Worker's text message becomes crucial evidence in deciding case
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed an unfair dismissal case as she was allegedly forced to resign because of her employer's conduct.
In its defense, the employer contended that the worker resigned on her own initiative and it had no intention to dismiss the worker.
Was she forced to resign?
Prior to the case, the worker commenced employment with the retail company on 18 February 2022 as a store team member, considered a substantive role.
Almost a year later, the worker was offered to undertake a temporary placement as a full-time team leader at the company's Emerton store (secondment role) between 16 January 2023 and 19 February 2023.
The worker then started the secondment role. However, after two weeks, the store manager raised performance issues concerning the worker.
As a result, the employer provided her with two options: a) Immediately return to her substantive role from 7 February 2023 b) Remain in the Secondment Role (and be paid at the Secondment Role rate of pay) until the end of the secondment (i.e., 19 February 2023), and after that return to the Substantive Role.
However, from 7 February to 19 February 2023, the worker would not be required to act as a team leader.
Consequently, around 6 and 7 February 2023, the worker sent a message to the employer saying, "After consideration from our chat, I've decided it would not benefit my mental health to return to woolies, I will send back my uniforms & name badge in via post." The employer then replied that the worker's resignation would be processed immediately.
However, the worker said, "I didn't resign, you terminated me ... your exact words were ... you have a choice be terminated now or be terminated at the end of your contract on the 19th."
Meanwhile, the employer argued that its actions regarding its communication with the worker could not be interpreted as having the possible result of ending the worker's employment.
FWC's decision
"The [worker] resigned of her own initiative, and subsequently confirmed her intention to resign after the [employer] sought to clarify her decision directly with her," the FWC noted.
Ultimately, the Commission found that the worker was neither forced to resign nor dismissed by the employer.
It further noted that the worker's interpretation of the employer’s offer was "entirely misconstrued."
"Neither of those options could be taken to be a termination of the role, or a forced resignation by the [employer], including because it was evidently always the intention of the [employer] for the [worker] to continue their employment," the FWC said.
The Commission further noted that the worker's text message in which she resigned from employment used "unambiguous words, " which the employer was entitled to treat as an effective resignation that operated to end her employment.
