was reasonable to conclude she was resigning from her position.
Workplace tensions escalate
The employment relationship involved a filmmaker and producer employed on a part-time basis as a producer for a small film studio owned and run by the respondent.
She worked a couple of days per week with varied duties including administrative and project work, broader business functions, and opportunities for creative work, while also storing her personal feature film project on the company's server.
From 13-16 January 2025, the worker was involved as an employee in managing a filmmaking workshop.
On the second day, she had a disagreement with the respondent's partner, who was also an employee. The worker stated she felt she was being "bullied and undermined" throughout the project by the partner.
On 25 January 2025, the respondent sent the worker an email regarding her timesheet, stating she had been spending more time on tasks than allocated and requesting approval for work beyond allocated hours.
The respondent said: "I can understand your desire to work longer on these short film and series projects to make them better, but we only have a specific amount of time/wages allocated." The worker submitted 48.5 hours for the week, but only 32 hours were approved.
Project disputes intensify workplace tensions
The worker felt offended by the timesheet email and requested a private meeting, feeling the respondent was not accommodating her disability which caused her to spend more time on tasks.
She texted on 27 January asking whether she was needed that week or if they should wait for a meeting, to which the respondent agreed to hold off until he returned to the office on 5 February.
The worker was also working on a freelancing project called "Yompers" in which she was not acting as an employee.
She had requested that the respondent's partner not be involved in this project, but the partner was brought onto the set on 2 February 2025.
The worker said she felt forced to leave the set, claiming the partner was "barking orders at her" and threatened to hit her.
The worker felt her authority had been undermined and that discussions were manipulated, arguing the respondent did not support her.
She called her husband who came to take her home, and she produced an incident report about what happened, though she never sent it to the employer.
File collection triggers resignation assumption
On 4 February 2025, the worker went to the workplace at 10:00am to download her personal feature film project stored on the company's servers.
The respondent had given permission for her to store large video files and undertake post-production work using company software outside contracted hours.
Her husband had expressed concern that the respondent and his partner might delete the feature film.
When the worker arrived, she spoke to another employee who was editing at the time. According to her account, she said words to the effect:
"You know how [the partner] was at the workshop? Well, [the respondent] brought her onto Yompers on Sunday and it got so bad had to leave... I'm going to start downloading my Wicked Faith stuff and go somewhere else to wait before [the partner] gets back."
However, the employee provided evidence that the worker said words to the effect: "I've come in to get my files because I am leaving."
He confirmed this under cross-examination, stating he was not surprised by her statement because he thought the project was a "shambles." The worker said she did not recall saying she was "leaving."
Employer responds to perceived resignation
After the worker began a file transfer and left the workplace, the employee called the respondent around 12:00pm and told him the worker had spoken with him and was collecting her files "because she was leaving."
When the worker returned to the office at 1:00pm and encountered the partner, she was told: "[The respondent] has told me to tell you that you are not allowed to work here until he has a meeting with you."
The worker later texted the respondent requesting that her files not be deleted, expressing fear about losing her film. The respondent replied:
"Hey buddy. No one wishes you ill will here buddy but I can't have a conversation about this until tomorrow." After further exchanges, he texted:
"Hey buddy, I just spoke with Josh and understand what's happening now. Obviously, that is totally fine. And of course I still want you to finish that film and get it out for sale."
The worker's work account access was deactivated on 5 February 2025, leading her to believe the meeting was to "facilitate" her dismissal.
The respondent stated he formed the view, based on her arriving late, telling the colleague she was "leaving" and starting a file download, that she was planning to resign.
Meeting confirms resignation interpretation despite recording
The worker met with the respondent at 9:15am on 6 February 2025 with her husband as support. The worker provided a detailed description of the meeting, which the respondent noted appeared very accurate.
It was later revealed the meeting had been covertly recorded by the worker's husband, which the FWC noted "casts doubt upon her level of honesty with the Commission."
According to the worker's account, the respondent said: "Now is a good time to move on and go our separate ways. It's just not a good fit at this time... I understand you told Josh that you're leaving so I believe you've already made your mind up about that."
The worker stated she was surprised by the assertion that she had resigned and did not provide verbal or non-verbal response to this statement.
Following the meeting, the worker received an email stating: "As you are resigning I would like to take the time to thank you for helping support [the studio] and our interests."
The worker did not reply stating she had not resigned, and when she requested a separation certificate on 26 February 2025, the respondent provided one noting voluntary resignation as the reason.
FWC examines objective resignation evidence
The FWC applied an objective test for determining dismissal, noting that "the fact of dismissal is to be determined objectively by reference to all relevant circumstances. It is not determined subjectively based on whether an employer intended or did not intend to dismiss or whether an employee believed they had or had not been dismissed."
The Commission found it immaterial what the worker actually said to the colleague, stating: "What is relevant is what [the respondent], as the employer, conveyed his understanding of the situation to be."
The FWC noted the worker "had a clear opportunity to correct [the respondent's] understanding" during the meeting, after receiving the resignation email, and when provided the separation certificate.
The Commission rejected the worker's claim that the respondent took no steps to clarify whether she was resigning, finding:
"The Respondent presented his understanding to [the worker] during a meeting, and she did not correct him. Any claim of supposed 'minimal opportunities for reciprocal dialogue' is rejected. A conversation goes two ways."
Application dismissed on voluntary resignation grounds
The FWC found that "on an objective assessment, it was entirely reasonable for [the respondent] to form the view that [the worker] was resigning" based on the colleague's report, her beginning to transfer personal files, and her failure to correct the respondent's understanding during multiple opportunities.
The Commission concluded: "I find that a reasonable person would interpret [the worker's] conduct to mean that she was resigning."
The Commission also considered whether this was a forced resignation, noting the worker alleged she was "forced out" but did not provide a clear answer when asked to clarify this argument.
The FWC found: "[The respondent] did not undertake a course of action designed to force a resignation and, although there were several disagreements during a creative project, these incidents do not rise higher than ordinary workplace disagreements."
The FWC concluded: "I have found that [the worker's] conduct over 4 February 2025 to 6 February 2025 would convey to a reasonable person that [the worker] resigned. [The worker] was not dismissed within the meaning of s.386(1)(a) of the Act... Therefore, [the worker] is not eligible to lodge an application under s.365 of the Act. The jurisdictional objection is upheld, and the Application is dismissed."
