Employer issued termination then attempted rescission. Did the worker truly resign?
The Fair Work Commission (FWC) recently dealt with a jurisdictional dispute involving whether a worker had resigned or been dismissed from her position.
The case centred on whether an employer could unilaterally withdraw a termination notice without the worker's consent.
The worker argued she had been forced to resign after her employer issued a termination notice and then attempted to rescind it days later.
She maintained that the stress of receiving conflicting messages about her employment status, combined with concerns about damage to her professional reputation, left her with no choice but to resign.
The employer disputed this version of events, arguing the worker had voluntarily resigned and was therefore not dismissed within the meaning of the Fair Work Act 2009.
The worker started employment as a social worker at Blissful Ways Wellness Services in August 2024. The director initially found her performance satisfactory, but concerns emerged after a six-month performance review in February 2025. During this review, the worker indicated an intention to resign from May 2025.
However, the worker later argued this should not have been taken as a definitive resignation. She explained she was in an "unsettled state of mind while answering the prompts in the review" and that the director "did not attempt to formalise what [the director] believed to be a resignation with her."
The director gave evidence that "after the February 2025 meeting and leading up to April 2025, there was a significant decline in her performance." Throughout March 2025, the director documented ongoing concerns through email correspondence about client attendance rates and the worker's emotional state during workplace discussions.
On 9 April 2025 at 8:32pm, the director issued a formal notice of termination to the worker, citing performance concerns. The notice specified that the worker's final day would be 16 April 2025.
The director described her decision as "a direct response to documented performance concerns," though she acknowledged it could be considered "heat of the moment, driven by mounting frustration."
Over the weekend, the director began reconsidering her decision. She gave evidence that she "spent a lot of time thinking about what happened" and "started to think maybe there was something she missed, and she didn't just want to give up quickly."
At 12:17am on Saturday 12 April 2025, the director sent an email attempting to rescind the termination notice. The email indicated that the worker was expected to continue employment and included an apology for how the termination was communicated.
The worker's response to both the original termination and the attempted rescission was severe. She gave evidence of experiencing "acute stress reactions presenting as physiological manifestations" after reading the rescission email. On 12 April 2025, the worker attended a doctor to document her symptoms.
Her medical evidence showed she was suffering from "panic attacks, facial twitching, persistent nausea and dry retching" as a result of the workplace situation.
The worker explained that she "understood that a termination initiated by [the director] could significantly damage her future employment opportunities."
On Monday morning, 14 April 2025, the worker emailed the director saying she was unwell.
Later that day, at 4:31pm, she submitted her resignation effective 21 April 2025, accompanied by a medical certificate stating she was unable to work up to and including 21 April 2025.
The FWC considered whether the worker had consented to the withdrawal of the termination notice. Under employment law, an employer generally cannot unilaterally rescind a termination notice without the employee's agreement.
The FWC noted that English was not the worker's first language, observing that "it appears reasonably clear from the evidence that [the worker] did not understand that once a valid notice to terminate her employment had been communicated to her, that generally an employer cannot unilaterally rescind its decision, and it requires the consent of the employee for it to be withdrawn."
The worker explained her decision: "On Monday 14 April 2025 I was left no other choice but to resign on my initiative to prevent [the director] from potentially harming my prospective employment opportunities, in conjunction with acute stress reactions I was experiencing at the time."
The FWC rejected the employer's argument that the worker had effectively consented to the rescission.
The Commission found that "the reason [the worker] submitted the resignation was because she held a subjective belief that she needed to resign to protect her own health."
The FWC determined that the worker "never actually consented to the withdrawal of [the employer's] decision to terminate her employment."
Consequently, the FWC ruled: "As [the worker] never consented to the withdrawal, her dismissal came into effect in accordance with the dismissal notice, on 16 April 2025. This was a termination of employment within the meaning of s.386(1)(a)."
The Commission concluded: "As I have found [the worker] was dismissed within the meaning of s.386(1)(a), the application is within the jurisdiction of the Commission and will be listed for a conference." This ruling allows the worker's unfair dismissal application to proceed.
