FWC cites employer's 'miscommunication and confusion' in addressing dismissal claim
The Fair Work Commission (FWC) recently dealt with a worker’s dismissal claim, alleging that her employer mistakenly issued a separation certificate even though she did not request it.
The worker argued that the employer’s conduct caused her termination while she was on unpaid sick leave.
The worker started working for the employer in March 2017, initially within the Drug and Alcohol Support team and acted as a part-time placement support officer.
In January 2023, the employer initiated an informal performance review of the worker. In March 2023, the worker began a period of personal leave, which extended until 10 March 2023.
A few days after her return to work, she was invited by her supervisor, Melissa Harris, to attend a meeting addressing concerns about her performance.
This meeting occurred on 15 March, attended by the supervisor and the worker's manager, Michelle Leggett. During this meeting, the worker was presented with a formal performance improvement plan.
Subsequently, she met with the Acting Chief Executive Officer, Daniel Yasso, and expressed her inability to continue working with her manager, indicating her intention to leave. Yasso encouraged the worker not to resign.
Worker never came back to work
The worker left work on the afternoon of 15 March 2023 and did not return to work. The employer claimed that around this period, the worker informed other employees of her resignation.
On 17 March 2023, the worker submitted a medical certificate to the employer, stating her unfitness for work from that date until 5 May 2023.
On 21 March 2023, the worker completed a two-day theoretical traffic control course at a different institution. She informed the CEO, Yasso, who offered to cover the course costs.
After a few days, on 24 March, Yasso informed the worker that her desk had been cleared and she would receive the equivalent of three weeks' wages.
The worker stated that she had not resigned. About one week later, Yasso called the worker to inquire if she planned to return to the office. The worker informed him of her decision not to return.
Both parties agreed that after the worker left work, she utilised her personal and annual leave, which would be exhausted on 18 April.
On 21 April 2023, three days after her leave entitlements were spent, the worker contacted the employer's Corporate Finance Officer, Deborah Ahmann, regarding her payslips.
During this conversation, Ahmann mentioned that a separation certificate would be prepared for the worker. The separation certificate, dated 26 April, was subsequently issued.
The worker said she did not request a separation certificate
The origin of the separation certificate is the main issue in the case since the worker claimed that she was left surprised at the mention of the certificate. She insisted that she did not request it.
She asked Ahmann about the reason for the separation, and the latter replied with: "the usual reason." Consequently, the worker believed that the employment relationship had ended at the initiative of the employer.
On the other hand, the employer argued the separation certificate was issued at the worker's request, adding that the worker had informed other employees of her resignation when she left work on 15 March. The employer rejected the worker’s position that it terminated the employment relationship by referring to or issuing the separation certificate.
HRD previously reported about a dismissal claim from a worker who said she was fired after her employer texted her “all the best for the future,” coupled with a request to return the company’s keys and shirt.
Did the employer’s ‘confusion’ bring about employer’s termination?
In its decision, the Commission noted the employer’s admission that there “had been miscommunication and confusion amongst the internal departments of the [employer] in relation to the [worker’s] employment status.”
The employer argued that “it was ‘common knowledge’ within the [employer] that the [worker] had resigned.”
It also said the worker “requested a separation certificate to be completed,” but the worker said that she “did not request a separation certificate.”
The Commission said that “the issuing of the separation certificate had the probable result of bringing about the termination of the employment by the [employer] even though they may have not intended to.”
“The [worker] was still on sick leave until the separation certificate was issued, and this was approved by the [employer],” the FWC said.
“The issuing of the separation certificate by the [employer] ended the employment relationship. The [worker] would have still remained in the employment relationship had the separation certificate not been provided.”
Thus, the Commission ruled that the worker was dismissed by the employer’s initiative and referred the matter for conference.
