What happens when a worker's resignation comes after dismissal?

Case resolves whether employee was unfairly dismissed or simply resigned

What happens when a worker's resignation comes after dismissal?

The Fair Work Commission (FWC) recently dealt with a case involving a worker who alleged he was unfairly dismissed from work even when it was agreed that he would resign from his employment. 

Meanwhile, the employer argued that no unfair dismissal took place as his “resignation was accepted” by the company.

Was there a dismissal?

On 1 March 2023, the worker was notified in a meeting that his employment would be immediately terminated mainly because he failed to meet his sales target for February 2023 and earlier targets.

During the meeting, the worker tried to save his job by depending on sales he said were about to be crystalised.

However, on 6 March 2023, the worker contacted the regional human resources officer and “issued an ultimatum” that he be allowed to resign “for professional reasons.”

He further said that the company must pay him his owed commissions to avoid an unfair dismissal claim. The worker then provided a letter of resignation dated 1 March 2023.

The following day, the employer agreed to allow the worker to resign and issued a revised letter confirming his resignation.

In its submission, the employer contended that the worker was not dismissed because his “resignation was accepted… on 7 March 2023.”

Hence, the employer argued that it revoked the previous termination discussed during the meeting in circumstances when payment in lieu of notice had not yet been made.

It further said that the worker’s employment ceased on 1 March 2023 and that there was no rehiring of the worker. Instead, there was merely an agreement to change the worker’s employment records to reflect a resignation rather than a dismissal.

Meanwhile, the worker initially contended that the termination of his employment was only effective once the payment in lieu of notice was made. Hence, according to the worker, his unfair dismissal application on 4 April 2023 was within time.

However, in its final submission, the worker conceded that his dismissal took effect on 1 March 2023, and it was up to the Commission to determine whether there were any exceptional circumstances to allow for an extension.

“I am no longer seeking for my dismissal to be reversed, as the company has allowed my resignation to take effect instead of a humiliating termination,” the worker stated in his F2 Application.

“I am seeking the second half of my owed commissions, which [the employer] withholds for more than 12 months after the date a deal closes,” he added.

HRD previously reported on a case involving a worker claiming he was dismissed even before his employment began. In its defence, the employer contended that the worker was not dismissed as he was not an employee in the first place.

FWC’s decision

In deciding the case, the Commission noted that the employment relationship ended at the employer’s initiative and that the worker was dismissed on 1 March 2023.

Since the worker was dismissed and his unfair dismissal application was lodged beyond the 21-day time limit, the Commission had to decide whether to allow an extension which it did not.

“[The worker’s] decision to try and negotiate a settlement of his commission claims instead of commencing an unfair dismissal application is not a credible or reasonable explanation for the delay,” the FWC stated.

It also did not find the worker’s contention that his mental health was a reason for his delay as sufficient reason to grant an extension since no medical evidence was provided to support such a proposition.

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