Dismissal took effect almost 8 weeks earlier than agreed resignation date
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a worker in relation to his employment with a software company.
On 28 August 2025, the worker applied for an unfair dismissal remedy under section 394 of the Fair Work Act.
Under the Act, a person who has been dismissed may apply to the Commission for an unfair dismissal remedy.
The dismissal must have taken effect by the time the application is made, which must be within 21 days after the dismissal took effect, or within such further period as the Commission allows.
A person has been dismissed if one of the circumstances described in section 386 of the Act is made out.
Those are, in summary, either that the person's employment with their employer has been terminated on the employer's initiative, or the person resigned from their employment but was forced to do so because of conduct or a course of conduct engaged in by the employer.
The question was whether the worker was dismissed for the purposes of termination on the employer's initiative.
Resignation and extended notice period
It was not in dispute in this case that the worker was employed from 11 September 2023 until 8 August 2025. It was also not in dispute that the worker resigned from his employment on 8 July 2025.
The resignation was given in a meeting between the worker and the employer to discuss concerns about his employment, during which it was agreed that his resignation would take effect on 30 September 2025.
The parties agreed that this period of notice was longer than required under the worker's contract of employment.
It was nevertheless a period of notice agreed between the parties and confirmed in writing by the employer as being a decision in their mutual interests.
The worker agreed to this in writing by reply email on the same day.
On 8 August 2025, the employer reneged on the agreement for a longer period of notice by advising the worker that it was best if he left straight away.
This was not an outcome agreed with the worker and the Commissioner did not accept evidence to the contrary.
On the evidence of the employer, particularly the evidence of the head of product and delivery, it was a decision made by the head of product and delivery.
Once made, the decision was not negotiable and nor was the subsequent offer of a Deed of Release to reflect the change in outcome accepted by the worker.
The Commissioner stated: "I do not accept the submission that bringing forward the date of termination was consistent with the notice period required under [the worker's] contract of employment. Had [the worker] given notice in accordance with his contract of employment, the period of notice he would have been required to give was arguably 2 weeks (in accordance with s. 117 of the Act)."
"Although the Schedule to the contract refers to a 4 week notice period, this finds no support in the body of the document. Further, the period between [the worker's] resignation and date of termination was 4 weeks and 4 days, which was longer than the 4 week notice period asserted by [the employer]," the decision added.
Dismissal finding made
The Commissioner also did not accept that the worker's conduct after his resignation voided the agreement to extend his notice period to 30 September 2025.
No conditions on the agreement to extend the notice period of the kind asserted by the employer were made out on the evidence.
The Commissioner stated: "I find that [the worker's] employment ended immediately upon communication of the decision to end his employment on 8 August 2025. The decision to bring forward the date of termination to 8 August 2025 was the act that brought the employment relationship to an end. This was the act of [the employer] and it resulted in termination on the initiative of the employer."
The Commissioner stated: "It may be accepted that had [the employer] not acted as it did, the employment would likely have ended by [the worker's] resignation on 30 September 2025. But the question of whether [the worker] has been dismissed is to be considered through the lens of when the dismissal took effect, which in this case, was almost 8 weeks earlier, on 8 August 2025. At that time, [the worker's] resignation had not yet taken effect."
The Commissioner stated: "For these reasons, I find that [the worker] has been dismissed. The jurisdictional objection fails."
